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Against a constitutional amendment banning gay marriage:

Today the Cato Institute is publishing a paper I've written on why a federal amendment banning gay marriage is a bad idea, even if you oppose gay marriage. Of course, if you think recognizing same-sex marriages is a good idea, that's a strong reason by itself to oppose an amendment banning them. This paper is written for conservatives and moderates who either oppose or are unsure about same-sex marriage. Here's the executive summary:

Members of Congress have proposed a constitutional amendment preventing states from recognizing same-sex marriages. Proponents of the Federal Marriage Amendment claim that an amendment is needed immediately to prevent same-sex marriages from being forced on the nation. That fear is even more unfounded today than it was in 2004, when Congress last considered the FMA. The better view is that the policy debate on same-sex marriage should proceed in the 50 states . . . .

A person who opposes same-sex marriage on policy grounds can and should also oppose a constitutional amendment foreclosing it, on grounds of federalism, confidence that opponents will prevail without an amendment, or a belief that public policy issues should only rarely be determined at the constitutional level.

There are four main arguments against the FMA. First, a constitutional amendment is unnecessary because federal and state laws, combined with the present state of the relevant constitutional doctrines, already make court-ordered nationwide same-sex marriage unlikely for the foreseeable future. An amendment banning same-sex marriage is a solution in search of a problem.

Second, a constitutional amendment defining marriage would be a radical intrusion on the nation's founding commitment to federalism in an area traditionally reserved for state regulation, family law. There has been no showing that federalism has been unworkable in the area of family law.

Third, a constitutional amendment banning same-sex marriage would be an unprecedented form of amendment, cutting short an ongoing national debate over what privileges and benefits, if any, ought to be conferred on same-sex couples and preventing democratic processes from recognizing more individual rights.

Fourth, the amendment as proposed is constitutional overkill that reaches well beyond the stated concerns of its proponents, foreclosing not just courts but also state legislatures from recognizing same-sex marriages and perhaps other forms of legal support for same-sex relationships. Whatever one thinks of same-sex marriage as a matter of policy, no person who cares about our Constitution and public policy should support this unnecessary, radical, unprecedented, and overly broad departure from the nation's traditions and history.

The paper goes into some detail responding to the common arguments for a federal amendment on this issue, most prominently the facile judicial-activism argument. You can read the whole thing here. While there is a reasonable (though ultimately unpersuasive) argument to be made against gay marriage as a policy matter, the case for a constitutional amendment is very weak. And it is weak for good conservative reasons.

I'll be in Washington on Monday speaking to Cato and the Center for American Progress, as well as to congressional staff, about the proposed amendment. When the schedule is available publicly, I may update this post to let you know more.

UPDATE: A number of commenters have made responses and criticisms based solely on reading the short summary of the paper provided above. The paper itself goes into some detail on almost all of the criticisms made — for example, on questions of how and why the fear of judicial activism on this issue is overstated, why and how the amendment is unprecedented in our history, and just how broad its reach may turn out to be. I encourage readers, once again, to read the whole thing before commenting.

One error in the comments, in particular, needs more detailed attention because it illustrates how some supporters of a federal amendment have deployed misleading arguments about judicial activism. This particular error repeats the common mistake of claiming that Lawrence v. Texas led to the result in the Massachusetts marriage case, Goodridge v. Dep't of Public Health. As I point out in the paper, Lawrence has been read very narrowly by other state and federal courts (often too narrowly in my view). No federal court anywhere at anytime has ordered the recognition of any gay marriage. While the Goodridge court cited Lawrence a handful of times for unexceptional propositions in its 30-page opinion, the opinion is remarkable for its lack of substantive reliance on Justice Kennedy's work in Lawrence. In fact, here's what the Goodridge opinion said about Lawrence on the precise question of gay marriage:

Whether the Commonwealth may use its formidable regulatory authority to bar same-sex couples from civil marriage is a question not previously addressed by a Massachusetts appellate court. [footnote omitted] It is a question the United States Supreme Court left open as a matter of Federal law in Lawrence, supra at 2484, where it was not an issue.

Goodridge, 798 N.E. 2d 941, at 948 (emphasis added).

Notably, none of the suggestive and flowery passages in Lawrence that are said to support claims for gay marriage appear in the Goodridge opinion. Reading Goodridge as a whole, there is no doubt the Massachusetts court would have reached its result without Lawrence. This, by itself, doesn't mean that there's no potential for judicial activism on the gay-marriage issue, but it does undermine the claim that developments in the Supreme Court are leading us down a quick path to nationwide gay marriage. Judicial action on this issue in the coming years is most likely to come from the state courts interpreting their own state constitutions. But, as I note in the paper, the states themselves have always been entrusted to rein in their own state courts if they choose to do so.

JB:
This reminds me of Roe v. Wade: A polarizing issue frozen in time, when it would have been better to let it be fought out in public debate, and thus settled more easily. If such an amendment were to pass, there would be a long period in which a majority of Americans, but not enough to repeal an amendment, would favor gay marriage, and this imbalance of numbers and power would be extremely deleterious.
6.1.2006 10:15am
Medis:
I don't see any problem with laying out the "conservative" case against the FMA and I applaud Dale for taking the time to do so, but it seems to me that everyone knows exactly what is going on: certain members of Congress want to remind certain voters that they share certain negative feelings about gayness. And it is hardly a unique observation that this particular political grouping really does not care about conservative principles involving the scope or structure of the federal government's power, at least not whenever they are in control of the federal government.
6.1.2006 10:27am
AppSocRes (mail):
Roe v. Wade and its sequelae are a perfect argument by example of why we need a Marriage Amendment. Before state courts raised the issue of homosexual marriage and the homosexual propaganda apparatus got going, a vast majority of Americans were opposed to homosexual marriage. A significant majority still are. The size of this majority is unlikely to decline much more in the near future. An amendment now will forestall an endless debate on this issue that will dirty the political waters for years to come. Once the amendment is passed, only a very small minority will be opposed to it: Small enough that this minority itself will realize that there is no sense in trying to fight an unwinnable war. Without the amendment, a majority of the population is going toi be politically frustrated, seeing their position being gradually chipped away by the intelligentsia. Let's get this debate over with now and move on.
6.1.2006 10:29am
Robert Lyman (mail):
Well, it might be an "unprecedented" amendment in the sense that it is actually passed through the constitutional process, but it certainly isn't unprecedented for the courts to amend the Constitution and to cut short an ongoing debate and frustrate democracy.
6.1.2006 10:32am
Closet Libertarian (www):
I agree with your points, however I think the conservative fear is that eventually a constitutional right to gay marriage will be read into the constitution. This is not an unreasonable fear.

I would prefer a constitutional amendment that said there is not right to a gay marriage rather than the current version, but how many such amendments would be needed for various rights people wish into the consitution.

Perhaps what is really needed is a constitutional amendment that says no new rights shall be infered by courts. Squaring with the 9th amendment would be difficult but could be based on rights existing in 1791.
6.1.2006 10:36am
SLS 1L:
Closet Libertarian - I think your proposed amendment would be hopelessly unworkable. It's too easy to say that a purportedly new right is really an application of an existing right, or vice versa.

As for Dale's arguments, I don't find them particularly persuasive, but I'm neither a libertarian nor a conservative.
6.1.2006 10:46am
Medis:
AppSocRes,

You say: "The size of this majority is unlikely to decline much more in the near future."

Why would this trend stop? The basic dynamic in states where gay civil unions and marriages have started is that initially there is a great deal of concern about what many people see as experimenting with a crucial institution. But after this "experiment" starts and people see that the sky does not in fact fall, the opposition steadily wanes. And people in other states are capable of looking across state lines and observing all this as well.

In short, increases in familiarity with actual gay civil unions and marriages tends to lead to decreases in people's concerns about them. And I see no particular reason to believe that trend will stop.

Of course, I assume that is really what most people in favor of rushing through the FMA now are thinking--they are just as aware of the trends as I am, and they are in fact concerned that they will eventually (and perhaps soon) be in the minority in many states, and they want the protections a federal amendment would provide to such minorities in many states.

But it is very likely too late anyway for passing such an amendment. So, this is all just political theater.
6.1.2006 10:51am
cp:
I keep hearing a lot about 'judicial activism' on this issue, and it would seem to me that it isn't judicial activism to say that you have to treat one group of people the same way you treat another. Is there anything in the Constitution that specifically guarantees equality? I'm not a constitutional scholar, I'm just a high school student who would like to better understand the issue. But I've always been tought in school that we're all supposed to be treated the same. If anyone could explain--or direct me to an explanation of--the reason it isn't guaranteed, it would be much appreciated.
6.1.2006 10:52am
Cornellian (mail):
Roe v. Wade and its sequelae are a perfect argument by example of why we need a Marriage Amendment.

The fact that certain Congressional Republicans are proposing a constitutional amendment to ban same sex marriage, a right which has never been declared to exist in the federal constitution, but not proposing any such amendment to reverse Roe v. Wade, which has been around for decades, is a perfect example of why the proposed anti-SSM amendment has nothing to do with concern about courts and SSM, and everything to do with election year political pandering.

Before state courts raised the issue of homosexual marriage and the homosexual propaganda apparatus got going, a vast majority of Americans were opposed to homosexual marriage.

In other words, arguments are being raised in favor of SSM and as a result public opinion has moved significantly on the issue over the past few decades. Oh the horrors of democracy in action.

A significant majority still are. The size of this majority is unlikely to decline much more in the near future.

You have any basis for this view? Opposition to SSM has declined precipitously over the past few decades, why would that process stop now? And if, as you seem to concede, that opposition will continue to decline beyond the "near future" why have a constitutional amendment now to forestall the democratic process?

An amendment now will forestall an endless debate on this issue that will dirty the political waters for years to come.

Yes, the way that Prohibition forestalled debate on the consumption of alcohol.....

Without the amendment, a majority of the population is going toi be politically frustrated, seeing their position being gradually chipped away by the intelligentsia. Let's get this debate over with now and move on.

In other words, you're gradually losing in the court of public opinion and you need a constitutional amendment now to prevent state legislatures from enacting SSM. That is to say, the anti-SSM amendment is all about stopping elected state legislatures, and has nothing at all to do with courts.
6.1.2006 11:00am
Humble Law Student:
cp,

You raise an important question. Equality under the law is Constitutionally guaranteed. Much of this debate hinges on what exactly constitutes equality.

The Pro FMA (Federal Marriage Amendment) side argues that gays and lesbians have the same rights as heterosexuals, both groups can marry someone of the opposite sex. Both groups are equally prevented from marrying someone of the same sex. As such, the argument goes, they are treated equally.

The Anti FMA side argues that equality demands equal treatment in regards partner choice - that since gays and lesbians are arguable genetically attracted to the same sex and that they love someone of the same sex in the same manner as heterosexual couple can/do, equality demands they be afforded the same protections and privileges of marriage that are given to heterosexual couples.

Not the best explanation, but i'm sure other's can improve on it.
6.1.2006 11:02am
Humble Law Student:
Cornellian, et al.

I'm instinctively in favor of the FMA. However, concerns raised do trouble me. However, what about instead of the FMA we have a Constitutional amendment stripping jurisdiction of the federal courts over gay marriage. Granted, there are likely numerous problems over the construction and wording of the amendment, but if it can be constructed without being overbroad, it would ensure that this political hot potatoe is left to the states - especially important since the Anti FMA seems to rely so strongly on the federalism argument (which I find rather ironic, but that is a seperate issue).
6.1.2006 11:11am
Cornellian (mail):
Humble,

The problem with jurisdiction stripping approaches (or one such problem) is that you leave the last word on the meaning of the federal constitution to state courts, including, for example, the Massachusetts Supreme Court that authored Goodridge. If anything, that would make it more likely that SSM would be declared to be a right within the scope of federal equal protection or due process by state supreme courts in the very blue states. And how would the federal government react to that, since it won't be able to seek judicial review of those decisions in the US Supreme Court.
6.1.2006 11:19am
Humble Law Student:
Professor Carpenter,

I found your discussion of the Lawrence v. Texas case incomplete/disingenuous. Did not the Mass. Supreme Court in Goodrich specifically cite Lawrence as a basis for arguing in favor of SSM despite the specific pronouncements in Lawrence that it was limited in scope? Granted this is a state court, but for judges who seek their own ideological ends (9th circuit, etc), Lawrence has already been shown to provide a framework for their decisions despite what you and SCOTUS say. So forgive me if I find your arguments of "not to worry" rather unpersuasive.
6.1.2006 11:21am
Humble Law Student:
Cornellian,

I honestly don't have much of a problem with Mass having gay marriage. I never intend to live there, and as long as their marriages can't be imposed on my own state (or SSM imposed by the courts on the country as a whole), I'm fine.
6.1.2006 11:23am
Cornellian (mail):
The Pro FMA (Federal Marriage Amendment) side argues that gays and lesbians have the same rights as heterosexuals, both groups can marry someone of the opposite sex. Both groups are equally prevented from marrying someone of the same sex. As such, the argument goes, they are treated equally.

The challenge for this argument is to explain why a law prohibiting you from marrying someone of a different race isn't also constitutionally permissible equal treatment, since the law applies equally to everyone, regardless of race.

The Anti FMA side argues that equality demands equal treatment in regards partner choice - that since gays and lesbians are arguable genetically attracted to the same sex and that they love someone of the same sex in the same manner as heterosexual couple can/do, equality demands they be afforded the same protections and privileges of marriage that are given to heterosexual couples.

I think the equality argument (as opposed to the due process argument) is a gender based one. Only men are permitted to marry women, and only women are permitted to marry men. Thus, if want to marry someone, you'll be permitted to do so or prohibited from doing so depending on your sex, thus sex discrimination, thus not equal treatment.

There's also a weaker argument (at least the way that constitutional law has developed) based on sexual orientation, that is to say, heterosexuals are allowed to get married, but homosexuals are not, thus unequal treatment, thus violation of equal protection. However, not every distinction between one group and another is unconstitutional, and this particular distinction, notwithstanding Lawrence v. Texas would probably be assessed at a more lenient standard than the gender discrimination argument set out above.
6.1.2006 11:26am
Houston Lawyer:
I find these arguments to all be weak. You can't enact an amendment to the constitution without significant and lengthy debate, and one of the reasons to enact a constitutional amendment is to finally decide a matter. In addition, you amend the constitution in order to specifically foreclose states from differing, therefore overriding any federalism concern. Most people also don't care whether SSM is imposed by the courts or a few legislatures.

The FMA would never had been proposed if state courts hadn't grossly overreached on imposing SSM.
6.1.2006 11:26am
Cornellian (mail):
I honestly don't have much of a problem with Mass having gay marriage. I never intend to live there, and as long as their marriages can't be imposed on my own state (or SSM imposed by the courts on the country as a whole), I'm fine.

The perfect argument then, for opposing the anti-SSM amendment, since I assume you would be equally distressed by a federal prohibition on SSM, applicable to all 50 states, regardless of what the citizens of a particular state may wish to do.
6.1.2006 11:28am
Humble Law Student:
Cornellian,

I see it as calling the bluff of both sides. The pro SSM marriage side appeals to federalism as way to prevent a FMA and to protect what SSM there is. The Anti SSM side appeals to federalism in the fear that it will be imposed by the federal courts on the states. Lets solve those fears in one stroke. Prevent the federal courts from ruling one way or another.

By this, we force the confrontation into the open. No more hiding behind judicial mandates for the pro SSM side (along the likes of a SSM Roe decision) which alleviates the primary concern for most anti SSM individuals (not Falwell of course). And the pro SSM concerns of federalim are assuaged (if those are truly the concerns). Then let the chips fall where they may...
6.1.2006 11:30am
Medis:
HLS,

Just an aside, but we probably don't need a constitutional amendment to limit the jurisdiction of the federal courts when it comes to gay marriage (or, for that matter, marriage in general). It could likely be done by statute.
6.1.2006 11:30am
Humble Law Student:
Cornellian,

Yes, but naturally i'm more concerned with own pet causes than for those I disagree with (just a bit of honesty). I'd still prefer a FMA if there is no other way of preventing the imposition of SSM by the federal courts. But my point is maybe there is a way to partially defuse this brewing political firestorm
6.1.2006 11:32am
Humble Law Student:
Medis,

Yes, I know. From my rather rudimentary understanding of jurisdiciton stripping, Congress can remove appellate jurisdiction from SCOTUS over topics like gay marriage. However, that would just mean that the circuit court decisions couldn't be overturned. Which would leave for examples the relatively liberal 9th setting gay marriage policy for all the more conservative states in its circuits, not just California. I'd rather reduce it completely to the state level if possible.
6.1.2006 11:37am
Freethinker:
Its amazing how a conservative could oppose the civil right of one human being to be married to another human being, given that whole commitment to personal liberties thing. Anyway.........

Gay marriage is clearly not a federal issue, but I don't see how it is a state issue either. It seems to me to be a church issue. I've never heard an argument against gay marriage that wasn't couched in religious bigotry, so why don't we let individual churches decide whether or not they would like to marry a gay couple? Let's keep the government out of it.

One possible argument is that having gay couples raise children might present some problems for their child later on in life. Well, besides the fact that they could raise them without being married, most of the research seems to suggest that this is not the case. That being said, let's imagine that it was; how is this any different from growing up with a single mother? Or with black parents? Or with poor parents?

Being the child of a single mother/black parents/poor parents all significantly raise the chances that a child will have problems later on in life--so should you not be allowed to have children if you're a member of any of the above-mentioned groups? Should we just okay everything we do with our local clergy?

Considering that being a homosexual is not a choice, I don't see how banning the marriage of homosexuals is any different than banning the marriage of two white people.
6.1.2006 11:37am
Freethinker:
Considering that being a homosexual is not a choice, I don't see how banning the marriage of homosexuals is any different than banning the marriage of two white people.

...based soley on their race, that is.
6.1.2006 11:41am
MDJD2B (mail):
I'm not a constitutional scholar, I'm just a high school student who would like to better understand the issue. But I've always been tought in school that we're all supposed to be treated the same. If anyone could explain--or direct me to an explanation of--the reason it isn't guaranteed, it would be much appreciated.

cp,

I'm just a law student (and a physician). But I'll try too.

First, it's sometimes hard to determine the practical consequences of the prinicple of equality when there are fundamental differences among people. Should everyone in your state have an equal opportunity to get into the state university (run an admission lottery) or should they have equal access to taking an entrance exam (obviously there are other ways to run the admissions process).

Second, there are fundamental differences between men and women. This has given rise to various argumets about whether states should be able to educate boys and girls separately, whether tVeteran preferences in hiring are permissible, etc. These have been resolved in different ways.

Third, if the purpose of marriage (from the point of view of the government) is to regulate reproduction and childraising, there are reasons for
restricting it to heterosexual couples. But not everyone agrees that this is the purpose of marriage.

Finally, not everyone agrees that the prinicple of equality trumps other principles that enter into marriage. Certainly, liberty may play a part. Do you want your spouse chosen for you by lottery so that all eligible partners have an equal chance to marry you? But then some people who are more attractive mates than others have a better chance of getting married to a desrable spouse. Others-- and these include many opponents of gay marriage-- believe that heterosexual relationships are preferable to homosexual ones, and that this, for a variety of reasons, is sufficiently important to trump putative equality rights with regard to marriage, even if they are willing to extend equality to homosexuals outside the domestic and reproductive spheres.
6.1.2006 11:43am
dick thompson (mail):
I still have never seen any response to what my main concern with the whole FMA question is so long as it is primarily left to the states.

Assume you and your mate are living in a state that permits gay marriage so you get married. You and your now spouse are transferred to a state that does not permit gay marriage. While resident of that new state, you now start having problems and decide to get divorced. How do you go about doing this?

Your current state of residence does not permit gay marriage so are you considered married at all. If you are not married then how do you handle the distribution of assets and the severing of the marriage. If you move back to your original state, then you have the divorce issues to deal with whereas in the other state you do not. If the state does not permit marriage, then suppose you petition for a divorce. Do they have to let you get a divorce based on the marriage from state 1? If so then the other gays have a case for petitioning for marriage in the state that does not allow it or... Anyway the problem is obvious in that marriage and divorce are available in one state and not available in another. Does that mean that the not available state has to recognize your marriage even though other residents of that state cannot get married?

I think this is the reason that anyone is even thinking of a constitutional amendment. These questions will have to be answered if gay marriage is allowed in some states or else the federal government will need to override the state laws on the subject. Somehow the question of state to state relationships on the question need to be determined much as the commercial quesitons between states have been. Hiding the question just makes it worse when it comes out and then there will be pressure for a rushed judgment on what the rules need to be.
6.1.2006 11:49am
Positive Dennis:
I think that there are uninteded (intended by some) consequences to Gay Marriage. If we lived in a more libertarian society it would not matter.

For example:

Can I as an employer give insurance to a heterosexual spouse but refuse it to a homosexual spouse?

Can I as a landlord refuse to rent to a married couple who are of the same sex?

And more generally, can I as an employer refuse to hire a homosexual. Does it make a difference if they are playing the piano in my bar or my church?

As long as marriage is state sanctioned and that sanction has consequences, the consequences of homosexual marriage is against freedom.

Normally I would say let people contract as they want, but why is someone outside the contract forced to accept it?

Positive Dennis
6.1.2006 12:04pm
A.W. (mail):
What I don't get is why we don't instead write an amendment that simply declares that the relevant choices are up to Congress. That is it is up to Congress whether or not to recognize same-sex marriage as valid. It is up to Congress whether same sex marriages performed in one state shall be valid in another. Nothing in the constitution shall be read to force a recognition of gay marriage... and so on.

That's my $0.02.
6.1.2006 12:05pm
Classmate-Wearing-Yarmulka (www):
How about simply turning the Defense of Marriage Act into an Amendment? That would be fine for federalists like me. If one state decides to have SSM, that's fine with me, it's their right. But I don't want it to be forced on other states because of the Full Faith and Credit clause.
6.1.2006 12:06pm
cp:
Thanks to those who answered my question.

Although I better understand the argument that is being made on this point, I think it just makes me disagree with the argument itself more. It just seems that the argument seems to boil down to, equality: as long as you agree with me. Or, "You have equal right to live your life like I do." I know I'm not saying anything new or insightful here, just what strikes me while hearing the argument. Thank you again for your answers.
6.1.2006 12:07pm
Michael E. Lopez (mail) (www):
A few things:

Houston Lawyer: That's an excellent point about why the FMA is even an issue, and it ties into something I think people tend to forget when they call Constitutional Amendments "overkill" or "unprecedented," which is that Constitutional Amendments simply are the mechanism that was created for this country for dealing with issues totally and completely as a matter of first principle. If the States adopted a Constitutional Amendment barring Eugene Volokh from speaking... well, then Eugene Volokh would be forbidden to speak. (A terrible tragedy to be sure, but it illustrates the point nicely.) If an amendment turns out to be unworkable, or not really worth the effort, or times change, then we can re-amend. It's democracy (which can be a fairly scary thing if you think about it) at its absolute worst: no checks, no restraints -- nothing but pure fiat. Of course, that's the nature of man's existence in the "nasty, brutal" world once you reduce it and strip it of philosophy, religion, and reflection. So in the end, we can only hope that these things -- our moral principles -- inform our democratic decisions in some sense.

Which brings me to my next point.

Cornellian: Yes, it's discrimination. But discrimination is obviously not illegal per se, although certainly large components of our society are working to make it so. We don't question a person's ability to discriminate among friends, the government's ability to discriminate among the intelligence of engineers it hires to build computer systems, or a whole host of other issues. For many years, it was fine to discriminate on race. Now it is holy writ (or as near you can get in this society) that racial discrimination of almost any type is simply verboten.

The "constitutional" question is and always has been the strength of the state's interest, and the level of interest that we are going to require in order to allow a certain type of law. Obviously, a constitutional amendment renders any sort of constitutional inquiry a moot point -- we are, after all, talking about the process by which our legal system arrives at first principles. But it's a legitimate question whether a given society wishes to outlaw or discourage a particular type of behavior. If the entire country wants businesses to close on Sundays, you know what's going to happen?

You're going to buy your eggs on Saturday.

But we apparently have a right to be able to (at least sell) eggs on Sunday, because the first amendment prohibits the establishment of religion and protects the free exercise thereof.

Which brings me to my next point:

SLS 1L: Your argument is essentially that rights are not truly discrete, that it is impossible to determine whether a particular right is its own right or some manifestation of another right.

Which is more or less the reason that certain people think the FMA is necessary: because they believe it has become impossible to determine whether a right is really something in the Constitution or whether the courts are legitimately extended rights already present in the Constitution.

Now, in my opinion, the 9th Amendment more or less takes care of this issue. Gay marriage is not and should not be a federal issue because it's not mentioned by name in the Constitution. (I'm not a "literalist" so much as I am a Constitutional "reductionist" -- if it's not solidly and unequivocally part of the Constitution, it's not a federal question for me.)

But it's important to balance even my view with the notion that a people -- just like an individual -- are(is? are? I think a people probably "are" even though it's grammatically incorrect) or at least should be able to define themselves. If the people wish not to sell eggs on Sunday, or wish not to allow rappers to talk about f***ing their h*s, or wish not to allow the citizenry to wear revealing clothing, I think there's a very plausible and sensible argument to be made that the people should be allowed to have such laws.

As I said above, it's a question of religion, philosophy, and reflection, because ultimately what is "legal" is whatever we say is legal.

-Michael E. Lopez
6.1.2006 12:09pm
Medis:
HLS,

Congress can limit the subject matter jurisdiction of the District Courts and the appellate jurisdiction of the Courts of Appeal as well.

MDJD2B,

You say: "if the purpose of marriage (from the point of view of the government) is to regulate reproduction and childraising, there are reasons for restricting it to heterosexual couples."

That does not necessarily follow. First, marriage may serve other social purposes in addition to reproduction and childraising. Second, gay couples are capable of producing children (albeit not with genetic material from both parents, but that is true of many straight couples as well) and, of course, of raising children. Third, even marriages which do not involve producing and raising children may indirectly provide support for marriages which do involve producing and raising children. Finally, even if gay marriages did not in any way further this interest, that may not justify the restriction insofar as gay marriages did not actually harm this interest.

dick,

These issues are not new to gay marriages, because state laws with respect to the validity of marriages have varied for other reasons as well. The basic answer is no, a state does not have to recognize a couple as married nor as subject to the state's laws governing divorce if that couple's marriage would not be allowed under that state's laws.
6.1.2006 12:15pm
Cornellian (mail):
I still have never seen any response to what my main concern with the whole FMA question is so long as it is primarily left to the states.

Assume you and your mate are living in a state that permits gay marriage so you get married. You and your now spouse are transferred to a state that does not permit gay marriage. While resident of that new state, you now start having problems and decide to get divorced. How do you go about doing this?


States already cope with this situation today, since different states have different rules as to who can get married (minimum age for marriage, whether cousins can marry etc.). A marriage valid in state A is not valid in state B unless state B wants it to be valid. That's the way it's always been and all those issues you list can be dealt with the same way they are now.
6.1.2006 12:16pm
A Berman (mail):
As much as I am opposed to SSM, I'm perfectly willing to battle (and win) in legislatures as opposed to courts.

I think the public debate has been very healthy. I've switched sides on this debate based on the evidence, and I'm willing to switch sides again based on new evidence.

Goodridge was a travesty, but I don't live in Mass. On the other hand, if courts start saying that Alabama must recognize SSM made in Mass., that's a completely different story.
6.1.2006 12:19pm
Duncan Frissell (mail):
Dale,

Sounds like the FMA is promoting the libertarian position on Dom Rel law. It outlaws the states from regulating SSM. SSM's can still be established by the parties. All they have to do is find a church.

Now all libertarians have to do is find out a way to prevent state regulation of OSM and the rest of us can be freed from state oppression.

Return Dom Rel law to private institutions like the Catholic Church, the Anglican Church, the Coven, etc.
6.1.2006 12:19pm
Freder Frederson (mail):
The FMA would never had been proposed if state courts hadn't grossly overreached on imposing SSM.

On what basis do you make this statement? Exactly one state court (Massachussetts) has made gay marriage legal, and has limited it to residents of that state. The decision was based on the state, not federal, constitution. So unless you are a Massachussetts State Constitution scholar (and I doubt you have much call for arguing Massachussetts constitutional issues in Texas), you really don't know what you are talking about.
6.1.2006 12:20pm
Bored Lawyer:
IMO, a better proposal would be one which would allow a state to adopt SSM, but which would state that the other 49 States and the Federal Govt. do not have to recognize it. How about:


Nothing in this Constitution shall be construed to require the United States or any State to recognize marriage as anything other than between one man and one woman.


This would head off both the Due Process/Equal Protection type arguments as well as the Full Faith and Credit Clause. At the same time, if one state wishes to recognize SSM, then it is free to do so. Call it DOMA LITE, if you will.

From a federalist viewpoint, this has obvious advantages. IMHO, it also has advantages politically. If someone opposes this, one can argue "You see, what they really want to do is use the courts to force something down our throats, or use one State to control the other 49!"

Why those in Congress don't adopt such a version is hard to explain. Then again, they seem to have a talent for shooting themselves in the foot.

Anyway, what objections, if any, would there be to a DOMA LITE?
6.1.2006 12:22pm
Freethinker:
Normally I would say let people contract as they want, but why is someone outside the contract forced to accept it?

If I'm reading this correctly, you mean to say "why should I have to accept gay marriage if I don't approve of it"? If this is an incorrect reading, then please clarify as to what you meant in your last sentence.

Why do we have to accept gay marriage? For the same reason we have to "accept" women's suffrage, civil rights for minorities, ridiculous religious beliefs, etc. Just because some action is legal does mean that you tacitly approve of that action. It is just prudent to maximize our personal liberties; you can choose which liberties to realize and those you'd prefer not to realize. If you don't like gay marriage, then don't get married to a person of the same sex! I personally think religious beliefs are downright stupid, but I don't call for religion to be banned, I just don't practice religion.

Whatever happened to the "live and let live" attitude that is the backbone of principled conservative political philosophy?
6.1.2006 12:22pm
Freethinker:
Duncan Frissell,

Exactly! This is the truly libertarian position. Let individual churches decide if they will allow SSM. Making SSM legal is not the same as forcing churches to marry homosexuals.
6.1.2006 12:26pm
tom cuddihy (mail) (www):
Wow, terrible opening for an article supposedly aimed at "conservatives and moderates who either oppose or are unsure about same-sex marriage", since your third and forth points in precis complain that it 'cuts short' the debate, preventing any of the 50 states from recognizing gay marriage. Duh! Not going to convince anyone who even mildly opposes gay marriage, since stopping any debate and court interference on the issue is entirely the desired outcome.

For conservatives, who have seen the right to abortion at any time read into the the constitution between the 'shades and penumbras' of freedom from unreasonable search and seizure, the entire point is to prevent a single wayward state legislature and the ever active federal courts from foisting another travesty for traditional values on the rest of the nation. You're not going to convince them that it's better to leave it to debate and the tender mercies of the courts. Been there, done that. To gay-marriage abolitionists, your argument is essentially that the issue should be left to the sanctity of states' rights. fat chance.

As for your first point that the current state legislatures make it 'unlikely in the forseeable future,' that is a matter of policy, not constitutional law, so again you're not going to convince anyone not already solidly on the side of gay marriage.

The sole appeal to principles applicable to both sides of the debate is your second point, that it would be an unprecedented new federal reach into an area traditionally reserved for the states. On this point you are greivously wrong. Since the 60s, the federal courts have seen fit to extend federal jurisdiction over state laws regarding condunct conducted between man and wife, or, more recently, any consenting adults, in regards to all areas of family law, with the sole exception, to this point, of marriage laws. But there is no reason for a conservative to think that the push to add ever more previously state legislature defined behaviors, starting with Griswold and most recently added to with Lawrence, under the ever-epanding federal umbrella. There is little doubt that marriage will be the next to go. Coservatives are aware and resigned to this fact. The best hope the American people have to ensure that their overwelmingly popular will is carried out without interference from judges all too willing to impose their own view, is a constitutional amendment that limits the scope of judicial interpretation to one in line with the vast majority of citizens.
6.1.2006 12:26pm
John T (mail):
There has been no showing that federalism has been unworkable in the area of family law.

Well, aside from 1878's Reynolds v. United States ruling about polygamy. And the entire circumstances surrounding the admission of Utah as a state. And the Enabling Acts for New Mexico, Arizona, and Oklahoma, all of which also required those states to ban polygamy.
6.1.2006 12:27pm
U.Va. 0L (mail):
Freethinker,


"Considering that being a homosexual is not a choice, I don't see how banning the marriage of homosexuals is any different than banning the marriage of two white people.

...based soley on their race, that is." --Freethinker


I disagree. I would not consider "being a homosexual" a state of nature in the same respect that race is a state of nature. If you think they are, would you also agree that "being a pedophile" of "being a polygamist" are also states of nature in the same respect? If not, why not?

Cornellian,


"The challenge for this argument is to explain why a law prohibiting you from marrying someone of a different race isn't also constitutionally permissible equal treatment, since the law applies equally to everyone, regardless of race. " Cornellian


That's easy. So called "sexual orientation" is not a constitutionally protected class. Amend the constitution then come back and we can discuss it.
6.1.2006 12:32pm
Medis:
Duncan,

You say: "SSM's can still be established by the parties."

Again, though, part of the problem is that states do not in fact allow private parties to create the complete equivalent of marriages through private contracts. So, you would also have to lift these restrictions on contractual rights.
6.1.2006 12:38pm
David Walser:
Prof. Carpenter: "A person who opposes same-sex marriage on policy grounds can and should also oppose a constitutional amendment foreclosing it, on grounds of federalism, confidence that opponents will prevail without an amendment, or a belief that public policy issues should only rarely be determined at the constitutional level."

I think this begs the question and in the process gets things exactly backwards. My reading of the FMA is that it does NOT prevent a state legislature from adopting gay marriage. (There have been several versions of the FMA proposed. I've not checked the wording of the version that's going to be debated by the Senate.) Instead, it prevents the federal and state courts from taking this public policy question away from the legislature. It's not as if a bunch of people woke up one morning and decided to propose the FMA. Instead, after gay activists failed to persuade the public to their point of view, they succeeded in persuading a court to impose their view on the people. So, the purpose of the FMA is NOT to determine this question "at the constitutional level." The purpose is to PREVENT that from happening.

Just as it is possible to support legal abortion AND believe that Roe was the wrong way to reach that result, it is possible to believe that the court is the wrong forum for resolving this question. Yes, as Professor Carpenter and others have argued, such questions should not be dealt with in the Constitution. However, if the courts have resorted to the Constitution to answer this question (which it is argued should NOT answer such questions), why is it wrong to PREVENT the courts from doing what the good Professor argues should not be done? The FMA does not resolve the debate on the public policy question. It simply ensures the debate will be had in the proper forum -- the legislature.
6.1.2006 12:40pm
Freder Frederson (mail):
Exactly! This is the truly libertarian position. Let individual churches decide if they will allow SSM. Making SSM legal is not the same as forcing churches to marry homosexuals.

No church will be forced to perform SSM, even if it is legal in all fifty states. There is not one church in this country who is forced to marry anyone they don't want to. They can discriminate on the basis of race, religion, marital status (try getting married in a Catholic Church if you are divorced), national origin, or any reason they, or the individual pastor sees fit. To imply that any church will ever be required to marry a homosexual couple is to simply create a controversy that does not, and never will, exist.
6.1.2006 12:41pm
Medis:
U.Va. 0L,

Just a small point, but there is nothing in the 14th Amendment limiting its application to some "protected classes". The Supreme Court has simply held that certain classifications merit greater scrutiny than others. Of course, the point Cornellian was making is just that there is in fact unequal treatment here, regardless of whether that treatment is unconstitutional.
6.1.2006 12:44pm
Cornellian (mail):
IMO, a better proposal would be one which would allow a state to adopt SSM, but which would state that the other 49 States and the Federal Govt. do not have to recognize it.

Senator Hatch proposed something along these lines early in the FMA debate, an amendment that would simply have left the matter up to the states and specified that a state didn't have to recognize a marriage valid in another state. However, his idea was quickly shot down by the religious right. Senator Hatch apparently didn't get the memo that the real point of FMA is not to stop courts, but to stop state legislatures.
6.1.2006 12:45pm
WhistlingPastTheGraveyard (mail):
First, a constitutional amendment is unnecessary because federal and state laws, combined with the present state of the relevant constitutional doctrines, already make court-ordered nationwide same-sex marriage unlikely for the foreseeable future.

Talk about whistling past the graveyard.

Since what has federal and state law + relevant constitutional doctrines meant a thing when you have 5 SCOTUS Justices looking for a way to do something?

"Foreseeable future"? I give it 3 years, tops and Stevens, Kennedy, Souter, Ginsburg and Breyer will find a way; federal law, state law and constitutional doctrines get trumpted by citations to what the European courts are doing and 5 Justices looking for an excuse to advance their agendas.

When that day comes, hope you have salt on hand so you can eat these words.
6.1.2006 12:47pm
Cornellian (mail):
"The challenge for this argument is to explain why a law prohibiting you from marrying someone of a different race isn't also constitutionally permissible equal treatment, since the law applies equally to everyone, regardless of race. " Cornellian

That's easy. So called "sexual orientation" is not a constitutionally protected class. Amend the constitution then come back and we can discuss it.


The issue of whether something is a protected class only comes up if you have discrimination in the first place. My race specific example is only a constitutional problem if it constitutes discrimination based on race, so my point stands.

I'd also add, incidentally, that the 14th Amendment only provides for equal protection without reference to race, gender, sexual orientation or any other class.
6.1.2006 12:47pm
WhistlingPastTheGraveyard (mail):
Freder Frederson said:

There is not one church in this country who is forced to marry anyone they don't want to.

Yet. That's next.
6.1.2006 12:49pm
Cornellian (mail):
I think this begs the question and in the process gets things exactly backwards. My reading of the FMA is that it does NOT prevent a state legislature from adopting gay marriage.

I believe the current version of the FMA starts out by saying that marriage in the United States shall consist only of a union between one man and one woman. Pretty hard to reconcile that with a state legislature adopting SSM.
6.1.2006 12:51pm
Medis:
David,

I think you need to check the actual text of the FMA.

Also, I'm not sure I understand why you think that the power of state courts pursuant to their own state constitutions is a matter of federal concern. In other words, if the people of State A have created more powerful courts and more constitutional rights than the people of State B, what justification do the people of State B have for objecting?
6.1.2006 12:52pm
Cornellian (mail):
There is not one church in this country who is forced to marry anyone they don't want to.

Yet. That's next.


Yeah, right, right after the Catholic Church is forced to conduct marriage ceremonies for divorced people. Don't hold your breath.
6.1.2006 12:52pm
Freder Frederson (mail):
I disagree. I would not consider "being a homosexual" a state of nature in the same respect that race is a state of nature. If you think they are, would you also agree that "being a pedophile" of "being a polygamist" are also states of nature in the same respect? If not, why not?

Well, that's an easy one. Being a polygamist is a definite choice. I am not going to comment on what "causes" pedophilia because I am not psychologist or psychiatrist but I will comment why it would be perfectly acceptable to condemn pedophilia even if it was a "state of nature" while it is wrong to condemn homosexuality. Pedophilia harms innocent parties, children, homosexuality does not. That is the distinction, even if both are "states of nature".
6.1.2006 12:52pm
U.Va. 0L (mail):
Medis,

I don't know that I agree that there is unequal treatment. The history of Western civilization has been to define marriage as between men and women, and for the most part between one man and one woman. Regardless of whether you desire to marry someone of the same sex or someone "too young" or someone already married, you are denied to do those things. But you are free to disregard your desires and marry someone of the same sex, someone who is "old enough," or someone not already married. What's unequal? That society does not treat all desires as equally valid? ... As for interracial marriage, clearly the constitution does not permit discrimination by the government based on race. (And I'm glad it does not!)
6.1.2006 12:55pm
WhistlingPastTheGraveyard (mail):
One last note to those promoting or pushing court stripping (i.e. removal of jurisdiction from the appellate courts) by statute.

It will not work.

The courts have previously held that the 14th Amendment was a restriction on Art III Section 2's grant of power to Congress to strip the courts. And if you think for a second a "mere" statute will stop the court from finding some way to find the court stripping statute(s) unconstitutional, you are blissfully naive.

The court will claim that a "mere statute" cannot remove the "right" to an appeal and the "right" to gay marraige they will invent under the 14th Amendment.

Conservatives who think the courts will be restrained by something like a statute are just frankly, bluntly, idiots. Nothing short of a Constitutional Amendment (or maybe some selective impeachments, but this is a maybe) is going to stop the courts.
6.1.2006 12:56pm
MDJD2B (mail):
It just seems that the argument seems to boil down to, equality: as long as you agree with me. Or, "You have equal right to live your life like I do."

If this is what you came away with, then you don't understand the arguments.

Prohibiting marriage between given people does not prohibit anyone from living in any way they choose. For example, many states do not allow siblings to get married, but if you choose to live with and have children with your cousin, then (unless it violates some other incest statute) then the only thing you don't have is recognition of the state. You can even contract with your cousin to share property and do other things that married people do, with a few exceptions related to co-ownership of land.

What marriage does is to confer state recognition and some kind of approval on a relationship. The question in marriage is not whether gays have an equal right to cohabit or to have children, but whether they have the same right to enjoy government sanction for these activities.

Some people, such as Stanley Kurtz, have suggested that there are empirical harms that have resulted from gay marriage where it has been instituted. I don't know if he is right, and won't recapituate them-- you can Google if you are interested. One is decline in birth rate-- do you want your generation to support gazillions of people in mine? To the extent that one believes this, one may consider that preventing these harms is more important than sustaining the principle of equality, just as we tend to feel that the concrete benefits of preventing marriages among close relatives allow us to suppress the liberty and equality interests that would otherwise allow them.

Generally, people wanting to regulate behavior have more concrete reasons than personal preference, and you should make an effort to understand them. In this case it may boil down to religious principles or moral principles that are incommensurate than yours, but there are also possible empiric consequences of these such as unstable families and changes in birth rate that governments traditionally have a legitimate interest in.
6.1.2006 12:57pm
Cornellian (mail):

"Foreseeable future"? I give it 3 years, tops and Stevens, Kennedy, Souter, Ginsburg and Breyer will find a way; federal law, state law and constitutional doctrines get trumpted by citations to what the European courts are doing and 5 Justices looking for an excuse to advance their agendas.


So we amend the Constitution, this nation's founding document, based on what a bare majority of SCOTUS (one of whom is in his 80's) might possibly do in a case that doesn't exist yet? This argument for the FMA and the lack of any parallel argument for an amendment reversing Roe v. Wade, which has been around for decades, is the clearest example of what the FMA is really about - part red meat for the base, part distraction from Republican betrayal of virtually everything they stood for in 1994 and part election year pandering.
6.1.2006 12:57pm
U.Va. 0L (mail):
Freder,

"Well, that's an easy one. Being a polygamist is a definite choice."

Why is being a polygamist a "definite choice" but being a homosexual not? What if someone doesn't feel sexually fulfilled without having two partners?
6.1.2006 12:58pm
Houston Lawyer:
So far, SSM (or in Vermont, civil unions) has been required by three state supreme courts, Hawaii, Vermont and Massachusetts. In Hawaii, the voters approved a constitutional amendment overriding the court. Massachusetts was chosen as a battleground because of the difficulty of amending the state constitution. And opponents of SSM have been accused of acting in bad faith when they amend state constitutions to prevent this from happening in their states.

The Cato position is "trust me", it won't happen, and you shouldn't be upset if it does.
6.1.2006 1:08pm
WhistlingPastTheGraveyard (mail):
Ok, maybe one more point on the asinine "court stripping" meme some conservatives are pushing.

Imagine the following bill passed through Congress and signed into law.

1) There is hereby established the First United States Church of Christ as the official national church of the nation and to which 1% of all revenue generated from the personal federal income tax will be appropriated to in perpetuity.
2) Per Article III Section 2, this legislation is an exception to the appellate jurisdiction of the Supreme Court and all Federal courts.

Someone sues, double quick. This OBVIOUSLY violates the the 1st Amendment, they'll claim.

And the Federal courts will find ways and means to rule the legislation creating the First United States Church of Christ (Paragraph 1 in the fictional law) as unconstitutional, regardless of what is in Paragraph 2.

Now, let's change things a tad.

1) Marriage shall be defined as only the union between one mand an one woman.
2) Per Article III Section 2, this legislation is an exception to the appellate jurisdiction of the Supreme Court and all Federal courts.

Someone will sue, double quick. This OBVIOUSLY violates the the 14th Amendment's Equal Protection clause (well, it isn't so obvious, but it is and will be to some liberal judges), they'll claim. And the Federal courts will find ways and means to rule this legislation (basically DOMA) as unconstitutional, regardless of what is in Paragraph 2.

DOMA's only going to last a few more years, Scalia's dissent in Lawrence was right, and court stripping's not going to save it.
6.1.2006 1:11pm
WhistlingPastTheGraveyard (mail):
Gay marriage is a done deal. Stevens, Kennedy, Souter, Ginsburg and Breyer will find a way, quote some European court that backs them up and tack it to the nation's collective foreheads.

To borrow a phrase, it is all over but the screaming.
6.1.2006 1:14pm
KeithK (mail):

Third, a constitutional amendment banning same-sex marriage would be an unprecedented form of amendment, cutting short an ongoing national debate over what privileges and benefits, if any, ought to be conferred on same-sex couples and preventing democratic processes from recognizing more individual rights.

The FMA does not cut short the national debate over this issue. The amendment process is a democratic process. The issue would be brought to the forefront during the process of Congress passing and the states ratifying the amendment. If it were to pass it would not mean that the debate was cut short, but simply that the American people had settled the debate (at least until a similarly large majority might repeal it).

The clear subtext in this line of argument is that the ongoing debate would continue to recognize more and more rights until the gay rights side essentially wins. In other words, we should oppose the FMA because otherwise the anti-SSM side might win before the pro-SSM side gets a chance to. That's a reasonable motivation, but not much of an argument.

For the record, I oppose SSM but am ambivalent about the proposed amendment because of argument #2.
6.1.2006 1:16pm
Public_Defender (mail):
Whenever I hear the allegation that the Massachusetts high court "imposed" gay marriage, I think of this article from the Onion:


Massachusetts Supreme Court Orders All Citizens To Gay Marry
February 25, 2004 | Issue 40•08

BOSTON—Justices of the Massachusetts Supreme Judicial Court ruled 5-2 Monday in favor of full, equal, and mandatory gay marriages for all citizens. The order nullifies all pre-existing heterosexual marriages and lays the groundwork for the 2.4 million compulsory same-sex marriages that will take place in the state by May 15. . . .
6.1.2006 1:18pm
Greg D (mail):
The FMA would never had been proposed if state courts hadn't grossly overreached on imposing SSM.

On what basis do you make this statement? Exactly one state court (Massachussetts) has made gay marriage legal.


As Houston Lawyer said, you left out Vermont. CA's Supreme Court has at least flirted w/ pulling a Massachussetts, and other State Courts have done things equally as stupid and dishonest as the MA Court.

Personally, I'd be happy with a "DOMA Medium"
1: No Federal or State Constiutional provision, law, regulation, or any other order can be read as creating or allowing single sex marriage, unless it explicitly states that it is passed with the intent of doing so.
2: No existing Federal or State Constiutional provision, law, regulation, or any other order can be read as creating or allowing single sex marriage.

Guarantee that no court, anywhere, can force this on any Americans, and I'll be happy.

Nothing that fails to rein in the black robed thugs, however, counts as acceptable
6.1.2006 1:19pm
U.Va. 2L (no longer a 1L) (mail):
Why do we care whether being a polygamist is a choice or homosexuality isn't or whatever? As far as the state should be concerned, marriage is just another contract. If fourteen people want to enter a contract or two women do, it doesn't matter whether it's a matter of choice, genetics, or what have you--it's just another contract.
6.1.2006 1:19pm
WhistlingPastTheGraveyard (mail):
6.1.2006 1:24pm
Medis:
UVA 0L,

You ask: "But you are free to disregard your desires and marry someone of the same sex, someone who is 'old enough,' or someone not already married. What's unequal?"

Assuming you actually meant "opposite sex", note the important difference between the items on this list. If someone is "old enough", then anyone can marry that person, and the rules do not vary based on who you are. Similarly, if someone is unmarried, then anyone can marry that person, and the rules do not vary based on who you are.

Now, however, consider someone who is male. Not anyone can marry that person, and the rules vary based on who you are: if you are female you can marry this person, but if you are male you cannot. Similarly, consider someone who is female. Again, if you are male you can marry this person, but if you are female you cannot.

This was, of course, exactly the situation with anti-miscegenation laws. To use your terms, everyone was equally free to disregard their desire to marry a person of another race and instead marry a person of the same race. But the inequality occurred precisely because whether or not you could marry another person in particular depended on what race that person was, and what race you happened to be. And in that sense, making who you could marry dependent on your race and their race was race-based discrimination, just as making who you can marry dependent on your gender and their gendenr is gender-based discrimination.

Finally, I note again that the 14th Amendment does not limit its protections to race, and that the Supreme Court has already held that gender discrimination receives intermediate scrutiny. But even classes which are not protected by a higher level of scrutiny are still protected by the 14th Amendment--the difference is just what sort of scrutiny the state's justifications will receive.

None of which means that such discrimination--even race-based discrimination--is automatically unconstitutional. But the state does have to have a sufficient justification for the discrimination in question, and the point of demonstrating that the prohibition on gay marriage constitutes gender discrimination would be to force the state to do more to justify this policy.
6.1.2006 1:25pm
Paul S (mail):
I speak with some timidity, since I am in the UK, where we have a law permitting civil partnerships (carefully not called marriages in the law, but which everyone calls marriages in "real life"). The sun continues to rise; but that is here. I restrict myself therefore to a technical question.

There seems to be some confusion about what the FMA would do. Would it (a) explicitly state that there is no federal constitutional right to SSM, leaving it to the states to decide and/or (b) make it clear that if State A permits SSM but State B does not, State B will not be obliged to recognise SSMs from State A or (c) establish a federal constitutional prohibition on SSM, preventing the states from permitting it and precluding them from recognising pretended marriages?

These are quite different things. Arguments which support (a) and (b) (like not taking the risk, however large or small it may be, that five activist judges will read a right to SSM into the constitutional text as it stands) do not support (c). Arguments which undermine (c) (like not freezing public opinion on a contentious moral issue at a particular moment when it seems to be in flux, or arguments from federalism) do not undermine (a) and (b).

Professor Carpenter's paper quotes more than one version of the amendment. Despite reading them several times, I am unsure what is proposed, and there seems to be disagreement in the comments. What strikes me in all of the drafts is a mismatch between the first and second sentences which, in each case, creates an ambiguity. The second sentence talks about not requiring a state to recognise SSM, which suggests (b), and presumably by implication (a). But the first sentence proclaims what marriage is in the United States, which is non-SSM. That suggests (c), though it might have been a hamfisted way of stating (a). So the text pulls in different directions, and different people read it differently.

Whatever else one might say, it seems to me an objection to the amendment as it stands that it is ambiguous (whether or not that is deliberate). At the very least it ought to be made clear exactly what the amendment sets out to achieve. If it is just (a) and (b) one can and should lose the first sentence, and simply have a statement which says "This Constitution does not confer any right on persons of the same sex to marry. No State is required to recognise or give effect to any union between persons of the same sex as if it were a marriage." If the intention is (c) it should say "No State may permit persons of the same sex to marry, and no State may treat any union between persons of the same sex as if it were a marriage." Once they are clearly stated, the difference between these proposals is obvious.
6.1.2006 1:27pm
Medis:
Greg D,

Again, exactly why is it a matter of federal concern what the courts of an individual state are doing pursuant to the constitution and statutes of that state?

As Dale puts it nicely in his article:

"The states have not previously asked for, or received, the assistance of federal authorities to deal with their own state courts, state statutes, or state constitutions."
6.1.2006 1:29pm
WhistlingPastTheGraveyard (mail):
"The states have not previously asked for, or received, the assistance of federal authorities to deal with their own state courts, state statutes, or state constitutions."

Except for the tens of millions channeled through the Bureau of Justice Assistance and a dozen other agencies that directly fund state courts.

Yeah, other than that of course.
6.1.2006 1:32pm
Medis:
Paul S,

At this point, it is clear that the ambiguity you note is quite deliberate. The whole point is to be able to sell the Amendment as doing whatever one person might want it to do, and as not doing whatever another person might not want it to do, even if sometimes those two things are actually identical.

Of course, since no one actually expects it to be proposed and ratified, and since this is actually just political theater, what would otherwise be intolerable ambiguities are comfortably left unresolved.
6.1.2006 1:37pm
Medis:
WPTG,

I'm not sure if you are a serious poster, but obviously asking for federal funding and asking for federal rules of decision are pretty different matters, and Dale clearly was referring to the latter and not the former when he spoke of "dealing with" state courts, statutes, and constitutions.

In any event, perhaps you will answer my question: why exactly is it a matter of federal concern what the courts of a particular state do with respect to gay marriage pursuant to state statutes and constitutions?
6.1.2006 1:42pm
Freder Frederson (mail):
By Douglas W. Kmiec, a professor of constitutional law at Pepperdine University School of Law

This is absolute unadulterated bullshit. Until anyone can show one case where a single church has ever been sued for refusing to perform a marriage on any discrimination grounds that would normally put any secular business in a heap of trouble (race, religion, national origin) just shut up about this.

An interracial couple can walk into a church tomorrow and even though anti-miscegnation laws have been constitutionally prohibited for almost forty years now the pastor can say, "I refuse to perform this marriage because I think the mixing of races is an abomination before the Lord". There is not one court in the entire country that will even consider a discrimination case against that pastor. There is absolutely no recourse for that couple in the courts.

So don't be ridiculous.
6.1.2006 1:42pm
Targeted Outrage (mail) (www):
There are four main arguments against the FMA. First, a constitutional amendment is unnecessary because federal and state laws, combined with the present state of the relevant constitutional doctrines, already make court-ordered nationwide same-sex marriage unlikely for the foreseeable future. An amendment banning same-sex marriage is a solution in search of a problem.

Is it possible to couch this "argument" in any more weasel words? Present state of relevant Constitutional doctrines make same sex marriage unlikely for foreseeable future. Forgive me if I don't think these hollow assurances/blatherings from some law professor will keep a future supreme court from finding the penumumbras of emanations in the constitution mandating all states accept "gay marriage."

Second, a constitutional amendment defining marriage would be a radical intrusion on the nation's founding commitment to federalism in an area traditionally reserved for state regulation, family law. There has been no showing that federalism has been unworkable in the area of family law.

Except that it isn't, as John T pointed out with regard Utah's statehood.

Third, a constitutional amendment banning same-sex marriage would be an unprecedented form of amendment, cutting short an ongoing national debate over what privileges and benefits, if any, ought to be conferred on same-sex couples and preventing democratic processes from recognizing more individual rights.

Going through the process of amending the constitution to preserve the unique status and importance of marriage to our nation and society is undemocratic? This "argument" is nonsensical.

Fourth, the amendment as proposed is constitutional overkill that reaches well beyond the stated concerns of its proponents, foreclosing not just courts but also state legislatures from recognizing same-sex marriages and perhaps other forms of legal support for same-sex relationships. Whatever one thinks of same-sex marriage as a matter of policy, no person who cares about our Constitution and public policy should support this unnecessary, radical, unprecedented, and overly broad departure from the nation's traditions and history.

This argument is the same as the first one, in that it assumes that future courts won't do with gay marriage what Berger et al did with abortion. The only thing that will prevent gay marriage in the US is to write a prohibition to it in the constitution in unambiguous language. Arguing otherwise shows cluelessness or disingenuousness about jurisprudence in America in 2006.

Make no mistake, given current legal scholarship and supreme court interpretations, supporters of marriage have lost this debate. There is no legal justification not to call a contract between two men a marriage. You can be sure, in our lifetimes, this will come to pass. Unless we enact a constitutional amendment to remove marriage from interpretation by the courts, gays will be allowed to "get married" and enjoy the benefits that society has heretofore conferred on married couples. Absent this amendment, in twenty years, when we have a culture replete with gay marriage, polygamy, group marriages, and men marrying their grandsons to control inheritance, we will wonder how we got to this point. Or, more tragically, we won't ask any questions at all, accepting those contracts as normal, and instead, wonder why society has gone to hell.
6.1.2006 1:47pm
U.Va. 0L (mail):
U.Va. 2L (congrats, btw!),


Why do we care whether being a polygamist is a choice or homosexuality isn't or whatever? As far as the state should be concerned, marriage is just another contract. If fourteen people want to enter a contract or two women do, it doesn't matter whether it's a matter of choice, genetics, or what have you--it's just another contract.


But marriage is not just another contract. Being married causes the individuals to receive other benefits, such as lower taxes.
6.1.2006 1:49pm
Medis:
Targeted Outrage,

I'll ask you too: exactly why is what state courts do with respect to gay marriage pursuant to state statutes and constitutions a matter of federal concern?
6.1.2006 1:51pm
Jason Fliegel (mail):

An interracial couple can walk into a church tomorrow and even though anti-miscegnation laws have been constitutionally prohibited for almost forty years now the pastor can say, "I refuse to perform this marriage because I think the mixing of races is an abomination before the Lord". There is not one court in the entire country that will even consider a discrimination case against that pastor. There is absolutely no recourse for that couple in the courts.


More to the point, a gay couple can walk into any number of churches today and have a gay marriage.

Our society has two similar but distinctly separate concepts identified by the word "marriage." One is civil, the other is religious. I'm not sure why so many people have trouble grasping this.
6.1.2006 1:53pm
Halcyon (mail):
I guess I'm confused as to this 'Gay Marriage is being forced on us' bit. I understand that there are a lot of people who dislike gay marriage for a variety of reasons, but in the end how if it's legal is it being forced on them? They don't have to like it if it's legal, and they defiantly don't have to end up marrying someone of the same sex. It seems like something that in the end has absolutely no effect on anyone really but the gay couples.
6.1.2006 1:58pm
Humble Law Student:
Jason F. makes a good point. All the talk of each church doing what it wants is irrelevant, they already can. What we are concerned is with the civil institution of marriage, not the religious (though they are very similar). The civil institution of marriage differs dramatically from some ordinary contract because marriage is deemed as an institution fundamental to society. As such it receives many protections and benefits not afforded to other "contracts." Concurrently, any comparisons to an ordinary contract and the like are irrelevant.
6.1.2006 2:02pm
Thorley Winston (mail) (www):
The fact that certain Congressional Republicans are proposing a constitutional amendment to ban same sex marriage, a right which has never been declared to exist in the federal constitution, but not proposing any such amendment to reverse Roe v. Wade, which has been around for decades, is a perfect example of why the proposed anti-SSM amendment has nothing to do with concern about courts and SSM, and everything to do with election year political pandering.


Or it's just a recognition that while the public is pretty divided (depending on how the question is posed) on the so-called "right" to an abortion, there's a pretty definitive consensus that marriage is between one woman and one man. Politics being the art of the possible, it's perfectly reasonable for Congressional Republicans and Democrats to focus on an issue on which they are more likely to prevail.
6.1.2006 2:05pm
Medis:
Thorley,

Do you really think anyone in Congress believes that the FMA is likely to be proposed and ratified?
6.1.2006 2:11pm
Nunzio (mail):
I think any amendment should state that any decision by the United States Supreme Court regarding same sex marriage is invalid unless the decision is approved by the governors of all states that end in the letter A.
6.1.2006 2:14pm
Michael A. Koenecke:
Medis asks: "I'll ask you too: exactly why is what state courts do with respect to gay marriage pursuant to state statutes and constitutions a matter of federal concern?"

U.S. Constitution, Article IV, Section 1: "Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state."

I have yet to see anyone articulate a good reason why this will not be applied to homosexual marriages by the courts. All I have ever heard is that "ministerial acts" like marriage laws have been exempted in the past for the vague reason that each state can set its own public morality policy. Shaky grounds, made even shakier by Lawrence v. Texas. I'm a lawyer: somebody make a good case for why a Massachusetts homosexual married couple cannot prevail to have my state (Texas) recognize their marriage under full faith and credit.
6.1.2006 2:16pm
Medis:
By the way, from recent polls it appears that somewhere around 60% of the American people oppose gay marriage, but only around 50% of them support a constitutional amendment.
6.1.2006 2:17pm
Greg D (mail):
I must admit, I find the "Hey, it only happened in MA, that's no threat to me!" attitude rather amusing. I'm curious. What do proponents of that belief thing about teh Civil Rights Movement? "Hey, Jim Crow is only happening in the South. It doesn't affect me"?

"Judges" abusing their position in order to force their views on other Americans is wrong. More than that, it is evil. Any time we can stop, and slap down, the black robed thugs who do that we should.

Roe v Wade wasn't wrong because it "froze the situation", it was wrong because it was unelectable and unaccountable "Justices" forcing their personal whims on the rest of us.

If you don't understand that, you don't understand anything.
6.1.2006 2:18pm
Bob Flynn (mail):
I love the Cato Institute, so I generally respect any argument they make on any issue.

My take:

1st Question: Is gay marriage a good idea?

I think generally not.

2nd Question: At what level of gov't should it be proscribed?

I think at the state level.

3rd Question: So, why the need for a Constitutional Amendment?

If states were holding referenda or even acting thru Legislatures to legalalize gay marriage, then I would probably accept this. But, since you have active forum shopping by gay marriage activists to have courts declare traditional marriage laws unconstitutional, I think an appropriate response is warranted.

So, I think, Yes, the only way to do this is thru Constitutional Amendment.

It is an unfortunate, but appropriate curb on judicial activistism.

Flynn
6.1.2006 2:20pm
Rush (mail):
Just imagine Barney Frank and Denny Hastert french kissing after legitimizing their decades long forbidden love affair, do you want to see that? I wouldn't mind seeing Condi and one of the Bush daughters gettin it on tho.
6.1.2006 2:20pm
Public_Defender (mail):

I guess I'm confused as to this 'Gay Marriage is being forced on us' bit. I understand that there are a lot of people who dislike gay marriage for a variety of reasons, but in the end how if it's legal is it being forced on them?


Because many Christianists prefer to fret about the speck in their neighbor's eye rather than the beam in their own.
6.1.2006 2:21pm
M. Simon (mail) (www):
Could some one please define for me what "man" and "woman" mean?

Is the definition genetic?

By the eqpt. they carry?

And what do you do about folks who carry both kinds of eqpt?
6.1.2006 2:24pm
JosephSlater (mail):
It's interesting that nobody has responded to the point Cornellien and Medis keep making: this is pure political theater for the base, and nobody who's paying attention thinks it has the slightest chance of passing.

So I might add reason #5 for conservatives to oppose this: not wanting their movement and party to continue to be the party of the gimmicky, unserious "let's propose a constitutional amendment that will never get enacted during an election year for cynical, partisan reasons" strategy. See also balanced budget amendment, term limits amendment, flag burning amendment, . . . .
6.1.2006 2:31pm
Greg D (mail):
I guess I'm confused as to this 'Gay Marriage is being forced on us' bit.

Well, let's see if I can help you with that:

There is no State in this Country where the Legislative and Executive Branches have voted to recognize "marriages" by tow people of the same sex.

There is one State, MA, where a rogue majority of the State Supreme Court took it upon themselves to order the other two branches of the State Government to recognize and treat as valid such "marriages".

There's this idea, known as "Democracy", that says that it is The People who should rule. There's a modification of it, known as "Representative Democracy", which says that The People should chose "Representatives" to make the laws, and that the Representatives should have to go before The People, on a regular basis, in events called "Elections." There, The People declare whether or not they think the Representatives have done a good job, voting for the Representatives if they have, voting for someone else if the Representatives have not done a good job.

Allowing "Judges" to change the laws to suit the "Judges" personal desires (said "Judges" not being subject to campaigns where they go to The People, saying "this is what I'm going to do, these are the kinds of rules I'm going to impose, vote for me if you like these rules") is a direct assault upon the concepts of Democracy, and of Representative Democracy.

That is what every "Judge" or "Justice" who's ruled in favor of "same sex marriage" has done. That is what every ruling in favor of ssm, or ss domestic partnerships, will be, until such a time as The People chose to elect Representatives who explicitly chose to pass laws favoring such things.

Did I use small enough words that you understood?
6.1.2006 2:32pm
Archon (mail):
Marriage is simply a man and a woman entering an exclusive relationship for the purposes of raising a family. Homosexuals are incapable of reproduction (without the intervention of unnatural means). So, a marriage simply cannot exist between a man and a man or a woman and a woman.

Without marriage and reproduction we would have no society. So, society is completely justified in giving benefits to married couples. Nothing stops homosexuals from living together in exclusive relationships. The law only stops them from reaping benefits bestowed upon those that are capable of reproduction and ensuring the continuation of society.

Society has a compelling interest in assuring that institutions which support its continuation are not corrupted and I can think of no better place to codify these sacred institutions then in our founding document.

*Please note: Yes I am fully aware that not all married couples choose to reproduce - either through choice or biological inability. But, this is the vast minority of married couples. No matter what government policy you may be talking about - a very small number of people will receive its benefits but not necessarily be the prime target group.
6.1.2006 2:35pm
David Walser:
"Until anyone can show one case where a single church has ever been sued for refusing to perform a marriage on any discrimination grounds that would normally put any secular business in a heap of trouble (race, religion, national origin) just shut up about this."

I don't think it is unreasonable to be concerned that gay marriage may ultimately lead to greater state control over churches. In other countries, hate speech laws have been used against church ministers who have preached from the pulpit that homosexual activity is sinful. In this country, income tax exemptions have been pulled from church sponsored schools that had race based dating policies; church employers have been required to pay for their employees' abortions; medical students have been required to perform an abortion as part of their training; churches have been forbidden from requiring employees live according to the tenets of the church; and church ministers have been held liable for "malpractice" when giving "bad" marital advice. Given these precedents, why is it unreasonable to wonder whether a church might be, in some form or fashion, punished by government if it does not adopt the "correct" policy towards gay marriage? Advocates of SSM frequently assert that only bigotry can account for opposition to SSM. Wasn't bigotry the justification in removing the tax exemption from schools that prohibited cross-race dating? On that basis alone, why shouldn't it be expected that a church that refuses to perform gay marriages is at great risk of losing its tax exemption?
6.1.2006 2:38pm
Thorley Winston (mail) (www):
Archon pretty much nailed it in one. Well put.
6.1.2006 2:46pm
Medis:
Michael K.,

What you are calling a "vague reason" is actually a long-standing and well-recognized part of the Supreme Court's doctrine with respect to the Full Faith and Credit clause. As the Court recently explained in Baker v. General Motors COrp., 522 U.S. 222 (1998):

"Our precedent differentiates the credit owed to laws (legislative measures and common law) and to judgments. In numerous cases this Court has held that credit must be given to the judgment of another state although the forum would not be required to entertain the suit on which the judgment was founded. The Full Faith and Credit Clause does not compel a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate." (citations and quotations omitted).

See also Nevada v. Hall, 440 US 410 (1979), where the Court reasoned:

"It has often been recognized by this Court that there are some limitations upon the extent to which a state may be required by the full faith and credit clause to enforce even the judgment of another state in contravention of its own statutes or policy. . . . [W]e think the conclusion is unavoidable that the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events. . . . [The Clause] does not here enable one state to legislate for the other or to project its laws across state lines so as to preclude the other from prescribing for itself the legal consequences of acts within it."

Greg D,

So are you saying that the people in states like Massachusetts and Vermont have been deprived of their civil rights by their own courts, and that is why you think a federal constitutional amendment is required? Why shouldn't we let the people in Massachusetts and Vermont deal with that issue themselves?

Bob Flynn,

I'd ask you the same basic question. Whether or not the people of State A have been subject to "judicial activism" at the hands of their own state courts pursuant to their own state statutes and constitution seems like a matter for the people of State A to deal with. Why exactly should States B, C, and D get involved?
6.1.2006 2:46pm
Dave Hardy (mail) (www):
Could we instead get a constitutional amendment providing corporal punishment for legislators who ride a minor issue into the ground in order to pander for votes?

After the first few hundred floggings, the situation might improve a little.

Oh--and we'd need to make sure that "irresistable impulse" can never be part of the not guilty by reason of insanity defense.
6.1.2006 2:58pm
Public_Defender (mail):
I the Christianists really want to protect marriage, they would be pushing to add a ban on divorce to the federal constitution. So far, no one has been able to show that letting gay people marry would do anything to damage heterosexual marriages. (Stanley Kurtz has tried really hard, but he always falls short.)

A constitutional amendment banning divorce would advance the cause of protecting marriage, but a lot of Christianists want the right to divorce (to be fair, a few don't), and they are unwilling to restrict their own behavior. (As a political strategy, perhaps the Democrats should seek to amend the amendment to include a ban on divorce.)

But the Christianists don't want to "protect" marriage. They've discovered that it's better politics to complain about the speck in their neighbor's eye than the beam in their own.
6.1.2006 3:00pm
M. Simon (mail) (www):
So do we define "man" and "woman" by ability to reproduce?

Hormonal balance?

Please some one define "man" and "woman" for me.

How can the law be enforced without such a definition?
6.1.2006 3:00pm
M. Simon (mail) (www):
I always thought rights were individual, not majority or even vast majority.

And if the state has an interest in reproduction why not compel it?
6.1.2006 3:03pm
Michael A. Koenecke:
Medis:

Thank you for the citations; they are helpful. I still think that Lawrence makes enforcing a state's marriage laws problematic, but am less convinced that the full faith and credit clause will be the sole agent. I do still think it is a problem, when one combines this with the effect of the equal protection clause.

To those who scoff at the idea of the government requiring churches to recognize and perform homosexual marriages:

Catholic Charities Out of Adoption Business
6.1.2006 3:03pm
Duncan Frissell (mail):
Here's an "inside baseball" question to Dale and other libertarians who support state licensure of SSM:

Suppose that I'm a massage therapist in a state that does not license massage therapy. I organize a group of my fellows to petition the state to license massage therapists. We are seeking to increase the professionalism of massage therapy and restrict entry so that we can increase our incomes (in other words gain all the benefits that the other licensed professions have.

So what would be the libertarian position on this proposal? Do libertarians generally support or oppose the extension of licensure to new professions? Or do they favor ending the licensure of existing licensed professions? Isn't the answer obvious?

How is the licensing of private sexual unions different from the licensing of professions (save that such licensure would seem to be much more invasive of personal life)?

I know. Without state licensure of sexual congress you can't receive the 1001 benefits.

What became of the lost libertarianism of my youth...?
6.1.2006 3:05pm
M. Simon (mail) (www):
We have some of the greatest legal minds in the world here and no one can define "man" and "woman" .

So assuming the Amdmt. passes we are going to leave that one up to the courts?
6.1.2006 3:07pm
Medis:
Greg D,

We cross-posted. I just wanted to note that in many states, the judges actually are elected. In general, again, I don't see why you think the federal government, and the people of other states, should be interfering with how the people of any given state organize and deal with their own government, including their own courts.

Archon,

We have discussed a lot of your points before, but I wanted to note one oddity in your reasoning. Given the small number of gay people, gay marriages will also not change what is true of the vast majority of marriages. So what is it about gay marriages in particular, as opposed to other nonreproductive marriages, that you find so "corrupting" such that a small number of them could somehow outweigh the vast majority of marriages?
6.1.2006 3:09pm
Freder Frederson (mail):
On that basis alone, why shouldn't it be expected that a church that refuses to perform gay marriages is at great risk of losing its tax exemption?

Because all the cases you cite are when churches were providing services that were not part of the churches core function of providing religious instruction but acting as secular institutions (schools, hospital, counseling services, etc.). Holy Matrimony is a sacrement and the church, and the church alone, is entitled to set rules as to who is entitled to its sanctification. Most pastors also have a license to perform civil marriages but they are never forced to exercise that function if they don't want to.

My challenge is still operative. It would be like the government telling the Catholic Church it must ordain women (or Jews for that matter).
6.1.2006 3:11pm
wooga:
We have some of the greatest legal minds in the world here and no one can define "man" and "woman"
Hmmm. A man has a penis and a woman has a vagina. I think I learned that from "Kindergarten Cop"...
6.1.2006 3:12pm
M. Simon (mail) (www):
Here is what one libertarian thought of licencing:

"Unless we put medical freedom into the Constitution, the time will come when medicine will organize an undercover dictatorship. To restrict the art of healing to one class of men, and deny equal privilege to others, will be to constitute the Bastille of medical science. All such laws are un-American and despotic, and have no place in a Republic. The Constitution of this Republic should make special privilege for medical freedom as well as religious freedom." abridged quote --Benjamin Rush, M.D., a signer of the Declaration of Independence
6.1.2006 3:13pm
Archon (mail):
Why is the gay marriage debate riddled with red herrings and straw man arguments?

If you need "man" and "woman" defined then go watch Kindergarten Cop or ask your Mom.

The idea that if marriage is defined as a relationship between a man and a woman would somehow require a divorce amendment also is nothing more then a red herring.

Let's stick with the issue instead of setting up straw men to knock down.
6.1.2006 3:13pm
M. Simon (mail) (www):
Archon,

How do hemaphrodites fit into your scheme.

Will we need a genital inspection to get married?

Where to people surgically changed fit in?

This is not clear.
6.1.2006 3:17pm
Public_Defender (mail):

The idea that if marriage is defined as a relationship between a man and a woman would somehow require a divorce amendment also is nothing more then a red herring.


If your goal is to "protect" marriage, then it's perfectly fair to ask what the greatest threats are. Divorce is a far greater threat to marriage than letting gay people get married (if that's a threat at all). So if you're going to ban gay marriage, you should also ban divorce.

It's a red herring only to the extent that the anti-gay-marriage movement is not really a pro-marriage movement. The movement is just anti-gay. It's run and fed by people who are more worried about the perceived speck in their neighbor's eye than the beam in their own.
6.1.2006 3:19pm
Freder Frederson (mail):
Hmmm. A man has a penis and a woman has a vagina. I think I learned that from "Kindergarten Cop"...

Well, some people have both. And other people have had one or the other surgically turned into the other so it makes the whole issue rather problematic. And for a certain small percentage of population, you can't even tell for sure by checking their DNA.

See, everything you really need to know you didn't learn in kindergarten, or by watching "Kindergarten Cop".
6.1.2006 3:20pm
Halcyon (mail):
Well, let's see if I can help you with that:

There is no State in this Country where the Legislative and Executive Branches have voted to recognize "marriages" by tow people of the same sex.

There is one State, MA, where a rogue majority of the State Supreme Court took it upon themselves to order the other two branches of the State Government to recognize and treat as valid such "marriages".


Well first off why are they a rogue majority?


There's this idea, known as "Democracy", that says that it is The People who should rule. There's a modification of it, known as "Representative Democracy", which says that The People should chose "Representatives" to make the laws, and that the Representatives should have to go before The People, on a regular basis, in events called "Elections." There, The People declare whether or not they think the Representatives have done a good job, voting for the Representatives if they have, voting for someone else if the Representatives have not done a good job.

Allowing "Judges" to change the laws to suit the "Judges" personal desires (said "Judges" not being subject to campaigns where they go to The People, saying "this is what I'm going to do, these are the kinds of rules I'm going to impose, vote for me if you like these rules") is a direct assault upon the concepts of Democracy, and of Representative Democracy.


But isn't it also the job of judges to strike down laws that violate the state and national constitution regardless of what the people want unless they go out and amend said constitutions? And weren't the way judges given there positions purposely set up to protect them from making their judgments based on popular opinion as opposed to legal decision?


That is what every "Judge" or "Justice" who's ruled in favor of "same sex marriage" has done. That is what every ruling in favor of ssm, or ss domestic partnerships, will be, until such a time as The People chose to elect Representatives who explicitly chose to pass laws favoring such things.

Did I use small enough words that you understood?


Well actually you completely avoided my actual question to go off on this interesting little rant about democracy. But I'll ask it again here. So you don't like the fact that it's legal now because of a judicial ruling. Great! Now how is it being forced on you? How do YOU have to deal with said gay marriages? Again, they're not forcing you to marry someone of the same sex, they're not saying you have to like it, or even approve of it. So how is that being forced on YOU?
6.1.2006 3:21pm
M. Simon (mail) (www):
Archon,

The question is a legal one. To enforce the law terms must be defined.

Suppose the kindergarden teacher I ask is gay. Will that suit you?
6.1.2006 3:22pm
Archon (mail):
Medis-

What don't you understand about my reasoning. Gay people are incapable of reproduction and thusly do not fit within the framework of the institution of marriage.

As for the impact of gay marriage on society, first, I would counter your assertion that it would have a minimal effect. Estimates are that around 10% of society is homosexual.

Society has limited resources and cannot simply hand them out to everyone. Homosexual marriages reaping the societal benefits of marriage would put a strain on the system.

Furthermore, it distorts the traditional definition of marriage and which would probably spur hetrosexual couples to marry, that otherwise might have not, into marrying. Which would place more of a strain on the system.
6.1.2006 3:23pm
Rush (mail):
Approximately 1/5000 women is born without a vagina but otherwhise "normal". I've met a few of them.
6.1.2006 3:23pm
Public_Defender (mail):

Society has limited resources and cannot simply hand them out to everyone. Homosexual marriages reaping the societal benefits of marriage would put a strain on the system.


I thought the conservative argument was that marriage was a net-plus for society--the more marriage the better off we all are. I didn't know that conservatives thought of marriage as a drain.
6.1.2006 3:28pm
Archon (mail):
Yes, marriage is a "net-plus" for society because a marriage is based on reproduction and the continuation of society.

Marriage becomes what you would call a "net-minus" when it no longer serves that purpose and people enter into a marriage solely to reap societal benefits.

I believe your statement above is what is commonly referred to as a "straw man argument". Nice try though.
6.1.2006 3:30pm
Paddy O. (mail):
With regard to the imposition on churches is it that hard to believe there would be eventual legislative or judicial action against churches when terms such as Christianist are bandied about. "Here," they will say. "Let us tell you what you believe and how to act."

"No," they will also say. "You can't do that because that is against how we are interpreting your faith for you."
6.1.2006 3:31pm
wooga:
At it's root, this is a question about whether we should legislate morality. All the questions of federalism and separation of powers are relevant, but secondary. Moreover, the "nature v choice" debate is a straw man, since nobody is talking about outlawing "homosexuals", but rather putting a limit on a homosexual "behavior" - marriage (it's a status v. behavior distinction which was acceptable post-Evans, pre-Lawrence).

That said, the US has always legislated morality, and will continue to do so. People only recognize this fact when the prevailing law diverges from their own moral compass. Most laws (the tax code being a prime example) are dominated by legislative decisions to punish/reward citizen morality.

As of today, most Americans still feel that homosexual behavior is immoral, and thus should not be encouraged or rewarded (via marriage license). The debate about Constitutionality and distinguishing this from the Loving case is an interesting rhetorical exercise, but really it's all about people crafting legal arguments for/against gay marriage that fit (rather than shape) their own morality.
6.1.2006 3:32pm
Cornellian (mail):
Well, let's see if I can help you with that:

There is no State in this Country where the Legislative and Executive Branches have voted to recognize "marriages" by tow people of the same sex.


Wrong, the California legislature voted to allow same sex marriage, though Governor Schwarzenegger vetoed it. Not a single legislator failed to get re-elected after that vote, which means it is highly likely that it will pass again at some future time when another governor will not veto it, then we'll have the Dobson wing of the Republican party complaining about rogue legislators and governors.
6.1.2006 3:32pm
Freder Frederson (mail):
Furthermore, it distorts the traditional definition of marriage and which would probably spur hetrosexual couples to marry, that otherwise might have not, into marrying. Which would place more of a strain on the system.

I am really interested why the fact that the the two guys who own the antique shop down the street getting married would suddenly encourage the the Harley Davidson Dealer to finally tie the knot with his "old lady", thus causing four prosperous businesspeople to suddenly be plunged into a lower tax bracket and bringing the entire economy to its knees.
6.1.2006 3:33pm
Freder Frederson (mail):
Approximately 1/5000 women is born without a vagina but otherwhise "normal". I've met a few of them.

I think you are confusing your inability to reach their vagina with their lack of one.
6.1.2006 3:35pm
M. Simon (mail) (www):
Archon,

If reproduction is the criteria why do we let 80 year olds marry?
6.1.2006 3:36pm
Ship Erect (mail) (www):
Gay people are incapable of reproduction and thusly do not fit within the framework of the institution of marriage.

How are gay people incapable of reproduction? Man and woman have sex, baby produced. Being gay doesn't have any impact on someone's fertility. The TV show Queer as Folk actually utilizes this very idea in the first episode.

And, btw, if you claim that artificial insemination is "unnatural," and therefore those who use it are barred from marriage, why does this apply to only gays and not straights?
6.1.2006 3:39pm
Archon (mail):
M. Simon-

1. An 80 year old man is still capable of reproducing
2. A 65 year old woman recently gave birth
3. Let's not argue about exceptions that are the vast minority of all marriages
4. Every broad sweeping policy will always have exceptions enjoying its benefits.

Really, lets knock it off with the straw men.
6.1.2006 3:39pm
wooga:
If reproduction is the criteria why do we let 80 year olds marry?
Uh, he addressed that in his first post. Any bright line rule will inevitable have some "errors", and some people will gain the benefit even though they are not truly in the spirit of the law. That is a practical reality of any legal system applied to millions of people.
6.1.2006 3:40pm
Randy R. (mail):
Greg D:

Your statements are correct, up to a point. The whole point of our Constitution is to provide democracy, so that majority rules, but to protect the minorities, who have basic rights that the majority cannot override.

So yes, the judges in Massachusetts (mostly Republican, by the way) ruled that gays should not be discriminated against in terms of marriage. They did nothing wrong, although you might disagree with it. If, for instance, the laws in MA said that blue-eyed people may not marry brown-eyed people, and even if a vast majority of the citizens approve of that law, the judges would still be correct in finding it unconstitutional.

Even the most conservative judges, such as Scalia, don't agree with you.
6.1.2006 3:42pm
Cornellian (mail):
As for the impact of gay marriage on society, first, I would counter your assertion that it would have a minimal effect. Estimates are that around 10% of society is homosexual.

Society has limited resources and cannot simply hand them out to everyone. Homosexual marriages reaping the societal benefits of marriage would put a strain on the system.


So in other words, we could at a stroke relieve the state of the obligation to support up to 10% of the population by allowing those people to marry each other and thereby assume the obligation to support the spouse. Sounds like a major benefit to me.
6.1.2006 3:43pm
Bob Flynn (mail):
Medis asks:

I'd ask you the same basic question. Whether or not the people of State A have been subject to "judicial activism" at the hands of their own state courts pursuant to their own state statutes and constitution seems like a matter for the people of State A to deal with. Why exactly should States B, C, and D get involved?

I take your question in good faith, although it seems a tad naive.

There is a movement afoot to legalize gay marriage. That's cool. The problem is that the proponents don't discern between means employed to achieve this end. If they could get a Constitutional Amendment, permitting gay marriage -- they'd take it. Ditto for state legislatures. Ditto for state referenda. Ditto for judicial fiat in state courts.Ditto for judicial fiat in federal courts.

That is the problem.

The question is what reasonable means can countervailing forces take to oppose this? One mean is to enact amendments to State Constitutions to cut off activist courts at the pass. If done in all 50, great. But, even if this is done, some federal judge somewhere will try to strike any particular enactment down.

Thus, enacting an amendment to the US Con, settles the issue once and for all.

At least, that's the hope.

Flynn
6.1.2006 3:44pm
Public_Defender (mail):

3. Let's not argue about exceptions that are the vast minority of all marriages


Permitting gays to marry would be part of "the vast minority of all marriages," so why are you arguing? In fact, I'd wager that there are a lot more infertile heterosexual couples than gay couples who want to marry.
6.1.2006 3:44pm
M. Simon (mail) (www):
I'm still waiting for a legal definition of "man" and "woman". Don't we need that in the Amdmt.?

Archon you are brilliant. You can do it. I have faith in your abilities.
6.1.2006 3:45pm
Archon (mail):
1. 10% of society is not a "vast minority". Keep in mind that the 10% number is also what gay rights groups like to call a "conservative" estimate.

2. You don't need a legal definition of "man" and "woman". These are not subjective terms. They are terms that a person, of reasonable intelligence, can easily decipher. Not every law has to have overly cumbersome definitions of every term included in it. This is no more then a red herring.
6.1.2006 3:51pm
M. Simon (mail) (www):
wooga,

So you are arguing that marriage is not a right, but a legal construct?

So given that why can't we have race based laws on marriage?

Or genetics based laws? To prevent or reduce genetic problem in the imputed offspring?

It is looking more and more like addiction is genetically based. Don't we want to prevent that?
6.1.2006 3:51pm
M. Simon (mail) (www):
In fact the current head of the NIDA says addiction is genetically based.
6.1.2006 3:53pm
Randy R. (mail):
Additionally, it should be noted that in 1967, when SCOTUS ruled in Loving v. Virginia that interracial marriage cannot be barred in any state, fully 80% of all American disapproved of interracial marriage. According to the theory of some people here, SCOTUS was wrong, because they made a federal decision on a state matter (marriage) and because they went against the will of the majority of Americans.

Additionally, people back then had very good reasons to oppose interracial marriages. They said it would weaken the moral fiber of the country, lead to a drop in the birth rate, muddle the races, harm children, and all sorts of things. People complained about having interracial marriage 'imposed upon them" and threatened to not "accept" interracial couples.

Today? Well, hardly anyone is against interracial marriage. All those fears turned out to be untrue. In MA, there has been attempts to amend the state constitutiont to ban gay marriage. Guess what? It went no where. That's because the citizens of the state, after having lived with gay marriage for a few years, realized that their lives have not been disrupted not a whit. What further proof do you need that gay marriage is not a revolution? Belgium, Canada, and the Netherlands allow full gay marriage. Spain is next. Britain and Germany offer just about all the same benefits but merely call it 'civil union.' Even Stanley Kurtz, who tried so hard to find something wrong in those countries, finally admited that he couldn't really tie a drop in birth ratest with gay marriage.

So what's all the fuss?

And the issue is already past gay marriage. So many gay people are living together as spouses, and have adopted children, that they constitute a de facto family. Denying the right to marry hurts most the children of those couples, since they don't have nearly the same benefits as children of married couples. Inheritance laws, tax laws, social security laws, and so on -- it's the kids who get shortchanged.

So hurray to those oppose gay marriage: you can stand on your soapbox and deny us a basic right that you have, and you go home and feel good about 'saving society.' But in the end, you have just made it much worse for all.
6.1.2006 3:53pm
M. Simon (mail) (www):
OK can 100 year olds marry? Based an the ability to produce children?
6.1.2006 3:55pm
Freder Frederson (mail):
Furthermore, it distorts the traditional definition of marriage and which would probably spur hetrosexual couples to marry, that otherwise might have not, into marrying. Which would place more of a strain on the system.

This is the first time I have heard this argument. Usually, the opposite argument is made. Something along the lines of "Well if queers do it, why should I get married, they've ruined it for everyone". (Of course, this line of reasoning doesn't seem to hold up when it comes to oral and anal sex.)
6.1.2006 3:55pm
Cornellian (mail):
Uh, he addressed that in his first post. Any bright line rule will inevitable have some "errors", and some people will gain the benefit even though they are not truly in the spirit of the law. That is a practical reality of any legal system applied to millions of people.


In other words, the requirement of being able to produce children in order to get married is to be applied only to gay people, not to straight people. Heck, if you're straight you don't even have to want children and you can still get married.
6.1.2006 4:00pm
wooga:

So you are arguing that marriage is not a right, but a legal construct?
So given that why can't we have race based laws on marriage?
Or genetics based laws? To prevent or reduce genetic problem in the imputed offspring?
It is looking more and more like addiction is genetically based. Don't we want to prevent that?

What? I'm saying that marriage laws are examples of legislated morality. I said nothing about "rights" versus "legal construct."
And your addiction point raises another point of mine. Namely, alcoholism is tied to genetics. People are "born" with that addictive gene. Well shouldn't we celebrate alcoholism and have "alcoholic pride parades" (insert St. Patrick jokes)? No, instead we recognize alcoholism as destructive and undesirable. Just because it's genetic does not mean we shouldn't pass laws punishing the "natural behavior" caused by that gene.
So why then does anybody care whether homosexuality is genetic? The real question is whether homosexual marriage is yet another circumstance where the American public feels religious morality should trump individual freedom.
6.1.2006 4:01pm
Rush (mail):
Freddy Frederson: I reached yo mammas vagina pretty good.
6.1.2006 4:02pm
M. Simon (mail) (www):
So all you Marriage Amdmt. proponents, I'm still waiting for the definitions of "man" and "woman" for purposes of the Amdmt.
6.1.2006 4:06pm
Freethinker:
U.Va. 0L said:

I disagree. I would not consider "being a homosexual" a state of nature in the same respect that race is a state of nature. If you think they are, would you also agree that "being a pedophile" of "being a polygamist" are also states of nature in the same respect? If not, why not?

Do I think people choose to be pedophiles? No. People do choose to act on pedophiliac urges, however. Polygamy is maybe a different story due to all of social conditioning that is performed in polygamous societies/groups/etc.

So, to answer your question, yes, being a pedophile is like being white or gay, and no, I don't think most cases of polygamy are "natural" for the aforementioned reasons.

This obfuscates the point somewhat though; sexual relations with children is not legal because there is clear harm being done to the child. It's clear why pedophiles should not act on their desires. I fail to see the similar harm invoked by the consenual marriage of two people of the same sex to one another.

What is the overriding principle/justification for making SSM illegal? The majority doesn't like it, so it should be illegal? You can throw away most of the Bill of Rights if that's the case. Because it offends many people's religious beliefs? So what. Religious beliefs hold no special place in our laws; they are expressly forbidden to do so.

It is ludicrous that two homosexuals cannot get married in this country, especially given that we confer special benefits to the married. What's next, non-Christians can't marry?
6.1.2006 4:10pm
wooga:
Cornellian said:
In other words, the requirement of being able to produce children in order to get married is to be applied only to gay people, not to straight people.

I would say you are correct. Practically speaking, only gays are affected by the reproduction rule. That's why I don't buy the reproduction argument on pure legal grounds.
6.1.2006 4:11pm
Elais:
wooga,

I'm an athiest. Why should religious 'morality' trump my individual freedom? Why conflate religious morality with secular law? This isn't a theocracy you know, like Iran or something. The Constitution wasn't founded on the bible.

There is nothing 'immoral' about being gay nor is same-sex marriage immoral. 'Moral' and 'immoral' are not legal terms but an opinion.

Blonds have more fun, you know. They must be immoral and must be prevented from marrying.
6.1.2006 4:15pm
JerryM (mail):
It is interesting that many of the same people who were annoyed at the FBI search of Mr Frozen $90K congressional office because of the precedent reaching back to the 1400's in England fail to recognize the same precedent in marraige, which dates a hell of a lot longer.
6.1.2006 4:16pm
Archon (mail):
M. Simon-

Having a discussion with you is like talking to a wall.

1. Yes a 100 year old person could marry because reproduction is not a REQUIREMENT to get married. It is the product of the vast majority of heterosexual marriages. Once again, any broad policy will have exceptions.

2. (copied from my earlier post - your question has already been addressed and because it is nothing more then a red herring it does not and should not be directly addressed)

You don't need a legal definition of "man" and "woman". These are not subjective terms. They are terms that a person, of reasonable intelligence, can easily decipher. Not every law has to have overly cumbersome definitions of every term included in it. This is no more then a red herring.
6.1.2006 4:16pm
Freethinker:
Freder Frederson said:

No church will be forced to perform SSM, even if it is legal in all fifty states. There is not one church in this country who is forced to marry anyone they don't want to. They can discriminate on the basis of race, religion, marital status (try getting married in a Catholic Church if you are divorced), national origin, or any reason they, or the individual pastor sees fit. To imply that any church will ever be required to marry a homosexual couple is to simply create a controversy that does not, and never will, exist.

That was my point. I wasn't implying that churches would be forced to marry anyone, I was implying the opposite. What I was trying to get at is, what reason, if any, is there for the government to be involved in deciding whether or not two homosexual adults can consensually marry each other?

How can anyone believe they have the right to say "I don't want you to do this activity that has no tangible effect on myself, so it should be illegal"?
6.1.2006 4:17pm
M. Simon (mail) (www):
wooga,

Since you took the bait let me respond re: alcoholism/drug addiction.

Genetics is only 50%. The other 50% is trauma, PTSD from war child abuse etc. is one example.

People in chronic pain chronically take pain relievers.

Is Addiction Real?

So we are persecuting the traumatized. Cute. And perfectly legal. So far.

Since trauma depends on uncontrolable life events (like war or car accidents) and genetics (so far) is fixed by the parents, why wouldn't genetically based marriage restrictions be legal/a good idea?
6.1.2006 4:22pm
M. Simon (mail) (www):
Archon,

I accept your point about 100 year old folks. Potentially they can at some future time reproduce.

And if your definition of "male" and "female" is equipment based why don't you just say so?

"Everybody knows" is not a legal definition. Thus it will be litigated. I suppose having hermaphrodites in the news will be a net plus for society.
6.1.2006 4:29pm
Elais:
Archon,

So a post-op trannesexual could marry another post-op transexual? Wouldn't the legal definition of 'man' or 'woman' be important then?
6.1.2006 4:32pm
Public_Defender (mail):

Yes a 100 year old person could marry because reproduction is not a REQUIREMENT to get married. It is the product of the vast majority of heterosexual marriages. Once again, any broad policy will have exceptions.


If you are willing to make an exception for heterosexuals who are voluntarily or involuntarily infertile, why not make an exception for gay people?

I'll tell you why--because attacking gay people makes many Christianists feel good about themselves. Attacking gay people lets the Christianists fret about the speck in their neighbor's eye (gay marriage), not the beam in their own (divorce).
6.1.2006 4:40pm
Clayton E. Cramer (mail) (www):
Rush writes:


Approximately 1/5000 women is born without a vagina but otherwhise "normal". I've met a few of them.
Considering how you must have found out about their condition, you must have been very disappointed.
6.1.2006 4:48pm
Archon (mail):
M Simon (and now Elais is in on it) -

Could a person with 6 vaginas, 2 rectums, and 6 penises marry another person with 8 penises, 3 rectums, 2 heads, and 7 vaginas?

It is an absurd question, just like the questions posed above. Your attempt to show that a marriage amendment would be impossible to implement because a proponent cannot come up with an answer to every absurd scenerio that might develop is just plain stupid. Laws do not have to address every far flung exception or oddity that might arise. If this were a requirement, it would be impossible to make any laws.

Terms that are plain, simple, and percise such as "man" and "woman" do not require overly legalistic definitions. They teach this in the first year of law school. I certainly hope neither or you are law student nor lawyers.
6.1.2006 4:53pm
Medis:
Archon,

I think others have covered this point, but my confusion about your views is quite simple. You are willing to tolerate all sorts of "exceptions" or "errors" with respect to married couples reproducing, provided that those "exceptions" and "errors" involve straight couples. But you are not willing to tolerate such an exception or error if it happens to involve a gay couple. So, in a nutshell, why the double standard?

Incidentally, 10% is almost surely far too HIGH of an estimate of what portion of the population is gay. Moreover, so far the evidence suggests the marriage rate among gay couples is not going to be as high, at least initially, as the marriage rate among straight couples. I'd be very surprised, accordingly, if more than 1-2% of all marriages involve gay couples any time in the near future. So, how does that number compare to, say, the percentage of marriages involving people who are too old to have kids, or people who are otherwise incapable of natural reproduction, or people who are simply unwilling to have children? My guess is that the "exceptions" and "errors" you are worried about are actually much smaller in magnitude than the "exceptions" and "errors" you seem uninterested in eliminating.

wooga,

It is undoubtedly true that we "legislate morality" in some sense as a matter of course. The more interesting and relevant question is what specific sorts of moral reasoning we think can justify legislative action. In this case, I think the specific question will end up being whether we think the state can justify legislation on the basis of sexual ascetism (the principle that sex for any other purpose besides reproduction is immoral).
6.1.2006 4:55pm
Clayton E. Cramer (mail) (www):

Fourth, the amendment as proposed is constitutional overkill that reaches well beyond the stated concerns of its proponents, foreclosing not just courts but also state legislatures from recognizing same-sex marriages and perhaps other forms of legal support for same-sex relationships. Whatever one thinks of same-sex marriage as a matter of policy, no person who cares about our Constitution and public policy should support this unnecessary, radical, unprecedented, and overly broad departure from the nation's traditions and history.
This would be a strong and persuasive argument against an FMA that prohibited the state legislatures from defining marriage except that:

1. Loving v. Virginia (1967) has already taken this "radical, unprecedented, and overly broad departure from the nation's traditions and history." Unless Professor Carpenter is prepared to condemn Loving's interference in state sovereignty, he's just engaging in sophistry to prevent the puppets in black from imposing same-sex marriage.

2. Lawrence v. Texas (2003) is also a "radical, unprecedented, and overly broad departure from the nation's traditions and history," and much more so than Loving. Unlike the Virginia statute banning interracial marriage, which is relatively recent, and was never universal, same-sex marriage has never been recognized. Professor Carpenter isn't going to buy this argument for why states should be allowed to criminalize sodomy, so it is just special pleading to argue that the state legislatures should be free to legalize same-sex marriage.

I would prefer an amendment that simply declares that no state would be required to recognize marriages other than "one man, one woman." I agree that the proposed FMA probably goes too far. On the other hand, if homosexuals had been a little less willing to use their puppets in black, this whole issue wouldn't be happening right now. Overreach, and look where it gets you.
6.1.2006 4:57pm
Archon (mail):
Public Defender-

I have addressed your concerns above.

But, nothing beats the random "bigot" charge and the inflammatory rhetoric. When people revert to such attacks it only shows the weakness in their actual argument.
6.1.2006 4:57pm
Houston Lawyer:
If there is any attacking going on, it is the proponents of SSM. They are trying to redefine our most basic social structure because it doesn't suit them. Most advocates of SSM appear to actively despise the traditionally religious. If you treat your opponents with contempt, expect some push back.
6.1.2006 4:59pm
wooga:
Elias,
If you're an atheist, on what basis to argue you have personal freedom. What is the source of your "rights" aside from a social contract?
Do you not realize that the vast majority of laws are based on someone's moral code? Why should that particular moral code trump any of our personal freedoms? The answer is simple: anarchists don't win elections.
6.1.2006 5:07pm
Sailorman (www):
I do NOT personally support such an amendment. But I think these arguments against passage are extremely weak and use an a priori stance.

Personally, I prefer to think that the default IS democracy: That if we elect senators and congresspeople who passs an amendment in regards to our own political pressure, through the system we all interact with... well, isn't that OK? There seems to be a concept that some subjects are essentially beyod the public's ability to properly process and/or lobby and/or vote on.

This is not how our country has ever been set up, and though I detest the concept of the FMA, I am not willing to abandon my faith in and support of our legislative process merely because I happento hate the result.

Some here appear to be proposing that if you can make an excellent argument "showing" that something "should not" pass, that this has some interinsic effect on the actual passage of the bill. Either I am misreading the argument--entirely possible--or they are assuming some sort of "ultra level" of government control which I find appalling.
6.1.2006 5:10pm
Archon (mail):
Well I think it is safe to say that traditional marriage has won the day.

The best the opposition can come up with are unfounded inflammatory rhetoric and questions about 100 year old people marrying.
6.1.2006 5:11pm
Humble Law Student:
Medis,

I think Archon's point is that infertility among heterosexual couples is the exception. Gays and Lesbians cannot as a rule procreate except through alternative (unnatural - not in the pejorative sense) means.
6.1.2006 5:11pm
Randy R. (mail):
Let's be honest here: There is absolutely NO requirements to getting married. Yes, there are legal prohibitions, such as age limits, but there are no requirements.

When a couple decide to get married, the state does not ask them whether they intend to have children. The state does not ask them whether they will raise their children properly if they do have them. The state does not even require that a couple be in love, fer crissakes. See Britney Spears.

So why now all these requirements upon gay couples? They can't get married because they can't have kids. Fine -- then put that into law: All couples contemplating marriage must be able to reproduce. If it's THAT important to you, then put it let's have a referedum. Hell, why not an Amendment?

What really appalls me, however, is the fact that so many people here fail to understand what a marriage really IS about. It is about two people who meet, fall in love, and decide to spend the rest of their lives together. In western countries, that is the real basis of all marriages, or is supposed to be the basis. Although i's okay to marry for money over love, still, the couple must profess love to one another.

So we have commentators here who say stupid things like, well if gays can marry, why not a man and a cow? Or a man and his grandson. Or a man and his sister.

Good lord. If you really have no concept of what romantic love is, then I really feel bad for you and your spouse or date. What we are talking about is not so much contract rights (and I agree the gay rights people should not be emphasizing this point) as it is about marrying the one true love of your life.

I see no one here who debates, or even recognizes, this concept. Partly, it's because homophobes believe gay people are incapable of loving another person of the same sex romantically as opposite sex people do. To those people, I say, get out and meet some gay people. You will find some couples that love each other at least -- if not more -- as you do. To deny otherwise betrays bigotry and ignorance.

Sure, some gays are immature, and have no concept of real love. So do straights. But again, we have NO requirements for marriage for straight people, and the same should be for gay people.
6.1.2006 5:12pm
wooga:
Medis,

In this case, I think the specific question will end up being whether we think the state can justify legislation on the basis of sexual ascetism (the principle that sex for any other purpose besides reproduction is immoral)
States did just that for over 200 years. Heck, even SCOTUS upheld the anti-sodomy law in Bowers v. Hardwick (1983 or so). And I'd wager good money several members of SCOTUS are willing to reverse Evans and Lawrence, going right back to Bowers (oh, the dark age of the eighties!)
6.1.2006 5:12pm
Public_Defender (mail):

But, nothing beats the random "bigot" charge


You're the one who pulled out the "B" word, not me.
6.1.2006 5:12pm
Archon (mail):
Holy S***, Humble Law Student got it!
6.1.2006 5:14pm
Randy R. (mail):
In the last two years, opposition to gay marriage has softened quite a bit. It was reported here on Volokh.com that a recent study showed that although opposition has declined slightly, the big drop was in those 'strongly opposed.' The 'somewhat opposed' gained quite a few, and the biggest numbers were with older people over 60.

In light of this changing dynamic, it appears that that until we either reach consensus on gay marriage, or the numbers stabilize, it is unwise to amend the constitution to cater to passing whims and fancies. And yes, I believe opposition to gay marriage is a passing whims. People in their teens, 20s, and mostly 30s overwhelmingly approve of gay marriage, so time is on our side.
6.1.2006 5:16pm
Archon (mail):
If "bigot" doesn't sum up your feelings about Christians in this statement, then what does?

I'll tell you why--because attacking gay people makes many Christianists feel good about themselves. Attacking gay people lets the Christianists fret about the speck in their neighbor's eye (gay marriage), not the beam in their own (divorce).
6.1.2006 5:16pm
Rush (mail):
In "Persistant Mullerian Duct Syndrome" the affected individual has the Male genotype of XY, penis and testes, but also a uterus and fallopian tubes. There have been documented cases of overzealous masturbation leading to auto-fertization and subsequent pregnancy.
6.1.2006 5:17pm
wooga:
Randy R., your "marriage = love" argument is an attempt to impose a modern construct on a traditional institution. Marriage in most of the world, and for a large portion of US history, was not "about love." Although I married my wife out of love, her parents were an arranged marriage, where love was never even a consideration.
6.1.2006 5:19pm
Humble Law Student:
Randy R.

First, there are two requirements. That it be a couple, and that they be of the opposite sex. Both are requirements, the later which u seek to change.

Second, I and I believe most of the Anti SSM don't necessarily deny that gays and lesbians can love each other. We don't seek to deny you the ability to love. We only are concerned with the social (not religious) institution of marriage. Since it is a social institution and as such exists for the benefit of society, it is up to our society and goverment to determine what is the best makeup of this institution. Love between couples is not really a direct concern for society writ large. The perpetuation of our society however is. As such, the strong link between heterosexual couples and marriage. Heterosexual couples by and large and the single best way to ensure the continued survival of our society.

You can love whoever you want. Just don't expect benefits from society for a relationship that it doesn't deem meritous of the same benefits as some other.
6.1.2006 5:22pm
jimbino (mail):
Medis and Michael K.:

On the subject of Full Faith and Credit, let's accept for the sake of argument that a state that doesn't recognize SSM can refuse to recognize an SSM valid in Massachusetts. What keeps Massachusetts from passing a law refusing to recognize any marriages of a state that doesn't recognize all Massachusetts' marriages?

More broadly, what keeps Denmark, Spain or even Saudi Arabia from passing a law refusing to recognize any marriages, of a country that refuses to recognize all its (even polygamous) marriages?

This seems a great battleground of the future and such reprocity might threaten to prohibit an Amerikan from visiting his sick spouse in the hospital, inherit property, escape certain taxes, etc. in the foreign country.
6.1.2006 5:23pm
Aaron:
Actually, if we assume (no really warrented given current statistics) that those who get married stay married, then with current life expectancies, shouldn't most long-lasting marriages finds themselves with non-child-bearing members? An "error" rate (your word, not mine) that approaches 1 seems grossly overinclusive, no?
Furthermore, marriage is not a requirement for procreation.

The sad fact is, no one can explain (and in fact Archon argues the opposite) how more gays getting married decreases the number of straights getting married.
6.1.2006 5:23pm
Archon (mail):
Let's get things 100% straight here (no I'm not trying to be punny). No law bans homosexuals from living together, supporting each other, or loving each other.

Homosexuals can have a wedding with a big limo, white dresses (or tuxes), and a cake. They can have a honeymoon, buy a house together, keep joint bank accounts, support each other, love each other, put each other in their wills, and grow old togehter. I would say that over 90% of America has absolutely no problem with this.

What is the problem is when homosexuals want to reap benefits from a system designed to encourage and foster reproduction. Society has every right to protect such a benefit system and exclude people who are not capable of reproduction from it.
6.1.2006 5:26pm
Humble Law Student:
Randy R.

Come on. I hardly think hundreds if not thousands of years of history against gay marriage is hardly in your words, a "passing whim." You can disagree with our position all you want, but please keep your statements within the realm of plausability.

What you mean to say is that attitudes are changing over time. But don't think you can just sweep our opinions under the rag as if they were some childish whim.
6.1.2006 5:27pm
M. Simon (mail) (www):
HLM,

Childish whims get enacted into law all the time.

The most famous (in part religiously based) is alcohol prohibitiion.

Generally the maximum of liberty works best.
6.1.2006 5:32pm
Clayton E. Cramer (mail) (www):

So why now all these requirements upon gay couples? They can't get married because they can't have kids.
No, the argument is that civil marriage is a state concern because of resolving issues of child support and inheritance. Those aren't an issue for people that can't have kids. Non-procreative marriages are simply free riders on what is, even today, a normal marriage: one that produces children with all the legal complexities involved.

There's no question that opposition to same-sex marriage is driven by both secular discomfort and religious objections to homosexuality. Still, the secular reasons for marriage (which are all wrapped up with childrearing) don't really to homosexuals.

By the way, I don't really buy the argument that gay marrage is going to do damage to the institution of marriage. Easy divorce laws have done far damage. If lawyers were busily asking the puppets in black to impose no-fault divorce laws on the states, I would be supporting a Federal Marriage Amendment to say that writing divorce laws is a state legislative perogative.
6.1.2006 5:34pm
Archon (mail):
Homosexuals already have "maximum" liberty, as demonstrated by my previous post.

They simply don't have access to a benefits system for which their relationships are completely incompatible with.
6.1.2006 5:35pm
Archon (mail):
Cramer -

I always love the argument that X has already screwed up Y so there is no reason not to implement Z.

You don't have to be studying for the LSAT to realize the logical fallacies in the above argument.
6.1.2006 5:37pm
M. Simon (mail) (www):
wooga,

Natural rights do not require a God. They only require nature. The nature of man. Man wants to be free.
6.1.2006 5:37pm
Public_Defender (mail):

Let's get things 100% straight here (no I'm not trying to be punny). No law bans homosexuals from living together, supporting each other, or loving each other. * * *


Not true. A gay person whose spouse is not an American citizen cannot bring (or keep) the spouse in the U.S. And some cities do have laws banning non-married people from living together. A city in Missouri is threatening large fines against an unmarried couple that is living there without a residency permit.

Further, Virginia has a law that if it means what it says means that private contracts that are part of a gay relationship are void. That means no wills. No support agreements. Nothing.

If a gay couple raising a child together separates (I guess some gays are learning to act like heterosexuals), the bio parent can sometimes bar the non-bio parent from any role with the child. Also, the child would not be entitled to child support from one of the only two parents he or she has ever known.

If a gay partner gets sick and can't work, the healthy partner often can't use his or her health insurance plan to support the sick partner. That's the same if one of the two wants to be a full-time parent while the other works.
6.1.2006 5:40pm
M. Simon (mail) (www):
Archon,

If homosexuals of the female persuasion or hermaphrodites have children should they have access to the marriage system?
6.1.2006 5:41pm
Clayton E. Cramer (mail) (www):
Wooga writes:


Randy R., your "marriage = love" argument is an attempt to impose a modern construct on a traditional institution. Marriage in most of the world, and for a large portion of US history, was not "about love." Although I married my wife out of love, her parents were an arranged marriage, where love was never even a consideration.
During the debates here in Idaho about whether to put a "one man, one woman" amendment on the November ballot, Rabbi Fink explained that marriage is really a contract about money, not love, or anything of a spiritual nature, and that not only did he support same-sex marriage, but polygamous marriage, and any other kind that people want to contract. I'm surprised that he didn't include interspecies marriage.
6.1.2006 5:41pm
M. Simon (mail) (www):
Clayton,

His positiion is the traditional Jewish position.

Look up "ketuba" which is the name for the traditional Jewish marriage contract.
6.1.2006 5:45pm
M. Simon (mail) (www):
Clayton,

Female gays and hermaphrodites can have children. Male gays can and do adopt.

What to do, what to do?
6.1.2006 5:49pm
wooga:
Natural rights do not require a God. They only require nature. The nature of man. Man wants to be free.

M Simon, please pass whatever you've got!
Seriously, I, as a Man, "want" to nail Salma Hayek. In fact, that want is part of "the nature of man." And such an act would be in tune with 'nature'. Alas, I do not have a "right" to Salma Hayek.

So then, what really is the "source" of rights, if not either (1) divine, or (2) social contract?
6.1.2006 5:49pm
Archon (mail):
1. M. Simon I would tell you stop with the constant stream of red herrings, but they are absolutely so absurd that they are hilarious.

2. Public Defender - which of the above stops gay people from living together, supporting each other, or loving each other?

The ordinance to which you refer is a facial nuetral one that many towns have limiting maximum occupany in certain residential zones. It applies to gays and non-gays alike.

As for health insurance - that is a benefit society bestows upon married couples so one parent can care for children. It is an expensive benefit for society to bear and shouldn't apply to homosexuals. Nothing bars a partner from buying a private plan for the other sick partner.
6.1.2006 5:51pm
M. Simon (mail) (www):
wooga,

Did you get her consent? If so I'm down with it.
6.1.2006 5:52pm
Ken Arromdee (mail):
Yes a 100 year old person could marry because reproduction is not a REQUIREMENT to get married. It is the product of the vast majority of heterosexual marriages. Once again, any broad policy will have exceptions.

The law is already broader than it needs to be. It wouldn't be complicated at all to write a law stating that women past menopause may not marry or that any man who has had a vasectomy may not marry. You probably couldn't write a law that is so narrow that it allows only fertile people to marry, but you could do a heck of a lot better than you do now.

And if the law is already broader than it needs to be, why not broaden it a bit more and let homosexuals marry too?
6.1.2006 5:54pm
M. Simon (mail) (www):
Red herrings?

These are issues in our over lawed and over lawyered society that will get litigated.

Be prepared.
6.1.2006 5:56pm
Chimaxx (mail):
Michael Koenecke:

I'm mystified why people keep pointing to the Catholic Charities story as evidence of the state forcing a church to accept same-sex marriage. Massachusetts adoption agencies had been prevented from discriminating on the basis of sexual orientation for years. Catholic Charities actually had placed a number of chidren with same-sex couples over the preceding years. The board running Catholic Charities was willing to continue to do so when circumstances warranted. Nothing had changed in the relevant law regarding nondiscrimination in adoption services. What changed the situation for Catholic Charities had nothing to do with the change in legal status of some same-sex couples in Massachusetts and everything to do with the change of Pope and Bishop to ones even more willing to sacrifice the well-being of real children on the altar of abstract principle.
6.1.2006 5:59pm
wooga:
M Simon, If I have to get consent from another individual, I don't really have a "right" to her, do I? In fact, premising my right to the consent requirement is a social contract, which is one of the two sources I identified for rights.
Wow, this discussion takes me back to my freshman year of college...
6.1.2006 6:00pm
Clayton E. Cramer (mail) (www):
Cornellian demonstrates his inability to read:



Well, let's see if I can help you with that:

There is no State in this Country where the Legislative and Executive Branches have voted to recognize "marriages" by tow people of the same sex.


Wrong, the California legislature voted to allow same sex marriage, though Governor Schwarzenegger vetoed it.
Do you see that word "and" between "Legislative" and "Executive Branches"? Do you know what it means?
6.1.2006 6:00pm
Public_Defender (mail):

The ordinance to which you refer is a facial nuetral one that many towns have limiting maximum occupany in certain residential zones. It applies to gays and non-gays alike.


But since gay people can't get married there, they can't live together there. So the anti-gay-marriage laws can prevent gay people from living together. You concede that this is true in "many towns."

You also did not explain how a gay person could live with his foreign spouse.



As for health insurance - that is a benefit society bestows upon married couples so one parent can care for children. It is an expensive benefit for society to bear and shouldn't apply to homosexuals. Nothing bars a partner from buying a private plan for the other sick partner.


That sounds like a perfectly good reason to deny the bio-kid of the non-working spouse health coverage. When a gay couple is raising a child, it's in everyone's interest (including the child's) to have the legally enforceable benefits and responsibilities of marriage--duty of support, health coverage for the kids, etc. How is it in the kids' interest to deny family health coverage?

You also didn't refute that in Virginia, there's a law that on it's fact says that gay couples cannot even enter into private contracts to support their relationships.
6.1.2006 6:03pm
Clayton E. Cramer (mail) (www):
M. Simon writes:


Childish whims get enacted into law all the time.

The most famous (in part religiously based) is alcohol prohibitiion.
Call it a mistake, but "childish whim" is not an accurate description of Prohibition. The very real problems that Prohibition sought to fix are why progressives and liberals were prominent players in its passage. There is a tendency to emphasize groups like the Women's Christian Temperance Union, but they were hardly alone. The problems of murder, domestic violence, rape, child abuse, abandonment of spouses, were very real. As civil rights attorney Don Kates has observed, the problems were real and complex--and banning alcohol as a way to solve them was a very attractively simple way for progressives to cut through an otherwise intractable problem.
6.1.2006 6:04pm
Choosing Sides 2 (mail):
A puppy cries everytime somebody posts a comment to this post. Think of the puppies!
6.1.2006 6:05pm
Clayton E. Cramer (mail) (www):
M. Simon writes:


Clayton,

Female gays and hermaphrodites can have children. Male gays can and do adopt.

What to do, what to do?
I guarantee you that there are no lesbian couples that have a child without a male sperm donor. A lesbian couple may raise a child, but from the standpoint of the law, the child is of the biological mother and father.

The law already provides for adoption--and in every state but Florida, by homosexuals.

You keep bringing up hermaphrodites, but writing laws based on these bizarre exceptions is rather like revising our marriage laws to legalize...same-sex marriage.
6.1.2006 6:08pm
Public_Defender (mail):

What changed the situation for Catholic Charities had nothing to do with the change in legal status of some same-sex couples in Massachusetts and everything to do with the change of Pope and Bishop to ones even more willing to sacrifice the well-being of real children on the altar of abstract principle.


Many gay couples have been willing to adopt children that heterosexuals have not. By putting up barriers to gay adoption, the Christianists force children to bounce around the foster care system instead of staying with a stable family. That's petty. That's anti-family. That's immoral.
6.1.2006 6:09pm
wooga:
Clayton, I'd say marriage is not simply a contract at all, but rather a covenant. Once marriage is reduced to a mere contract, it can be breached like any other contract. And the "love" issue is more complicated, since the marriage covenant has always been based on "duty", which is a type of "love" (oh the limits of the English language!). I was talking about severing "romantic" love as a traditional requirement of marriage, and Rabbi Fink sounds like he wanted to go much further, reducing it to just a normal contract.
6.1.2006 6:09pm
Public_Defender (mail):

A puppy cries everytime somebody posts a comment to this post. Think of the puppies!


That explains all of the conservative posts. Because, as we all know, conservatives love to torture puppies.

Thanks for adding a little levity. And in case someone can't figure it out, I'M JOKING.
6.1.2006 6:13pm
jimbino (mail):

Do you see that word "and" between "Legislative" and "Executive Branches"? Do you know what it means?


Clayton Kramer,

As any student of law should know, "and" in English usage can be either conjunctive or disjunctive, as can "or." As in: "Love and marriage."
6.1.2006 6:16pm
M. Simon (mail) (www):
wooga,

Are you excluding the Jewish view of marriage?
6.1.2006 6:16pm
Stryker:
C Cramer,
Your arguements support changing the Inheritance and Child Support Laws (maybe adoption too), not marriage laws.
Someone above said that marriage is a sacrement--that's only in the Catholic Church. (Most reformed churches only have Baptism and communion, a handful also have foot washing).
For those who claim this is a state matter, as long as marriages in one state have to be recognized by the rest, this becomes at least Equally a Federal matter.

Randy, Why is love a requirement? There is also the requirement to be able to have sex (see annulment laws.) Theoretically, If I claimed to be a woman, my spouse (being another man) could get an annulment.

Aaron, Don't be stupid. Those non-child bearing years are often still child REARING years, or grand-child rearing. The "error" rate of people who are non-fertile is high, but unlike homosexual marriages cannot be known until after prolonged sexual intercourse. (Even then.. My stepfather had his first child after 6 years of marriage.) The difference lies in clearly not having the basic equipment. (If there one can hide it, who will ever know a law was broken?)
6.1.2006 6:17pm
M. Simon (mail) (www):
wooga,

Are you saying the woman in question has no natural rights?
6.1.2006 6:19pm
M. Simon (mail) (www):
Clayton,

The bizarre exceptions will have to be litigated then won't they?

Be prepared.
6.1.2006 6:24pm
Clayton E. Cramer (mail) (www):



Do you see that word "and" between "Legislative" and "Executive Branches"? Do you know what it means?


Clayton Kramer,

As any student of law should know, "and" in English usage can be either conjunctive or disjunctive, as can "or." As in: "Love and marriage."
As any native speaker of English (or anyone who has taken symbolic logic knows), when you use the word "and" between two objects, it means that both objects are included. Is this what they teach you in law school? That in ordinary conversation (not a statute) that "and" is both conjunctive and disjunctive, and "or" is both conjunctive and disjunctive? No wonder you have trouble figuring out more complex problems--you have taken two words that have precise and different meanings, and blurred them to the point where they have the same meaning.

If a cop pulls you over on the road, and tells you, "I need to see your license and your registration," do you think you are being intelligent when you hand him your registration alone? "Officer, 'and' in law can mean conjunctive or disjunctive, so I had no idea that you wanted both!"
6.1.2006 6:25pm
Cornellian (mail):
Cornellian demonstrates his inability to read:

One can always count on Clayton Cramer to take the high road. I'm surprised he hasn't started quoting from his seemingly vast collection of news clippings about promiscuous homosexual men to "prove" that SSM is a bad idea.
6.1.2006 6:28pm
Chimaxx (mail):
I read the text of the amendment:

"Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman."

And I have a question. Let's say that this passes, and 50 years from now, that some state--let's call it Massafornia--has grown comfortable with same-sex couples in their state. So the state decides democratically to take the big step and pass a constitutional amendment permitting same-sex marriage within their state (no imposition by judges, legislature or executive--it passes by popular vote). Would this federal amendment prevent the state's courts from passing rulings in support of its own state's constitutional amendment?
6.1.2006 6:32pm
Clayton E. Cramer (mail) (www):


Cornellian demonstrates his inability to read:



One can always count on Clayton Cramer to take the high road. I'm surprised he hasn't started quoting from his seemingly vast collection of news clippings about promiscuous homosexual men to "prove" that SSM is a bad idea.
I hope that you read your textbooks more carefully than you read comments. At least you could admit that you didn't read "Legislative and Executive" very carefully, and everyone could move on.

The promiscuity of a large subculture of gay men doesn't make much of an argument against SSM. What does argue against SSM is that some of the first poster boys for SSM in Massachusetts were quite proud of their "open marriage" and that this wasn't about monogamy, commitment, or fidelity--the arguments that Professor Carpenter and other defenders of SSM use. Yeah, there are gay men who have long-term stable relationships--but they are pretty obviously in short supply, or lesbian marriages wouldn't so exceed gay men marriages, especially gay men outnumber lesbians at least 2:1.
6.1.2006 6:34pm
Choosing Sides 2 (mail):
C. Cramer,

You wrote:

"There is no State in this Country where the Legislative and Executive Branches have voted to recognize "marriages" by tow people of the same sex."

When you used "no State" before the "and" clause, you created the confusion. To use your example, if a cop pulls you over and says he does NOT want to see your license and registration, what does that mean? Does it mean he wants to see neither your registration nor license? Does it mean he would be fine seeing your registration or license, but definitely not both.

I interpreted the sentence as you meant it, but the other interpretation is viable as well. The other interpretation reads the sentence as "there is no state where the legislative branch has voted ..." AND "there is no state where the executive branch has voted..." That is what is meant by dysjunctive and conjunctive meanings. Your use of the words "have voted" seem to add to the confusion since the executive never really votes on anything. You could have cleared up this entire mess by using "neither . . . nor" or otherwise rewording your sentence.

Being rude about someone else's grasp of the English language when you were the source of confusion is bad form, IMO. A simple, "I mean to say X instead of Y" would have sufficed.

See, now you made me make a puppy cry. I hope you are happy.
6.1.2006 6:39pm
wooga:
M Simon,
On the jewish marriage issue, Rabbi Fink (based on Clayton's characterization) was culling the duty obligation from marriage, which is NOT in accord with Jewish tradition, which, like the Christian tradition, values marriage as a covenant.

On the natural rights issue, I do not believe anyone has "natural rights" as you describe. Any natural rights are rights only as a result of being "god given" or as a result of some basic level social agreement. Outside of society or the divine, there are no rights. Now I'm sure you'll pull some founder's quote referring to 'natural rights', blissfullly unaware that the founder in question subscribed to the society and/or divine right theories.
6.1.2006 6:39pm
Public_Defender (mail):

I read the text of the amendment:

"Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman."

And I have a question. Let's say that this passes, and 50 years from now, that some state--let's call it Massafornia--has grown comfortable with same-sex couples in their state. So the state decides democratically to take the big step and pass a constitutional amendment permitting same-sex marriage within their state (no imposition by judges, legislature or executive--it passes by popular vote). Would this federal amendment prevent the state's courts from passing rulings in support of its own state's constitutional amendment?


Yes, it would. Even if the people of a state voted for a ballot issue that expressly made same sex marriage lawful, a court could not interpret the language to support same sex marriage.

But the language of the amendment doesn't matter. It's not intended to pass. If the Christianists in Congress really supported it, they would push it in odd-numbered years.
6.1.2006 6:39pm
Medis:
Humble Law Student,

You say: "I think Archon's point is that infertility among heterosexual couples is the exception. Gays and Lesbians cannot as a rule procreate except through alternative (unnatural - not in the pejorative sense) means."

But that is just a classification game which depends on Archon being willing to draw certain lines but not others.

Within the broadest class--all adult couples in a sexual relationship--the ability of the couple to reproduce using the genetic material of both parents is the rule and not the exception (as an aside, I might note that most gay people can reproduce "naturally", just not with their partner, and so the real issue is limited to whether the couple can produce a child using genetic material from both parents). Conversely, among some subclasses of heterosexual couples--eg, where at least one of the couples is infertile--the ability to reproduce naturally using genetic material from both parents is ruled out.

My whole point is that Archon apparently is concerned about only one "exceptional" subclass among couples--gay couples--and not about any of the other "exceptional" subclasses among couples--eg, any straight couples where one of the people is infertile. But he has yet to explain why that particular nonreproducing subclass is the only one worth worrying about.

Perhaps this will help understand my point: suppose I defined a class called "sexually healthy couples" (SHCs), which would be couples where both partners were capable of reproducing through natural means. Most gay couples would be SHCs. But most SHCs would be straight couples, so I could still say that SHCs who were incapable of reproducing with each other were the exception and not the rule.

Conversely, most non-SHCs would be straight couples. Nonetheless, I could still say that as a rule, non-SHCs were not capable of reproducing with each other.

So, why does Archon prefer to draw the marital line between straight and gay couples, as opposed to between SHCs and non-SHCs? Indeed, if the ends of marital policy were really limited to supporting families where both parents contributed genetic material to the child (and I note again as an aside that seems like an odd claim even on the purely procreative theory of marriage), then I think my proposed alternative linedrawing probably does a better job than Archon's gay/straight linedrawing.

Of course, Archon might respond: but you could still eliminate SHCs that were gay couples in addition to eliminating non-SHCs. Which, of course, is exactly the point we have been trying to make: that "coincidentally", he seems to be endorsing his policy argument only to the exact extent that it rules out gay couples, but to no other end.
6.1.2006 6:40pm
Clayton E. Cramer (mail) (www):
Stryker writes:


C Cramer,
Your arguements support changing the Inheritance and Child Support Laws (maybe adoption too), not marriage laws.
I'm not arguing for a change in marriage laws. Or adoption laws. I would like divorce to be a bit more difficult to get than it is now, in the hopes of discouraging couples who break up on almost a whim (I've seen this), producing traumatized children.
6.1.2006 6:48pm
Medis:
wooga,

Rights arising from a basic social agreement are by definition not natural rights.

Natural rights are simply whatever rights we have in virtue of our nature as human beings. Attributing natural rights to God is common but not necessary. For a good example of this point, I would direct you to the work of Thomas Hobbes.
6.1.2006 6:48pm
Cornellian (mail):
As any native speaker of English (or anyone who has taken symbolic logic knows), when you use the word "and" between two objects

As a matter of fact, Mr. Cramer, I have taken symbolic logic, which is why I know that NOT (A &B) = NOT A OR NOT B and does not equal (NOT A) AND (NOT B), something which you apparently do not realize.
6.1.2006 6:55pm
jimbino (mail):
Clayton Cramer,

You need to go back and take that course in logic. It is because the natural uses of "or" and "and" are imprecise that formal logic has resorted to using symbols like "&" and "|" in their place. So, you ask the clerk, "Can I legally marry my mother, my second cousin or my sister-in-law?" and he responds, "You may legally marry your mother and you sister-in-law." Does this mean you have permission to be a bigamist in addition to a fool? No, but you will remain a fool.
6.1.2006 6:56pm
Archon (mail):
Wow I take the train home and Medis learns how to read, stops taking on straw men and throwing out red herrings!

Again, as I have stated before, marriage is an institution that encourages reproductions. Homosexuals are incapable of it as a class without exception. This is not bigotry, this is biology.

There are other bizzare examples of heterosexual couples that are incapable of child bearing (such as the vaginaless woman mentioned above). These are exceptions to a class that is otherwise widely capable of producing children.

I draw the line between your "SHC's" and non "SHC's" because any other regulatory scheme would be unworkable and has no historical backings. Are we going to allow people to marry based upon an determination and pledge of reproduction? How would you even begin to set up such a system?

The reason why marriage has developed as it has since the beginning of time is because there is no other workable way of ensuring a continuing population to support a society.
6.1.2006 6:57pm
Public_Defender (mail):

The reason why marriage has developed as it has since the beginning of time is because there is no other workable way of ensuring a continuing population to support a society.


When a gay couple adopts a kid that heterosexuals would not, why would you deny that kid the protection of having married parents?

When a gay couple raises one of their bio-kids as a couple for years (and the kid's other bio parent has left the picture), why would you deny that kid the protection of having married parents?

Permitting gay marriage is the best way to protect the kids that gay people are raising. There is no valid reason to deny a kid the protection of having married parents just because the kid does not share the DNA of both parents.
6.1.2006 7:03pm
Archon (mail):
For those that question the price society pays as a whole to support married couples, here is a very good example.

On my way home, I ran into a friend that manages a small firm of about 50 people. He has worked there for many years. When the firm started it had a staff of young, mostly single people. As the years went by, and the staff got older, married, and had children, the firm's health insurance premiums went up, and up and up. The people that had wives, husbands, and children cost the firm much much more then the single employees did. Furthermore, the single employees saw their contributions their health insurance go up in order to support the rise in cost because of the influx of married couples with children.

I saw a like example, when my small firm took on a partner with five children. Most of our staff are single or childless and thus we had extreme low health insurance premiums. The addition of the partner, his wife, and his five children almost doubled our premiums. To the extent, where we had to implement employee contributions because we could no longer pay 100% of the premiums.

So, all the single, young employees had to bolster the cost (along with the firm) of maintaining the partner's health insurance. That is an example of the cost society pays to ensure a continuing population.
6.1.2006 7:04pm
Clayton E. Cramer (mail) (www):
Choosing Sides 2 wrote:


You wrote:

"There is no State in this Country where the Legislative and Executive Branches have voted to recognize "marriages" by tow people of the same sex."
No, actually, I didn't. Someone else made that claim that Cornellian misread.

When you used "no State" before the "and" clause, you created the confusion. To use your example, if a cop pulls you over and says he does NOT want to see your license and registration, what does that mean? Does it mean he wants to see neither your registration nor license? Does it mean he would be fine seeing your registration or license, but definitely not both.

I interpreted the sentence as you meant it, but the other interpretation is viable as well. The other interpretation reads the sentence as "there is no state where the legislative branch has voted ..." AND "there is no state where the executive branch has voted..." That is what is meant by dysjunctive and conjunctive meanings. Your use of the words "have voted" seem to add to the confusion since the executive never really votes on anything. You could have cleared up this entire mess by using "neither . . . nor" or otherwise rewording your sentence.
Keep working at defending Cornellian's reading failure. It isn't working. Let's parse this sentence, shall we?

"There is no State in this Country where the Legislative and Executive Branches have voted to recognize "marriages" by tow people of the same sex."

Subject="There"
Verb="is"
Object="no State in this Country where the Legislative and Executive Branches have voted to recognize "marriages" by tow people of the same sex."

Object further decodes to an SVO construct:

subject="no State"
adjectival clause="in this country"
adjectival clause="where the Legislative and Executive Branches"
verb="have voted"
object="to recognize 'marriages' by tow people of the same sex."

We have two adjectival clauses. Both modify the subject "no State." The second adjectival clause uses "and" which binds "Legislative" to "Executive Branches" so that BOTH must be combined to modify "No State."

Please explain what wondrous rules of English syntax you are learning that allows "Legislative" to modify "No state" separate from "and Executive Branches."

My 9th grade English teacher (who was just this side of fruity, and the only male in the room not focused on Shawn Sullivan's heaving and unrestrained bosom) tortured us for weeks on end diagramming sentences so that we could write unambiguous English. I understand that this is no longer done. Perhaps it interferes with the creative parsing of the Constitution required to turn what were felonies in 1789 into rights.
6.1.2006 7:05pm
Clayton E. Cramer (mail) (www):


As any native speaker of English (or anyone who has taken symbolic logic knows), when you use the word "and" between two objects



As a matter of fact, Mr. Cramer, I have taken symbolic logic, which is why I know that NOT (A &B) = NOT A OR NOT B and does not equal (NOT A) AND (NOT B), something which you apparently do not realize.
I use DeMorgan's Theorem almost daily.

The fact is that the "No state" can't be used in this way (by anyone that can read) because the "and" binds "Legislative" and "Executive Branches" together more strongly than "No."
6.1.2006 7:09pm
Clayton E. Cramer (mail) (www):
Jimbino writes:


You need to go back and take that course in logic. It is because the natural uses of "or" and "and" are imprecise that formal logic has resorted to using symbols like "&" and "|" in their place. So, you ask the clerk, "Can I legally marry my mother, my second cousin or my sister-in-law?" and he responds, "You may legally marry your mother and you sister-in-law." Does this mean you have permission to be a bigamist in addition to a fool? No, but you will remain a fool.
Natural uses? You mean the careless uses, perhaps. The question above is properly written: "or" is a choice. The response from the clerk is wrong, because it says that you can marry both your mother and your sister-in-law. Try it out: "You may legally marry your mother or your sister-in-law."

Now, I will admit that in some circles, careless and imprecise use of English is quite common, along with colorful epithets. Plumbers. Carpenters. Bricklayers. I never thought I would see the day that law students would be defending the careless use of English.
6.1.2006 7:13pm
wooga:
Medis,
Have you actually read Hobbes?!?! From Leviathon:

And because the condition of man (as hath been declared in the precedent chapter) is a condition of war of every one against everyone, in which case every one is governed by his own reason, and there is nothing he can make use of that may not be a help unto him in preserving his life against his enemies; it followeth that in such a condition every man has a right to every thing, even to one another's body.

He explicitly argues against M Simon's type of "natural rights", instead raising the exact argument I raised in my Salma Hayek example, where in nature we have a "right" to each other's bodies (did you not catch my reference to first year college? Leviathon is something you read almost immediately) Hobbes then explains that in nature man can create primitive agreements with each other, but ultimately must join the commonwealth for any real security or "civil rights".

Okay, now try and point to John Locke in order to better edumicate me on the divine source of rights.
6.1.2006 7:14pm
Archon (mail):
I also love the logical fallacy such as above:

Becuase in the particular situation of X, policy Y "may" be beneficial, it therefore should be implemented.
6.1.2006 7:15pm
Not My Regular Handle:
Clayton May Be Right:


Clayton: "There is no State in this Country where the Legislative and Executive Branches have voted to recognize "marriages" by tow people of the same sex."



The clause beginning ". . . the Legislative and Executive . . ." is independent, and therefore (I believe) the statement would be interpreted in the conjunctive, meaning both the Legislative and Executive would hold. [This seems consistent with Clayton's intent, I believe.]


Choosing Sides: ". . .he does NOT want to see your license and registration"


The clause beginning "your license and registration" is dependent (and therefore attaches its meaning to the antecedent NOT and has somewhat different meaning). [CS is spot on, but uses an example that involves different grammar, which is bit of a misapplication of Clayton's statement, to prove a point.]



Clayton: "I need to see your license and your registration . . ." [Maybe a bad structural example, but it is consistent his general (conjunctive) point, I believe.]


Note to all: I could be dead wrong about this -- but I think the grammar matters here.
6.1.2006 7:23pm
Medis:
Archon,

You say: "I draw the line between your 'SHC's' and non 'SHC's' because any other regulatory scheme would be unworkable and has no historical backings."

But you DON'T draw the line between SHCs and non-SHCs. Rather, you refuse to draw that line, and instead you draw the line between straight and gay couples. Which is precisely why you have yet to really explain why you the only such line you are willing to draw just happens to exclude only gay couples, but no straight couples.

wooga,

Sorry, I should have referenced the exact statement to which I was responding, which was "Any natural rights are rights only as a result of being 'god given' or as a result of some basic level social agreement."

I wasn't attempting to enter your larger discussion with M Simon. I was just pointing out that as these terms are commonly used, "natural" rights cannot come from social agreement, and natural rights need not come from God.
6.1.2006 7:28pm
Michael E. Lopez (mail) (www):
Geez... was what I said so utterly off topic or uninteresting that it didn't warrant even a single comment?

Maybe I should say something provocative instead.

Hmmmm.

Well... we need working legal definitions of what is a man or a woman before we can address the SMS debate.

But first, we need to know what "is" is.... after all, maybe something both "is" and really isn't a man and/or woman. Maybe it depends on modal states of being and existential perspectives.

And actually, before that, we need to come to an agreement as to what a "law" is and what "morals" are... how can we debate whether to pass a law if we don't really know what a "law" is, anyway?

And actually, before that, I need logical proof that everyone — or anyone — except me actually exists.

-Michael
6.1.2006 7:29pm
BobN (mail):
Not to interrupt the silliness, but since when do the Legislative AND Executive vote?

As to the larger question, the next time the California legislature votes for same-sex marriage will be next year. The governor at that time will no doubt sign the legislation (whether he's a Democrat or just Ahnuld flip-flopping again).

And, Clayton, as for making things unambiguous, thanks for the reference to your just-this-side-of-fruity teacher.
6.1.2006 7:35pm
wooga:
Medis, no problem. My quote "Any natural rights are rights only as a result of being 'god given' or as a result of some basic level social agreement" corresponds to Hobbes' pre-commonwealth contracts. In the sense that they are outside society (the commonwealth), they are "natural rights" which arise as a basic level social agreement. So it depends on what you mean by "natural", and you and I were apparently talking past each other. But I was the one using the Hobbesian terms :)

Hopefully we will avoid the lengthy debate about the meaning of "and" which has otherwise taken over this thread.
6.1.2006 7:36pm
Ken Arromdee:
There are other bizzare examples of heterosexual couples that are incapable of child bearing (such as the vaginaless woman mentioned above). These are exceptions to a class that is otherwise widely capable of producing children.

Whether a group is in the class as an exception, or is outside the class, depends completely on how we've defined our classes. There's nothing special about the way we've defined them; we could just as easily define a class which excludes vaginaless women and includes homosexuals as exceptions, as we can the other way around.
6.1.2006 7:43pm
Medis:
jimbino,

Sorry, I forgot to answer what I think is an important question. You asked: "On the subject of Full Faith and Credit, let's accept for the sake of argument that a state that doesn't recognize SSM can refuse to recognize an SSM valid in Massachusetts. What keeps Massachusetts from passing a law refusing to recognize any marriages of a state that doesn't recognize all Massachusetts' marriages?"

I believe the Privileges and Immunities Clause would stop Massachusetts from doing so. In other words, insofar as Massachusetts law would not render the marriage invalid if the couple was from Massachusetts, the Privileges and Immunities Clause would not allow Massachusetts to invalidate the couple's marriage simply because they come from another state, in retaliation for that state's marital policy with respect to other couples.

In general, that is one of the central functions of the Privileges and Immunities Clause--to keep states from engaging in such retaliation.
6.1.2006 7:45pm
Chimaxx (mail):
Argue all you want about what the "and" means in the sentence "There is no State in this Country where the Legislative and Executive Branches have voted to recognize 'marriages' by tow people of the same sex".

The important point to note is that Greg D. wrote the sentence in this twisted way as a kind of verbal sleight-of-hand ("pay no attention to that state bordering the Pacific and Mexico"). Technically, the executive doesn't ever "vote"--it enacts or vetoes the laws that the legislature has voted on.

Indeed, even had the California legislature overridden the Governator's veto, this twisted sentence would still stand technically correct, as it continued to inaccurately suggest that there is no legislative support anywhere in the US for same-sex marriage (note the scare quotes around that word in the original), that it is only those awful anti-democratic judges run amok.

Come on, people: Forest. Trees.
6.1.2006 7:45pm
Interested Observer:
Archon -

If civil marriage is, as you've argued, an institution whose primary purpose is to ensure a continuation of the population, isn't your concern a bit misplaced here?

Consider:
a) We live in a society with a divorce rate that hovers at around 50%.
b) We live in a society where an increasing number of children are born outside of an existing marriage.
c) We live in a society where an increasing number of married couples are voluntary choosing not to have children.

Given the above, wouldn't we all be better served by disentangling the legal link between marriage and reproduction? After all, confering benefits upon married couples does nothing to assist in raising the children of divorced couples; marriage benefits are obviously superfluous in the case of children born outside of marriage; and, in the case of voluntarily childless couples, don't marriage benefits present a distinct free rider problem?

If it's a policy goal to encourage reproduction, shouldn't we instead be questioning the wisdom of confering benefits upon an intermediary institution when that institution is increasingly less coincident with the actual business of reproduction? Why don't we instead confer benefits directly upon parents and legal guardians rather than pursuing our goal through the inefficient intermediary step of incenting marriage?
6.1.2006 7:49pm
Medis:
wooga,

It really is just a semantic point. Still, I think Hobbes would use the term "natural rights" in a different way. I was actually thinking of the discussion at the beginning of Chapter XIV, where he writes:

"THE right of nature, which writers commonly call jus naturale, is the liberty each man hath to use his own power as he will himself for the preservation of his own nature; that is to say, of his own life; and consequently, of doing anything which, in his own judgement and reason, he shall conceive to be the aptest means thereunto."

Incidentally, in Hobbes' view, natural rights frequently lead to conflict, of course, which is why we need to renounce or transfer many of our natural rights in order to form societies and get out of the state of nature. But in his view, it would not be contradictory to say that in a struggle for something we both think we need to survive, both of us would have a natural right to try to take it, and a natural right to try to do harm to each other if necessary.
6.1.2006 7:55pm
Medis:
Chimaxx,

And incidentally, once one realizes that state court judges are often elected, it is no longer clear that an executive veto is necessarily more "democratic" than a state court decision invalidating a state law. In both cases you have an elected representative of a nonlegislative branch preventing the legislature from passing a law.

But more broadly, I still think that exactly how much power a state wants to allocate to its courts--or to its executive, for that matter--is primarily a matter for the people of that state to decide.
6.1.2006 8:00pm
Public_Defender (mail):
<blockquote>
So, all the single, young employees had to bolster the cost (along with the firm) of maintaining the partner's health insurance. That is an example of the cost society pays to ensure a continuing population.
</blockquote>

So why should the kids of gay couples be denied health insurance when the kids of straight couples get health insurance?

And do you really think that any subsidies are needed "to ensure a continuing population" in the United States? What about the subsidies needed to ensure that the kids of gay couples have the legal protection that the kids of straight couples get?

The stark fact is that Christianists are willing to inflict pain and disadvantage on children because the kids' parents refuse to live by the Christianists' religious beliefs.
6.1.2006 8:02pm
wooga:

The stark fact is that Christianists are willing to inflict pain and disadvantage on children because the kids' parents refuse to live by the Christianists' religious beliefs.

That's the way society works. Substitute "IRS" for "Christianist" and "tax code" for "religious beliefs." If I don't pay taxes, I go to jail and my kids are harmed. Anytime parents flaunt societal norms, they run the risk of harming their children (either directly or indirectly). But in my example, is the IRS actually hurting my kids, or is it my fault for not playing by the IRS' rules? You can argue that it is "unfair" for Christianists to be making the laws in this country, but that doesn't completely absolve parents from conforming to the rules - no matter how cumbersome or distasteful. And the rules right now are heavily rigged against anyone having a child absent one dad married to one mom.
6.1.2006 8:15pm
KeithK (mail):
wooga had it right many, many posts ago. Our system of government routinely makes moral judgements and passes laws based on the moral beliefs of the citizenry. The arguments about defense of marriage, procreation, adoption, etc. are all beside the point. A large percentage of Americans feels that same sex marriage is morally wrong. American citizens have a right to try to pass laws enforcing their particular views of morality, so long as the Constitution doesn't specifically prohibit such passage. If it does, those same citizens have a right to attempt to ammend the Constitution appropriately. Ammending the Constitution is not something that should be done lightly, but fortunately it's also not easy to accomplish.
6.1.2006 8:22pm
Archon (mail):
Interested Observer -

It seems your criticism is misplaced. Yes, those three items are a concern to me, but just because those exist does not somehow perclude me from also being concerned about gay marriage. Your criticism is nothing more then a red herring (which seems to be occuring alot in this debate).

And, no, we wouldn't be better off without marriage. Instead of abandoning the institution for some new fad based on benefits conferred because of child bearing status, we could try to strengthen the institution.

Wouldn't that be a novel idea?
6.1.2006 8:49pm
PeterH:

Given the above, wouldn't we all be better served by disentangling the legal link between marriage and reproduction?


There isn't one now. Regardless of the constant harping by people like Archon about what marriage is "supposed to be about" the fact is that there is not a single marriage in this country that is in any way contingent on the presence or absence of children, whether they are produced by the two people in the marriage or not.

Nobody is required to have children in order to become, or remain married, and the presence of children does not in any way affect the ability to end the marriage (it does affect how assets are distributed, but not whether the couple can divorce.)

It is utterly absurd to declare that the defining characteristic of marriage is something that isn't even a requirement for it.

Unless you are prepared to strip marriage benefits from every straight couple who is not raising children, then stop pretending that marriage is about children -- because it isn't, until it is time to bash gay people.

My sister-in-law had a hysterectomy before she met my brother. She now has exactly as much uterus as I do. Why can she marry a man and I cannot?
Why can a woman person with a child marry an infertile man and raise the kid with full marriage benefits, when the same woman cannot marry another woman and raise the same child?

This isn't about "errors" or "slipping through the cracks." It is deliberately and carefully, clearly crafted to specifically exclude specific people. There is not a single reason given for disallowing gay marriage that does not apply to women who have had hysterectomies or men who have had vasectomies -- and it isn't like they don't know who they are.
6.1.2006 8:57pm
Archon (mail):
Interested Observer -

Here are the answers to your questions

Given the above, wouldn't we all be better served by disentangling the legal link between marriage and reproduction?

No. It has worked since the beginning of time and still works. It could be better, but the system works. You don't throw out the baby with the bathwater. If it ain't broke you don't fix it, etc.

After all, confering benefits upon married couples does nothing to assist in raising the children of divorced couples;

Incorrect. Children produced as part of a marriage usually receive child support from one spouse, are eligible for both spouse's benefits, and may have spent decades being raised by caring parents before the parents divorced.

marriage benefits are obviously superfluous in the case of children born outside of marriage;

Incorrect. Just because a child is born outside of marriage does not perclude the two parents from entering into marriage to reap the benefits of such a union. Many children are born out of wedlock and their parents end up marrying. This would not happen if we didn't have such an institution.

and, in the case of voluntarily childless couples, don't marriage benefits present a distinct free rider problem?

Incorrect. There is no "free rider" problem. The system is not 100% efficient, but then no system ever is. You cannot deal with the "free rider" problem without corrupting the entire system. Ultimately, the "free rider" problem most likely has a negible impact on the overall system. Its impact certainly does not outweigh the overall benefit of an entire marriage system.
6.1.2006 9:01pm
Archon (mail):
Peter H -

You are correct that children are in no way a requirement of marriage, but are almost always the result of marriage. That is, indeed, the reason why the vast majority get married.

Again, there would be no way to perclude people like your sister, from the system and maintain the system of marriage. Your sister is the exception and not the rule. You cannot try to legislate based on exceptions. That never works.
6.1.2006 9:04pm
DonBoy (mail) (www):
So, all the single, young employees had to bolster the cost (along with the firm) of maintaining the partner's health insurance. That is an example of the cost society pays to ensure a continuing population.

That's completely a side-effect of the way in which health insurance in America is sold -- generally, through employers. Marriage does not raise the number of people overall (any effect on birthrates excepted, obviously), and so it doesn't raise the number of people who need health insurance. Or do think that when your employer pays a spouse's insurance premium that they raise taxes on the rest of the country to pay for it?
6.1.2006 9:08pm
Medis:
KiethK,

But ultimately, I don't think Dale's argument is about whether people who disapprove of gay marriage have a "right" to try to amend the Constitution. I think he is instead trying to appeal to other principles they may have which might persuade them that a constitutional amendment would be the wrong response.

And again, I note that apparently a significant portion of the roughly 60% of the American people who disapprove of gay marriage do not think an amendment is an appropriate measure, as only roughly 50% of the American people support the amendment. So, Dale's sort of argument apparently has an audience.
6.1.2006 9:13pm
Medis:
Archon,

Out of curiousity, if it was practically possible to keep infertile people from marrying (eg, imagine their skin turned a distinctive shade of blue), would you support such a prohibition?
6.1.2006 9:16pm
Waldo (mail):
One thing seems to be escaping everyone's attention: heterosexual marriage is inherently unequal. Planned Parenthood v. Casey held spousal notification laws unconsitutional, and the man (in Michgan) claiming an equal right to abortion is IMHO silly. The Violence Against Women Act applies only to one gender and temporary restraining orders are granted rather liberally . Lastly, in many states presumption of paternity holds husbands responsible for their wives' children regardless of biological parenthood, largely based on the best interests of the child . If marriage is about more than a relationship between two people (i.e.- biological children), these inequalities are justified. If not, they are not. In addition, I believe the unintended consequence will be to make marriage increasingly irrelevant .
6.1.2006 9:34pm
Chimaxx (mail):
Archon writes in response to Interested Observer:

After all, confering benefits upon married couples does nothing to assist in raising the children of divorced couples;

Incorrect. Children produced as part of a marriage usually receive child support from one spouse, are eligible for both spouse's benefits, and may have spent decades being raised by caring parents before the parents divorced.


Since when is child support dependent on previous marital status? Isn't the noncustodial parent, if identified and living, legally responsible for child support regardless of whether the parents ever married? Isn't the child eligible for both parents' benefits, regardless of whether there was ever a marriage? And might not that parent have helped raised the child together in a caring way with the custodial parent regardless of whether the two parents ever married?

It would seem that marriage is a common but no necessary component to all three of your points, so it is you, not Interested Observer, who is incorrect.

marriage benefits are obviously superfluous in the case of children born outside of marriage;

Incorrect. Just because a child is born outside of marriage does not perclude the two parents from entering into marriage to reap the benefits of such a union. Many children are born out of wedlock and their parents end up marrying. This would not happen if we didn't have such an institution.


Nor does it prevent either or both of the parents from marrying someone else, who will thus reap the benefits of marriage and take on the responsibility of child-care. Many children are born out of wedlock and one parent chooses to marry someone else, who takes on the rights and responsibility of raising that child. If another adult chooses to step into that role, why shouldn't that couple receive the benefits meant to aid in child-rearing, regardless of the constellation of genders? Why tie it to marriage? Having the institution of marriage doesn't seem to make it any more or less likely that both genetic parents of the child will take up the responsibility of reasing the children, and it only provides the social benefits to SOME of the people who voluntarily take up the role of second parent, so it is you, again, who are incorrect.

Boldly stating "Incorrect" at the start of a weak argument doesn't really make it any stronger.
6.1.2006 9:35pm
Waldo (mail):
I'll add the links that didn't post the first time.

On restraining orders:
http://volokh.com/archives/archive_2005_12_18-
2005_12_24.shtml#1135193403

On presumption of paternity:
writ.news.findlaw.com/colb/20060418.html

On relavancy of marriage:
http://www.washingtonpost.com/wp-
dyn/content/article/2006/03/25/AR2006032500029_2.html
6.1.2006 9:39pm
Frank Drackmann (mail):
Lets talk about something really important,like the discrimination against left handed catchers,and shortstops in major league baseball. The last lefty catcher was Benny Distefano who caught 3 games for the Pittsburgh Pirates in 1989, and ended up insane and penniless playing slowpitch softball back in his hometown of brooklyn. Think how it is to be a 9 yr old child and know you'll never be another johnny bench or carlton fisk all because of your hand dominance.
6.1.2006 9:40pm
Medis:
Waldo,

What necessary role do children play in justifying the VAWA?
6.1.2006 10:00pm
wooga:
Oh Frank, we all know that lefties are Satan's spawn, and handling balls with your left hand is unclean. Returning to my argument that it is entirely appropriate to legislate morality, it would be acceptable to pass a law mandating all catchers be right handed. And no double entendres in this post. So there!
6.1.2006 10:17pm
Waldo (mail):
Medis,

I included VAWA as an example of where gender inequality is accepted. A Violence Against Partners Act might be more equitable. While children are not required to justify the VAWA itself, they are reason to overlook those times when the act is misused. In addition to EV's example, I have heard of examples (may very well be urban legend) where married women have allowed boyfriends to move in with them and used VAWA to force their husbands to leave. If the argument is marital equality, this should not be acceptable.
6.1.2006 10:26pm
jimbino (mail):
Medis,

Massachusetts does not have to recognize the legal certification of a Texas physician, and need not give a particularly good reason. Why should it have to recognize the validity of a Texas marriage?

I imagine that states faced with this problem would come to some cross-licensing agreement regarding medical certification. Why not the same regarding marriage certification?
6.1.2006 11:22pm
Interested Observer:
Archon:
Yes, those three items are a concern to me, but just because those exist does not somehow perclude me from also being concerned about gay marriage. Your criticism is nothing more then a red herring (which seems to be occuring alot in this debate).


It's a question of priorities. If a doctor were to call in an emergency surgical team to address the problem of a nail lodged squarely within his patient's foot, wouldn't I then be justified in questioning the doctor's hippocratic intentions knowing, as I do, that the very same patient also happens to be suffering from a gunshot wound to the head, a stab wound in the chest, and a collapsed lung?

Why not an amendment prohibiting divorce? Or adultery?

Who or what are you really trying to save here?


And, no, we wouldn't be better off without marriage. Instead of abandoning the institution for some new fad based on benefits conferred because of child bearing status, we could try to strengthen the institution.


I never suggested that we would be somehow better off without marriage. I challenged the instrumental value of incenting marriage when the purported goal is easing the burdens of child rearing; especially in light of the fact that the class of people who are parents and the class of people who are married have been trending in a decidedly less coextensive direction over the last 40 years or so.

Of course, if you believe that the sole value of marriage is an instrumental one it no longer effectively serves, then I can see where you might well conclude that we should just retire the institution.
6.1.2006 11:30pm
Greg D (mail):
Medis.

So are you saying that the people in states like Massachusetts and Vermont have been deprived of their civil rights by their own courts, and that is why you think a federal constitutional amendment is required? Why shouldn't we let the people in Massachusetts and Vermont deal with that issue themselves?

Because we're Americans, and we value other Americans civil rights?

Or do you only favor civil rights for those exactly like you?
6.2.2006 12:38am
Medis:
jimbino,

I'm not sure I understand your physician example, and I don't know anything in particular about the licensing of physicians. However, as I understand the doctrine arising out of the Privileges and Immunities Clause, I don't think Massachusetts could deny a person from Texas a license to be a physician in Massachusetts if that person from Texas fulfilled the same requirements for licensure as a person from Massachusetts would have to fulfill.

There is actually a series of Supreme Court cases somewhat on point, which hold that states cannot discriminate against citizens of other states when it comes to allowing them to pursue a "common calling." For example, in Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985), the Supreme Court held that New Hampshire could not restrict admission to the New Hampshire bar to New Hampshire residents. In an earlier case, Toomer v. Witsell, 334 U.S. 385 (1948), the Supreme Court held that South Carolina could not charge nonresidents a $2500 fee for a license to fish for shrimp in South Carolina coastal waters when it only charged residents $25 for this license.

But perhaps what you are thinking is that a person meeting the substantive requirements for a medical license in Texas does not mean that Massachusetts has to grant a medical license to that same person. That is certainly true for lawyers--in the New Hampshire case, no one questioned that the nonresident would actually have to take and pass the New Hampshire bar exam, and it would not be sufficient for her to take and pass the bar exam in her home state (Vermont) instead.

But that can be explained simply by an application of the Full Faith and Credit doctrines that we have discussed. It is justifiable for a state to set its own requirements for admission to the bar, and to make both residents and nonresidents meet those same requirements. Again, the Privileges and Immunities Clause requires equal treatment between residents and nonresidents, but does not require treating nonresidents under the laws of their home state.

And we have already noted the application of these principles to marital law. If there was a substantial variation between Texas and Massachusetts marital law, such that some marriages in Texas would not meet the marriage requirements in Massachusetts, Massachusetts could refuse to recognize marriages which fell into this gap.

But Massachusetts could not refuse to recognize Texas marriages that met the substantive requirements of Massachusetts law simply because Massachusetts did not like other aspects of Texas marital law. As you noted, that would be retaliation against people simply because of where they had been residents, and that would represent unequal, not equal, treatment under Massachusetts marital law.

Perhaps the closest hypo you could get would be Massachusetts instituting some general marital requirement (say, passing some substantive test equivalent to a bar exam) that no other state had adopted. In that case, as with lawyers, Massachusetts could require couples from other states to pass this test before they could be married in Massachusetts. But this would not allow Massachusetts to discriminate against people from Texas, or any other particular state. Again, the test would have to be open to everyone, regardless of which state they came from.
6.2.2006 12:47am
Greg D (mail):
Medis,

We cross-posted. I just wanted to note that in many states, the judges actually are elected. In general, again, I don't see why you think the federal government, and the people of other states, should be interfering with how the people of any given state organize and deal with their own government, including their own courts.

I know of no State where the Judges run on the platform "vote for me, because you share my personal biases, and want to see me force them on the Legislature." Do you? I know of no State where the Judicial elections are considered partisan, with the candidates giving their party identification. Do you?

If not, then the Judges have no electoral / democratic mandate to rule based on their own personal desires and beliefs of right and wrong.

Judicial legislating is a pure example of tyranny. Whether that tyranny is supported by the majority, or if it's opposed by a majority too small to defeat it, it's still tyranny.

It's stil wrong.

Unless you think the Northern States shouldn't have bothered the Southern States about Jim Crow, your "argument" has no value.
6.2.2006 12:47am
Greg D (mail):
Randy,

So yes, the judges in Massachusetts (mostly Republican, by the way) [so? Souter is a "Republican"] ruled that gays should not be discriminated against in terms of marriage. They did nothing wrong, although you might disagree with it. If, for instance, the laws in MA said that blue-eyed people may not marry brown-eyed people, and even if a vast majority of the citizens approve of that law, the judges would still be correct in finding it unconstitutional.

So, on what grounds did they rule that people who wanted to marry members of the same sex are being unconstitutionally discriminated against? Does the MA Constitution say "the State may not refuse to recognize marraiges by any two people"? (So much for age of consent laws, if so.) Does the State Constitution say "homosexuals must be allowed to marry members of the same sex"? Did MA add some Constitutional Amendment saying that gays had to have "equivalent" rights to straights (since they already had the same right. Both were allowed to marry members of the opposite sex)?

No?

Did, perhaps, the "Judges" "discover" a "right" to "same sex marriage" in the MA Constition where no one had ever seen it before?

Then they are lying scum, black robed thugs abuse their power in a blatant assault on democracy, and the rule of law.

It is not the job of unelected and unacountable people to decide "the American Way", "what America means", or any of the other BS lines the toadies use to puff up the thugs. That is the right of We The People. You want the rules to change? Great, convince people that they should change. You can't do that? Fine, then you lose, and you deserve to lose.

Deal with it.
6.2.2006 12:59am
M. Simon (mail) (www):
Archon,

Exceptions are handled by litigation. I wonder if the money wouldn't be better spent on children other than lawyer's children.

Given indications that you may be a lawyer I can see your interest in the matter.
6.2.2006 1:02am
M. Simon (mail) (www):
Shouldn't the law deal with anticipated exceptions to prevent judges from making law?
6.2.2006 1:11am
Medis:
Greg D,

You say: "Because we're Americans, and we value other Americans civil rights? Or do you only favor civil rights for those exactly like you?"

Different state constitutions and statutes grant different legal rights. So, no, I don't see any reason why all Americans should have the exactly the same rights under their state laws and constitutions as every other American. In fact, I might suggest that you are basically rejecting the entire concept of federalism.

But I frankly still don't understand your point--are you saying there is some federal civil right that is violated if a state constitution authorizes what you are calling "activist judges"? Exactly what civil right would that be?

"I know of no State where the Judges run on the platform 'vote for me, because you share my personal biases, and want to see me force them on the Legislature.' Do you?"

I don't know of any governors who run on the platform "vote for me, because you share my personal biases, and want to see me force them on the Legislature" either. But I know that judges running for election frequently state that they will use their authority under state law to protect rights arising under state constitutions and laws.

"I know of no State where the Judicial elections are considered partisan, with the candidates giving their party identification. Do you?"

Sure, my home state. Google something like "democratic primary judges" or "republican primary judges" and you will find a bunch of examples.

"Unless you think the Northern States shouldn't have bothered the Southern States about Jim Crow, your 'argument' has no value."

But Jim Crow laws violated the 14th Amendment to the federal constitution. What we are talking about is state courts enforcing rights arising under state laws, and I again don't understand why you think that is violation of some federal civil right.

"Judicial legislating is a pure example of tyranny. Whether that tyranny is supported by the majority, or if it's opposed by a majority too small to defeat it, it's still tyranny."

Honestly, I don't see how that fits any definition of "tyranny". If a state constitution gives elected state court judges broad powers of judicial review over state law, how can that be called "tyranny"? Would you say the same thing about executive vetoes? Are you saying that somehow a person called a "judge" is automatically a tyrant, even if he is an elected official exercising powers delegated to him by law?

In short, I still don't see how it is any of your business if another state wants to grant its state court judges more power than you would prefer for them to have. And I also don't see how a state authorizing "activist judges" violates a federal civil right. Indeed, I think you are basically rejecting federalism entirely by insisting that every American should have the exact same rights, regardless of whether those rights arise under federal or state law.
6.2.2006 1:12am
Greg D (mail):
Chimaxx,

You know, your post greatly amused me, because you, inadvertently I hope, revealed your dishonesty while attempting to castigate me for "mine".

Yep, the CA Legislature did vote for Gay Marraige. However, CA is an "Initiative" State, and the People of CA passed an Initiative explicitly banned gay marriage.

By a large majority.

When a law is created by Initiative, the only way to overturn it is via another Initiative.

The Democrats, with their usually contempt for democracy and the rule of law, and their understanding that the People of CA would have voted them down, tried to ignore that requirement, and so the Gov vetoed the law. A veot that was sustained.

All of which you skipped over, because it would have shown your "point" to be worthless.

No State in the US has created / recognized same sex marriages because of the actions of The People or their elected Representatives. The closest supporters of ssm have come was a vetoed action by a Legisslature that was attempting to do an end run around the law because the Legislators knew that they'd lose if they tried to follow the law.

If you think that makes ssm look any better, go for it.
6.2.2006 1:13am
Greg D (mail):
Medis,

You appear to be deliberately misunderstanding me. If The People of some State decide they want to recognize ssm, they're welcome to do so. The pro-ssm people, to the best of my knowledge, have not even tried to do that anywhere in the US.

Has there been a ballot initiative anywhere in the US to bring ssm to a State? Has any Legislature not blocked by an anti-ssm initiative voted in favor of ssm, or even seriously debated it?

No?

Then the pro-ssm side, by their attempt to overturn democracy and the rule of law and replace it with "judicial" dictatorship, is engaging in an assault on the civil rights of American voters.

Which you already understand.
6.2.2006 1:22am
BobN (mail):
The initiative to which you refer addressed same-sex marriages performed in other states. It did not prohibit the legislature from instituting them. Had you been around at the time, you would remember that one of the pro arguments was that California could institute marriage if it wanted to but would not be forced into it. If you don't like that, take it up with the folks who wrote the initiative "badly" in the first place. You'll find them on your side of the fence.
6.2.2006 1:23am
BobN (mail):
Uh... there's an initiative in Colorado to enact same-sex marriage. I'm not sure if it'll be on the ballot this November, but clearly ssm proponents are trying that route.
6.2.2006 1:26am
Medis:
Greg D,

But why can't the people of a different state be allowed to adopt a different state constitution than the one you would want, and why can't the people of a different state be allowed to authorize state court judges to exercise more powers than you would want them to have?

Again, to use your term: exactly what federal "civil right" is being violated in such cases?
6.2.2006 1:28am
Dave Hardy (mail) (www):
I believe the current version of the FMA starts out by saying that marriage in the United States shall consist only of a union between one man and one woman.

Damn, there go the hopes for polygamy!

(Obscure point: Arizona's enabling act forbids it to every legalize polygamy).
6.2.2006 1:40am
Dave Hardy (mail) (www):
But marriage is not just another contract. Being married causes the individuals to receive other benefits, such as lower taxes.

Are you kidding? You want to see the tax hit my Mrs. and I took (both heads of households) for having gotten hitched? If both are "single," it's pretty much break even these days (*after* reduction of the marriage penalty that endured for many years). If either is head of household, getting married means a tax hit.
6.2.2006 1:43am
The Voice of Reason (mail):
Dale Carpenter: Notably, none of the suggestive and flowery passages in Lawrence that are said to support claims for gay marriage appear in the Goodridge opinion.

So what? The fact that the Lawrence decision was decided the way it was, and the fact that it included the flowery language that it did, signalled to liberal activist judges that the time was ripe to strike. Other judges on other courts need not use the precise language of Lawrence. Lawrence was important not for its precedential value, but instead for its signalling value. Carpenter's argument that the language wasn't pilfered is a silly non-sequitur. Don't believe it.
6.2.2006 1:45am
Elais:
Archon,

I'm not a lawyer, thank goodness. My question is not absurd. Man and woman may be simple, but how do you define men and women? Biologically? Genetically? Is a man who transforms into a woman complet with breasts and a vagina allowed to marry another woman? The man is still genetically male, but now appears to be a woman. Simply answer that question, please.

wooga,

I'm an athiest, not an anarchist. Why did you assume I'm an anarchist? The source of my rights are the Constitution, federal, state and local laws. I think that gays and lesbians should have the same rights as me.
6.2.2006 1:46am
Dave Hardy (mail) (www):
Why is the gay marriage debate riddled with red herrings and straw man arguments?

If you need "man" and "woman" defined then go watch Kindergarten Cop or ask your Mom.


Indeed. Let's be practical. The government manages to administer countless preference programs for Woman and Minority Owned Enterprises, without experiencing great concern about hermaphrodites or transexuals, and without asking female applicants to doff their clothes and prove they are equiped with a vagina.

Well, the administrators aren't *supposed to* require that they prove it, anyway.
6.2.2006 1:51am
The Voice of Reason (mail):
Medis: But why can't the people of a different state be allowed to adopt a different state constitution than the one you would want

And why can't liberal activist state judges, who are liberal activists like Medis, respect the constitutions of their states as they actually exist and were actually written?
6.2.2006 1:51am
The Voice of Reason (mail):

Man and woman may be simple, but how do you define men and women? Biologically? Genetically? Is a man who transforms into a woman complet with breasts and a vagina allowed to marry another woman? The man is still genetically male, but now appears to be a woman.



If you don't know what a man is and you don't know what a woman is, then you can't be trusted to interpret the Constitution.
6.2.2006 1:54am
Mike1970 (mail):
I've now read every single comment here, and all I can do is laugh. How can THIS be such an important issue? It's not like same-sex marriage means that men will be forced to marry men, or women forced to marry women.

And then I realized that this is not about SSM at all, but about the old vs the new, fundamentalism vs freedom, populism vs conservatism. This is a last, desperate attempt from a group of opportunistic politicians. This is a manufactured debate, done by politicians who are too scared to stand up for their views in questions of real importance, and use this as a way to hide the more pressing issues.

The founding fathers are spinning in their graves.
6.2.2006 1:56am
The Voice of Reason (mail):

How can THIS be such an important issue? It's not like same-sex marriage means that men will be forced to marry men, or women forced to marry women.



That is a canard. You don't care about esteemed traditions or social norms or cultural cohesion, but other people do. Some people think the nuclear, heterosexual family is the basic unit of society. The objection is not that INDIVIDUALS will be forced to do anything, but that diffuse, social harm will result over time to the whole of society. Have the decency to respect what others value and characterize properly their arguments.
6.2.2006 2:01am
Medis:
TVOR,

As an aside, to qualify as a "liberal activist", I would think I would have to do more than post my thoughts on Volokh.

Anyway, again, why exactly is what state judges are doing with respect to gay marriage in other states pursuant to state law your business? Even if it is true that states like Massachusetts and Vermont are being victimized by "liberal activist judges", why exactly shouldn't we leave that matter to the people of those states?
6.2.2006 2:04am
The Voice of Reason (mail):

Even if it is true that states like Massachusetts and Vermont are being victimized by "liberal activist judges", why exactly shouldn't we leave that matter to the people of those states?



Like, totally, if Massachussetts, like, decides to tax interstate commerce, what effect, I mean, like, does it have on the rest of the nation? Like, who cares?
6.2.2006 2:08am
Medis:
TVOR,

First, Massachusetts taxing interstate commerce would violate the federal constitution under the doctrine known as the Dormant Commerce Clause. If you are suggesting that gay marriage actually violates a provision of the federal constitution, which provision is it?

Second, by definition "interstate" commerce involves activities occuring in other states as well. As we have discussed above, other states do not have to recognize gay marriages simply because Massachusetts does.

So, the real analogy would be Massachusetts taxing INTRAstate commerce. And that, as a matter of fact, is something the rest of the nation has no business trying to stop Massachusetts from doing.
6.2.2006 2:14am
The Voice of Reason (mail):
As we have discussed above, other states do not have to recognize gay marriages simply because Massachusetts does. So, the real analogy would be Massachusetts taxing INTRAstate commerce.

As usual, your argument is totally wrong and entirely disingenous. As we have seen, plenty of gay couples rushed to Mass. to marry and then tried to go back home and assert they were really married. This is a social fact. Activist judges being friendly to these interstate travellers who assert claims in court is the problem. It isn't an intra-state phenomenon at all if one of these couples wins in court. Uh-duh.
6.2.2006 2:21am
Greg D (mail):
Mike1970,

This is about democracy and rule of law, v. rule by Judge.

The "liberals", who keep on losing at the ballot box, favor having "judges" rewrite the laws, rather than doing the hard work of trying to change people's minds.

The "conservatives", being decent human beings with actual principles, think that We The People should be more important than "them the Judges."

Which is why Republicans responded to Clinton's 1992 40% of the vote victory by politically reorganizing, and coming back with the Contract With America and crushing victory in 1994, and Democrats responded to Bush's victories by spewing hatred and bile, insisting that they're right, and anyone who disagrees with them is an evil bigot.
6.2.2006 2:26am
Mike1970 (mail):

You don't care about esteemed traditions or social norms or cultural cohesion, but other people do. Some people think the nuclear, heterosexual family is the basic unit of society.


Which it is. Without the nuclear, heterosexual family being the dominant social factor society, mankind will disappear, and society certainly will be worse off. I agree with that 100%. Unless you're going to force unmarried gay people to procreate and marry someone of the opposite sex, I don't see why someone who agrees with the above (like me) can't be for letting gay people marry. Heterosexual couples won't stop procreating or start divorcing just because Jack and John get married, as opposed to Jack and John just living together.


This is about democracy and rule of law, v. rule by Judge.


No, it really isn't. The debate is, but the FMA isn't - it's a blatant way for cowardly politicians to rally their troops. If it was about what you write, the amendment would deal with that in a more general way, and not just regarding SSM.
6.2.2006 3:12am
BobN (mail):

The objection is not that INDIVIDUALS will be forced to do anything, but that diffuse, social harm will result over time to the whole of society. Have the decency to respect what others value and characterize properly their arguments.


Diffuse, unsubstantiable -- one might say penumbral -- harm versus concrete discrimination with concrete consequences. I'll respect your fears when you respect my injuries.
6.2.2006 3:31am
M. Simon (mail) (www):
Greg D.,

If the law is not designed to cover expected exceptions then you will get rule by judges.

As you point out Republicans are supposed to be against that sort of thing.

Welcome to the marriage amdmt.
6.2.2006 3:33am
The Voice of Reason (mail):

Heterosexual couples won't stop procreating or start divorcing just because Jack and John get married, as opposed to Jack and John just living together.



Do we actually know that to be true? I notice that you respond to the beginning of that paragraph from my post, but, oh-so-surprisingly, forgot neglect to quote the part that undermines your silly argument. Just for the sake of clarity, let me re-post the part you accidentally purposely omitted:


The objection is not that INDIVIDUALS will be forced to do anything, but that diffuse, social harm will result over time to the whole of society. Have the decency to respect what others value and characterize properly their arguments.
6.2.2006 5:24am
The Voice of Reason (mail):
As the value of marriage drops, so does the welfare of children.
6.2.2006 5:31am
The Voice of Reason (mail):

Additionally, it should be noted that in 1967, when SCOTUS ruled in Loving v. Virginia that interracial marriage cannot be barred in any state, fully 80% of all American disapproved of interracial marriage. According to the theory of some people here, SCOTUS was wrong, because they made a federal decision on a state matter (marriage) and because they went against the will of the majority of Americans.



Frankly, this is nonsense. The Attorney General of Virginia argued in court that the legitimate end of banning interracial marriages was "to promote White Supremacy." The Supreme Court ruled that promoting White Supremacy is not a legitimate governmental objective. Since no proponents of the Federal Marriage Amendment are claiming that promoting "heterosexual supremacy"...whatever that means... is a legitimate governmental objective...Loving v. Virginia has nothing to do with this argument.
6.2.2006 5:54am
Public_Defender (mail):

That's the way society works. Substitute "IRS" for "Christianist" and "tax code" for "religious beliefs." If I don't pay taxes, I go to jail and my kids are harmed. Anytime parents flaunt societal norms, they run the risk of harming their children (either directly or indirectly). But in my example, is the IRS actually hurting my kids, or is it my fault for not playing by the IRS' rules? You can argue that it is "unfair" for Christianists to be making the laws in this country, but that doesn't completely absolve parents from conforming to the rules - no matter how cumbersome or distasteful. And the rules right now are heavily rigged against anyone having a child absent one dad married to one mom.


So the current rules are the rules, and they hurt kids of parents whose parents are gay. That's not a very good argument that the rules should hurt kids being raised by gay parents.

Marriage laws protect the interests of kids. When the state denies the right of marriage to gay parents, it hurts the kids.

But the Christianists hate gays so much that they are willing to hurt kids. Remember, the Catholic Church in Boston would rather let kids with special needs languish in the foster care system instead of giving them loving, stable parents. And the Christianists claim the moral high ground? Balony.
6.2.2006 6:53am
Public_Defender (mail):

Marriage in the United States shall consist
only of the union of a man and a
woman. Neither this Constitution or
[sic] the constitution of any State, nor
state or federal law, shall be construed
to require that marital status or the
legal incidents thereof be conferred
upon unmarried couples or groups.


Back to the topic of proposed FMA. One unintended consequence would be to invalidate parts of many state domestic violence laws. Often, those statutes provide higher penalties for assaulting a "spouse" or a "person living as a spouse."

The FMA says it's unlawful to confer the "legal incidents" of marriage on non-married people. One "legal incident" is enhanced protection from domestic abuse.

Of course, the defendants could still be charged with assault, but that carries a less severe conseequences.
6.2.2006 8:53am
Medis:
TVOR,

The Massachusetts Supreme Court recently upheld a 1913 Massachusetts law which bars gay couples from getting married in Massachusetts if they could not get married in their home state. And again, in any event other states could not be forced to recognize gay marriages under the Supreme Court's Full Faith and Credit doctrine.

Of course, perhaps your state court judges in your state will decide that your state constitution or laws requires your state to recognize Massachusetts marriages, gay or straight. If so, then you as a citizen of your state have the right to try to change your state constitutions or laws, and perhaps to elect different judges. But if this happens in a state you don't live in, then I again don't see why it is your business.
6.2.2006 9:54am
Elais:
The Voice of REason

For someone with alias like 'Reason' you seem to be a bit unreasonable.

I know perfectly well what a man or woman is, but you fail to see that it isn't quite so simple in a court of law. It never is. that's why we have COURTS decide issues like this.

Me, my mother, my sister are single/widowed/divorced respectively. I doubt that should any one of us get married to a woman, the Apocalypse will come nor would that make the other two stampede to the altar.

I have seen many wonderful marriages. I would be happy to see gays and lesbians be able to marry the loves of their lives as well. The government should see that and stop this anti-marriage nonsense. It is a lot of sound and fury signifying nothing.
6.2.2006 10:09am
jimbino (mail):
Medis,

Look at the problem I have this way: A physician practices medicine that has no substantive variation between Texas and Massachusetts. Licensed in Texas, he wants to practice in Massachusetts, which requires residency in the state for one month and application and passing the Massachusetts bar. Fine.

Massachusetts, however, has an agreement of reciprocity with Vermont that automatically allows a Vermont physician to practice in Massachusetts, without a waiting period. This seems not unusual in the law.

What keeps Massachusetts from doing the same thing with marriage, recognizing Vermont marriages as valid by reciprocity agreement while requiring Texans to be residents of Massachusetts for one month before applying for a license?
6.2.2006 10:21am
Archon (mail):
Wow, the debate went all night long...

On specific defintions -

We all know that this is a red herring issue. Medis and his consort of clowns seem to suggest that a marriage amendment is unworkable because it would need to define gender in ways that would handle situations such as a five assed man marrying a three breasted woman.

This concept is simply absurd. Man and woman are specific enough terms that someone of reasonable intelligence can determine who is a man and who is a woman. Laws should not be made to handle every exception that a drunkard can posit. Laws should be sufficiently clear enough to provide judges with guidance in the event that such an exception might arise. Yes, it might happen. A six assed man and a woman with a penis and vagina might attempt to marry at some point, be denied a license, and a judge will ultimately have to decide if the law was applied correctly. This is what happens in our system of government. We can debate the merits of such a ruling when that happens. Until then, lets stick with the core issue.

On inflammatory rhetoric and vieled charges of bigotry -

Let's get real. I imagine everyone posting comments to this blog are no longer juveniles. Can an issue be debated without trying to perclude one side of the debate by calling it "bigotry".

I will admit, however, that such a tactic works. It ultimately preveiled in the segregation debate (opponents of civil rights laws who argued that it was not the position of the federal government and a state issue, who were not bigots, are regarded as such now). Also, charges of racism kept opponents of affirmative action at bay for almost two decades before people like Ward Connerly stepped into the debate and brought it "color" (yes I was trying to be punny here).

On the Apocalypse -

The apocalypse might come if we continue to take a wrecking ball to the foundation of society. The gay marriage issue is just one very small peice of an overall complex issue. The continuing decade of institutions upon which society has relied for 2000 years will ultimately bring about its demise.

The numbers don't lie. Western society will face its downfall, not in a bloody war or some epidemic, but because of its declining birth rates. Today, Western European nations have negative birthrates. These societies will literally just die out in the next hundred years or so.

But, what does it really matter. Everyone will be "free" and "equal" as long as we keep on following the illiberal policies of the last 50 years.
6.2.2006 10:42am
Mike1970 (mail):
The Voice Of Reason wrote:

Heterosexual couples won't stop procreating or start divorcing just because Jack and John get married, as opposed to Jack and John just living together.

Do we actually know that to be true?


That's almost as dumb a question as asking for the definition of a man and a woman. No, we don't KNOW that to be true. But I'd wager that it's more likely to be true than this diffuse harm you're mentioning.


I notice that you respond to the beginning of that paragraph from my post, but, oh-so-surprisingly, forgot neglect to quote the part that undermines your silly argument. Just for the sake of clarity, let me re-post the part you accidentally purposely omitted:

The objection is not that INDIVIDUALS will be forced to do anything, but that diffuse, social harm will result over time to the whole of society. Have the decency to respect what others value and characterize properly their arguments.


Sorry to disappoint you, but I wasn't left speechless by your brilliance. I DID respond to the objection about "diffuse, social harm" by pointing out that the supposed reason for this diffuse social harm, as I see it, isn't particularly convincing. Do I really have to answer in bullet point form? What's your take on this? Do you think that by allowing gay couples who already live together, sometimes with children, to marry, society will be worse off than if we just let those couples live together, sometimes with children, unmarried? And why exactly is this bad?
I have not seen a solid argument against it that is not based on religious reasons.

It's also pretty hard to characterize properly the arguments when they seem to shift all the time. But you're right about that last sentence.
6.2.2006 10:48am
Mike1970 (mail):

Let's get real. I imagine everyone posting comments to this blog are no longer juveniles. Can an issue be debated without trying to perclude one side of the debate by calling it "bigotry".

I will admit, however, that such a tactic works. It ultimately preveiled in the segregation debate (opponents of civil rights laws who argued that it was not the position of the federal government and a state issue, who were not bigots, are regarded as such now).


Good pint. There are many reasons for being for or against the FMA that have nothing to do with the content of the amendment itself. But the interesting thing about what you point out is that, if you look at demographics and geographic location, those who were labeled bigots when they wanted "states right" in that matter, now have decided that stats should NOT have the right to decide in this matter, and thus become labeled "bigots" now.
The roles have completely been reversed, so I think it's fair to say that it IS the content that is ultimately the deciding factor here in most cases.
6.2.2006 10:53am
Archon (mail):
Mike 1970 -

Or it just could be that the federalization of everything over the last 50 years has changed the way that people think and take action on issues.

I really don't think that many people who argued "states rights" in the 50's actively are still alive and kicking. Wait, I take that back, Robert Byrd is still around burning crosses.
6.2.2006 11:01am
JosephSlater (mail):
I went to my sister's wedding to her long-time partner last summer in Mass. It was a lovely event, and my son, mother, father-in-law, and mother-in-law were all there. For all of us present, it heightened our sense of the importance of marriage and family. Specifically, I can honestly say that my marriage was stronger for having attended this marriage.

As more folks see that this is what gay marriage is about, and as the vaugue-but-dire predictions prove ridiculously unfounded, opposition to gay marriage will continue to decline. For the few marks -- and you really are being played like marks at a carnival by the Repubs -- that think the push behind the FMA is really aimed at passing the FMA, first, be clear that it won't pass. Second, deep down you know that the opposition is declining and will continue to decline.

And for the Repub. leadership that knows full well that this won't pass and is only proferring this as a desperate attempt to get out the vote of the base in the face of declining poll numbers caused by incompetent governing, shame, shame, shame.
6.2.2006 11:37am
BobN (mail):
As a side note, one of the truly stupid things about the population maintenance argument against same-sex marriage is that, when fertility rates match or exceed the 2.1 replacement rate, there is also a higher "production" of orphans. Orphans who need stable homes. Orphans who would do quite well in the homes of married, same-sex couples.
6.2.2006 11:44am
Medis:
jimbino,

As an initial matter, I don't think a residency requirement for physicians is necessarily constitutional, given the rule in Piper.

In general, however, the state-specific reciprocal licensing issue is an interesting one. There is actually a recent case, Morrison v. Board of Law Examiners, 360 F.Supp.2d 751 (E.D.N.C. 2005), in which the court held that North Carolina's state-specific residency/practice requirement for comity bar admission violated the Fourteenth Amendment "right to travel" (which includes a right to equal treatment if you move to a different state) arising under the Privileges or Immunities Clause.

As an aside, rereading that case reminded me that I've been a bit sloppy in claiming it is the Privileges AND Immunities Clause that would deal with your hypos. It actually depends on the facts: if you are talking about people from Texas who are not residents of Massachusetts, then the Privileges AND Immunities Clause would indeed be the applicable provision. But if you are talking about people who have in fact moved from Texas and set up residency in Massachusetts, then it would be the Privileges OR Immunities Clause that would be the applicable provision.

Anyway, to give a bit of the reasoning in Morrison:

"Because Rule .0502(3)'s state-specific practice requirement treats Plaintiff differently on the basis of the state in which he used to live and practice, the Fourteenth Amendment right to travel is implicated. Where state action implicates the right to travel, to survive a constitutional challenge, a state must justify the action's purpose and means by showing that it is necessary to serve a compelling state interest. If that justification is insufficient, the state action is unconstitutional.

In this case, Defendants' rule treats Plaintiff differently based on whether he used to practice in certain states, thereby implicating the Fourteenth Amendment. Defendants' justification for the rule fails because their purposes are effectively served without applying the state-specific practice requirement. Since the justification fails, Rule .0502(3)'s state-specific practice requirement is unconstitutional."

However, I should note that the court explicitly declined to reach the issue of whether North Carolina could require reciprocal admission to the bar (as opposed to reciprocal residency/practice requirements).

So, the reciprocal licensing agreements you raised may in fact be constitutionally suspect, even without the residency component. Of course, it would be different if reciprocal states could show some sort of particular overlap in their requirements not shared by non-reciprocal states. But I don't know of a case offhand where a court has addressed these issues to that extent.

Finally, I would note that in your hypo, presumably there IS reciprocity with Texas, meaning that Texas would continue to recognize most marriages from Massachusetts. The precise issue would be that Texas did not extend this reciprocity to marriages that would not be valid in Texas--and as noted, Massachusetts could certainly do the same with any marriages valid under Texas law but not under Massachusetts law.

So, even if supporting reciprocity was considered a legitimate state interest, I think a Massachusetts rule refusing to recognize ANY Texas marriages because Texas refused to recognize only SOME Massachusetts marriages would fail the sorts of narrow tailoring and compelling interest tests that have arisen under the relevant clauses.
6.2.2006 12:24pm
Medis:
Archon,

You say: "Medis and his consort of clowns seem to suggest that a marriage amendment is unworkable because it would need to define gender in ways that would handle situations such as a five assed man marrying a three breasted woman."

Just a minor point, but I haven't actually participated in the discussion over the difficulties of defining the terms "man" and "woman" to this point. So, you might want to watch your attributions.

Personally, however, I do think this would be a legitimate question if we were taking this amendment as a serious proposal--not because defining those terms is inherently difficult, but rather because those terms are ambiguous, meaning that they can have more than one legitimate definition. And which definition one adopts depends on exactly what one finds important about being a man or a woman such that one concludes that there should be one of both in a marriage.

For example, is it important that they be capable of combining their genes to form a new human? Or rather is it important that they provide a male and female role model to any children that they might raise? Or rather is it important that the couple conform with traditional sexual and romantic norms? Or rather is it important that the couple conform with something in a particular religious text? Each of these notions may imply a different definition of "man" and "woman".

Of course, as I noted above, no one is really worrying about unresolved ambiguities like this, because no one is seriously contemplating the actual proposal and ratification of the amendment. And insofar as the purpose of bringing it up again is to express that certain politicians share certain feelings about gay people with certain voters, the precise definitions of the terms in the amendment are irrelevant.
6.2.2006 12:47pm
Medis:
Finally, on "bigotry":

I don't think most people who are opposed to gay marriage are bigots. I do think, however, that many of them have what amounts to a taboo feeling about gayness.

The basic idea behind taboos is that some people, things, and activities are spiritually unclean. Further, taboo things have an essentially magical ability to corrupt and otherwise harm anyone or anything that comes into contact--or perhaps even just sees--the taboo thing, and the danger is that this corruption can continue to spread if the taboo thing is not quarantined or extinguished. In that sense, taboo things are much like the sources of infectious diseases--which makes sense, of course, because taboos were in part a primitive attempt to understand and avoid infectious diseases.

I think many people have been encouraged--by their parents, religion, popular culture, and so on--to have a taboo feeling about gayness. Accordingly, it makes intuitive sense to them that gay people getting married would pose a danger to marriage in general (or, similarly, that gay parents would pose a threat to children in general), and that this would be true even if gay marriage was confined to a few states. I also think that many of the philosophical and public policy arguments offered against gay marriage are in essence simply rationalizations for these intuitive taboo sentiments.

To be fair, that doesn't mean that I think such people's concerns about gay marriage are false or dishonest, because I think that these people honestly feel that gay marriage is likely to have this corrupting influence. I just think that this feeling itself is ultimately unfounded, in the sense that it is not truly based on a neutral analysis of the issues, but instead is based on an intuition driven by a taboo.

The good news is that taboo feelings tend to diminish over time, provided that people can witness the taboo thing and determine that it does not in fact have magical powers of corruption. In this case, it appears that many people quickly lose their concerns about gay marriage as they witness actual gay marriages, or even just live in the same neighborhood with actual gay couples. Of course, some people remain resolute, but the trends seem pretty steady, and certainly younger people--people who have grown up in a world with many more gay people and couples out and thus visible--seem increasingly unconcerned about gayness.
6.2.2006 1:10pm
Cornellian (mail):
Some people think the nuclear, heterosexual family is the basic unit of society.

And yet, remarkably, we don't hear such people complaining about divorce, let alone no-fault divorce, or campaigning for a constitutional amendment to ban divorce, or demonizing divorced people to try to win votes. Instead we get Roberta Combs, head of the Christian Coalition (what's left of it) going through an ugly divorce then telling people that it's nobody's business but hers.
6.2.2006 2:44pm
JosephSlater (mail):
One more point on "bigotry." Of several dozen comments above by opponents of the amendment, only two referred in any way to bigotry among proponents of the amendment. So let's not pretend that this has been a big part of the debate. Plus, a review of the above indicates quite a few examples of insults from the the pro-amendment crowd.

Now, let's get back to the merits. Do any of you amendment proponents think this has a chance of passing?
6.2.2006 2:45pm
Medis:
JosephSlater,

I will admit to being amused that one poster accused other posters of being "juvenile" for raising the issue of bigotry, and in the same post he also referred to those who disagreed with him as a "consort of clowns".

That said, I thought "consort" was a nice rhetorical touch. That word has a lot of different meanings that might be applicable, including just a group, but also a musical ensemble, a spouse of a nobleperson, and even the nonmarried members of a multimate relationship.
6.2.2006 3:23pm
JosephSlater (mail):
Medis:

LOL.
6.2.2006 3:41pm
Legal Novice:
The homoseuxal redefinition of marriage seeks only the socially subsidized pleasure of the here and now without concern for any future society. No responsibility for society and no contribution to the future of society e.g. children via procreation.

This irrational line of reasoning argument premised lamda legal's argument before the NY Supremes. They argued for a ruling in their favor based upon a rational basis review that necessarily would have to ignore the rational basis premising recognition and privilege accorded marriage by the legislature -the possibility of and the societal benefit of procreation...

On a side note to any and all legal types: I am of the mindset that since a "sexual orientation" other than that derived and assumed based upon evidenced physical attributes e.g. sexual organs has never been proved scientifically to be an innate human characteristic.

Further, from a scientific basis that such a supposed "sexual orientation" minority class of individuals is at best necessarily premised in a double assumption that contradicts that already derived and assumed based upon evidenced physical attributes e.g. sexual organs...

Finally, legally - I would assume the burden of proof as to an innate "sexual orientation" would have to be upon those making the assertion...

My question is WHEN &HOW was something as yet scientifically established legally established if ever?

-Was this 'fact' simply conceded early on and as such considered established via precedence?

If as I suspect the 'fact' was simply conceded and and bolstered with precedence do you think the supposed fact can be challenged? I would be interested on your thoughts and reference to any history on this issue etcetera...
6.2.2006 5:06pm
wooga:
Elais said
I'm an athiest, not an anarchist. Why did you assume I'm an anarchist? The source of my rights are the Constitution, federal, state and local laws. I think that gays and lesbians should have the same rights as me.
You initially complained about religious morality trumping your right to "personal freedom." But what is the source for this "right"? As an atheist, you cannot cite God, as our founders did. So you are resigned to your rights being given by men, in the form of the Constitution. These men also passed laws imposing their religious morality and greatly limiting your personal freedom. That's why other people's religious morality can trump your personal freedom - because (as an atheist) you have no rights aside from what those men (and now the public) give and take from you.

The anarchist comment flows from a rejection of "government as rights giver"; My comment on this is moot, as your last response adopted the government-rights connection.
6.2.2006 5:07pm
PeterH:

Legal Novice:
The homoseuxal redefinition of marriage seeks only the socially subsidized pleasure of the here and now without concern for any future society. No responsibility for society and no contribution to the future of society e.g. children via procreation.


Nice try, but completely false. Many, if not most of the gay people trying to marry are currently raising children, either their own biological children or adopted ones. If raising children is the only allowed definition of "contribution to society" from marriage, these couples certainly apply.
Meanwhile, many, many straight people don't have children, whether by choice or not. What is the contribution to society that they make? By your definition none, and their marriages should be dissolved.

Explain that. It is the fact that blows just about every "justification" that anyone gives out of the water and makes it clear that it is purely anti-gay sentiment that motivates it.

Archon keeps feeling that he is making some sort of useful point when he says that "you can't legislate by exceptions" and then claims that the sole point of marriage is procreation. Then it's easy. Nobody without kids gets any benefits whatsoever. Let them have a "permit" that legally defines their relationship and makes future children legitimate. Then when they produce a child, they get all the rest of the benefits. Easy, and quite simple to legislate.

And of course, children by previous marriages, adoption, or artificial insemination don't count. Otherwise, gay people might slip into the mix, and we can't have that.

It is Archon who wants to change the rules, not us. Marriage is currently not defined by children or the ability to have them. Allowing a childlessness exception to straight people but not gay people and then continuing to claim that children are the CURRENT definition of marriage is logically and legally insupportable.

The fact is, there are lots of perfectly valid reasons for marriage, and lots of benefits to society. Mutual support, for one. Lots of the marriage benefits have nothing whatsoever to do with children or their support, but have a lot to do with medical decisions, inheritance, and support, all of which apply to gay people no differently than to straight people.

Denying gay people marriage based on children is no more logically, morally, or legally supportable than announcing that your club has a dress code that does not allow shorts, then allowing white people with shorts in, but denying all black people regardless of what they are wearing -- and then announcing that "oops, we have to allow some exceptions" (but conveniently, only among the white people.)

In any other situation, the bias, and yes, bigotry, would be immediately apparent. And yes, it IS bigotry to claim, as you do, that the only reason gay people want to get married is "pleasure" because no gay people have children -- because it is deliberate blindness to the reality that lots of us do.
6.2.2006 5:36pm
Medis:
wooga,

You claim: "As an atheist, you cannot cite God, as our founders did. So you are resigned to your rights being given by men, in the form of the Constitution."

Again, I don't think this is right. As an aside, we actually had an interesting discussion here a while back about the many different ways in which those who do not believe in God can ground their moral propositions. I think it gave a good sense of the wide variety of moral theories that people have adopted over time.

Anyway, wooga, you are limiting moral rights to a very narrow class of justifications--the ones which depend on rights being given to people by some other authority, such as God or other men. But some theories of rights do not depend on them being given or granted to people at all. And once you eliminate that artificial limitation--that rights must be granted by some authority--you can no longer play the process of elimination game that you are suggesting.
6.2.2006 6:24pm
Christopher Cooke (mail):
I was reading Prof. Sunstein's book "Radicals in Robes" and note how accurate are his observations on the same sex marriage debate. Essentially, he notes that the Supreme Court, in upholding the right to marry among prison inmates, largely did so because of marriage's symbolic importance to many, not any of the other usual justifications (children, health benefits, etc.). I think that symbolism is why this debate is so heated: opponents of same sex marriage who advocate a the constitutional amendment forbidding it do so because they feel that their view of society is threatened by same sex marriage. You can really debate, rationally, with such a view. While I am not intending to equate the two situations, I do see parallels here with those who opposed racial integration (or rather, proponents of racial segregation) a generation again; they, too, felt their values and culture were threatened by implementing Brown v. Board of Education and similar decisions. In my experience, logic and constitutional interpretations (not the same, I admit), usually can't persuade people who harbor such strong feelings; they either change their minds, because of a personal experience, or they don't.
Essentially, the same voters who left the Democratic party in the 1960s over the Civil Rights Act, busing, and affirmative action, are now worked up about same sex marriage. That is why Rove is pushing for an amendment drive now, to get these people back to the polls to support the Republicans, and help the GOP hang on to power. It is Nixon's "Southern Strategy" revised to use concern for gay rights as a rallying cry for cultural conservatives.
6.2.2006 6:27pm
Public_Defender (mail):

And yes, it IS bigotry to claim, as you do, that the only reason gay people want to get married is "pleasure" because no gay people have children -- because it is deliberate blindness to the reality that lots of us do.


But kids being raised by gay parents should be forced to suffer for their parents' perceived immorality. It's all about the kids.
6.2.2006 6:41pm
Christopher Cooke (mail):

You can really debate



I meant: you can't really debate
6.2.2006 6:46pm
Elais:
wooga,

God doesn't exist, therefore no one can cite God. Did the founding fathers write the constitution while holding the bible in the other hand for reference?

Which 'religious morality' you subscribe to? I'm curious if your Jewish, Muslim, Christian, Baptist, Protestant, Methodist. etc.
6.2.2006 7:23pm
alessandra (mail) (www):
Finally, legally - I would assume the burden of proof as to an innate "sexual orientation" would have to be upon those making the assertion...
========================

That is exactly one of the shoddiest claims of pro-homosexuals. The construct of "sexual orientation" is in itself a pro-homosexual propaganda tactic that only serves to misinform. From another blog discussion:


here's another question for the straights. Imagine that being straight was no longer cool (forget procreation, we are all Gattica and shit) Suppose the population was over 90% gay.

Posted by Seattle Slough

===================
Alessandra wrote:
You've just describe ancient Greece (although there was no such thing as "gay" then, they were mostly bisexual and homosexual in ways that don't really exist in our culture. Which only goes to show how stupid the idea that " it is possible that gays are as gay as straights are straight."

=======================

Further suppose there were vast swaths of the world were it was essentially impossible to be openly straight. Under those circumstances would YOU still be straight?

Or would you be gay to fit in? For me, I assume that I would be courageous enough to be who I am.

Posted by Seattle Slough

=======================
Alessandra wrote:
Ancient Greece proves that most people who are brought up in a society that conditions humans to be bisexual/homosexual turn out that way. This includes desire - that famous concept that homo activists like to claim is innate and unchangeable.

So if you were raised in such a society, the question about being "who you are" is already wrong in the first place.

Are pedophiles courageous for being pedophiles? No, they are just clueless and irresponsible. Are SM people courageous for being SM? No, they are just highly dyfunctional. The same with homosexuals, they are dysfunctional.

However since we live in a society that places a diseased invidualism above all else, and these values prevail over healthier ones, it's easy to see the connection as to why both pedophilia and homosexuality have been deleted from the DSM based on the same pro-homo reasoning.

I think that the more recent debates on questions regarding homosexuality are a sign that a lot of the pro-homo propaganda claims are being more closely evaluated and having their flaws exposed. However, IMO, if people erroneously adopt the pro-homo propaganda concept that sexual orientation is innate and that human beings make no choice whatsoever regarding their attitudes, values, and behaviors, nor is there any developmental change (whether functional or dysfunctional) from a time a baby is born until they become adolescents - there is no way you can logically reason against homo marriage. Which is the problem that arises with trying to argue against homo marriage after legitimizing homo adoption. The crux of the problem refers to ignorant concepts/views regarding homosexuality and neither adoption nor marriage should be normalized.

Regarding arguments for homosexual marriage - the best articulation of the lack of sense in it was articulated by AGN :

But to make marriage work for same-sex couples, we had to change the form of marriage itself. We had to rip out all the guts of marriage, since any mention of children made it exclusively heterosexual. When you take out children, sex becomes irrelevant too. We've hollowed out the form of marriage so that anyone can fit into it. That leads to this purely financial relationship since the new form encompasses them, whereas the old form did not. When you do that, and you look at the old laws about bigamy, you have to wonder whether the laws even make sense anymore.


In a society which holds that an adult must get their sexual kicks without a regard to respect to others, dignity, or health, the only thing that still gets hypocritically blabbered about is the sex against children taboo, but that's one taboo that pedophiles are working hard make one more acceptable thing.

People who call others Christianists are just showing how homosexist they are.
6.2.2006 7:30pm
alessandra (mail) (www):
In any other situation, the bias, and yes, bigotry, would be immediately apparent. And yes, it IS bigotry to claim, as you do, that the only reason gay people want to get married is "pleasure" because no gay people have children -- because it is deliberate blindness to the reality that lots of us do.
=========================
And related to this is one more profoundly hypocritical "bigotry" claim from pro-homos - that it's the meanie society that discriminates against homosexual right to marriage: in countries where homo marriage was legalized, how many homosexuals went rushing to finally get that marriage licence that their previously alleged meanie society didn't allow them to get? A tiny, tiny, tiny percentage. The remaining great BIG majority of homos continues to shun marriage, and many think that marriage simply sucks. Why don't they interview all these homosexuals in the homo marriage advertisements campaigns is so baffling...

It's clear this whole homo marriage is much more about on forcing society to stupidly accept homosexuality than about some discrimination regarding one group of people and marriage.

And I agree that young people are more pro-homo than older people, perhaps the main reason is exactly because they are young, easily misinformed, quite ignorant, highly influenced by dysfunctional behavior and attitudes, specially if some celebrity clown or rock star portrays it.
6.2.2006 7:42pm
Christopher Cooke (mail):
Alessandra brings up pedophilia. Most convicted of that crime are straight, and frequently married, men. So, by her logic, we should ban heterosexual marriages by straight males, for promoting pedophilia.

I next predict she will trot out beastiality and anything else she finds gross or disgusting, but please, don't assume she is bigoted towards gays. She is just a traditional conservative promoting traditional cultural values.
6.2.2006 7:45pm
Legal Novice:

PeterH:

Nice try, but completely false. Many, if not most of the gay people trying to marry are currently raising children, either their own biological children or adopted ones. If raising children is the only allowed definition of "contribution to society" from marriage, these couples certainly apply.

Meanwhile, many, many straight people don't have children, whether by choice or not. What is the contribution to society that they make? By your definition none, and their marriages should be dissolved.

Explain that. It is the fact that blows just about every "justification" that anyone gives out of the water and makes it clear that it is purely anti-gay sentiment that motivates it.


Explain what is already accepted and evidenced in legal precedence?

It is quite easy to argue against the supposed magical legal hand wave that many seem to think ushers in special privelege to any engaging in homosexual activity EVEN when such activity involves a self-declared committed state of monogomous homosexual activity...

Take the case of any single parent -yes, they procreated; however, they do not get the marital privelege or accomodation merited by society and enacted legislatively... Does finding a partner and engaging in homosexual activity suddenly change this legal precedence?

Take the case of two single parent sisters living together -yes, they procreated; however, not with each other -- AND they too do not get the marital privelege or accomodation merited by society and enacted legislatively... Would the two of them engaging in homosexual activity suddenly change this legal precedence?


NOW just substitute a "homosexual" with each of the individuls cited and come to the only innevitable legal conclusion yourself...


Remember -the rational basis for society and that premising recognition and privilege accorded marriage by the legislature IS the possibility of and the societal benefit of procreation...

YES anyone can procreate EVEN homosexuals; HOWEVER, bringing a child into a procreatively devoid relationship does not a marriage make AS the supposed marriage is factually a procreative dead and as such one NEVER possibly benefitting society with children. Children in such a case are incidental at best and not a result of any marital construct meriting reward or privelege...
6.2.2006 9:38pm
Legal Novice:
P.S. I would like some legal versus emotional commentary on the questions I raise

please
6.2.2006 10:03pm
Medis:
Legal Novice,

So are you suggesting that society has no interest in how children are raised after they are made?
6.3.2006 1:20am
Les GS (mail):
Legal Novice wrote:
YES anyone can procreate EVEN homosexuals; HOWEVER, bringing a child into a procreatively devoid relationship does not a marriage make AS the supposed marriage is factually [a] procreative dead and as such one NEVER possibly benefitting society with children. Children in such a case are incidental at best and not a result of any marital construct meriting reward or privelege...



I'm sorry, Legal Novice, but this is just weird. A couple where one or both of them is sterile ("procreatively dead") and so they adopt is not beneficial to society..? Okay, they can't physically bring children into society, but this adopting couple is not beneficial to the child or the rest of us..? This couple doesn't deserve support (or as you put it, "reward or privelege")..? So this couple shouldn't be allowed the perks of being legally married?
6.3.2006 2:28am
Mike1970 (mail):
alessandra, well you've convinced ME with your brilliance at least: sexual orientation is a choice, and it's disgusting that heterosexuals, like pedophiles, get to live out their dirty sex-sex-sex-sex naughty nasty sexisex in the confinement of their own sexosexosexsex homes.
6.3.2006 2:45am
therut:
CHRISTINISTS-------------Oh my goddness is that you Andrew Sullivan. Sorry ,I do not buy your NEWSPEAK. Good Grief. Reminds me of an article of an interview of Hitches. He is not a athiest he calls himself an anti-thiest. An athiest he says can say "There is no God" but still wish it was true. As an anti-thiest he says "There is no God and I am glad of it". All these new quasi-intellectual new words TISK
6.3.2006 2:46am
Legal Novice:

Medis:
Legal Novice,

So are you suggesting that society has no interest in how children are raised after they are made?



NO, you are. Of course society has an interest. Society imposes its interest each and every time it intercedes in divorce procedings and intercedes where legitimate concern warrants such e.g. reported abuse etcera...

However, such concern has never translated into marital benefits. Otherwise there would be precedence of such...


Society has always assumed the best interests of children were served by the procreative parents whatever their income, education, status etcetera. There has never been a parent test -the 'test' if any has always been the ability to procreate...

The implications of your argument are nothing less than government imposed social engineering married with government intrusion into what has always been unalienable -parenthood via procreation...
6.3.2006 2:49am
Legal Novice:

Les GS:

I'm sorry, Legal Novice, but this is just weird. A couple where one or both of them is sterile ("procreatively dead") and so they adopt is not beneficial to society..? Okay, they can't physically bring children into society, but this adopting couple is not beneficial to the child or the rest of us..? This couple doesn't deserve support (or as you put it, "reward or privelege")..? So this couple shouldn't be allowed the perks of being legally married?


You argue the exception not the rule... Any exception you argue is an exception simply incidental to the rule. However, in the case of a homosexual couple the exception is not incidental to the rule [IT] is impossible to the rule...

In regards to marriage, there are exceptions in law and such exceptions could have been handled exceptionally or could have been overlooked. Precedence has overlooked and accepted the exceptions probably because the statutes required to cover every exception would be tenuous at best to cover and enact NOT because society wished to reward two people living together having sex without possibilty of procreation...
6.3.2006 3:03am
Les GS (mail):
Legal Novice, but the exception is, de facto, the rule. No where, in U.S. law, is it required that a marrying couple be fertile and/or intending to have biological or adoptive children.

The whole procreative aspect of marriage, in the U.S., is legally irrelevant. Our law does, in fact, reward two people living together having sex without procreating (whether they can or want to or not) as long as they are married and of the opposite sex.
6.3.2006 3:30am
Public_Defender (mail):

HOWEVER, bringing a child into a procreatively devoid relationship does not a marriage make AS the supposed marriage is factually a procreative dead and as such one NEVER possibly benefitting society with children. Children in such a case are incidental at best and not a result of any marital construct meriting reward or privelege...


You have just insulted the meaning and validity of the "procreatively dead" marriages of millions of infertile couples who have adopted. I'm sure their children will feel comforted that they are "incidental at best and not a result of any marital construct meriting reward or privelege (sic)...."

This just goes to show that the anti-gay people are not pro-children or pro-family. They are just anti-gay. And they are willing to make children suffer because it reinforces their own sense of moral superiority.
6.3.2006 10:23am
Legal Novice:

Legal Novice, but the exception is, de facto, the rule. No where, in U.S. law, is it required that a marrying couple be fertile and/or intending to have biological or adoptive children.

The whole procreative aspect of marriage, in the U.S., is legally irrelevant. Our law does, in fact, reward two people living together having sex without procreating (whether they can or want to or not) as long as they are married and of the opposite sex.


Well, to debate the merits of legal relevance as it applies to their case -one must first have a case; one must first have standing. Until homosexuals clear the hurdle of establishing as fact the asserted fallacy of "homosexual orientation" constituting a class of individuals denied anything there is no such standing.

As I have stated prior, something which continues to be conveniently ignored, the burden of proof as to an innate "sexual orientation" would have to be upon those making the assertion -this first must be done if one wishes to discuss ANY legal relevance regarding ANY supposed homosexual rights... [How about someone directly addressing this point?]

Regardless, debating any supposed homosexually premised anything that legally can not even legitimately begin without a standing, the possibility of and the societal benefit of procreation was and has always been the rational basis premising recognition and privilege accorded marriage by society as enacted by legislation.

The incidental exceptions cited do not negate the basis, they test it and in doing so clearly contrast against and specifically identify the basis some attempt to deny as one very much existing and relevant e.g. Griswold v. Connecticut where premised upon a right to privacy it was decided that individuals have the right NOT to procreate via use of contraceptives...

One can clearly see that with Griswold it is the exception that demonstrates clearly the rule (basis of procreation) exists! Resistance is futile!!!

Regardless a legislature has not chosen to handle exceptions to the basis, e.g. those that choose to contracept, exceptionally by incorporating more rules or by changing totally the basis or doing away with ANY marital accommodation -that is their prerogative and not the courts.

As stated prior "YES anyone can procreate EVEN homosexuals; HOWEVER, bringing a child into a procreatively devoid relationship does not a marriage make AS the supposed marriage is factually a procreative dead and as such one NEVER possibly benefiting society with children. Children in such a case are incidental at best and not a result of any marital construct meriting reward or privilege"

AGAIN as it applies in the case of homosexuals IT IS PUBLICLY KNOWN AND FACTUALLY ALWAYS TRUE that a supposed homosexual marriage is a procreative dead and as such one NEVER possibly benefiting society with children. ALL THIS UNLIKE the already allowed exceptions which are allowed and or necessitated ALL premised upon a privacy right negating any legislature from enforcing procreation upon a potentially procreative couple.

Deal!

;-)
6.3.2006 2:01pm
Legal Novice:

Public_Defender:
You have just insulted the meaning and validity of the "procreatively dead" marriages of millions of infertile couples who have adopted. I'm sure their children will feel comforted that they are "incidental at best and not a result of any marital construct meriting reward or privelege (sic)...."

This just goes to show that the anti-gay people are not pro-children or pro-family. They are just anti-gay. And they are willing to make children suffer because it reinforces their own sense of moral superiority.


Care to offer anything legal?
6.3.2006 2:03pm
Public_Defender (mail):

Until homosexuals clear the hurdle of establishing as fact the asserted fallacy of "homosexual orientation" constituting a class of individuals denied anything there is no such standing.


Gays don't exist. Brilliant argument. So brilliant, in fact, that words fail me.


AGAIN as it applies in the case of homosexuals IT IS PUBLICLY KNOWN AND FACTUALLY ALWAYS TRUE that a supposed homosexual marriage is a procreative dead and as such one NEVER possibly benefiting society with children.


Many gay people are willing to adopt children heterosexuals will not. They are also sometimes taking care of kids from previous marriages. So they are benefiting society by raising children in a stable environment instead of forcing the kids to bounce around foster care. Further, many gay parents are raising children as a couple, an you have not provided a good reason why those kids do not deserve the protection that marriage provides (better access to health care, a legal strengthening of the bond between the parents, support obligations from both parents, etc.).

And there are many heterosexual couples who physically cannot reproduce. Probably more than the number of gay couples wanting to get married. If we protect the heterosexual right to enter into a non-procreative marriage, why not the right of gay people? The gay exception to the rule might very well be smaller than the infertile heterosexual exception.

And calling some marriages "procreative (sic) dead" is still an insult to heterosexual married people who desperately what to, but cannot, have children. But keep using it. It's good that you are willing to needlessly alienate people from your viewpoint.

Final point-PUTTING SOMETHING IN ALL CAPS DOES NOT MAKE IT TRUE. IT MAKES YOU SOUND DESPERATE.
6.3.2006 2:15pm
Legal Novice:
Public_Defender,

Spell checking is noteworthy; HOWEVER, I seek substance -legally premised discourse...

I am a Legal Novice seeking Legal Expertise for and against. I am not an Emotional Novice seeking partners to engage in emotive dialogue with...

NOTE: I use CAPS simply to stress and or highlight words or phrases I would orally stress and or highlight...
6.3.2006 2:27pm
Public_Defender (mail):

I am a Legal Novice seeking Legal Expertise for and against. I am not an Emotional Novice seeking partners to engage in emotive dialogue with...


OK, then how about this:


Many gay people are willing to adopt children heterosexuals will not. They are also sometimes taking care of kids from previous marriages. So they are benefiting society by raising children in a stable environment instead of forcing the kids to bounce around foster care. Further, many gay parents are raising children as a couple, and you have not provided a good reason why those kids do not deserve the protection that marriage provides (better access to health care, a legal strengthening of the bond between the parents, support obligations from both parents, etc.).

And there are many heterosexual couples who physically cannot reproduce. Probably more than the number of gay couples wanting to get married. If we protect the heterosexual right to enter into a non-procreative marriage, why not the right of gay people? The gay exception to the rule might very well be smaller than the infertile heterosexual exception.
6.3.2006 2:44pm
alessandra (mail) (www):
Christopher Cooke (mail):
Alessandra brings up pedophilia. Most convicted of that crime are straight, and frequently married, men. So, by her logic, we should ban heterosexual marriages by straight males, for promoting pedophilia.
========================
Christopher brings out the tired old propaganda lie that non-heterosexuals don't hardly (read ever) abuse children.

The problems with this lie are various:
- statistics about child /adolescent abuse are not facts, they are estimates - numbers are only reliable to a point;
- the more research that is done on child abuse, the more abuse is found, the Catholic Church scandal where approx. 80% of the cases involved homo abuse of adolescents is a nice example of how much can be hidden from view for so long in society;
- the correct assessment of who is bisexual is almost inexistant in research - therefore, in most statistic reports there are not reports of bisexuals abusing children, they are routinely labeled straights and wrongly inflate the numbers for straight abusers;
- research shows that a significant percentage of abused children and adolescents don't report or confide their abuse to anyone, ever or sometimes for decades - therefore the real number is only an estimate, and the same goes for who is abusing them and their sexual characteristics;
- what is a fact is that the majority of child and adolescent abusers are not even tried, much less convicted.

So we only have estimates of what is happening and people who want to spin off propaganda lies about the reality of child and adolescent abuse take full advantage of society's ignorance and the shaky research reports.

"Most convicted of that crime are straight, and frequently married, men. "

Most men are straight and, I should think, married. In a society where most men are straight, regarding hard numbers, straight men are going to be the majority of any type of criminals - anyone with grade school math can figure that out. It's obvious that to assess non-heterosexuals and abusive behavior one has to look at proportions. There are lots of stats that show either that non-heterosexuals practice equal or more abuse than straights regarding children and adolescents proportionally speaking.

Whatever the estimates, I think anyone that says that non-heterosexuals do not hardly abuse children or adolescents is a major liar and is doing a huge disservice to society, mostly to the victims. If pro-homos weren't so cheap, instead of spending so much energy in lying and covering up the real abuse that exists, they would spend that energy on denouncing homo and bisexual adults that abuse children and adolescents. But that is nowhere to be seen.

What is clear is that pro-homos are obsessed with lying about the reality of abuse perpetrated by non-heterosexuals, and they routinely trot out the "most abuse is perpetrated by married males" to cover up the real abuse that is perpetrated by non-heterosexuals. Pro-homos love to take action against Christians, but I have never seen a pro-homo take action against NAMBLA. Never.
6.3.2006 4:58pm
Legal Novice:

Public_Defender:

OK, then how about this:




Many gay people are willing to adopt children heterosexuals will not. They are also sometimes taking care of kids from previous marriages. So they are benefiting society by raising children in a stable environment instead of forcing the kids to bounce around foster care. Further, many gay parents are raising children as a couple, and you have not provided a good reason why those kids do not deserve the protection that marriage provides (better access to health care, a legal strengthening of the bond between the parents, support obligations from both parents, etc.).


As evidenced by edited versions the two examples I provided earlier:

1. Take the case of any single parent -yes, they procreated; however, they do not get the marital privelege or accomodation merited by society and enacted legislatively... Does finding a partner and engaging in homosexual activity suddenly change this legal precedence?

2. Take the case of two single parent sisters living together -yes, they procreated; however, whether it be with each other or separately -- they too do not get the marital privelege or accomodation merited by society and enacted legislatively... Would the two of them engaging in homosexual activity suddenly change this legal precedence?


NOW just substitute adopt with procreate in each case and come to the only innevitable legal conclusion yourself...

Additionally, foster care parents get funds from the State FOR the children not because of their sexual procilivity. Would foster care parents engaging in homosexual activity suddenly change this legal precedence?



And there are many heterosexual couples who physically cannot reproduce. Probably more than the number of gay couples wanting to get married. If we protect the heterosexual right to enter into a non-procreative marriage, why not the right of gay people? The gay exception to the rule might very well be smaller than the infertile heterosexual exception.




As I stated prior, and as evidenced in Griswold v. Connecticut, there is no supposed heterosexual right to be accommodated and rewarded by society for entering into non-procreative marriage -such marriages are exceptions incidental to the basis of procreation with such incidence being premised in the right to privacy (just as abortion is). You are conflating the right to privacy (which prohibits the State from enforcing procreation) with the privelege accorded marriage that is rationally based in procreation as provided for legislatively by the State.

In essence, homosexuals do not get a "free pass" under the privacy right BECAUSE homosexuals objectively can not possibly ever procreate homosexually...
6.3.2006 5:09pm
alessandra (mail) (www):
Alessandra brings up pedophilia. Most convicted of that crime are straight, and frequently married, men. So, by her logic, we should ban heterosexual marriages by straight males, for promoting pedophilia.
===========================
Exactly what are you saying is my logic?

Given that I wrote this:
"In a society which holds that an adult must get their sexual kicks without a regard to respect to others, dignity, or health, the only thing that still gets hypocritically blabbered about is the sex against children taboo, but that's one taboo that pedophiles are working hard make one more acceptable thing." and I did not relate it to marriage, nor did I say that marriage promotes pedophilia, it's clear what you call my logic is just your straw man.
6.3.2006 5:09pm
alessandra (mail) (www):
Mike1970: alessandra, well you've convinced ME with your brilliance at least: sexual orientation is a choice, and it's disgusting that heterosexuals, like pedophiles, get to live out their dirty sex-sex-sex-sex naughty nasty sexisex in the confinement of their own sexosexosexsex homes.
==========================
I wrote this: "However, IMO, if people erroneously adopt the pro-homo propaganda concept that sexual orientation is innate and that human beings make no choice whatsoever regarding their attitudes, values, and behaviors, nor is there any developmental change (whether functional or dysfunctional) from a time a baby is born until they become adolescents -"

You certainly very are convincing in offering proof that pro-homos can't read nor think.
6.3.2006 5:15pm
alessandra (mail) (www):
Christopher Cooke:
I next predict she will trot out beastiality and anything else she finds gross or disgusting, but please, don't assume she is bigoted towards gays. She is just a traditional conservative promoting traditional cultural values.
====================
Whatever my values, Christopher clearly can't counter-argue them. But isn't the structure of his post cute? What an obsessive pro-homo projects onto others is just more proof of their desperate need to always shodilly caricaturize their opponents therefore trying to simultaneously dismiss arguments they can't deal with.

Part of the bigotry in pro-homo activism and in pro-homosexuality ideology, which is always nice to expose. But let's not assume he is one more hypocritical, egotistical, self-righteous homo, he's just saying it all for the children.
6.3.2006 5:41pm
Elais:
alessandra,

You've demonstrated quite convincingly to everyone that you are a nut-job.

Have you yourself been activist against NAMBLA? What have you done besides spew anti-gay rhetoric?

You've proven to everyone that you are a hypocritical, egotistical, self-righteous hetero. And this is coming from a fellow female heterosexual. You are a discredit to our sex and orientation.

I'm for equal rights, unlike you. The 'gay agenda' of wanting the same rights as me is one I fully support and actively engage in.

The vast majority of abuse of children has be perpetuated by straight people. You spout propaganda to shore up your bigotry and hatred. Shame on you.
6.3.2006 6:30pm
Cornellian (mail):
Back to the topic of proposed FMA. One unintended consequence would be to invalidate parts of many state domestic violence laws. Often, those statutes provide higher penalties for assaulting a "spouse" or a "person living as a spouse."

The FMA says it's unlawful to confer the "legal incidents" of marriage on non-married people. One "legal incident" is enhanced protection from domestic abuse.



That's nothing, what about those laws providing for some type of claim on the "marital" home when a man and woman have lived together for many years in a marriage like relationship without actually getting married? Laws of that nature are probably toast in Virginia now and other states with similar language.
6.3.2006 6:59pm
alessandra (mail) (www):
Elais,
====================
Elais:
alessandra,

You've demonstrated quite convincingly to everyone that you are a nut-job.

Have you yourself been activist against NAMBLA? What have you done besides spew anti-gay rhetoric?

You've proven to everyone that you are a hypocritical, egotistical, self-righteous hetero. And this is coming from a fellow female heterosexual. You are a discredit to our sex and orientation.
=======================
No Elais, you are. You are a hypocritical, egotistical, self-righteous pro-homo - you're no fellow in any way of mine. Your post is nothing but a junkfull diatribe against people who can discuss issues you are too ignorant or irresponsible to grasp. You are detrimental to society.


I'm for equal rights, unlike you. The 'gay agenda' of wanting the same rights as me is one I fully support and actively engage in.

The vast majority of abuse of children has be perpetuated by straight people. You spout propaganda to shore up your bigotry and hatred. Shame on you.

I am for a non-"sexually violent" society, unlike you. The way you pro-homos continuously lie about the types and the amounts of sexual violence, harassment, denigration and exploitation perpetrated by non-heterosexuals in society is disgusting. Shame on you. And if you are a typical pro-homo it's not such a bad guess that you lie about violence perpetrated by heterosexuals too.

You spout propaganda to shore up your bigotry and disgustingly irresponsible attitudes and behaviors. If lying about reality is what makes one a nut-job, you were describing yourself.

And let me ask you, have you yourself been activist against NAMBLA? What have you done besides spew pro-homo rhetoric? How many cases or incidents of non-heterosexuals commiting sexual harassment, exploitation or violence have you taken any action about?

You don't need to answer. It's easy to guess by your hateful post that the answer is zero. It always is from people like you.
6.3.2006 7:10pm
Cornellian (mail):
The vast majority of abuse of children has be perpetuated by straight people. You spout propaganda to shore up your bigotry and hatred. Shame on you.

Heck, why stop at children? Ask a straight woman what kind of stranger she's most concerned about running into in an underground parking garage 1) straight man 2) gay man 3) lesbian.
6.3.2006 7:37pm
Medis:
Legal Novice,

You say: "Society has always assumed the best interests of children were served by the procreative parents."

As an aside, this is not exactly true--all states have some provision for terminating parental rights.

Still, it is accurate to say that our society generally has adopted a rebuttable presumption that a child's natural parents are the best people to raise the child. But our society also has frequently presumed that the next best possibility--which is often the de facto best possibility in cases where one or both natural parents are unable, unwilling, or unfit to raise the child--is married parents, even if one or both of those parents did not themselves make the child together. For example, in many states, the marital status of the prospective parents is sometimes used as one of the factors in adoption placement.

So, we don't seem to think that married parents benefits only children being raised by both natural parents. Which, of course, makes perfect sense--there is no obvious reason why the benefits of married parents should depend entirely on the genetic relationship between the child and the parents.
6.4.2006 1:13am
David Chesler (mail) (www):
Greg D wrote (6/1, 1:32pm -- it's hard to get a chance to comment, what with all the screaming puppies):

There's this idea, known as "Democracy", that says that it is The People who should rule. There's a modification of it, known as "Representative Democracy", which says that The People should chose "Representatives" to make the laws, and that the Representatives should have to go before The People, on a regular basis, in events called "Elections." There, The People declare whether or not they think the Representatives have done a good job, voting for the Representatives if they have, voting for someone else if the Representatives have not done a good job.

Allowing "Judges" to change the laws to suit the "Judges" personal desires (said "Judges" not being subject to campaigns where they go to The People, saying "this is what I'm going to do, these are the kinds of rules I'm going to impose, vote for me if you like these rules") is a direct assault upon the concepts of Democracy, and of Representative Democracy.


I always thought judges (in jurisdictions where they are not elected) were appointed and approved by representatives serving in the other two branches, and that it was their proper function to rule on the not just the fact of particular cases, but on the meaning and constitutionality of the laws themselves. I stand corrected. It's not SSM that's destroying our society, but these hereditary judges who have forgotten that we're not a common-law jurisdiction.
6.4.2006 2:04am
David Chesler (mail) (www):
Humble Law Student (6/1, 10:23am):
I honestly don't have much of a problem with Mass having gay marriage. I never intend to live there, and as long as their marriages can't be imposed on my own state (or SSM imposed by the courts on the country as a whole), I'm fine.

My spouse and I were married in Massachusetts. If we were to visit your state and spend a night in one of your fine hotels, or even decide to move there, we would still be married, and would expect, no demand, that we be treated the same as if we'd been married there. Would that be having a Massachusetts marriage imposed on your state? Why do you have a problem with that?
6.4.2006 2:25am
Medis:
On the subject of exceptions to rules, I was inspired to right a little dialogue. Enjoy.

Rulemaker A: We have a real problem in this town with dogs and cats getting lost, and the authorities not being able to find their owners. So, I am going to propose a rule that all household pets have to wear an ID collar.

Rulemaker B: That sounds like a fine idea, but I think "all household pets" is too broad, because that would include household pets like fish or snakes.

A: But most household pets are cats or dogs, and fish and snakes are just exceptions to this rule. So I think my rule is fine.

B: But if you agree your rule should be limited to cats and dogs, why not just have the rule say that all cats and dogs kept as pets should have to wear an ID collar?

A: I already told you. Most household pets are cats or dogs, so you are just talking about exceptions to my rule.

B: Right, but why wouldn't you want a rule that actually says exactly what you want it to say? Why would you deliberately adopt a rule for all household pets when you know you only want it to cover cats and dogs?

A: Look, I already gave you my answer, so stop talking about exceptions to my rule. The rule will cover all household pets. Now let's move on. There is a real problem in this town with people getting married and then not having children. I want to limit marriage to people who actually have children together. So, I am going to propose a rule that only straight people can get married ...
6.4.2006 3:31am
Elais:
alessandra,

Oh good! I've brought you down to using schoolyard taunts. I''ll have to report you to the teacher.

You aren't exactly livening up the site with your erudite discourse on same-sex marriage. The venom you have displayed in each and every post you make proves my point. You are full of anger and are beyond reason.

I've read the volokh conspiracy for some time and I have been impressed with the nature of the discourse, even from those whose opinion I would vehemently disagree with. I felt my IQ being lowered when you arrived and started posting.

Could you point out how non-violent heterosexuals are? And keep in mind I just came off of reading a report how a young heterosexual man killed 7 members of a multi-generational family.

In my community, I would guess that 99.9% of the violent crimes are perpetuated by heterosexuals. In fact, I think our county is one of the worst in the state as far as domestic violence. I do even believe that the son a local candidate running for office was arrested for beating up his wife. Gays on straight violence, harassment, etc. is non-existent. I have met many gays here and they are some of the nicest, most pleasant, most non-violent citizens my community has.

What planet are you from?
6.4.2006 1:47pm
Chimaxx (mail):
Legal Novice:

I'm not sure why you think that gay people have to legally prove their existence--the people pursuing these cases in the court are petitionaing for same-sex marriage, not homosexual marriage. Some of the people who marry homosexually in a future world where that is possible may indeed be bisexual by nature, and find their soulmate in the same gender.

Of course, if you win the argument, and succeed in proving that homosexuals don't legally exist, that would help overturn the law in Florida preventing homosexuals from adopting. You don't successfully ban a group of legally nonexistent people.

You write:
1. Take the case of any single parent -yes, they procreated; however, they do not get the marital privelege or accomodation merited by society and enacted legislatively... Does finding a partner and engaging in homosexual activity suddenly change this legal precedence?


No. Nor does the single parent who takes up heterosexual activity with a new partner suddenly get the marital privilege or accommodation. Why should the single parent who establishes a stable relationship with someone interesting in helping care for that child be allowed to obtain those privileges and accommodations for him or herself and his or her child via marriage if the new partner is of the opposite sex, but not if the new parter is of the same sex?
6.4.2006 4:31pm
Mike1970 (mail):

You certainly very are convincing in offering proof that pro-homos can't read nor think.


I certainly very am.
6.4.2006 6:08pm
Legal Novice:

Chimaxx:

I'm not sure why you think that gay people have to legally prove their existence--the people pursuing these cases in the court are petitionaing for same-sex marriage, not homosexual marriage. Some of the people who marry homosexually in a future world where that is possible may indeed be bisexual by nature, and find their soulmate in the same gender.

Of course, if you win the argument, and succeed in proving that homosexuals don't legally exist, that would help overturn the law in Florida preventing homosexuals from adopting. You don't successfully ban a group of legally nonexistent people.



I think you have bought into some progaganda? Florida courts have always interpreted the statute as it was premised by the legislature in 1977 to apply only to "practicing" homosexuals -in essence, those practicing an activity, NOT those supposedly possessing some innate homosexual identity as yet identified.

As to legally being required to prove an innate homosexual identity exists as claimed -- WELL... I will address this aspect separately in the near future...





Chimaxx:

No. Nor does the single parent who takes up heterosexual activity with a new partner suddenly get the marital privilege or accommodation. Why should the single parent who establishes a stable relationship with someone interesting in helping care for that child be allowed to obtain those privileges and accommodations for him or herself and his or her child via marriage if the new partner is of the opposite sex, but not if the new parter is of the same sex?


As I have stated prior, YES anyone can procreate EVEN homosexuals; HOWEVER, bringing a child into a procreatively null relationship does not a marriage make AS the supposed marriage is factually a procreative dead end and as such one NEVER possibly benefiting society with children. Children in such a case are incidental at best and not a result of any marital construct meriting reward or privilege/

In addition, as stated prior, and as evidenced in Griswold v. Connecticut, there is no supposed heterosexual right to be accommodated and rewarded by society for entering into non-procreative marriage -such marriages are exceptions incidental to the basis of procreation with such incidence being premised in the right to privacy (just as abortion is). You are conflating the right to privacy (which prohibits the State from enforcing procreation) with the privelege accorded marriage that is rationally based in procreation as provided for legislatively by the State.

In essence, homosexuals do not get a "free pass" under the privacy right BECAUSE homosexuals objectively can not possibly ever procreate homosexually...
6.4.2006 11:33pm
Greg D (mail):
Medis,

why can't the people of a different state be allowed to authorize state court judges to exercise more powers than you would want them to have?

Because none of them have done so? Because the "judges" who act like tat never actually admit what they're doign, they always come up with some BS like claiming to believe in a "Living Consitution' (which, miracle of miracles, always seems to 'live' to the "left").

Because the idea is assinine and stupid, and even you know that.

You have the right to vote. You ahev the right for your vote to matter. That's why we have Federal Voting Rights laws.

If "judges", who are not elected in partisan elections, or based on their political views, get to rewrit the laws as their personal whims desire, then your vote does not matter.

But that's what you're supporting.

BTW, good bye. You're obviously a troll, and I'm not going to waste any more time on you.
6.5.2006 12:34am
Greg D (mail):
Troll David Chessler wrote:

I always thought judges (in jurisdictions where they are not elected) were appointed and approved by representatives serving in the other two branches, and that it was their proper function to rule on the not just the fact of particular cases, but on the meaning and constitutionality of the laws themselves. I stand corrected.

Gosh, David, has it ever occurred to you that there might, just might, be a difference between ruling "on the meaning and constitutionality of the laws themselves", and "rewriting the laws to suit your personal whims"?

Do you think that people who get appointed for lifetime terms, subject only to removal rules that make it very hard to get them out of office, can reasonably be considered "unaccountable"?

No?

Well, that's why you're a troll. Bye.
6.5.2006 12:42am
Public_Defender (mail):
Legal Novice,

The key flaw in your "procreative dead end marriage" argument is that legal marriage is not just designed to encourage people to make babies, it's designed to encourage a stable structure in which to raise kids.

Yes, gay people need medical help to have kids, but many are also raising kids. Those kids deserve the same protection that kids from heterosexual marriages deserve. Do you really think that kids being raised by gay parents deserve less protection than kids being raised by heterosexual parents?

And, to repeat myself, your "procreative dead end" term is grossly insulting to heterosexual couples who want to, but cannot, have kids. Their marriages are a lot more meaningful than you give them credit for. I guess I should be glad you are intentionally alienating them.
6.5.2006 7:27am
Public_Defender (mail):

2. Take the case of two single parent sisters living together -yes, they procreated; however, whether it be with each other or separately -- they too do not get the marital privelege or accomodation merited by society and enacted legislatively... Would the two of them engaging in homosexual activity suddenly change this legal precedence?


Banning sexual relations between family members is needed to protect kids from sexual predation. It's needed among adult family members so that kids aren't groomed through childhood to be the sexual partner of a family member. Kids need to be raised so that they can choose their own partners when they are old enough.

But other than family members, if two people are willing to take the legal responsibilities of marriage, I'm happy to give their kids the legal protections of marriage. Why aren't you? Why are you willing to give these kids fewer protections?
6.5.2006 7:38am
Medis:
Just as an aside, but I think an idea worth exploring is creating a legal status for coparents who are not in fact a romantic couple. This would allow the state to provide various subsidies to such coparents in the interest of supporting effective childraising, without also having to provide other legal incidents of civil marriage that may not be applicable.

Of course, I'm not saying that gay couples who raise children should be limited to such coparent status. I just think it would make sense for situations in which, say, members of the same family end up raising a child together.
6.5.2006 12:45pm
Medis:
Greg D,

FYI, although you may ignore this, a "troll" is not anyone who insists on disagreeing with you. Rather, Wikipedia supplies the following definition:

"In Internet terminology, a troll is someone who comes into an established community such as an online discussion forum, and posts inflammatory, rude or offensive messages designed intentionally to annoy and antagonize the existing members or disrupt the flow of discussion."
6.5.2006 12:49pm
David Chesler (mail) (www):
Do you think that people who get appointed for lifetime terms, subject only to removal rules that make it very hard to get them out of office, can reasonably be considered "unaccountable"?

It's not that they're accountable or not for their post-appointment decisions, but whether or not their existence is contrary to rule by the representatives of the people. I'm not upset by the additional level of indirection -- but I'm not sure that the 17th Amendment was such a great idea. (And, or but, I'd note that for anything much bigger than alderman, "direct" "free" election is so highly influenced by the existing power structure, party and otherwise, that it's often little more than choosing the lesser to two evils, and the elected are a lot less accountable than it may seem.)

I like it that members of one of the branches need not stand for re-election, for the obvious reason that, if the right people are chosen, they'll make the right choices even if those are not popular choices.

I fear the difference between ruling "on the meaning and constitutionality of the laws themselves", and "rewriting the laws to suit your personal whims" rests in very large part upon whose ox is being gored. (Unless you're pointing out that the Goodridge court gave the Great and General Court 180 days "to take such action as it may deem appropriate in light of this opinion", but I suspect that this is a stylistic difference between different court traditions. The rulings always follow the form of being based on the appropriate reasoning and not on personal whim.)
6.5.2006 2:40pm
Medis:
David,

I obviously agree that it is difficult to maintain that appointing judges, rather than directly electing them, was inconsistent with the Framers' notion of a republican form of government.

I'll just note again that many state court judges are in fact directly elected.
6.5.2006 3:08pm
alessandra (mail) (www):
Elais, in one more of her loony posts wrote:
_____________________________
Oh good! I've brought you down to using schoolyard taunts. I''ll have to report you to the teacher.
===========================
Re-read the stupidity in your posts and then report yourself regarding your lack of civility and intelligent commentary.

In one more diatribe, Elais wrote:
"You aren't exactly livening up the site with your erudite discourse on same-sex marriage. The venom you have displayed in each and every post you make proves my point. You are full of anger and are beyond reason. "

Describing yourself again? What intelligent comment did you make about the problems with stats in harassment and abuse studies, Elais? None.

What data did you offer regarding the panorama of sexual harassment and violence regarding non-heterosexuals, Elais? None.

What did you inform about you yourself taking any responsible action regarding harassment, exploitation, or violence, Elais? Nothing.

What names and labels did you call people who can point out issues you are too in denial and ignorant to face? Always so cheap in every post, Elais.

And what venom are you referring to?
Facts and reality.
=======================

Elais wrote:
Could you point out how non-violent heterosexuals are? And keep in mind I just came off of reading a report how a young heterosexual man killed 7 members of a multi-generational family.

In my community, I would guess that 99.9% of the violent crimes are perpetuated by heterosexuals.
===========================
You don't say! And let me guess what your last name is? God. Not even morons have the pretense that they have the telepathic x-ray ability to know precisely who commited what crime, but not you, Elais. You don't let that enormous stupidity of yours get in the way, now do you? You chat with someone and if they are nice to you, you just know they have never committed a crime. Maybe we should just abolish the Justice system and replace it with a 5 minute chat with you. Why have research and investigations and proof and facts and testimonials when we can have a stupid nut-job like you deciding whose guilty or innocent?

==================================
Elais wrote:
Gays on straight violence, harassment, etc. is non-existent.
=================================
Elais, there is unquestionable proof that non-heterosexuals commit a ton of violence towards heterosexuals and non-heterosexuals. Harmful action is not restricted to, but includes: domestic violence, rape, sexual abuse, sexual harassment, prostitution, sexual denigration, sexual exploitation, and collusion and cover up of all these types of harmful actions. This proof is comprised of research, interviews, studies, testimonials, court records, and personal experiences you are too diseased to face.

Elais' level of denial is equal to Holocaust deniers. There is no way she can stick her head further in the sand. A nice example of how pro-homos are so often extreme nut-jobs.

=========================
Elais wrote: I have met many gays here and they are some of the nicest, most pleasant, most non-violent citizens my community has.

What planet are you from?
==========================
Pro-homosexuality people like Elais are dangerous to society because they practice their diseased level of denial not only in blogs, but very sadly in the real world. Should an adult or child suffer harassment, exploitation, or violence from a non-heterosexual and try to report the offense to people like Elais, her reaction will be to obsessively deny the crimes, collude with the perpetrators, obstruct justice, consequently perpetuate more crimes, all in the name of their lunatic "homosexuals don't commit any type of violence in the world, ever" obsession. It is the exact carbon copy of the obsessive denials found in religious people regarding covering up clergy who perpetrate harm and crimes.

Another fine example that 99% of most people's ideas about what constitutes reality in sexuality is nothing but a product of their fickle imagination, profound ignorance, and emotional (and very egotistical) push-buttons. All of this gets warped into certain kinds of master narratives containing extremely simplistic stereotypes substituting the veritable complexity of real people. It's plain to see to just what extent Elais' brain cannot deal with complexity, nor with reality.
6.5.2006 4:35pm
alessandra (mail) (www):
Elais wrote: I have met many gays here and they are some of the nicest, most pleasant, most non-violent citizens my community has.
============================
You know what this reminded me of as well? So many child abusers were/are able to carry on the abuse of one or more children because exactly they were/are always so nice and friendly and seemingly trustworthy to the adults around them. Literally thousands of examples of this.

The same for batterers - before police ever got training on domestic violence, the first thing a batterer would do is bond with the police officer coming to see what the noise was about- and they, the batterers, were usually calm, friendly, and sometimes even charming. In fact, some of the most violent batterers are described by people who only see them in their professional environment as "the nicest guy around."

Putrid pro-homos obviously, in their egotistical crappy mind, see only what they like to see, and can care less about the reality of violence in society when it applies to non-heterosexuals - as long as the 2 or 3 homos they know are nice to them.

It's as cheap as you can get.
6.5.2006 6:17pm