You've already got the publicly stated opposition of prominent conservatives like Bob Barr, Dick Cheney, Chris Cox, Bruce Fein, John McCain, Ramesh Ponnuru, George Will, and others (not to mention several VC bloggers). Now you can add to the list James Q. Wilson, a respected voice in conservative intellectual and policy circles. Last March 18, in the Wall Street Journal, Wilson criticized the one-size-fits-all abortion policy represented by Roe v. Wade. Then he wrote this:
The states should also decide about gay marriage. Some conservatives are urging Congress to propose a constitutional amendment banning this, but this would be a mistake. People should vote on this matter and about the conditions of life they wish to experience where they live. Though I oppose gay marriage, voters in some states may approve it. If they do, we will have a chance to learn what it means in practice, with the costs and benefits falling on people who have accepted it.Moreover, a state-by-state vote on the matter provides an opportunity for gay advocates of this policy to make their case. A constitutional amendment would deny them that opportunity, leaving them perpetually angry. Since feelings run high on this matter, it would be a mistake to let it be decided as the right to abortion was decided. If there were the gay marriage equivalent of Roe v. Wade or a constitutional ban on it, we would infect the nation with the divisive anger that followed Roe and our earlier attempt at alcohol prohibition.
I love the link here between Roe and the federal marriage amendment. Both spring from the absolute conviction that you have laid your hands on the final truth of the matter, that no amount of evidence the other way could ever convince you that you are wrong, that your conviction must be imposed immediately and forevermore on the entire nation lest some fools living in dissident states think and act otherwise, and that the Constitution itself must be made to conform to your current policy preference.
Wilson continues:
If there is to be a constitutional amendment, it would be better if it said this: “Nothing in this Constitution shall authorize a federal judge to decide that a marriage can be other than between one man and one woman.” If I could think of language to bar judges from making other social policy decisions, I would add it, but the words fail me.
This jurisdiction-stripping amendment would allow the states and the people to experiment with gay marriage, something George Will has said is worthwhile. I don't think even this narrower amendment is necessary, since I think the likelihood of federal judicial imposition of nationwide gay marriage in the near- to medium-term is very low. But at least a jurisdiction-stripping amendment would actually address the stated, populist concerns about judicial activism. The amendment the Senate will vote on next week would do much more than that. It's overreach and overkill.
(Hat tip: Walter Olson.)
Related Posts (on one page):
- The amendment is dead, long live the amendment:
- Gays, Federalism, and Minority Rights:
- Video of panel on marriage amendment now available online:
- The New York Times and the federal marriage amendment:
- Bush to retract support for a federal marriage amendment in Monday speech, news report says:
- Is the Federal Marriage Amendment Consistent with Federalism and Democratic Values?
- Another prominent conservative against a federal marriage amendment:
- Is Marriage a Federal Issue?
- Against a constitutional amendment banning gay marriage:
Big difference between a Supreme Court decision and a constitutional amendment. Nine people vs 2 houses of Congress and all the state legislatures.
I think the likelihood of federal judicial imposition of nationwide gay marriage in the near- to medium-term is very low.
Same argument used in the Massachusetts Legislature to defeat the state constitutions SSM amendment a year or two before the MA SC legalized.
I take it that Dale also opposed Lawrence since it too blocked a state-by-state treatment of sodomy laws.
CATO Institute Advocates State Licensure!
Is there any other case in which you and/or CATO have advocated state licensure?
I wouldn't call this "advocating state licensure" since they believe that more licensing is better only as a local maximum, not better overall.
James Wilson agrees with me on the proper alternate wording for the amendment. Or maybe, I internalized what he said and just have forgot where I got it from. Unfortunately, it is likely the latter.
I think the argument that this is an issue best dealt with on the state level is misplaced. The protection of the institution of marriage is something that concerns all citizens on a national level. The courruption of it in one or two states adversely effects the rest of the country and the institution upon which society relies heavily.
If 3/4 of the states are willing to ratify the amendment, I would say that if it occured, that there is more then enough support and reason to impose it on the few that did not.
"Equality" is not a libertarian value. Liberty is. No libertarian would argue that not licensing dentists when a state licenses physicians is worse than licensing both.
The fewer regulated categories the better.
Dale, CATO, and other libertarian commentators are arguing that expanding licensure to a heretofore excluded category of persons is a good thing. I've seen none of them say that "marriage shouldn't be licensed but if it's to be licensed it should be more inclusive." Even saying that is pretty strange libertarianism.
I've never heard a libertarian say that "there ashould be no taxation but if we're going to have taxation it should be extended to everyone". Traditionlly, libertarians were happy to see some escape thralldom.
I still ask, are there any other examples of libertarian advocacy of licensure?
This is just one of the things that bugs me about modern libertarianism. It seems to have drifted Left and pacifist. I couldn't care less about Equality or Peace. I want less government not more Equality or more Peace.
How does "3/4 of the states ratifying the amendment" mean that the amendment is not being imposed on the states that choose not to ratify?
I want to add that the decision to marry is, by definition, the opposite of what people that are afraid of homosexuals claim it to be...it does not destroy or corrupt...hard to believe, but fear or hatred of homosexuals' equal treatment turns "good" into "bad"
This is a profoundly weak and disappointing reply.
I do share the view that the institution of marriage is vital for a functioning society, however, to compare "the corruption" (sic!? What exactly would that be? What are you afraid of?) caused by individual states allowing gay marriage to the damage and costs inflicted by murder is ludicrous.
Consequently, comparing justified limitations to individual freedom imposed by criminal statutes prohibiting murder with a constutitional amendment banning gay marriage arrangement in certain states is not a sound argument at all.
Prior to Lawrence, that might have been a tenable assertion, but I'm not sure that it is now. All that really stands between us and "federal judicial imposition of nationwide gay marriage in the near- to medium-term" is whether or not Justice Kennedy is willing to follow his Lawrence opinion to its logical conclusion; given his refusal to do so vis-a-vis Casey and Stenberg, we have to hope so.
If the government refused to give licenses to physicians whose names begin with the letter "A", I think few libertarians would prefer that to a situation where the government licenses physicians regardless of their name, even though the government is doing less licensing.
There's also another issue, in that the license grants permission to do something that libertarians believe you should be allowed to do anyway. If you think the state shouldn't license physicians, what you really object to is the state saying 'since you don't have a license, you can't practice'. Wider licensing, in this case, means more liberty, so libertarians would object to the licensing regime but believe that as long as the regime exists, as many people should be licensed as possible.
Likewise, a libertarian might think that the more people are licensed to marry, the more people have a right to let spouses inherit despite the objection of relatives, visit sick spouses in hospitals, etc.
Do you know many libertarians who would say that, in the interest of limiting government, it would be preferable to only require licenses for black doctors than to require licenses for all doctors? I think many libertarians would say that government-imposed burdens, where they exist, should be distributed uniformly because this increases the long-run chances that an aggrieved majority will democratically repeal the burden. Libertarians believe that liberty is the highest political end, but most also believe that there are more and less pragmatic and moral ways of working towards that end.
At any rate, I think your argument fails on a more fundamental level. In your dentists/doctors hypothetical, the dentists have access to the same benefit as licensed doctors: the right to pursue an honest living. With a prohibition on gay marriage, the unlicensed party is denied a benefit available to the licensed party: legal benefits exclusively associated with marriage. One could believe, with perfect libertarian consistency, that the government should not create these legal benefits in the first place, but that having done so it must dispense them equally; a politician unable to dispense favors to targeted groups is less likely to distribute them at all.
Your short-term approach to liberty strikes me a sure road to long-term tyranny.
Sounds like a fair summary of conservative political "principles" generally.
The 10th Amendment, always one of my favs, states the proposition: "The powers not delegated to the United States . . . are reserved to the States respectively, or to the people." Or, to the people. Now there's a concept.
The effect of Roe is to reserve to the people, choice in the matter of abortion. And, the liberal view of gay marriage is the same as the liberal view of marriage: let those foolish enough to want to marry, decide case by case.
Conservatives, on the other hand, debate among themselves who is to be dictator. The idea that judicial tyranny could be the issue is undermined somewhat by the conservative determination to impose tyranny from either the Federal government or State governments or both.
Those who oppose abortion rights and gay marriage are advocates of tyranny, and advocates of tyranny are seldom persuaded by an argument, which would leave someone, somewhere free. I don't think James Q. Wilson's argument will prove persuasive among the opponents of gay marriage.
I've really enjoyed your coverage of this issue. Very thoughtful.
At the same time, I'm pushed to throw my hands up about the whole thing because you're talking at cross-purposes with the GOP folks deciding how this issue should percolate through the political system.
Let's face it. The FMA has nothing to do with anything except demonizing a group of people to GOTV of the Repub base -- those people who, for reasons that escape me beyond selective use of Old Testament injunctions, fear that homosexuality will cause western culture to fail (something that, remarkably, still hasn't happened in the approx. 3500 years since Moses penned the very laws relied on by some of those FMA promoters -- go figure).
No amount of rational dialogue on this issue will make one whit of difference.
C'mon. When's the last time you've heard any of those hardline FMA advocates draft a constitutional amendment overturning Roe v. Wade and move for its vote on the floor of the House.
Demagoguery.
Just as in Virginia, until 1967, there was no law that said a white man and a black woman couldn't get married. They just couldn't get married to each other.
What do I feel that the decision should be? The list taken from this page pretty much sums up my feelings:
I'd like to see someone rebut at least one of these items effectively. And "get serious" doesn't count: satire may be irreverent, but it's not fallacious, is it?
Unlike a federal law banning gay marraige, Roe is not a trumping of federal power over that of the states. It's a trumping of individual power over both Federal and State government. The equivalent for the gay marraige issue would be for State and Federal government to get their noses out of regulating marraige all together (or at least to as large a degree possible).
What underlies that belief are the convictions:
(1) It would be better to leave SSM to be worked out state by state. That's really not a legal conclusion (no legal rules really apply to considering amendments to the constitution) but a political judgment. It's the key issue here, so I return to it below.
(2) This is what the constitution currently understood provides. A vast majority of people believe this, including virtually all opponents of SSM, and a good number of supporters. A few supporters of SSM believe (or claim to believe) that the federal constitution as currently drafted requires states to make SSM available, but that claim is implausible.
(3) Left to itself the federal judiciary will allow that to happen, i.e. will apply the constitution as it is properly understood. Some people's faith in the federal judiciary is so small that they doubt (3). Most well-informed lawyers are pretty certain that these fears are unfounded, though in the nature of things one cannot "prove" they are: but even if they were valid fears, the most that would be needed is some amendment that would preclude an "activist" judicial creation of a right-to-SSM, not the FMA which (at least on most readings) would go further by precluding state recognition of SSM as well.
The real argument is over (1). The main point here is that it is perfectly possible to believe that SSM is a very bad idea and still think that the decision whether to allow it should be left to be decided on a state-by-state basis. That's not ridiculous, any more than it would be ridiculous to believe that SSM is a very good idea but that it is ultimately a matter that ought to be decided on a state-by-state basis. Both perfectly respectable views.
Among the reasons to believe (1) is that those cases where the constitution has been held to enforce a particular controversial moral view on which public opinion is polarised and in flux have not on the whole been happy experiences. Those include the Supreme Court's discovery/invention (in Roe) of a constitutional right to abortion, and prohibition. Now it may well be true that Roe is "worse", because there are very strong reasons to question whether the decision was legally right (whereas the prohibition amendment was at least legally valid), in which case it was a doubly illegitimate case of federal interference. But one may well hold the view that even if a constitutional right to abortion had been introduced by completely legitimate means, for instance by constitutional amendment, it would still have been an inadvisable innovation. In other words, the arguments against Roe are not just about its pedigree, but about whether that sort of issue ought to be dealt with nationally at all. The same may well go for all sorts of other issues around controversial sexual and personal relationships. There's a very credible case to be made for the argument that a lot started going wrong (institutionally) when SCOTUS first discerned on pretty slender grounds any sort of constitutional limitation on the power of states to regulate personal sexual conduct.
In fact one can believe that even if one supports the actual outcome of the cases. I happen to believe that birth control should be permitted, that gay sex should be permitted, that abortion should be quite readily available, and that SSM should be recognised. In other words, I buy the entire liberal agenda on that. But I do not believe that the Constitution, correctly interpreted, gave anyone a right to use condoms, practice sodomy, have an abortion, or marry his boyfriend. I do not believe that there is any inconsistency in those positions.
The question one should ask is this: Supposing someone proposed an amendment which would mandate every state to provide and recognise gay marriage. You would oppose it. But on what grounds? If your answer is: "only because I think gay marriage is wrong", then you can consistently support the FMA. But if the answer is: "because I think gay marriage is wrong and that sort of issue ought to be left to states to decide" then you cannot, in good conscience, support the FMA.
(Of course it also follows that those who advocate rejecting the FMA as inconsistent with a proper understanding of what it means to be a federal republic would have to oppose an amendment which would mandate the availability of SSM.)
If the problem is legislation that promotes unequal access to government, isn't voiding such legislation the province of the courts, not the legislature that made the mistake in the first place?
Houston, what are you talking about? Mississippi certainly has such a law (MCA 93-1-1(2)), &I'd imagine other states do as well.
Or are you trotting out the obtuse "gays can marry, they just can't marry each other"?
As for the jurisdiction-stripping amendment, it needs some work. Suppose a federal judge has a case requiring him to apply Massachusetts law to a gay married couple, an ERISA case perhaps, where it matters whether they're married. Could he do so under that amendment? His sole power to hear the case comes from the Constitution; if it doesn't let him decide the case &apply Mass. law, then he can't do it.
But this objective could be accomplished through ordinary legislation, couldn't it?
I'm a bit more interested in arguments to the effect that the federal constitution should stop state judges from finding that state statutes and state constitutions require the state to provide some or all of the legal incidents of marriage to gay couples. Again, you don't need this argument if you think gay marriage will corrupt all marriage everywhere. But people seem to think this is an independent argument, and that it makes sense for the federal constitution to mandate what state court judges can do with respect to this issue.
What exactly is the principle here? And is it limited to gay marriage? Should we be passing federal amendments barring "liberal activist judges" from finding that state statutes and constitutions provide any other rights or entitlements? Is there a general civil right to not live in a state with "liberal activist judges"?
I seem to remember a Laurence Tribe article from maybe 20+ years back (during the Reagan Administration, anyway, the last time I remember jurisdiction-stripping proposals being much in vogue) making much the same point: Taking away jurisdiction is a terribly blunt instrument, and one that could very easily frustrate the proposer's intention in all sorts of not at all farfetched hypothetical situations. Tribe was writing mainly about various appraches to thwarting Roe IIRC, but the problems are similar.
IANAL, but a plain reading of Wilson's proposed amendment's text suggests that the judge in your own hypothetical is in a pickle.
Medis,
I don't like the the state courts inventing state constitutional rights, but will tollerate it as long as they don't violate federal constitutional rights. And I still don't see how some states with gay marriages can work with the full faith and credit. Should the other states that object to gay marriage fail to recognize those marriages as being against public policy?
In this way, Roe v. Wade supporters would simply require a constitutional amendment to be able to curtail such a fundamental right. That doesn't say absolute certainty, but it says that for such fundamental and personal rights, 51 out of 100 votes to take them away doesn't cut it.
So what about here, where you could potentially have 2/3 willing to foreclose a right? Well, basically, I think they shouldn't. I guess the liberal federalism argument, however, would be this: Yes, states should decide, unless it involves depriving someone of a fundamental right. I'm less sure how conservatives reconcile their argument.
I can't say I'm all that surprised that those who feel most strongly that Roe v. Wade was an invalid usurpation of democracy display such fear of allowing that same democracy to operate in the case of same sex marriage.
Sigh... I don't get this notion that marriage does not "exist" without state recognition. Of course it exists, whether the government chooses to recognize it or not. Saying otherwise is, truly, trivializing it; marriage is surely more a matter of the heart than a piece of paper issued by a bureaucracy.
The process of recognizing SSM is not inventing a new right, it's bringing the law into alignment with long-standing human relationships that have probably existed for all of human history. Denying SSM is denying reality.
Also, just because it's fun to do, I wonder what happens if this amendment is enacted and a state court then decides that the federal constitution mandates SSM. The amendment on its face applies only to federal judges. Does the amendment then force SCOTUS to grant cert? Or could it deny cert and leave the ruling intact (albeit applicable only inside that state) on the grounds that denying cert isn't a ruling on the merits, and therefore not within the scope of what is prohibited by the amendment.
The constitutional amendment process is the definition of democracy at its core. The people of the States ultimately decide by direct voting.
Last time I checked, this country was not meant to be ruled by blacked robed kings and queens.
I think few libertarians would prefer that to a situation where the government licenses physicians regardless of their name, even though the government is doing less licensing.
the license grants permission to do something that libertarians believe you should be allowed to do anyway.... Wider licensing, in this case, means more liberty
"Wider licensing, in this case, means more liberty" I gather you're not a libertarian yourself. "Slavery is Freedom" -- amazing.
I think many libertarians would say that government-imposed burdens, where they exist, should be distributed uniformly because this increases the long-run chances that an aggrieved majority will democratically repeal the burden.
Since when were libertarians advocates of democracy? That's the "let's have more oppression so that it will lead to revolution" school of thought. Never liked it much.
With a prohibition on gay marriage, the unlicensed party is denied a benefit available to the licensed party: legal benefits exclusively associated with marriage.
Actually gay marriage is as legal as church on a Sunday. What has not been provided is state recognition of SSM.
I would guess that most libertarians would reject "equality of burdens" they certainly do in the area of taxation. They supposrt tax resistance and lower taxes rather than tax equality. Note that almost all licenses are also taxes since the government charges fees for their issue.
Likewise, many libertarians seek to discourage people lining up for government permissions and paperwork. They advocate avoidance.
Remeber that libertarians advocate the repeal of the Civil Rights Act of 1964. They advocate the legality of "invidious discrimination".
And obviously libertarian anarchists advocate that "others government" should not exist so they obviously oppose state licensure of family formation.
If this "equality" thing is so important to libertarians then government SSM advocates would be able to come up with other examples of cases where libertarians have advocated licensure in the name of equality or pragmatism or something. In my 40 years in the movement, I can't think of another example. Perhaps Dale or some of the commentators can.
I detect 'special pleading' at work.
Actually, although it is sometimes called a public policy exemption to the Full Faith and Credit clause, it is really more a choice of law principle. The basic idea is that states can enforce their own laws within their own jurisdiction. Again, for relevant discussions, see Baker v. General Motors Corp., 522 US 222 (1998), Nevada v. Hall, 440 US 410 (1979), and Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 US 493 (1939). As the Court stated in Nevada (citing Pacific Employers): "[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."
So, the question would be whether the second state's laws would allow the gay couple in question to be married. If not, then the second state does not have to treat the couple as married, even though the first state would continue to treat the couple as married under its own laws.
The paradigmatic example actually involves age. Suppose State A allows 12-year-olds to get married, but State B does not. So, two 12-year-olds get married in State A, but then the couple resides in State B. State B does not have to treat these two 12-year-olds as married, because that is contrary to the laws of State B.
In short, the basic idea is that a state does not have to give some of its residents more marital rights than other residents simply because they originally got married in a different state. And that is because within its own jurisdiction, the state's own laws govern.
Incidentally, as a sidenote, an interesting problem would have arisen if Arnold had not vetoed the gay marriage bill in California. Supporters of the bill had claimed that Proposition 22 only dealt with the validity and recognition of out-of-state gay marriages, and hence it was not necessary to repeal Proposition 22 before adopting gay marriages within California itself.
Assuming that is a correct reading of Proposition 22, that would still have created what would likely be an unconstitutional situation under the Full Faith and Credit clause (or perhaps the Privileges And/Or Immunities clauses depending on the facts). That is because it would no longer be the case that California law did not recognize the validity of gay marriages, and hence California would be trying to treat gay couples married elsewhere UNequally, not equally, under their laws.
Anyway, the bottomline remains that if gay marriage was illegal in your state, that is the law that would govern marriages in your state.
I think this is what is really behind the FMA and its advocates. They fear that some and eventually many or all states will be convinced to try SSM or some variation on it. So to prevent that from happening their goal is to freeze the status quo in place right now and forever.
The essence of this is an end run around democracy. If rogue judges were really the issue then shouldn't they explain to us how this could be a problem on the Federal level when the majority of judges were appointed by Republicans and it was easy for a minority of Republicans to filibuster judicial appointments that might have been radical during the Clinton years and Carter years long before that?
Another thing, many states have in their Constitutions the equilivant of the Equal Rights Amendment that was rejected by right wingers on the Federal scale in the early 80's. One of the big arguments used against the ERA was that it would enact gay marriage.
Now if a state like Mass. and its voters put ERA type language in their Constitutions AND the right was correct that such language means gay marriage then where do the crybabies get off complaining about judges 'imposing' their will on the state voters?
Did these people cut civics class right after the "majority rules" lecture? Would they unwork the Supreme Court's desegregation of schools? Clearly not -- because they know enough to take their own social issues into court.
Let's call the "judicial activism" phenomenon what it is: a marketing gimmick drafted by the [admittedly gifted] conservative elite that enables the rank-and-file right to articulate "structural" opposition to social progress, so that they don't have to come right out and say what they really think about the substantive issues.
Given that the legislature of the state with the largest population in the country has passed a gay marriage law, and given that attempts to repeal the domestic partnership law have repeatedly failed to gather enough signatures to qualify for the ballot, the argument that there is no legislative path to gay marriage is somewhat weak.
States will generally refuse to enforce private contracts that are too much like marriage. The rules vary from state to state, but generally if the contract involves romantic love and/or sexual relations as an essential term (what is sometimes called "meretricious consideration"), it will be declared invalid and unenforceable.
So, insofar as one thinks of marriage as a contract that typically involves romantic and sexual relations as essential terms, states have in fact prohibited marriages which do not conform with state requirements to the extent that they will refuse to enforce such contracts.
This connotes all questions have two sides. Were the proposed amendment seeking to ban marriage among Jews or African Americans, I don't think Dale would argue against such line-in-the-sand thinking -- Scalian rationalizations about the Equal Protection Clause notwithstanding (Jews banned from marrying Jews would still be allowed to marry non-Jews; African Americans barred from marrying whites can still marry other African Americans, a la Loving v Virginia). This argument truly is about denying society's basic benefits to a discrete group, nothing more. It warrants "the absolute conviction that you have laid your hands on the final truth of the matter, that no amount of evidence the other way could ever convince you that you are wrong, that your conviction must be imposed immediately and forevermore on the entire nation lest some fools living in dissident states think and act otherwise, and that the Constitution itself must be made to conform to your current policy preference."
As to the jurisdiction-stripping argument, of course if proponents don't view prohitting SSM as a constitutional violation, it makes perfect sense to throw Marbury v. Madison out the window as well.
With the stipulation that full faith and credit would be interepreted as you have outlined then the focus for me becomes (1) ensuring there is no federal constitutional right to gay marriage read into the constitution (2) the process by which states adopt gay marriage (I still have more concern about Massachusetues gay marriage than Canada's gay marriage because it is a state--just as I would care that they don't become a monarchy). Do you advocate courts over legislatures for deciding this?
It's not clear to me that the people who wanted the wider meaning would have been sufficient to enact the law, and certainly there were many people who voted for it who voted for the narrower meaning.
To a small degree, I feel like we were the victim of a bait and switch operation.
Duncan, are you for or against "shall issue" concealed carry laws? Do they result in more licenses, or less licenses? I think more. More licenses, according to you, is less libertarian. Therefore libertarians must oppose shall issue laws?
As many others have pointed out upthread, you are conflating extending the category of activities that require licensing, with extending the category of people eligible to get the license.
You ask: "Do you advocate courts over legislatures for deciding this?"
I wouldn't "advocate" one or the other, in that I would not want to impose on every state one particular way of dealing with the problem. If, for example, State A wants to adopt broad anti-discrimination statutes and/or constitutional provisions, and then let the state courts apply those statutes and provisions to specific issues like gay marriage, then I don't have a particular problem with that approach. Conversely, if State B wants to provide that gay marriage can only be adopted through a specific referendum or legislation, then I have no particular problem with that approach either.
Of course, that analysis is holding aside the political issues. Obviously, at least certain people are willing to entertain the idea that it is a matter of federal concern how a state goes about resolving these issues. Personally, I don't see any validity to that idea, but insofar as it gives one more argument to those proposing the federalization of this issue, gay marriage advocates may want to think about what approach they take within their state.
But see Bush v. Gore.
It’s not about natural vs. unnatural; it’s about net benefit vs. net loss for a society. Irradiation has been approved for many uses in about 36 countries, but only a few applications are presently used because of consumer concern and because the facilities are expensive to build. DDT helps prevent malaria, but it’s banned nonetheless. A society will generally accept changes when they perceive the benefits to outweigh the costs. Like it or not, many perceive possible costs to marriage between homosexuals that outweigh the benefits.
2. Heterosexual marriages are valid because they produce children. Infertile couples and old people cannot get legally married because the world needs more children.
If marriage is not about channeling impulses that can destroy a society into a productive form, then what is marriage about? Ask evolutionary psychologists for their opinion, you may see a consensus emerge...
And yes, the world needs more children.
3. Obviously gay parents will raise gay children because straight parents only raise straight children.
First, the weak response. The ‘marginal case’ argument suggests that a certain subset of children may be influenced, depending on attributes of both the parent and the child. While the validity of this argument vanishes if your conceptualization of homosexual behavior is purely biological, that conceptualization remains at this point, an article of faith.
Secondly, the main idea (as I understand it) is not that gay marriage will exert a direct influence on the children of gay couples as much as an indirect influence on how ‘marriage’ and ‘family’ are perceived in general.
4. Straight marriage will be less meaningful, since Britney Spears's 55-hour just-for-fun marriage was meaningful. I doubt you’ll find many who argue that her ‘marriage’ was valid beyond the most superficial sense that vegas weddings have been associated with. That’s the point, no one is advocating for its validity. The broader argument that the construct of marriage has a lot of problems it true, unfortunately, some feel that ‘homosexual marriage’ is one of them.
5. Heterosexual marriage has been around for a long time, and it hasn't changed at all: women are property, Blacks can't marry Whites, and divorce is illegal.
Change itself can be good or bad. Egalitarianism and destruction of racial taboos were positive changes for our society. No-fault divorce was probably not a positive change for our society.
6. Gay marriage should be decided by the people, not the courts, because the majority-elected legislatures, not courts, have historically protected the rights of minorities.
Using the word ‘rights’ does not suddenly make that framing of the issue correct. Many conceptualize abortion as a ‘rights of the woman’ issue, but that’ll be a hard sell to someone who sees the embryo as human. The right to redefine a societal institution lies with no minority. If it is to be done, it should be by persuasion of the majority, until the minority position has become the majority position.
7. Gay marriage is not supported by religion. In a theocracy like ours, the values of one religion are always imposed on the entire country. That's why we only have one religion in America.
Not a theocracy. A religiously-oriented constitutional republic. Seriously, there’s disagreement on the meanings of ‘secularism’, ‘establishment clause’, the need for a religious citizenry and so on, but denigration of those on the other side yields few converts to the cause.
8. Gay marriage will encourage people to be gay, in the same way that hanging around tall people makes you tall.
It is easy to think this way if you feel homosexual behavior is 100% genetic. If one sees it as less than 100% genetic, there’s some concerns to deal with. Maybe there’s no correlation between your height and the height of your neighbors, nor is there a correlation between the heights of an Australian aborigine and his neighbors, but there’s a mean difference between SUM(you and your neighbors), and SUM(the aborigine and his neighbors) that is environmental. Surely one can see the potential effect gay marriage could have on mean levels. Like contagion effects in advertising.
9. Legalizing gay marriage will open the door to all kinds of crazy behavior. People may even wish to marry their pets because a dog has legal standing and can sign a marriage license.
”I can’t imagine the effect, so it must not exist, because with my superior intellect I can see all possible ramifications of this policy decision, and you’re obviously just driven by baser motives, because if you were enlightened like me you would see how obvious it is that…”
10. Children can never succeed without both male and female role models at home. That's why single parents are forbidden to raise children.
It’s about probabilities, it’s not about absolutes. “Only a Sith speaks in absolutes!” (yells Obi-Wan, speaking in absolutes). On a slightly more serious note, $20 if you can find 10 members of the Society for Research in Child Development (SRCD) that disavow the following “Nuclear families are, all things being equal, the optimal environment for childrearing.”
11. Gay marriage will change the foundation of society. Heterosexual marriage has been around for a long time, and we could never adapt to new social norms because we haven't adapted to cars or longer lifespans.
Funny, but I’m pretty sure there’s some concerted efforts being made to address the unintended, unforeseen consequences of just those two developments.
12. Civil unions, providing most of the same benefits as marriage with a different name are better, because a "separate but equal" institution is always constitutional. Separate schools for African-Americans worked just as well as separate marriages will for gays &lesbians.
I’m with you. Civil unions are a non-starter for me too. At last, we agree on something
I'm no expert on Proposition 22, but it does seem to me that part of the lesson one can take from California's experience is that one should be careful about how one drafts these measures.
Unless, I suppose, the whole idea is simply to create as many legal obstacles as possible to gay marriage, even if that requires adopting ambiguous language and selling that language as doing less than it might actually do.
Of course, it will be near impossible to kill all of the fags in the gay meccas, places like San Francisco, New York, Chicago, and all of Massachusets. I say, we nuke 'em; it'll get rid of the fags, and it will make it a lot easier to enact the one party state we've been working so hard for over the years.
Grab a rock and stone-to-death your local faggot today!
I'm close enough (there are areas where I disagree, but they're not really relevant here).
Wider licensing means more liberty because the license is a permission to do something, and the more people have that permission, the more liberty. Ideally, getting the license should be no effort at all and everyone should automatically have one; this is the widest licensing possible and the most liberty.
It is true that libertarians would prefer no licensing at all, but in this case, "no licensing" and "nobody is given a license" refer to very different things. The former means everyone has permission and the latter means nobody has permission. In fact, "no licensing" here is equivalent to universal licensing.
Look folks, it's an election year. George Bush knows this amendment isn't going anywhere, every Republican in congress knows it isn't going anywhere.
It's proferred for a reason. The same reason it was brought up in 2004. A good old fashioned election year wedge issue plain and simple.
And for serious people to bother debating it is just a case of your leaders yelling at you to jump and you asking "how high?".
I think you'll like this line from a story discussing the large draw of homosexuals to the Catholic church.
link
The "Keep America Safe Act of 2006":
It shall not be found to be a violation of any federal or state law, rule, or regulation, to deny equal protection of any such laws, rules, or regulations, to anyone of Arab origin. "Arab origin" shall mean any person whom a reasonable, Red state, caucasian male voter (defined, in turn, as someone who thinks Karl Rove is the Second Coming and is wrongly being persecuted by Patrick Fitzgerald), deems to be "an Arab," and may include Sikhs, and other "darkies"
Any other ideas for groups to pick on? Come on, lets get this constitution thing right, for once.
Lets see, systematic unequal treatment and access to government services for law abiding citizens that undermines the founding postulates of the government's rationale, or treating them all equally and having 1% or so of the population licensing these contracts with someone of the same gender. I know which one seems more dangerous to me.
Still since courts are deciding upon grounds of unequal treatment isn't making constitutional amendments to prevent equal treatment just admitting the one of our nation's founding premises isn't valid? Sort of like being constitutionally obligated to share a pie equally and after the fact defining 'equal' as being 60:40?
Are we talking about equal treatment? Talking about equal treatment under the law suggests that if gay couples were granted every last benefit of marriage that is the government’s to grant (under the law), but withheld the social approbation and title of marriage (that government has no legitimate authority to grant), that would be an acceptable compromise. I doubt that is the state of our current affair. Many gay marriage proponents feel government has the right to change the basic definition of marriage. Government certainly has the power, but not the authority.
I know which one seems more dangerous to me.
Not nearly as dangerous as the futile deconstruction of the societal ideal of marriage down to individual statues and laws that will forever fail to encompass the whole. Phrases like “licensing of contracts” conflates benefits a government can grant, with the power to change a societal ideal that must be usurped to be used.
Still since courts are deciding upon grounds of unequal treatment isn't making constitutional amendments to prevent equal treatment just admitting the one of our nation's founding premises isn't valid? Sort of like being constitutionally obligated to share a pie equally and after the fact defining 'equal' as being 60:40?
Not any more than the amendment process suggests the Constitution was wrong. I don’t know how else to say this, marriage is not owned by the government, so the government cannot decide how to define it. Some feel marriage is not even owned by the people itself but by God, but since you probably won’t go there, I’m trying to meet you halfway. The benefits associated with marriage that the government confers can be argued as unfairly withheld from gays. The status of ‘a married couple’ cannot. I can lend you my car Bob, but I cannot lend you my neighbor’s car. I’d have to steal it first.
I understand many will disagree with that assessment, but please understand that’s how many on this side of the debate view things.
Long live the Confederacy! Repeal the 13th amendment now!
Frankly, I care not what two consenting adults do in their own home. I do not care if gays get "married," but I do care when judges make law through an interpretation of the constitution. Remember penumbra? What the hell is that? where is that in the Federalist papers.
Let us vote.
1. Welfare (based on income)
2. Affirmative Action (based on race)
3. Social Security (based on age)
4. Veteran's Benefits (based on veterans status)
5. Marriage tax penalty (based on marital status)
6. Child tax credits (based upon the number of children)
So, while we are waging war against unequal treatment, lets end all the above programs too. Let us all join together to end discrimination once and for all!
The Constitution has plenty of places where specific duties are laid on specific branches of government.
The fact is that current polls show that the population is divided at roughly 50-50 on the issue. Majority rule is all very well and good, but what is the point of using the Constitution to permanently outlaw something that 40% or more of the population is okay with?
The US Supreme Court already defined the right to choose the (one) person you marry as a fundamental human right. Kind of says all it needs to say that people think that it is okay to deny it to anyone. Talk about defining us as subhuman.
aggressive affirmative action
welfare for all
socialized health care
jobs for life
enless environmental regulation
endless consumer "protections"
high taxes
birth control for all
free love
Oh wait, all that has been implemented in Europe. Last time I checked Europe had double digit unemployment, race riots, unstable governments, higher incidents of STDs, huge national debts, and declining birth rates.
Damn that crafty Peter H!
That's impossible - marriage comes from within ourselves, its a biological characteristic, the government can't 'define' it any more than it can redefine the color blue. Gay people marry all the time, I've been married for 16 years, I just don't have access to the civil contract the state licenses in support of marriage.
Phrases like “licensing of contracts” conflates benefits a government can grant, with the power to change a societal ideal that must be usurped to be used.
That boat sailed long ago - there is no functional definition of 'marriage' that same gender couples can't meet as well as opposite gender ones other other than by artificially restricting the definition. And licensing the contract is the only power the government has. Again, gay couples will still marry even with an amendment, the mental construct that is the government will just be pretending they don't.
I don’t know how else to say this, marriage is not owned by the government, so the government cannot decide how to define it
I 100% agree, the only power the government has is over licensing of the contract in support of marriage. Churches are marrying same sex couples all over the place - who is the government to force a particular definition on them? The government is constructed to serve its citizens, and here in the US in most jurisdictions it is required to do so equally. We agree the government can't define marriage, then why are they restricting who can license the contract in support of it according to one group's definition?
The constitutional amendment process is the definition of democracy at its core. The people of the States ultimately decide by direct voting.
Umm, no, reread your copy of the Constitution, and particularly Article V. Amendment of the constitution requires only approval of Congress and enough state legislatures. It doesn't require any "direct voting" by the population of any state.
As an earlier poster stated, the FMA isn't about courts at all, but rather about state legislatures. The greatest fear among the Dobson crowd is that SSM will at some point be enacted by a state legislature and not vetoed by the governor. Then they won't be able to whine about activist judges and the whole country will see (as we can already see in Massachusetts, not to mention Canada and other Western countries) that civilization will not collapse when gay people are able to marry. It will be a major step towards SSM in the court of public opinion, so it must be stopped now before it can happen, through a constitutional amendment that can be enacted without the support of the people or legislature of any particular state. They know SSM will be enacted in California or New York or some other blue state at some point, unless they can gather up enough Alabamas and South Carolinas to stop it.
Perhaps but marriage involves a gov't. When a marriage breaks up, for example, property must be divided under rules the gov't enacts. The gov't is called upon to recognize marriage when a person dies (their property automatically passes to their spouse). So such a thing as civil marriage exists and pretty much has to exist.
It would hardly be earthshattering if the gov't recognized certain marriages civially that are not considered true by religion. For example, for quite some time now just about everyone accepts that if a person gets divorced and then marries another person they are married to that second person. The Catholic Church, though, does not recognize such marriages and remarried Catholics are considered living in a state of sin. Does the fact that the state recognizes the remarriages of divorced people infringe upon the right of Catholics not to accept divorce?
the short answer to this is that its just about impossible to have gov't rules that do not treat someone unequally. To add to your list we can include 'laws against murder'....treat murders unequally, ditto for pickpockets, flashers and so on. If someone read the Equal Protection clause literally then gov't would be just about impossible.
So judges have over the decades hammered out a system of varying degrees of scrutiny. At the highest end of the scale is strict scrutiny for when the gov't discriminates based on race (due to the historical reasons the 14th was passed) which requires the gov't to prove it has an overwhelming need to discriminate and no other way is possible and at the bottom is the weakest scrutiny where the gov't only has to show that it has a legitimate interest...not that its choosen policy is necessarily efficient or very good.
Gender isn't quite subject to the strictest scrutiny but it is pretty high, which is the basis for the legal arguments against barring gay marriage. The examples you cite (age, vetern status, income) fall under the weakest of scrutinies.
You are ABSOLUTELY correct! The government has to treat a lot of people unequally. Heterosexuals and Homosexuals are no exception. Heterosexuals can reproduce whereas homosexuals cannot. So, to encourage reproduction, the government must treat heterosexuals differently then homosexuals.
Remind me again why:
(a) we need to "encourage reproduction"?
(b) the most prosperous countries in the world have the lowest rates of reproduction?
and most importantly
(c) allowing homosexuals to marry will negatively effect on the rate of reproduction?
If homosexuals are not allowed to marry, its very likely that most will not have children. On the contrary, if homosexuals were allowed to marry, it seems likely that many would in fact have children, thus increasing the reproduction rate that you cherish so much. Yes, gays can have children; its not hard to see how it works for a female-female couple, and male-male couples can have children through surrogate mothers.
Archon, you come off as very pompous for someone whose ideas seem to be backed only by faulty logic and baseless speculation. That's my two cents.
I'd have to think hard about whether I'd want a government that used the law to press its agenda about reproduction, especially when, if anything, we're a bit crowded into the space we have. See, e.g., China. Wait a minute -- maybe this explains why the least densely populated states take the harshest stances against homosexuality. They're just desperate to fill out their space, maybe grab some more electoral college votes.
An interesting argument, I suppose -- but if it holds any water, maybe we should be encouraging same-sex coupling in order to avoid the impending Malthusian nightmare. Has anyone read The Wanting Seed by Anthony Burgess?
The only real question is are abortion and marriage of similar importance to these other issues?
They are to those involved in the issues, on both sides. Maybe we could reach a Missouri Compromise on gay marriage, and have a Dred Scott ruling on abortion, where a fetus conceived in Kentucky is human, but one conceived in Massachussetts, isn't, even if the mother travels to Kentucky.
Just to clarify, do you think governments should be recognizing any marriages at all? Or rather just something that might be called civil unions (for lack of a better word)?
Because I think a good case can be made for getting governments out of the business of recognizing marriages entirely. But once they are in this business, it seems to violate your own principles for the government to be picking and choosing which marriages it recognizes in an effort to manipulate the social meaning of marriage (whether the government is trying to prevent or promote change in the social meaning of marriage, in each case it would be trying to manipulate this social process).
Of course, that is generally an extremely low bar. Still, the few cases in which it has been given "teeth" are typically cases in which the Court seems to suspect that some unwarranted hostility or fear of a group (albeit a group unprotected by a higher level of scrutiny) might be involved.
In Washington state Judge Downing ruled that the petitioners were being unfairly blocked from licensing the marriage contract. When you read his decision its starts out with the petitioners identifying themselves as married, and his determination that they did in fact meet the same functional rationales for eligibility that others who were allowed to license the contract have. So he accepted them as married and proceeded from there trying to decide why these married citizens could reasonably be denied access to the civil contract in support of marriage. So again, it was the citizens who told the government what marriage was, not the other way around.
And consider the situation: I am a law abiding citizen eligible to enter into contracts. I say I have someone I want to license a copy of the contract with. Tell me the qualities this other person could have that would disallow license and why. I can give a solid secular reason for all of the other exclusions (relation, age, one or the other has already licensed a copy) but I can't for their mere gender, or at least not one that wouldn't also exclude many who already do have license to the contract. (can you think of one?)
From looking at the court decisions no one else has a convincing argument either. I guess that's why a constitutional amendment is even being considered- the licensing restriction has no justifiable basis that can be argued successfully in a US court..
I think you're right on. Marriage by nature is a social, not a legal institution. By locating the authority to create a marriage in the state, you unleash the possibilities of interest groups using the legal process to impress their own ideas of what a marriage should be on the institution. We all make our own marriages. Britney's Vegas in-out has no bearing on the relationship I've constructed with my own wife. Why, then, should the state be given any authority to horn in with its own notions and obligations?
Oh, right. Majority rules. And a majority of people in this country are straight.
The problem is historical momentum. States have been issuing marriage "licenses" for a long time, and just as we'd agree that we'd be better off without a federal postal system, we're kind of stuck with it -- simply because setting the system right would seem even more drastic an "experiment" to people than the Goodridge decision.
But I'm all for break down/rebuild. Let's get cracking.
I agree that there is a real historical momentum problem here (and don't even get me started on the FCC). I actually wonder, though, if the gay marriage issue may well eventually push people to reconsider the role of governments in marriage in general (particularly if a good number of states do start adopting gay marriages). At the very least, a lot more people are thinking about that issue.
A pint of blood will never become a person, even through the most advance cloning techniques. A fetus, after a certain point, is a viable person. The fetus doesn't have to be "parasitic" in the sense of only sustaining its life through the mother. For example, the mother could have a C-section in the 7th or 8th month, and place her now newly-born "child" in a hospital, for later adoption, in theory (assuming the hospital would agree).
That is what makes the abortion debate more complicated, and, I would posit, gives everyone a good argument: the humanity of the fetus vs. the woman's right to control her body.
I would of course retort that in both situations my decision to be a nonparticipant caused something to die. Uncle Henry's 'humanity' wasn't even debatable - if its ok to off him, how can it not be for the fetus?
As to someone taking over responsibility, I 100% agree. I've always said that those who don't want abortions to develop the tech so they can take the fetus and raise it. The only choice the mother really has is to be a participant or not, if someone else wants to take responsibility of the fetus then they should be able to do so (just as we don't allow parents to kill deformed full term babies). Once someone else CAN take responsibility then they have that option to do so.
Criminalizing murder on the ohter hand does have a value and treats people differently based on their behavior.
Presumably, you weren't responsible for creating Uncle Henry, you just decided not to help him.
That makes the situation different. Under the law, if someone, such as a minor child or someone I have kidnapped, is wholly dependent upon me for care, I have a legal obligation to provide that care. The fetus is wholly dependent on the mother (as you note with your parasite remark) and, the mother voluntarily helped create the fetus and thus the dependency (except in cases of rape). So, she has some moral responsibility towards the fetus that you do not have for Uncle Henry. Of course, you may burn in Hell for your selfishness towards Uncle Henry (maybe not, maybe he deserved it), but that is for other posters (those who think they are God) to decide.
The anti-Gay Marriage Amendment situation is similar to the abortion debate only in the passions that are stirred up, and the fact that most pro-Life (or anti-Choice) people are also in favor of the anti-Gay Marriage Amendment, or at least are opposed to same sex marriages.
THE courts in Hawaii and in the nation's capital must struggle with all these issues under the added encumbrance of a contemporary outlook that makes law the search for rights, and responsibility the recognition of rights. Indeed, thinking of laws about marriage as documents that confer or withhold rights is itself an error of fundamental importance--one that the highest court in Hawaii has already committed. "Marriage," it wrote, "is a state-conferred legal-partnership status, the existence of which gives rise to a multiplicity of rights and benefits. . ." A state-conferred legal partnership? To lawyers, perhaps; to mankind, I think not. The Hawaiian court has thus set itself on the same course of action as the misguided Supreme Court in 1973 when it thought that laws about abortion were merely an assertion of the rights of a living mother and an unborn fetus.
[I]f someone else wants to take responsibility of the fetus then they should be able to do so (just as we don't allow parents to kill deformed full term babies).
Well, depends who we call "we." The "Infant Doe" case early in Reagan's first term (short summary: Down Syndrome infant had a gastrointestinal blockage common with that chromosonal abnormality, one basically making it impossible for the baby to receive food, but easily correctible by surgery; parents refused surgery; baby starved to death) was essentially infanticide. Meanwhile, across the pond, the Dutch euthanasia system that supposedly demands the consent of the patient is apparently used all the time on newborns that obviously are in no position to consent.
I'm in favor of initiatives as a policy matter, but this is one of the unfortunate side effects: poorly crafted initiatives get adopted into law all of the time.
Note also that the change in definition you are afraid of is happening anyway: gay couples get married, even in churches, all of the time, and their marriages are accepted as such by their friends and their family. Fundamentally I think this is a debate between a group of people for whom the definition has already changed (and who wonder why the government can't just recognize that change) and people for whom it hasn't.
I've always found this sentiment to be a sound bite, not a believable argument. If the proper response is "if you don't like abortion, raise the fetus yourself", then the proper response to infaticide can equally well be "if you don't like infanticide, raise the infant yourself". We don't consider this a good argument for allowing infanticide.
Pro-lifers consider abortion to be murder. One who stops a murder is under no obligation to pay the cost that the murderer incurs for not murdering.
On a more specific point the argument that the FMA is different from Roe v. Wade because it is an elected legislature who is making the deciscion just doesn't carry any water. Either
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