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Is it rational to exclude gay couples from marriage?

Rejecting the due process and equal protection arguments for heightened scrutiny, the New York Court of Appeals in its important decision last week applied rational basis review to the exclusion of gay couples from marriage. This should have been an easy route to denying the plaintiffs' claims.

As ordinarily applied, rational basis is a very forgiving standard. The law must be (1) rationally related to (2) a legitimate end of the state. The law need not be very wise or very good to survive. As I once heard Richard Epstein memorably describe it, the rational basis standard basically asks whether any fool could come up with a stupid reason for a bad policy.

The New York court offered two rationales to meet this undemanding standard, both of which had to do with children.

"First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships." (p. 5) Children need permanence and stability in their lives. Yet the heterosexual relationships that produce them, said the court, "are all too often casual or temporary." Homosexual couples do not become parents by "accident or impulse"; they must plan ahead and obtain children through adoption, artificial insemination, or some other "technological marvels." Unstable relationships among heterosexuals therefore "present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples."

Note the irony of this argument. For decades, homosexual life has been medicalized and pathologized by doctors, sexologists, psychiatrists, and politicians. Only 33 years ago, homosexual orientation was still officially a "disorder." Gays, especially gay men, were denounced as hopelessly promiscuous, unstable, histrionic, and self-absorbed. Above all, this medico-political consensus held, homosexuals were dangerous to children and should be kept away from them. From the outset of the gay-marriage movement, a vocal opposition argued that the supposedly innate instability of homosexual relationships disqualified them from marriage.

Now, in the most important judicial decision yet rejecting a claim for gay marriage, we are told that gay couples may be kept from marriage not because they are unstable, but because heterosexual couples are unstable. Implicit in this view is that gay couples don't have as large a need for the "inducement" to "make a solemn, long-term commitment to each other." (p. 6) Implicit also is that gay couples are likely to plan more responsibly for the upbringing of their children. We thus have less reason to worry about the children gay couples are raising. Is the New York legislature listening?

The court is not saying that gay couples are more stable than heterosexual ones. It is saying that the social cost of heterosexual instability is much greater because of the toll it takes on children. And this much seems right. Sexual irresponsibility among heterosexuals imposes huge costs on our society. One-third of children are now born out-of-wedlock. Unwanted pregnancies lead to abortions. Unwanted and uncared-for children are more prone to violence, crime, drug use, ill-health, and so on.

What the New York court has done, then, is give us a very good reason why heterosexual couples should be permitted to marry. Their children badly need them to have the "inducement" marriage provides for the formation of long-term commitments. Otherwise, heterosexuals are too likely to abandon their responsibilities. There is no doubt the state has a "legitimate interest" in the institution we call marriage.

But how is the exclusion of gay couples "rationally related" to this legitimate interest? How does excluding them and their children from the stabilizing influence of marriage help families headed by heterosexuals? How does denying marriage to gay families make heterosexual ones more stable, long-term, and committed? The anti-gay-marriage movement has been trying for more than a decade now to answer these questions, to offer a believable theory of harm.

Whether you think anti-gay-marriage activists have done so convincingly is beside my point here. The point is that the New York court never even tries to answer these questions. The court simply has no explanation, rational or otherwise, for why heterosexual happiness in marriage depends on homosexual exclusion from it. You could come up with such a tale, but the New York court does not do so. The omission is striking.

The New York court offered a second rational basis for excluding gay couples from marriage. "The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father." (p. 6) In response to social-science studies cited by the plaintiffs concluding that there are no differences between same-sex and opposite-sex couples in raising children, the court argued that the studies did not conclusively establish that the legislature was irrational to prefer heterosexual parents.

I agree with the court that the social-science studies on parenting, to date, do not establish conclusively that children do as well in same-sex households as in opposite-sex ones. The day may come when it would indeed be irrational to doubt this. We're not there yet.

But once again the key question left unanswered by the court is, how does the exclusion of gay couples from marriage rationally advance the putative preference for heterosexual couples in child-raising? If we were faced with a choice between awarding a child either to a heterosexual or homosexual couple then, all else being equal, it would be rational for the legislature to prefer the former, given the present state of our knowledge. A policy that gave a preference in such cases to heterosexual parents would rationally promote the state's interests.

But that is not what's at stake in the question of whether gay couples should be able to marry. If the state could rationally claim that gay couples are incompetent to raise children, that would be one thing. Neither New York nor any other state takes that position, since all states permit gay people to raise children (some, with restrictions and qualifications). In New York, it is possible for a same-sex couple to adopt a child, but not to protect their joint responsibility for that child with marriage. New York guarantees these children will be raised outside of marriage. You could, I think, come up with some explanation for how excluding gay couples promotes what the state regards as the optimal familial arrangement, but the New York court's analysis of this point is missing.

Let me be clear: I am not saying that existing marriage laws can't satisfy rational basis review. It would be surprising if they couldn't satisfy it, notwithstanding the conclusion of the majority of the Massachusetts high court in Goodridge. In fact, the best example of the application of rational basis to uphold the exclusion of gays from marriage is still Justice Cordy's dissent in that case. His opinion is at once respectful of homosexuals' claims, temperate in tone, closely reasoned, and a model of the kind of judicial humility associated with the test. By contrast, the New York decision is remarkably thin.

UPDATE: A number of the comments seem focused on filling in arguments the majority could have made on rational basis review (e.g., that marriage includes those couples, and only those couples, that present the problem the state identifies). I have no quarrel with these efforts. The point of the post, however, is that the New York court surprisingly omits these sorts of easy steps in the analysis. It identifies the legitimate end and then stops.

It's worth asking why the court's argument is incomplete. I can only speculate, but I'm guessing it's because the court is reluctant to flesh out in too much detail a very narrow normative vision of marriage that hardly anyone -- outside a few doctrinaire anti-gay-marriage activists -- seems to believe. In order to defend traditional marriage using these types of arguments we have to diminish it as an institution and to demean many existing marriages. That's not a legal problem for judges applying rational-basis review, but it is a cultural problem for anti-gay-marriage activists and for judges who want to be seen as making persuasive arguments, not just minimally rational ones.

Salaryman (mail):

But how is the exclusion of gay couples "rationally related" to this legitimate interest? How does excluding them and their children from the stabilizing influence of marriage help families headed by heterosexuals? How does denying marriage to gay families make heterosexual ones more stable, long-term, and committed?


I'm not sure I understand your point entirely. The Court plausibly (if not necessarily entirely convincingly -- but that wasn't required) identified a problem with heterosexual procreation that could be ameliorated by heterosexual marriage, and more specifically with the extension of benefits associated with (and encouraging) heterosexual marriage.

How would extending the same benefits to gay couples hurt heterosexuals? Maybe not at all (except that extending benefits may well cost money), but how would extending similar benefits to platonic friends, siblings, elderly parents and their children, etc. hurt heterosexual couples?

Assuming the rationality of the first ground for heterosexual-only marriage -- i.e. that heterosexual couplings, unlike gay couplings, frequently lead to accidental or otherwise problematic pregnancies -- why does the court have to explain why the solution to the purported problem doesn't apply beyond the purportedly problematic group?
7.11.2006 12:09pm
Clayton E. Cramer (mail) (www):

Gays, especially gay men, were denounced as hopelessly promiscuous, unstable, histrionic, and self-absorbed.
Spend some time in the San Francisco Bay Area, and you will see that this is an accurate description of a large portion of gay men.
7.11.2006 12:21pm
Ship Erect (mail) (www):
Thanks, CC, for confirming all the stereotypes about gay men! After all, you lived near San Francisco, so you must be some kind of authority on gay men. I think this discussion can be put back in the closet now.
7.11.2006 12:35pm
Taeyoung (mail):
But how is the exclusion of gay couples "rationally related" to this legitimate interest? How does excluding them and their children from the stabilizing influence of marriage help families headed by heterosexuals?

My inference -- the "rational relation" is that while there is a reason to have state regulation of marriage in the heterosexual context (as a remedy against the high cost of heterosexual misconduct), there is no such reason in the homosexual context, so there's no reason to have state regulation of homosexual marriage. I think not having needlessly broad remedial structures is rational enough for rational basis. I mean, this is rational basis, not some other standard treating homosexuality as a specially protected class. If we had a licensing regime that targeted one particular class (say, accounting firms), and didn't target others (e.g. greengrocers), on the grounds that harms flowing from accountancy misdeeds were likely to be particularly great, I don't think we'd uphold a challenge that greengrocers should also receive licensing and validation on rational basis grounds.

That said --

In fact, the best example of the application of rational basis to uphold the exclusion of gays from marriage is still Justice Cordy's dissent in that case. His opinion is at once respectful of homosexuals' claims, temperate in tone, closely reasoned, and a model of the kind of judicial humility associated with the test. By contrast, the New York decision is remarkably thin.
I would agree with this. In fact, I would go further and say that all of the opinions on this subject I have so far read, with the possible exception of the dissent you mention, have been appallingly bad. On both sides. Somewhat like with abortion decisions, I think the associated public controversy must rob judges of their ability to reason through the issue dispassionately.
7.11.2006 12:41pm
Allen Asch (mail) (www):
Salaryman wrote:

Assuming the rationality of the first ground for heterosexual-only marriage -- i.e. that heterosexual couplings, unlike gay couplings, frequently lead to accidental or otherwise problematic pregnancies -- why does the court have to explain why the solution to the purported problem doesn't apply beyond the purportedly problematic group?
Because rational basis analysis requires that the classification at issue be rationally related to a legitimate state interest. For example, Here's what the US Supreme Court said in New Orleans v. Dukes, 427 U.S. 297, 303 (1976):

"Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest." (emphasis added)

Here's what the US Supreme Court said in Schweiker v. Wilson, 450 U.S. 221, 230 (1981):

"At the minimum level, this Court consistently has required that legislation classify the persons it affects in a manner rationally related to legitimate governmental objectives." (emphasis added)

And, here's what the US Supreme Court said in Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985), a case specifically cited by the Massachusetts Supreme Judicial Court in striking down a ban on gay marriage:

"The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." (emphasis added)

Thus, to pass rational basis review, you must show not that giving benefits for heterosexual marriage helps children, but you must show denying benefits for gay marriage helps children.

I have yet to see even anecdotal evidence of even one child who was helped by banning gay marriage.

And, I've been asking for a while. To see my cached post from two years ago on the ACLU message boards asking these same question, see this link: ACLU thread
7.11.2006 12:54pm
PK (mail):
Allen,

You state "Thus, to pass rational basis review, you must show not that giving benefits for heterosexual marriage helps children, but you must show denying benefits for gay marriage helps children." This is incorrect.

Marriage amounts to a subsidy by the state (see all the benefits of marriage cited in the plaintiff's brief). The state is entitled to target it subsidies where they will be most useful. Here, the state will get the most bang for the buck in helping children by subsidying otherwise more unstable heterosexual relationships. Therefore, the classification is rationale because is singles out for a subsidy the group most likely to respond differently to that subsidy.
7.11.2006 1:10pm
PaulV (mail):
I think thi analysis is being approach fron wrong direction- The government needs a rational reason to intervene in the relationship of heterosexuals-procreation. Lacking that justification government has no basis to interfere with relationships of homosexuals.
7.11.2006 1:18pm
A. Rickey (mail) (www):
Agreed with PK. This post's analysis starts from the position that "marriage" is an institution which in some platonic sense includes all possible varieties of couples, and that the statute then excludes gay couples from it. In fact, however, the statutory language creates a classification that only includes a given target populace. By your logic, the statute excludes a great many people who might be helped by the legal benefits of marrige. For instance, it excludes consanguinous couples: even if a brother and sister live together and raise a child, perhaps because the father is dead or unavailable, they cannot marry. Does the court have to justify every exclusion?

Not at all. The Court merely has to show that the inclusion of a certain group meets a legitimate end. That it may be underinclusive in particular cases is irrelevant, and has been so since opticians were "excluded" in Williamson. Things would be different if homosexuality were subject to intermediate scrutiny, but we've not yet crossed that bridge.
7.11.2006 1:28pm
guest (mail):
Why isn't it sufficiently rational for a legislature to decide that the subsidies it offers to married couples should be limited to that class of couples which are at least capable (broadly speaking) of producing future citizens that will support the state and, therefore, justify the subsidies?
7.11.2006 1:41pm
El Capitan (mail):
I think the reason for the gaps in argument you note is simple really: The New York judges don't buy these arguments personally, and is not particularly adept at making it. The court goes to great lengths not to speak in its own voice, but rather repeats that "the legislature could rationally find that . . ." making it plain to me that the Court in no way endorses these arguments. I think the problems you note are related to someone having to make an overarching argument that they ultimately strongly disagree with, but that they must acknowledge exists and is at least somewhat legit.
7.11.2006 1:44pm
jgshapiro (mail):

Now, in the most important judicial decision yet rejecting a claim for gay marriage, we are told that gay couples may be kept from marriage not because they are unstable, but because heterosexual couples are unstable. Implicit in this view is that gay couples don't have as large a need for the "inducement" to "make a solemn, long-term commitment to each other." (p. 6) Implicit also is that gay couples are likely to plan more responsibly for the upbringing of their children.


I don't think that is a fair representation of what the court said, whether you agree with it or not.

The court noted that heterosexual couples could get pregnant, and therefore have a child, accidentally. Homosexual couples could not have a child accidentally. That is not a reflection on whether heterosexual couples are more or less unstable than homosexual couples, but simply a reflection of the unintended consequences of biology. A gay couple cannot acccidentally adopt a chil, and a gay man or a monogamous gay woman cannot unintentionally conceive. Thefore, the imputed logic behind the law is that marriage is necessary as an inducement to straight couples to guard against children in unstable heterosexual relationships.

What is implicit is not that there are less unstable homosexual couples than unstable heterosexual couples, or that homosexual couples are more likely to plan for children than heterosexual couples, but that the number of unstable homosexual couples having children is much less than the number of unstable heterosexual couples having children, so the subsidies provided by marriage are not necessary for the former.
7.11.2006 1:48pm
Let's Be Honest:
If a state legislature chose to pass a law prohibiting post-menopausal women from marrying would this pass the test for a rational basis? Would this be constitutional? If not, why not? What about prohibiting any sterile adult from marrying?
7.11.2006 1:57pm
Mark F. (mail):
It's time "rational basis" was tossed in the legal trash can. Judges should not be evaluating laws in this way.
7.11.2006 2:06pm
John Armstrong (mail):
I think PaulV and A. Rickey have hit it on the head: The court's view[*] is that if it weren't for those blasted kids that heterosexuals keep popping out willy-nilly there would be no need for the institution in the first place. Any such governmental inducement is a governmental intrusion, and is to be avoided. If somehow heterosexuals were unable to spawn without jumping through the same sort of hoops that homosexuals have to then we could do away with marriage altogether.

Of course, this inclusionary model rather than many people's default exclusionary model needn't be right or even good, but it is a rational model which results in the policies set out by the legislature.

[*] or more accurately the view the court claims to be a rational one the legislature may hold, which is what's necessary to rebut a claim that there's no rational basis whatsoever. El Capitan and Mark F. have their points on this count.
7.11.2006 2:17pm
Allen Asch (mail) (www):
PK and A. Rickey,

I think both of you, again, are not focusing on the classification challenged. Arguing that giving benefits to opposite sex couples is more likely to help children still says nothing about how denying benefits to same sex couples (the classification challenged) helps any children at all. A Rickey is correct that underinclusiveness and overinclusiveness are fine in rational basis analysis, but having no cases where the classification achieves the legitimate state interest is not underinclusiveness or overinclusiveness.

Perhaps the Williamson case that A. Rickey cited will show what I mean. In that case, the classification challenged was a rule against fitting lens without a prescription. The legitimate interest was the health of the public. Now, in many cases, opticians could fit lenses without a prescription using the old glasses without any effect on the health of the public. As the Court pointed out, however, "in some cases the directions contained in the prescription are essential, if the glasses are to be fitted so as to correct the particular defects of vision or alleviate the eye condition." So, at least some of the time, the classification challenged (no fitting lens without a prescription) achieves the legitimate state interest (health of the public).

But, again regarding denying marriage benefits to same sex couples, where are the cases in which the classification challenged (opposite sex only) achieves the legitimate state interest (welfare of children)?

Or, I ask again: Does anyone have even anecdotal evidence of even one child who was helped by banning gay marriage?
7.11.2006 2:19pm
jrose:
Allen,

The whole Scandanavia, Netherlands, Stanley Kurtz mess (and I mean mess, because Kurtz's arguments and use of the data are lame) provide enough to satisfy how the classification furthers the state's interest (same-sex marriage weakens the institution of marriage to the point that couples will have kids out of wedlock). Even so, I don't think rational basis requires any supporting data - just a conception that can be supported by assuming facts not yet known.

Dale's point was the NY court didn't make this last part of the argument - but could have (as did Cordy).
7.11.2006 2:32pm
JunkYardLawDog (mail):
1. Why is the question of rationality relevant?

I submit that laws, customs, and morays that have existed for 100's and thousands of years that become embodied in a societies laws do NOT have to be rationally based.

2. Who determines what is rational? Such a determination is in most cases purely subjective and/or the evidence and arguments for or against rationality are subject to purely subjective analysis and consideration. Rationality is just a pretense for denying democratic rule of the sovereign people.

Changing subjects....

Any person who believes adoption of black children can be legitemately limited to black couples, in order to better foster their cultural identity, can NOT rationally deny that children, the product of HETEROSEXUAL couplings and cultural identities, can only be properly served by being placed in the homes of HETEROSEXUAL couples. You can't rationally have it both ways. Either BOTH practices are repugnant or BOTH practices are rational and good.

Says the "Dog"
7.11.2006 2:34pm
PK (mail):
Allen,

Isn't saving money also a legitimate state interest? The classification is drawn to exclude those couples (i.e., gay couples with children) whose behavior would least likely change if offered a subsidy. Therefore, the classification is rational because it saves the state money.

Plyler v. Doe is on point here. There the Court struck down a state statute that required illegal immigrants to pay for the cost of otherwise free public education. In that case Texas offered a "saving money" rationale and the Court rejected it. But to reject it the Court used some form of heightened scrutiny. Here, the Court (rightly or wrongly) is using plain vanilla rational basis review. Under that standard of review, saving money is a legitimate state interest.

Mark F. has a good point though: why do we even have rational basis review? It seems to be a vestige of the first Justice Harlan's dissent in Lochner, i.e., a very deferential reasonableness review, but there's really no basis or standard to apply. Williamson itself shows how silly the test is. We'd be much better of if courts limited judicial review cases where heightened scrutiny applies.
7.11.2006 2:36pm
jrose:
If we accept PK, Rickey and Armstrong's argument that the NY Court's analysis was proper - there is no need to state how same-sex marriages would weaken traditional marriage, the state need only say that same-sex marriage doesn't fall within the affirmative purpose of marriage - we are left to answer Lets Be Honest's question:
If a state legislature chose to pass a law prohibiting post-menopausal women from marrying would this pass the test for a rational basis?
7.11.2006 2:37pm
jrose:
I submit that laws, customs, and morays that have existed for 100's and thousands of years that become embodied in a societies laws do NOT have to be rationally based.
I submit your belief is contradicted by precedent (Lawrence), and rightly so in my view.
7.11.2006 2:39pm
Ship Erect (mail) (www):
Dog, what's a heterosexual cultural identity? Is it like a David Lynch film?
7.11.2006 2:41pm
jrose:
PK,

Didn't the "saving money" rationale also fail in Romer, which I guess also applied some form of de facto heightened scrutiny. Why shouldn't the same standard apply to same-sex marriage?
7.11.2006 2:42pm
PK (mail):
jrose,

My only point is that "saving money" is sufficient for pure rational basis. Romer and Lawrence clearly engaged in some form of heightened review, even if they purport to only be applying the rational basis test. You can see the same thing in the early gender equal protection cases in which the Court begins to strike down statutes under what it claims is the "rational basis" test but then admits that it's been using heightened scrutiny and heightened scrutiny is appropriate for gender. I think we'll see the same thing here. The USSC is using some form of disguised heightened scrutiny for sexual orientation that will eventually become overt intermediate scrutiny. Today, however, state courts can avoid intermediate scrutiny for sexual orientation because Romer and Lawrence specifically avoid using heightened scrutiny language. That was probably done at least in part with the gay marriage issue in mind (see scalia's dissent in Lawrence). By not overtly using heightened scrutiny, the USSC avoids the gay marriage issue while retaining the ability to strike down other laws that are more offensive.

In short, if Lawrence was written honestly, same-sex marriage would be a constitutional right, but it was purposefully obscure to prevent that. As a result, you can get decisions like the NY Court of Appeals just gave.
7.11.2006 2:52pm
DG:
I agree with the commenters who argue that Prof. Carpenter gets the baseline wrong in his analysis. Once marriage is framed as a set of benefits designed to promote a certain state interest, the question becomes whether extending those benefits to a particular group plausibly advances the interest, not whether denying the benefits to a particular group plausibly advances the interest.

By way of analogy, let's say the gov't wants to decrease the prevalence of ovarian cancer (legitimate state interest). It could presumably distribute Miracle Drug--which has 1049 associated benefits, one of which is a tendency to prevent ovarian cancer--only to women in order to advance that end. The rational relation between the women-only classification and the legitimate state interest of preventing ovarian cancer is, of course, that only women get ovarian cancer. The government doesn't need to come up with good reasons why men shouldn't get the other 1048 benefits; that has no bearing on whether the classification is rationally related to the benefit and state interest in question.

I'm not sure this test is a good one (it lends itself to ex post justifications that can mask discriminatory intent/effect), but it is what it is.

A bigger problem with the court's analysis is that it fails to adequately explain why certain groups get the benefit despite the fact that their inclusion does not plausibly advance the interest in question. In the ovarian cancer example, you would have to have a pretty good justification for including, say, short men in the drug distribution scheme but excluding tall men. Otherwise it looks suspiciously like a plan to disadvantage tall men, rather than a plan to prevent ovarian cancer.

Similarly, the court here should have been able to articulate a pretty good justification for why opposite-sex couples who can't have children get the benefits of marriage. Partly they did, by the reference to invasiveness -- mandatory fertility tests would be burdensome and probably unconstitutional. But why can two wrinkly 80-year-olds, who are just as obviously unable to accidentally have children as two women, get married? Or why not include a simple check box: "Is either spouse known to be infertile? Yes/No."
7.11.2006 3:00pm
Clayton E. Cramer (mail) (www):

If a state legislature chose to pass a law prohibiting post-menopausal women from marrying would this pass the test for a rational basis? Would this be constitutional? If not, why not? What about prohibiting any sterile adult from marrying?
What standard are we going to be use to decide whether a law has a rational basis to it? If we use the homosexual standard, then every law must be clearly and unquestionably necessary, and the least intrusive manner of achieving that public goal. If you really want that standard, then all sorts of laws (including most of the laws that liberals love so much) go away.

If you use the standard that the judiciary should defer to the judgment of the legislature unless the law is clearly contrary to the state or federal constitution (the standard that liberals like when it comes to gun control, affirmative action, government-granted monopolies and economic regulation), then you have to defer on laws that define marriage as a heterosexual thing.

The problem here is that homosexuals aren't prepared to use a single standard on this. They want deference on laws that they like (anti-discrimination laws to protect homosexuals) but not on laws that they don't like (marriage definitions). And homosexuals seem willing to destroy the republican form of government to get their desperate need for approval met with a government stamp of approval. I am beginning to think that the choice is a republican form of government, or widespread homosexuality: pick one.
7.11.2006 3:12pm
blhlls (mail):
If the rational basis is to protect the children of potentially unstable relationships, what is the rational basis for discriminating against the children raised by homosexual couples by not providing them with the same benefits of state-encouraged stability as the children of heterosexual couples.
7.11.2006 3:18pm
John Armstrong (mail):
JunkYardLawDog: I agree wholeheartedly that both of the policies you cite are comparable. The practice of limiting adoptions by race is repugnant.

As for tradition, let's examine that. Yes, marriage is traditionally about children. Specifically, it's about males trying to assure paternity of purported offspring, and to maintain the clan line. To this end they, much as a farmer raising thoroughbreds, amassed a group of breeding mares to own and sire children from.

[sarcasm]So yes, let's give proper weight to tradition. Marriage is about assuring males of their parental status and keeping females as cows to perpetuate the patrilineal line.[/sarcasm]
7.11.2006 3:19pm
A. Rickey (mail) (www):
Allen:

Your argument seems to go against the Court's language in Williamson itself: "The legislature may select one phase of one field and apply a remedy there, neglecting the others." This portion of the opinion dealt with the difference not between opthamologists and opticians, but between the latter and sellers of ready-made eyewear.

In the end, the opinion was spare because that's all it needed to be. Why should the judges make any argument against gay marriage beyond what's needed to justify rational basis? Despite Prof. Carpenter's update, it's not a problem for anti-gay-marriage advocates that the court didn't make their case for them, as they're perfectly capable of making the case themselves (or what case there is). And it's quite possible that Judge Smith doesn't see it as the job of the Court of Appeals to make a legislative brief out of a majority opinion. Why should we be upset that the decision is one of restraint?
7.11.2006 3:23pm
Omar Bradley (mail):
A rational basis means that means lead to the end and that it makes sense when looked at reasonably.

For example, if NY said that we exclude gays from marriage because they like showtunes or bette midler, or because we've had enough of rosie o'donnell's antics, that wouldn't meet the rational basis test.

If they say we do it because hundreds of years of NY history has shown that marriage is a stabilizing force among singles, that a mrried home has shown to have benefits to children that out of wedlock children don't have, that it is "deeply rooted in tradition", etc... then that would be a rational basis. you may disagree with the above statement, but you can't dismiss them as nonsensical.

Even Hamilton and Madison disagreed on just what a rational basis was. It's not exact, but there are lines. I suggest we may not be able to say for sure what a rational basis IS, but we can surely say what a rational basis IS NOT.
7.11.2006 3:28pm
Michael B (mail):
"Rational basis review". Rational, clearly labeled, receives the imprimatur of academe, sophisticated and (albeit selectively) empirical - or at least sophistical and enticing - ergo and voila - it's rational! And may the uncircumcised (including, if necessary, "we the people") be cast out into the outer darkness.

"Thanks, CC, for confirming all the stereotypes about gay men! After all, you lived near San Francisco, so you must be some kind of authority on gay men. I think this discussion can be put back in the closet now." Ship Erect

Casting out the dissenter, and with a righteous and knowing self-regard. When in fact, rather simply, some empirical evidence was noted - no more, no less - but not of the selectively appropriate kind. Ergo, a totalizing dismissiveness, and disdain, is to be invoked.

Could be, should be: "Rationale basis review"? Since all too often what is being sought is a rationale for dismissing, tout court, democratic referendums, popular sovereignty, the will of "we the people" - while the gnostic knower, the judge, intones with a rationale, one carefully selected from the quiver of the semiotics of the righteous.
7.11.2006 3:29pm
Clayton E. Cramer (mail) (www):
John Armstrong writes:

As for tradition, let's examine that. Yes, marriage is traditionally about children. Specifically, it's about males trying to assure paternity of purported offspring, and to maintain the clan line. To this end they, much as a farmer raising thoroughbreds, amassed a group of breeding mares to own and sire children from.
Then why do our marriage laws not allow for polygamy? That would suit this end that you have imagined just as well as monogamy--and yet, polygamy has never been recognized under American law.

Hint: our marriage and divorce laws, until quite recently, were based on a religion that even at Yale, you may have heard something about.
7.11.2006 3:31pm
A. Rickey (mail) (www):
If a state legislature chose to pass a law prohibiting post-menopausal women from marrying would this pass the test for a rational basis? Would this be constitutional? If not, why not? What about prohibiting any sterile adult from marrying?

If you want an honest answer:

Both laws would probably pass rational basis scrutiny, at least in line with the Court's current precedents. The first law, however, might be considered a gender discrimination and thus be subject to "intermediate" scrutiny.

We don't have such a law not because it would be unconstitutional, but because no one has ever bothered to propose such a law, and if it did it wouldn't get passed. (For one thing, it would be nearly impossible to administer, and for a second, there's not really a constituency for this law.)

It's quite possible that our marriage laws as they're written today aren't connected to our needs as a nation. They may be "uncommonly silly laws." The debate is how one changes those laws: by judicial fiat or legislative choice?

One reason that gay marriage has not been recognized, IMO, is that at the moment the anti-gay forces comprise an alliance of two groups: those who disapprove of judicial expansion of "rights" and those who don't like homosexual marriage due to fondness for tradition or anti-homosexual animus. Gay marriage proponents, on the other hand, seem unwilling to reach out to the first party--many if not most of whom would be willing to work to change the laws--and instead opt for demonizing judges who express an unwillingness, in Judge Smith's words, to conclude that "everyone who held this belief was irrational, ignorant or bigoted."
7.11.2006 3:34pm
Taeyoung (mail):
A bigger problem with the court's analysis is that it fails to adequately explain why certain groups get the benefit despite the fact that their inclusion does not plausibly advance the interest in question.
There, I think the answer is that you don't need narrow tailoring under rational basis review -- kludgey solutions are permitted. No?
7.11.2006 3:42pm
Truth Seeker:
If a state legislature chose to pass a law prohibiting post-menopausal women from marrying would this pass the test for a rational basis? Would this be constitutional? If not, why not? What about prohibiting any sterile adult from marrying?

Maybe it would pass the rational basis test but it would be an invasion or privacy and be impossible to administer. Better to use the bright line test: Men/Women can marry, Men/Men, Women/Women, Men/Animals, Brother/Sister, no marriage.
7.11.2006 3:49pm
Omar Bradley (mail):
Why would it be impossible to administer? In order to get a marriage license you'd have to submit proof tyhat Menses had ended. What's so impossible? I too, think it would be Constitutional.

Just becuase something is Constitutional doesn't mean it's right, by the way. Slavery was Constitutional for the first 75 years of theis country. Denying women sufferage was Constitutional for the first 130 years of this country.

I also agree that it would never be passed.

Better yet, someone give me a rational basis for allowing gays to marry, but not allowing a brother and sister to marry, or a mother and son, or a man and two women?

Basically, as much Lawrence and Romer sought to deny it, morals and the community's views of society are rational bases for legislation, they are the backbone of all laws.
7.11.2006 4:05pm
Bruce Hayden (mail) (www):
I think that the problem here is making the rational basis test more than it is. And, maybe, as suggested above, that is because SCOTUS in Romer, et al., didn't really apply a rational basis test, but rather used a higher level of scrutiny, while calling it rational basis. For the most part, rational basis means that if a law is passed for a lawful purpose and the legislature believes that the law would further that, then it is lawful under rational basis analysis. Instead, a lot of the posters here seem to be saying that the connection between the law and its legal purpose is inaccurate. But that is really irrelevant. Rather, what is relevant is that the legislature presumably believed it to be true.

If the courts started striking down laws under rational basis analysis where the statute can be shown not to further the goal, then a lot of the statutes on the books across the nation would be at risk. To give a gross example, lets take the War on Poverty. Poverty still exists at approximately the same level as before after spending over a trillion dollars to eradicate it, and so, it could be argued that there is no real correspondence between the goal and the statutes, and, thus, it should be abolished. There are thousands of other laws that would be equally vulnerable. How about concealed carry laws? Whatever data there is, supports, or at least doesn't refute, that crime isn't reduced by refusing to grant permits to law abiding citizens. Or, someone mentioned polygamy. How about the law here in CO that all those braiding hair commercially have to have state beutician licenes? Or, even that beauticians and barbers have to be licensed?
7.11.2006 4:09pm
anonyomousss (mail):
truth seeker on letting post-menopausal women marry:

Maybe it would pass the rational basis test but it would be an invasion or privacy and be impossible to administer.

why would it be impossible to administer? you put a line on the license that says "to the best of their knowledge and belief, both parties certify that they are fertile and that the bride has not been through menopause." then if the government finds out that she was post-menopausal when she got married, they arrest her and charge her with lying on the marriage license application and possibly tax evasion as well.
7.11.2006 4:10pm
lucia (mail) (www):
anti-gay forces comprise an alliance of two groups: those who disapprove of judicial expansion of "rights"


I'm puzzled by this claim. Is there really a large group of people taking anti-gay political positions in general based only on disapproval of judicial expansion?

My impression is that those who only oppose judicial expansion say just that -- adding that they support enacting laws to grant gays greater rights. The reality is we are seeing some pro-gay laws enacted through legislatures. It's happening more slowly than I'd prefer, but as they say, "that's life".
7.11.2006 4:14pm
Omar Bradley (mail):
Bruce Hayden,

I have to disagree. Just becaause the legislature BELIEVES it to be so is meaningless. For example, with the marriage laws if the reason the state gave was because they belive gays are possessed by aliens, or that all gays are child molestors, or that gays talk funny, none of those would pass rational basis scruitiny, even if the state sincerely believed them.

It means it has to be reasonably related to the interest. Now, admittedly reasonably is somewhat vague, but I think most people know what is and isn't reasonable. The 4th amendment prohibits unreasonable searches and seizures. I suggest reasonable in the rational basis test means the same as reasonable in the 4th amendment context. It is a subjective term, but it is not devoid of meaning.
7.11.2006 4:31pm
Colin (mail):
Michael B,

Somewhere in that glossolalic pile was an argument that Clayton Cramer's characterization of gay people was empiricism. But in fact, what he said was that it is accurate to call "a large portion of gay men" "hopelessly promiscuous, unstable, histrionic, and self-absorbed," based on his having spent "some time in the San Francisco Bay Area."

There is a practical difference between empiricism and being led to stereotypes by your prejudices. Cramer's characterization of gays, based on his own very limited and relatively brief observations from his car window, are not empirically sound.
7.11.2006 4:41pm
logicnazi (mail) (www):
Allen Asch got it completely right when he pointed out that to show a rational basis the state must show that denying gays the right to marry accomplishes a state interest. Sure at first glance it sounds reasonable to say that saving money/resources by not extending marriage to more people provides a rational basis for the policy. However, the US supreme court has already implicitly denied this argument in Turner v. Safley

In Turner v. Safley the court explicitly rejected the lower court's use of a strict scrutiny standard by the lower court to evaluate the constitutionality of denying an inmate the opportunity to marry. However, applying the rational basis test the court nevertheless overturned the prison's choice to deny the inmate the right to marry despite the fact it would likely consume additional prison resources to conduct the marriage in addition to the extra governmental benefits specifically listed as a component of the right denied to the inmate. Importantly the inmates ability to procreate, age or even eventual release from prison were not even considerations of the court.

I think the correct way to view the court's precedent, is to say they are demanding a rational basis for drawing the line between those who can and can't marry. Thus it does not pass the rational basis test to allow many individuals who can't produce children (infertile, too old etc..) to marry and then deny prison inmates the right to marry on these same grounds. Similarly the effort on the part of prison officials didn't fly because the prison officials allow many equally costly interactions (visits etc.).

This is simply the only plausible way to read Turner v. Safley so shy of overturning this decision the courts need to establish a rational basis for denying gays the right to marry but not infertile couples, post menopausal women, deadbeat dads, and other individuals incapable of easy reproduction.


Speaking of deadbeat dads I still don't understand how the NY court could plausibly get around applying the compelling interest standard used in Zablocki v. Redhail. Sure, I realize they argued that gay marriage is not deeply entrenched as straight marriage is but one can hardly say that the right of divorced dads who fail to pay their child support to get married is deeply entrenched either. I really can't see any way this distinction is justified.
7.11.2006 4:55pm
Michael B (mail):
"Somewhere in that glossolalic pile ..." Colin

It (this, upthread) was rhetorically intended, but perfectly meaningful as such. As for the "pile," review your own. What you're referring to remains an (as in one) empirical observation. A "large portion" is just that, not necessarily all or even most and not suggestive of any specific quantification at all, but a large portion nonetheless.

Here's a thought. If you're going to address the subject of empiricism in attempting something of a retort, you might actually supply a quote, and therein an empirical reference point, before you supply your own pile. It was rhetorically intended, and remains perfectly sound in that vein.
7.11.2006 5:20pm
PK (mail):
logicnazi,

Turner v. Safley did not apply the rational basis test. Rather, it applied the "reasonably related" test that applies to limitations on the constitutional rights of prisoners. See Part III(B) of the opinion. In addition, because the marriage at issue was a heterosexual marriage, that court stated that the right to it was "fundamental" and restrictions would otherwise be subject to strict scrutiny had the plaintiff not been a prisoner. In the same-sex marriage case, the NY Court of Appeals held (rightly or wrongly) that access to same-sex marriage was NOT a fundamental right. Therefore, restrictions on same-sex marriage need only meet the rational basis test, not strict scrutiny or the speical reasonable relationship test applicable to restrictions on prisoners' constitutional rights.
7.11.2006 5:24pm
Clayton E. Cramer (mail) (www):
Omar Bradley writes:


Now, admittedly reasonably is somewhat vague, but I think most people know what is and isn't reasonable. The 4th amendment prohibits unreasonable searches and seizures. I suggest reasonable in the rational basis test means the same as reasonable in the 4th amendment context. It is a subjective term, but it is not devoid of meaning.
I'm sorry, but "unreasonable" means one thing to the vast majority of Americans, and something completely different to the ACLU and their puppets in black on the bench.

New York City wanted to start searching people entering the subways, out of concern about subway bombers. Most people were able to figure out that as onerous as this was, it was, considering the circumstances and the potential hazards, "reasonable." The ACLU could not.

A random search, I would agree, might well qualify as unreasonable. A search that looked at people that are most likely to be caring such a bomb, Middle Eastern appearing young men, would be reasonable to most Americans--but not to the ACLU. (Hint: suicide bombers are seldom named Sven, Luigi, or Christopher. They are often named Mohammed, for some odd reason.)

A few years ago, one of the liberal members of the California legislature introduced a bill to allow checkpoint searches of cars for guns. His bill specifically prohibited the use of those results for drugs. This sort of search seemed "reasonable" to him because they were looking for guns--but it would not have been if they were searching for drugs.

Reasonable is entirely in the eye of the beholder. The puppets in black are told that some things I find offensive are "reasonable," while other things are not. The term is not devoid of meaning, but it is so infinitely flexible that it now means nothing at all.
7.11.2006 5:27pm
Omar Bradley (mail):
There's numerous rational bases for denying gays the right to marry each other.

1. The 10th amendment. It still has exists, right?

2. Insofar, as the principle of gay marriage is that people whould not be discriminated against based on sexual desire or orientation, if you concede gay marriage, there is no rational basis for denying any other form of marriage. If 2 men who love each other can get married, why not two brothers who love each other, why not a man and two women who love each other, once you define marriage as recognition of a loving relationship, it becomes open to all loving relationships.

3. Gay ten to have higher STD rates and to engage in unsafe sexual practices. There's a public health issue that the state has inasmuch as granting further rights to gays signals tacit approval of their unsafe behavior and could well lead to an increase in it.

4. All the evidence from Europe on the effect gay marriage has on society and straight relationshpis and out of wedlock births, etc... That too is a public health and safety issue

5. Gay marriage could affect business and commerce in the state

6. The undisputed general police power of the state to prescribe regulations for the welfare of society

Need I go on?
7.11.2006 5:35pm
Zymurgy:
If a State legislature did pass a law prohibiting infertile people from marrying, I believe it is likely that the U.S. Supreme Court would strike it down; after all, they held that it's unconstitutional to prevent a prison inmate from marrying---and that may even be in the case where conjugal visits are not allowed.

It's likely that the REAL reason it would be held unconstitutional to prohibit infertile people from marrying, and unconstitutional to prohibit prison inmates from marrying, but constitutional to prohibit same-sex partners from marrying is nothing less than animus against same-sex relationships.

It's ALL about hatred against same-sex relationships.
7.11.2006 5:37pm
Omar Bradley (mail):
Clayton,

Just because the ACLU or the liberals on the SC abuse the term doesn't mean it doesn't have meaning. They'd abuse a term even if it was crystal clear. Is reasonable any less open to abuse than "speech", "exercise of religion", "commerce", "necessary and proper", "due process", "cruel and unusual"

All of them have meaning. Just because a judge disregards that meaning is no reason to ignore the meaning altogether.

If we go by your view, what's the point of the Constitution? We may as well get rid of it since it's so open to abuse and distortion.
7.11.2006 5:40pm
Omar Bradley (mail):
By the way, where did this "right to marry" come from? If a state wants to ban marriage entirely I don't see why they can't. Is the right to marry spelled out near the right to privacy, the right to abortion and the right to sodomy?

Where in the text will I find the right to marry? Can someone point me in the right direction, please.
7.11.2006 5:43pm
John Armstrong (mail):
Clayton E. Cramer: I'm sorry that my ironic tone went over the heads of some in the audience. My point is that "tradition" is routinely superceded by social change. Yes, the general state of the laws in the United States regarding marriage mostly follows the Judeo-Christian tradition, but that tradition itself was a revision to an older tradition. If we're going to argue from tradition, let's not forget which tradition was around first.

To be very explicit now, I am not advocating a return to that tradition of marriage. I am simply highlighting that the "tradition" argument put forth by JunkYardLawDog implicitly selects one (religious) tradition and establishes that (religion) as the law of the land.
7.11.2006 5:43pm
Clayton E. Cramer (mail) (www):
Omar Bradley writes:


Clayton,

Just because the ACLU or the liberals on the SC abuse the term doesn't mean it doesn't have meaning. They'd abuse a term even if it was crystal clear. Is reasonable any less open to abuse than "speech", "exercise of religion", "commerce", "necessary and proper", "due process", "cruel and unusual"

All of them have meaning. Just because a judge disregards that meaning is no reason to ignore the meaning altogether.
Speech has a specific meaning, and yes, liberals have decided that it includes burning a flag, because that's "expressive conduct." It isn't speech by any notion the Framers would have understood.

The Framers weren't unfamiliar with "expressive conduct," as reading accounts of various mob actions at the start of the Revolution will demonstrate. But they also knew that there's a lot of "expressive conduct" that is considerably more threatening and disruptive to public order than "speech." The intimidating tactics used to close courts in Massachusetts just before the Revolution were effective, but they were on the edge of causing violence.

If we go by your view, what's the point of the Constitution? We may as well get rid of it since it's so open to abuse and distortion.
There's no substitute for putting honest people on the bench. I'm concerned that as the radicals have taken over the legal academy, and the sophistic tendencies of the legal tradition have become more powerful, the intellectual integrity required to make decisions based on the law, instead of personal preference--may not be available in the legal profession. I like a lot of what Justice Scalia writes, but he sometimes falls into the same legal trap of letting his preferences for what the law should be take precedence over what the Constitution requires. I'm thinking of both the Raich decision, and the Oregon euthanasia case.
7.11.2006 5:51pm
anonyomousss (mail):
omar, you'll find the right to gay marriage in this little clause guaranteeing all citizens the "equal protection of the laws."
7.11.2006 5:51pm
Clayton E. Cramer (mail) (www):
John Armstrong writes:


Clayton E. Cramer: I'm sorry that my ironic tone went over the heads of some in the audience. My point is that "tradition" is routinely superceded by social change. Yes, the general state of the laws in the United States regarding marriage mostly follows the Judeo-Christian tradition, but that tradition itself was a revision to an older tradition. If we're going to argue from tradition, let's not forget which tradition was around first.
If you think the current tradition of marriage needs revising, then there's a process for that: persuade the people, and their representatives will change the law. But homosexuals are insisting on using the tyranny of their puppets in black to "change the tradition."

To be very explicit now, I am not advocating a return to that tradition of marriage. I am simply highlighting that the "tradition" argument put forth by JunkYardLawDog implicitly selects one (religious) tradition and establishes that (religion) as the law of the land.
Yeah, guess WHY that religious tradition ended up as the law of the land. It has something to with this concept called majority will. It is also why we prohibit murder, rape, robbery, perjury, and a few thousand other actions that the majority thinks, in their narrow minded ignorance, are a bad thing.
7.11.2006 5:55pm
Michael B (mail):
"I am simply highlighting that the "tradition" argument put forth by JunkYardLawDog implicitly selects one (religious) tradition and establishes that (religion) as the law of the land." John Armstrong

Not really, as it isn't simply "tradition" which is being selected over "social change" or vice versa.

More basically, and more constitutionally, it's being suggested that "we the people" should have the say, certainly prior to any black robed jurists, over which traditions and which changes are to be enacted into law.

And no, no "religion" is being "established" as the "law of the land" in that recognition of primary sovereignty, in recognizing "we the people" as sovereign.
7.11.2006 5:58pm
Clayton E. Cramer (mail) (www):

omar, you'll find the right to gay marriage in this little clause guaranteeing all citizens the "equal protection of the laws."
So if two siblings want to get married, why can't they? That sounds like discrimination to me!

Why can't a man marry an eight year old girl? That's not equal protection of the laws!

Why can't a man marry three women, or two men and four women? That's not equal!

Homosexuals who argue that they aren't enjoying "equal protection" have two choices:

1. Agree that anything goes.

2. Admit that it is legitimate for the government to regulate what constitutes a marriage, but insist that it is unfair to treat homosexuals differently from heterosexuals.
7.11.2006 5:59pm
Rob Johnson (mail):
Dale,

From the majority opinion:

Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.


Apparently, you do not disagree:

Let me be clear: I am not saying that existing marriage laws can't satisfy rational basis review.


What's your beef?
7.11.2006 6:01pm
Omar Bradley (mail):
Equal Protection of the Laws is the right to marry. You must speak a different English than I do

Equal Proection has nothing to do with rights. It has no substantive content. It just means that whatever laws are in place, they have to be applied equally regardless of race, color or creed or nationality. While there can be debate over how gender or sex fits in to that, there is no debate that sexual proclivity does not figure in.

The equal proection clause would not prevent a state from banning marriage altogether. It would orevent it from only allowing it for whites, once it has passed the law. But if the state wants to ban marriage for everyone, there's nothing in the US Constitution that would stop them.
7.11.2006 6:03pm
anonyomousss (mail):
omar, fair enough. i wasnt arguing that the state couldnt abolish marriage, only that ep requires that it not discriminate against gays and lesbians. since marriage isnt being abolished any time soon, this amounts to the same thing in practice.
7.11.2006 6:07pm
Taeyoung (mail):
Re: Cramer:
2. Admit that it is legitimate for the government to regulate what constitutes a marriage, but insist that it is unfair to treat homosexuals differently from heterosexuals.

Isn't that what they try to do, when making the affirmative case for gay marriage? I.e. argue that (1) same-sex marriage is not incompatible with the underlying purposes of marriage, as it is understood in modern society (i.e. not the old Book of Common Prayer rationales), (2) that denial of same-sex marriage works a meaningful wrong against gays and lesbians, and (3) that traditional prohibitions against other prohibited marriages (e.g. consanguinity, bestiality, infancy, etc.) are of a different type than the prohibition on gay marriage, and therefore that their individual rationales are not undermined by permitting gay marriage. They also, as a counterargument, have to argue that there will be no ill side-effects from actively tinkering with the legal definitions for "marriage."

Whether their arguments on these counts are persuasive or not (I think it's a rather mixed bag) they're clearly making them.
7.11.2006 6:11pm
JunkYardLawDog (mail):
Homosexuals are not denied equal protection of the law. A homosexual male is just as free to get a marriage license to marry a woman as is a heterosexual male. He can even proclaim his homosexuality while at the window getting the license to marry a woman and the license will not be denied.

So the "privilege" of a male marrying a women is equally extended to heterosexual and homosexual males. There is no inequal treatment whatsoever.

Now if you argue that homosexual male must be allowed to have a marriage license to marry a man simply because he wants to marry a man, then how is that argument inapplicable to a man who wants to marry a pig, or a man who wants to marry a man and a women.

Surely Bi-Sexual people are just as entitled as homosexual people to enjoy the privilege of being married. The only way for a bi-sexual woman to fulfill her biological need and right to marry would be to marry BOTH a man AND a woman. How is the argument that homosexual males can compel society and its laws to allow them to marry NOT applicable to a bi-sexual women wanting to compel society and its laws to allow her to marry BOTH a Man AND a Women??

There is no rational distinction in the homosexual male versus bi-sexual women argument, and in reality no rational distinction between multiple coupling marriages of groups of men and women.

A man may want to marry his dog so company paid health insurance could extend to his dog. Vet bills are pretty expensive. What is the rational argument for denying male dog couplings if there is found to be a constitutional compulsion to allow male/male couplings?

If anyone denies that a bi-sexual women has exactly the same equal protection and other arguments as a male homosexual than what is the rational basis for denying a bi-sexual woman the right to simultaneously marry Both a Man and a Woman? Can't you admit there would be no such rational basis and any attempt to argue that male/male marriages is OK but bi-sexual woman/woman/male marriages are not OK would be based solely on HATRED of woman/woman/male marriages??


Says the "Dog"
7.11.2006 6:14pm
anonyomousss (mail):
They also, as a counterargument, have to argue that there will be no ill side-effects from actively tinkering with the legal definitions for "marriage."

no we dont. we have to argue that the ill side-effects will be small, or will be outweighed by the positive effects. obviously there will be at least some negative effects: people will get married who shouldn't have, and there will be divorces and broken hearts and nasty legal battles and so on just as there are with straight people.

but most of the purported ill side-effects we actually have to argue against are completely bogus. marriage will be destroyed? get real.
7.11.2006 6:18pm
JunkYardLawDog (mail):
What is the argument that bi-sexuals may not marry a partner of both sexes simultaneously, while maintaining a straight face argument that male/male marriages is compulsory to be allowed?

Who here arguing for a constitutional right for homosexual marriage has the guts to admit was is plainly obvious that those same arguments advanced to demand a constitutional right to male/male marriages is equally applicable to a bi-sexual woman demanding the right to marry BOTH a man and a woman simultaneously??

I'm curious how many pro-homosexual marriage hypocrites do we have here? Will any of them come to the aid of the poor bi-sexual woman seeking to marry the man and woman of her dreams?

Says the "Dog"
7.11.2006 6:21pm
anonyomousss (mail):
The only way for a bi-sexual woman to fulfill her biological need and right to marry would be to marry BOTH a man AND a woman.

junkyardlawdog, i know you're fake, but i'm going to address this point anyway because it evinces a fairly common misunderstanding of bisexuality. a bisexual woman needs to marry both a man and a woman like a straight man needs to marry a blonde, a brunette, and a redhead. i.e. not at all.

bisexuality is about more people being in the feasible set.
7.11.2006 6:22pm
JunkYardLawDog (mail):
anonyomousss,

You're confusing me with someone else. I assure you I'm no fake.

You state a bisexual woman doesn't need to marry both a man and a woman. You apparently feel that a bisexual woman must deny half of her identity. You have not expressed a rational argument merely your opinion that it isn't wise to marry more than one couple and a bi-sexual woman should be denied equal protection of the law to marry that many and woman whom she chooses.

Many other people have an opinion that homosexuals should not be able to marry, just as you have an opinion about bi-sexual women. What makes your opinion better than other people's? What makes your minority opinion better than the opinions of the majority of the sovereign?

Maybe we should just make you our sovereign lord?

Says the "Dog" (who is still waiting for a rational argument on why the same arguments for compulsion of male/male marriages doesn't apply to a bi-sexual woman seeking a woman/woman/male marriage.)
7.11.2006 6:30pm
Clayton E. Cramer (mail) (www):

Isn't that what they try to do, when making the affirmative case for gay marriage?
The difficulty is that if you make an equal protection argument--that the law may not discriminate--you are arguing that any regulatory measure the state adopts must conform to a very high standard--something more than just, "the majority thinks this is right." So what allows the majority to ban some marriage arrangements, but not same-sex marriage? You can argue that as a matter of public policy, a ban on same-sex marriage doesn't make much sense, but that's not an argument based on rights. A legislature might decide that same-sex marriage is a good idea, but it isn't a right--and therefore, not something that the tyrants in black may impose.

I.e. argue that (1) same-sex marriage is not incompatible with the underlying purposes of marriage, as it is understood in modern society (i.e. not the old Book of Common Prayer rationales),
Make this argument if you want, but that's an argument of persuasion, not of rights.

(2) that denial of same-sex marriage works a meaningful wrong against gays and lesbians, and
For what reason? If this is a "right to marry" then we get back to the first question I raised--what allows the state to prohibit some marriages, but not others?

(3) that traditional prohibitions against other prohibited marriages (e.g. consanguinity, bestiality, infancy, etc.) are of a different type than the prohibition on gay marriage, and therefore that their individual rationales are not undermined by permitting gay marriage.
What drives those other bans? Bestiality, child marriage--these are bans that you might be able to come up with pragmatic arguments against (and especially so for consanguinity), but the real reason that sibling marriage is banned is because Judeo-Christian believes didn't allow it. It's originally a taboo--just like homosexuality. On what basis do the tyrants in black strike down one taboo-based marriage regulation but not another, if this is a matter of rights?
7.11.2006 7:17pm
jrose:
A. Rickey,

Do you really think Courts would allow laws which prohibit the infertile and elderly from marrying to stand? And if they would strike down those laws, how could they possibly let bans against same-sex marriage stand?
7.11.2006 7:19pm
Jamesaust (mail):
"...but I'm guessing it's because the court is reluctant to flesh out in too much detail a very narrow normative vision of marriage that hardly anyone...."

I believe, reading between the lines, that the majority was influenced by a desire just not to throw themselves into the fire on an issue that would be painful to them and could realistically only diminish their ability to focus on the many other issues in future terms.

Also, it must be a tad easier to say "go tell it to the Legislature" when polling (to the extent it is accurate) seems to say that the people of New York agree with a signficant part of the plaintiffs' claims and perhaps even with its totality (by a narrow margin but making new conversions every day). Is it truly not a better thing (big picture) if the Legislature were to provide remedy to the plaintiffs?

If I were writing an opinion that I believed people in the future would look back upon and shake their heads in disapproval, I would make the argument as abbreviated as possible too.
7.11.2006 7:23pm
jrose:
Clayton,

The fundamental right at stake is the right to be able to marry *someone* for whom it makes sense for you to marry based on who you are. For gay people, marriage only makes sense to a person of the same sex. Prohibit same-sex marriage and you have effectively denied a gay person the right to marry at all.

In contrast, prohibitions against polygamy do not run afoul of the fundamental right I described above.
7.11.2006 7:26pm
Clayton E. Cramer (mail) (www):
jrose writes:


A. Rickey,

Do you really think Courts would allow laws which prohibit the infertile and elderly from marrying to stand? And if they would strike down those laws, how could they possibly let bans against same-sex marriage stand?
The great difficulty with all of these arguments is that the bans on gay marriage reflect the religious and moral values of the majority of Americans--even in places like California. Now, since most of you here are lawyers, you probably have no idea what the values of Americans are like. That's also why so many of you have no idea why the efforts to impose gay marriage are so successful at mobilizing even a lot of Democrats to vote with Republicans to say, "We are not going to put an official stamp of approval on same-sex marriage."
7.11.2006 7:28pm
lucia (mail) (www):
Omar Bradley wrote:
By the way, where did this "right to marry" come from? If a state wants to ban marriage entirely I don't see why they can't. Is the right to marry spelled out near the right to privacy, the right to abortion and the right to sodomy?

I don't know where the right came from, but it's been recognized. For example, these quotes come from Loving vs. Virginia:

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. and

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.

Though not enumerated, the right to marry looks suspiciously like one of the unenumerated rights retained by the people.

Can states ban marriage entirely? I suppose that depends on what you mean by banning marriage entirely. I'm relatively certain they can't ban sacramental marriage.

However, no state has banned marriage entirely. They all seem to promote the condition. As long a state recognizes this legal status -- desired and entered into willingly by many -- the fourteenth amenemdment requires the state to provide equal access or only limit access with due process of law.


Out of curiosity, could you explain your claim the 10th amendement provides a rational basis for banning same sex marriage? And if the 10th amendment permits this, does this mean the Federal government can't ban it?
7.11.2006 7:29pm
Taeyoung (mail):
The difficulty is that if you make an equal protection argument--that the law may not discriminate--you are arguing that any regulatory measure the state adopts must conform to a very high standard--something more than just, "the majority thinks this is right." So what allows the majority to ban some marriage arrangements, but not same-sex marriage?

Well, you can't generally make an argument that the law may not discriminate, under equal protection, only that the law cannot discriminate on the basis of a particular category. Gay marriage activists might argue that with respect to marriage, gender (intermediate scrutiny) is the relevant category that current marriage laws discriminate under, and that this ought to be stopped. Insert Loving v. Virginia etc. etc. Discrimination by gender is not implicated by bestiality, consanguinity, polygamy, pederasty, etc., so a decision tightly focussed on gender discrimination implications of the marriage laws wouldn't carry over. In addition, because it is intermediate scrutiny, there's significant scope for policy arguments and understanding (persuasive rationales, that is) to play out in the courts.

Now, that's not to say that I think the argument is accurate -- I don't think there's anything in equal protection or anything else under the Constitution that actually prohibits marriage from being limited to the traditional understanding. But the argument can be made without implicating polygamy, etc.

I think your concern might be more problematic if the argument that because marriage is a fundamental right => gay marriage must be allowed -- then, that opens the door to all kinds of suits in favour of polygamy and consanguinous marriage and so forth (bestiality and pederasty seem like harder arguments, because of consent issues). But that's not the only argument they could make.
7.11.2006 7:31pm
Clayton E. Cramer (mail) (www):
jrose writes:


Clayton,

The fundamental right at stake is the right to be able to marry *someone* for whom it makes sense for you to marry based on who you are. For gay people, marriage only makes sense to a person of the same sex. Prohibit same-sex marriage and you have effectively denied a gay person the right to marry at all.

In contrast, prohibitions against polygamy do not run afoul of the fundamental right I described above.
Substitute the word "pedophile" for "homosexual" and explain why a ban on adults marrying eight year olds isn't just as much of a violation of a pedophile's rights. It doesn't matter that most pedophiles aren't interested in getting married; so far, it appears that most homosexuals aren't interested in getting married, either.

What you don't want to face is that homosexuals are not just like straight people, except for who they love. They are clearly not. Some that I have known were reasonably emotionally healthy, but the average homosexual is damaged in a way that the average straight is not.
7.11.2006 7:32pm
Taeyoung (mail):
Re: jrose
The fundamental right at stake is the right to be able to marry *someone* for whom it makes sense for you to marry based on who you are. For gay people, marriage only makes sense to a person of the same sex. Prohibit same-sex marriage and you have effectively denied a gay person the right to marry at all.
In contrast, prohibitions against polygamy do not run afoul of the fundamental right I described above.

But that's only because you just stacked the deck with your own interpretation of what that fundamental right ought to entail. Someone? Why? Why is that any more compelling than "someone of the opposite sex?"
7.11.2006 7:34pm
Clayton E. Cramer (mail) (www):

Well, you can't generally make an argument that the law may not discriminate, under equal protection, only that the law cannot discriminate on the basis of a particular category. Gay marriage activists might argue that with respect to marriage, gender (intermediate scrutiny) is the relevant category that current marriage laws discriminate under, and that this ought to be stopped. Insert Loving v. Virginia etc. etc.
Loving is a bad analogy for a number of reasons:

1. Interracial marriage bans are a liberal innovation of the late seventeenth century; they are not at all traditional, and were never dominant in American history. Defining marriage as heterosexual, however, is not only the tradition in Western culture; it is the tradition in every culture.

2. The 14th Amendment was adopted specifically to prevent states from discriminating based on race. There is absolutely no evidence that anyone in 1868 understood it to prohibit discrimination based on sexual orientation. Remember that homosexual sex was a felony everywhere at the time.

3. The statute in question in Loving did not simply refuse to recognize the marriage of the Lovings; it threatened them with prison if they did not leave their state of residence and stay away for at least 25 years. No homosexual couple is being threatened with prison for their pretend marriages. The states are simply refusing to take any action to recognize these pretend marriages.
7.11.2006 7:38pm
Taeyoung (mail):
Re: Cramer:

I don't disagree with your conclusions re: the Loving analogy. That is, however, the analogy that is always trotted out. With respect to the historical circumstances behind the 14th amendment --
There is absolutely no evidence that anyone in 1868 understood it to prohibit discrimination based on sexual orientation.

I don't know Constitutional history well enough to say whether this is true or not. It sounds like it ought to be true, since womens' suffrage had not yet come around. But either way, there is precedent enough indicating that gender-based classifications are subject to intermediate scrutiny. Other than, perhaps, Justice Thomas, I don't think any of the current justices are likely to give any serious consideration to the historical circumstances at the time of enactment, sufficient to overcome subsequent court decisions.
7.11.2006 7:44pm
jrose:
Substitute the word "pedophile" for "homosexual" and explain why a ban on adults marrying eight year olds isn't just as much of a violation of a pedophile's rights.
Conceding that pedophilia is "who you are" like being gay or straight, requiring informed consent is a compelling state interest which permits abridging a fundamental right.
What you don't want to face is that homosexuals are not just like straight people, except for who they love. They are clearly not. Some that I have known were reasonably emotionally healthy, but the average homosexual is damaged in a way that the average straight is not.
Here is some honesty. Clayton opposes sane-sex marriage because he holds animus towards gays. Is that a Constitutionally acceptable reason for policy (per Romer, no).
7.11.2006 7:47pm
jrose:
The fundamental right at stake is the right to be able to marry *someone* for whom it makes sense for you to marry based on who you are.
But that's only because you just stacked the deck with your own interpretation of what that fundamental right ought to entail. Someone? Why? Why is that any more compelling than "someone of the opposite sex?"
We have to first figure out the purpose of marriage. If it is to encourage people to settle down with their lifemate, then my definition makes sense. What purpose to marriage would limit the fundamental right to just opposite-sex couples?
7.11.2006 7:51pm
Clayton E. Cramer (mail) (www):

Re: Cramer:

I don't disagree with your conclusions re: the Loving analogy. That is, however, the analogy that is always trotted out.
Yes, it is. That doesn't make it right. Keep in mind that the Lawrence decision is based on false history--including the claim that there were no laws prohibiting specifically homosexual conduct until the 1930s. I've already put together a collection of colonial statutes demonstrating that the supposed experts who made this claim are wrong.

With respect to the historical circumstances behind the 14th amendment --

There is absolutely no evidence that anyone in 1868 understood it to prohibit discrimination based on sexual orientation.


I don't know Constitutional history well enough to say whether this is true or not.
I can tell you that the first state to decriminalize sodomy was Illinois, in 1961. These laws go back to at least the buggery statute of Henry VIII, which banned bestiality, oral sex, and anal sex (regardless of gender). In the American colonies, especially from New York northward, there were often specific laws banning homosexual sex.

It sounds like it ought to be true, since womens' suffrage had not yet come around. But either way, there is precedent enough indicating that gender-based classifications are subject to intermediate scrutiny.
So why do we allow laws that segregate public restrooms by sex? That discriminates based on gender, and striking down those laws is far less dramatic in its likely impacts. (By the way, into the early 1970s, California law didn't deal with sex segregation of restroom at all--it was strictly a matter of social custom.)

Other than, perhaps, Justice Thomas, I don't think any of the current justices are likely to give any serious consideration to the historical circumstances at the time of enactment, sufficient to overcome subsequent court decisions.
So much for taking what they do seriously.
7.11.2006 7:54pm
lucia (mail) (www):
Taeyoung

Well, you can't generally make an argument that the law may not discriminate, under equal protection, only that the law cannot discriminate on the basis of a particular category


Is it literally true that the argument has to be for a particular category? I'm not a lawyer and I'm asking because I honestly don't know. It also seems odd based on this wording:

...nor deny to any person within its jurisdiction the equal protection of the laws.


Hypothetically, if a state denied one specific individual the legal protection granted others, that would be a prohibited, right?
7.11.2006 7:56pm
Clayton E. Cramer (mail) (www):
jrose writes:



Substitute the word "pedophile" for "homosexual" and explain why a ban on adults marrying eight year olds isn't just as much of a violation of a pedophile's rights.


Conceding that pedophilia is "who you are" like being gay or straight, requiring informed consent is a compelling state interest which permits abridging a fundamental right.
What gives the state the right to interfere in one of these relationships, but not the other? Where, exactly, does the federal or state constitutions grant power to interfere with one relationship but not the other?

Here is some honesty. Clayton opposes sane-sex marriage because he holds animus towards gays. Is that a Constitutionally acceptable reason for policy (per Romer, no).
I hold animus towards all totalitarian systems of thought. Homosexuality is one of those totalitarian systems of thought, tolerating no dispute, no difference, and no argument--and increasingly, no republican form of government. That's why homosexuals use the legal system to punish a printer who did not want to print same-sex wedding announcemnts--the dread fear that someone, somewhere, might not approve of homosexuality. That's why homosexuals tried to have Pastor Ake Green sent to prison for preaching against homoseuxality. That's why homosexuals have attempted to destroy organizations that were not prepared to accept them, such as the Boy Scouts. That's why homosexuals have tried to intimidate political opponents, including death threats and obscene phone calls to my kids, some years ago.

Homosexuality seems to be incompatible with a republican form of government.
7.11.2006 8:04pm
Taeyoung (mail):
Re: jrose
If it is to encourage people to settle down with their lifemate, then my definition makes sense.

Look, again you're revealing an underlying notion that is going undefended. Why is that necessarily singular? Why is your definition superior to a more expansive definition that says "lifemates" rather than "lifemate?"

Regarding the purpose to marriage being limited to just opposite sex couples, I think the obvious traditionalist response would be (A) that there's multiple purposes to marriage (at least 3 in the traditional account: mutual comfort, procreation, restraint of fornication -- that last is the one the New York court seems to have picked up on, somewhat bizarrely, since it's been largely eroded in favour of individual sexual autonomy, at least in the law), and (B) that because the procreation of children is one of these fundamental purposes of marriage, restricting it to opposite sex marriages makes sense.

Now, of course, gay marriage advocates come back and say "what about infertile couples?" Or couples who have no intention at all of procreating, for whatever reason. But these examples no more invalidate the traditional conception of marriage than people who marry for convenience (i.e. no mutual comfort), or marry in the expectation of having a modern "open" marriage (i.e. no restraint on fornication). "Marriage" as an institution didn't emerge fully formed from the brow of some godlike legislator (religious theories to the contrary notwithstanding), but developed, together with our society to meet certain needs in a rough and approximate way. It's not narrowly tailored to its purposes by any means. But the fact that it's not narrowly tailored to its purposes doesn't justify an expansion incompatible with its underlying purposes. Instead, you have to (as you have done) propose some alternative purpose, which has grown up to supplant the traditional understanding of marriage and its purposes. But many people still hew to that traditional understanding of marriage and its purposes, and would reject your proposed singular purpose.
7.11.2006 8:08pm
Taeyoung (mail):
Re: lucia:
Hypothetically, if a state denied one specific individual the legal protection granted others, that would be a prohibited, right?

That would be a bill of attainder, I think, and prohibited on other grounds. But more generally, almost every law discriminates. For example, am I eligible to receive social security benefits or not? Some people are, others aren't, and the ones who aren't are being discriminated against. This particular form of discrimination is okay -- as a general rule, it's only discrimination with respect to "fundamental rights" or on the basis of certain protected categories (e.g. race, national origin, etc.) that trigger the equal protection clause.
7.11.2006 8:11pm
A. Rickey (mail) (www):
JRose:

Do you really think Courts would allow laws which prohibit the infertile and elderly from marrying to stand? And if they would strike down those laws, how could they possibly let bans against same-sex marriage stand?

The trouble with this kind of rhetorical question is that it's not subject to empirical proof. In some fictional world in which there were all of a sudden a political majority that sought--for some bizarre reason--to remove the rights of the infertile and elderly to marry, yes, I think the courts would let it stand. However, there's no good way to argue this. After all, the court would have to identify (a) a legitimate state interest in redefining marriage, and (b) that this was rationally related. Presumably in the fantasy world of this radical shift, the legislature made this decision based upon something, and a court might then uphold it.

A more plausible scenario: the legislature decides for whatever reason that it will do away with civil marriage entirely, shift all family and estate law default rules away from marriage and instead give only a tax break to "any man and woman deciding to raise a child." The courts might very well find that constitutional under rational basis. Again, however, this fantasy-world is only barely more believable.

Now, that's legal analysis. From a legal realist perspective, do I think the court would let such a restriction stand? Well, no. But that's simply because the only world I can envision in which an anti-infertile bill is passed by the New York State Legislature is one in which the politicians were actually high on ecstacy while voting.

Which is to say simply that the status quo matters. If we already had a tradition of gay marriage and the legislature were voting to deny it, as a practical matter the courts might shunt aside a reasonable application of rational basis and go for the kind of fudge we saw in Romer.

So, to answer your two questions: assuming the legislature were acting in response to some perceived concern, yes, I think they'd let the legislation stand. As a practical matter, though, I can't imagine what that concern would be.
7.11.2006 8:21pm
Clayton E. Cramer (mail) (www):

That would be a bill of attainder, I think, and prohibited on other grounds.
The trick is to write the law so that it applies to one person, but does it by category rather than by individual. For example, part of the 1994 budget was a provision that exempted from inheritance tax all estates probated on a particular day in Harris County, Texas. (This was a gift to a friend of Speaker of the House Jim Wright.) Other provisions were tax giveaways that applied only to corporations that were incorporated in California on a particular date in 1888, and reincorporated in Delaware on a particular date in the 1960s. (I think it was Standard Oil of California.) The courts have upheld stuff like this, showing their complete moral bankruptcy.

But more generally, almost every law discriminates. For example, am I eligible to receive social security benefits or not? Some people are, others aren't, and the ones who aren't are being discriminated against. This particular form of discrimination is okay -- as a general rule, it's only discrimination with respect to "fundamental rights" or on the basis of certain protected categories (e.g. race, national origin, etc.) that trigger the equal protection clause.
What constitutes a "fundamental right"? In 1868, you would have been on the majority side if you suggested that the law should not discriminate based on race, but if you went on to suggest that sex was in that same category, you would have been recognized as a radical sort. If you had suggested in a public place that there was a fundamental right for two men to have sex, you would not simply have been looked at funny--you might well have been hauled off to an insane asylum. Yet the Fourteenth Amendment is now being used as a basis for striking down not only state laws prohibiting homosexual sex, but as the basis for requiring the states to recognize homosexual marriage.

Yeah, yeah, I know, we shouldn't be trapped in the thinking of 1868. We aren't. Persuade the legislatures of the rightness of your ideas, and you don't have to use your control over the tyrants in black to impose this on the rest of us.
7.11.2006 8:23pm
Omar Bradley (mail):
This whole infertile or elderly couples thing is ruse. You have to be a certain age to drive. But kids might say, "what about the blind" or "what about quadraplegics" or "what about invalids and shut-ins". None of them can drive even though they're over 21. But it's not a violation of equal protection or due process to restrict driving to say 16 and up or whatever.

All laws make some discrimination. Why can 18 yr olds vote and 17 yr olds can't? Why can 21 yr old's drink and 19 yr olds can't

Just because an eldery or infertile couple can't have kids doesn't alter the reason for marriage. there are always exceptions that prove the rule.

and jrose's arguments with all respect are specious. he says the right is to marry someone's lifemate. but there's no good reason then why someone should only be able to have 1 lifemate. What if who I am is a guy that loves multiple women. It's who I am. I'm incapable of monogamy. I need to be with multiple women. It's how I was born and I can't change it any more than astraight guy can change his desire to be with one woman. Why shouldn't I have hthe same right to marry my lifemates as a gay guy has to marry his lifemate?
7.11.2006 8:37pm
jvarisco (www):
I think there is an implied point that allowing gay couples to marry also legitimizes any children they may have; thus creating gay marriage would have the effect of creating more families without mothers and fathers, which would be a bad thing.
7.11.2006 8:42pm
Allen Asch (mail) (www):
jrose wrote:

Allen, The whole Scandanavia, Netherlands, Stanley Kurtz mess (and I mean mess, because Kurtz's arguments and use of the data are lame) provide enough to satisfy how the classification furthers the state's interest (same-sex marriage weakens the institution of marriage to the point that couples will have kids out of wedlock). Even so, I don't think rational basis requires any supporting data - just a conception that can be supported by assuming facts not yet known.

I agree that rational basis does not require actual empirical data, just something a reasonable legislator could believe. I was familiar with the claim that same sex marriage weakens the institution of marriage, but I always thought it was a circular argument, i.e. it argues that the challenged classification is rationally related to a legitimate state interest in keeping the challenged classification, usually dressed up with various adjectives about how long-standing and imbedded in civilization the challenged classification is.

Your argument that denying marriage benefits to same sex couples weakens the institution of marriage in a way that causes more out of wedlock births and harms children is a new one to me, however. Like I said, rational basis review does not require empirical evidence, but does require at least an explanation of some logical mechanism by which denying marriage benefits to same sex couples may cause out of wedlock births.

Based on your comment, I read through the article here: The End of Marriage in Scandanavia by Stanley Kurtz. I do not believe the argument there provides a rational basis for denying marriage benefits to same sex couples in the US, however. In most of Scandanavia, even Stanley Kurtz admits that same sex marriage and out of wedlock births are both effects of the same causes like increasing secularization and contraception's separation of sex from procreation. See e.g., Kurtz's statement that "In states like Sweden and Denmark, where out-of-wedlock birthrates were already very high, and the public favored gay marriage, gay unions were an effect of earlier changes." (emphasis added) The one exception Kurtz provides is Norway where the proposed mechanism for the connection between same sex marriage and out of wedlock births is dependent on the effect of the change on Norway's government established church. The Establishment Clause of the First Amendment makes that mechanism inapplicable to the US.

Can you explain a reasonable mechanism by which denying marriage benefits to same sex couples has prevented any out of wedlock births?

And, isn't the accepted conservative line that secularization is the root of all those other evils in Europe? See, for example, this link: Fox News Trashes the Netherlands
7.11.2006 8:47pm
jrose:
Conceding that pedophilia is "who you are" like being gay or straight, requiring informed consent is a compelling state interest which permits abridging a fundamental right.
What gives the state the right to interfere in one of these relationships, but not the other? Where, exactly, does the federal or state constitutions grant power to interfere with one relationship but not the other?
One has informed consent, the other does not.
7.11.2006 9:01pm
SLS 1L:
I think there is an implied point that allowing gay couples to marry also legitimizes any children they may have; thus creating gay marriage would have the effect of creating more families without mothers and fathers, which would be a bad thing.
No, it has the effect of turning kids who have unmarried parents into kids with married parents.
7.11.2006 9:17pm
Allen Asch (mail) (www):
PK wrote:

Isn't saving money also a legitimate state interest? The classification is drawn to exclude those couples (i.e., gay couples with children) whose behavior would least likely change if offered a subsidy. Therefore, the classification is rational because it saves the state money. ...My only point is that "saving money" is sufficient for pure rational basis. Romer and Lawrence clearly engaged in some form of heightened review, even if they purport to only be applying the rational basis test.
Any classification that limits a benefit saves money. If just saving money were enough, no classification limiting a benefit could be struck down under rational basis review. That's not what the case law says,, however, and I find it somewhat inexplicable to argue that rational basis review isn't what the Supreme Court says it is.

I find the logic of the New York Court of Appeals rejected not so much by the rational basis review in Romer, though, but more reminiscent of the argument rejected in United States Dept. of Agriculture v. Moreno, 413 U.S. 528, 535 (1973). In that case, the Court was reviewing a rule denying food stamps to households containing unrelated people. That classification would have saved money right? Most interestingly, the rule would have denied a government benefit to gay families, though there was no such issue raised in the case. Check out this paragraph:

the Government maintains that the challenged classification should nevertheless be upheld as rationally related to the clearly legitimate governmental interest in minimizing fraud in the administration of the food stamp program. In essence, the Government contends that, in adopting the 1971 amendment, Congress might rationally have thought (1) that households with one or more unrelated members are more likely than "fully related" households to contain individuals who abuse the program by fraudulently failing to report sources of income or by voluntarily remaining poor; and (2) that such households are "relatively unstable," thereby increasing the difficulty of detecting such abuses. But even if we were to accept as rational the Government's wholly unsubstantiated assumptions concerning the differences between "related" and "unrelated" households, we still could not agree with the Government's conclusion that the denial of essential federal food assistance to all otherwise eligible households containing unrelated members constitutes a rational effort to deal with these concerns
(emphasis added and footnote omitted)

That's the kind of rational basis review I'm using when I ask: Does anyone have even anecdotal evidence of even one child who was helped by banning gay marriage?
7.11.2006 9:20pm
jrose:
Look, again you're revealing an underlying notion that is going undefended. Why is that necessarily singular? Why is your definition superior to a more expansive definition that says "lifemates" rather than "lifemate?"
I think the majority can decide whatever purpose it wants for marriage. But, given that purpose they must offer it to all who meet the purpose.

Can that purpose be procreation and thus bar same-sex couples? You and others make the valid point that our practice of letting the elderly or infertile marry does not diminish the procreative purpose of marriage. However, I argue there cannot even be a Constitutionally permissible option of forbidding the elderly and infertile from marrying. And that result forces us to conclude the procreation purpose cannot hold. If on the other hand, A. Rickey is correct that such an option is Constitutional, then we can conclude the fundamental right to marry only extends to procreation.
7.11.2006 9:21pm
jrose:
Can you explain a reasonable mechanism by which denying marriage benefits to same sex couples has prevented any out of wedlock births?
Without referring to empirical data (I don't have to), after legalized same-sex marriage, some straight people who would value marriage, would no longer do so and choose to raise kids without getting married.

Of course this argument is crap, but crap arguments are good enough for rational basis.
7.11.2006 9:27pm
lucia (mail) (www):
Thanks Taeyoung. I know discrimination in the sense you describe is permitted.

As to the answer "that's a bill of attainder", at the time I asked that question, I actually thinking of "failure to protect equally" in a very literal way. (Though I didn't specify this type of "equal protection.)

From time to time, there news stories arise where the police failed to protect a person wasn't from assault for some reason other than incompetence. For example, in the past, some police departments systematically wouldn't protect women from assault by their spouses. I know "women battered by their spouses" is a group. But, I was thinking of the hypothetical case where, for some reason, it was one person.

I know as a practical matter, the case of one specific person not being protected probably may not happen and if it did it might be pursued along other avenues. I just wondered if it was literally true their 14th amendment doesn't cover this.
7.11.2006 9:29pm
lucia (mail) (www):
(Oh... and obviously, I'm not driving at anything specific regarding same sex marriage.)
7.11.2006 9:30pm
Taeyoung (mail):
But, given that purpose they must offer it to all who meet the purpose.

To all . . . but to only? That is the question here. You propose something about pairing up with a lifemate. We know that for a huge proportion of people who get married, that's not the case -- a huge proportion of people who married subsequently get divorced, after all. And in the same way, I don't think we're obliged, even if we define procreation as the one true purpose (or whatever) for marriage, to provide marriage only to those who satisfy that purpose.

With respect to the permissibility of barring the eldering and infertile from marrying, there's the additional problem that rather than granting them new privileges which they have never had, we really would be taking away privileges which they have held for centuries. And while in a world of abstraction and philosophical ideals, that may be just the same as granting new privileges to people who have never enjoyed them, in a concrete sense, it's very different, and I think there may be principles which intervene to prevent it. Not saying there are -- I don't know what there would be (certainly nothing in the Constitution jumps out as plausible) -- but that there may be.
7.11.2006 9:36pm
Taeyoung (mail):
Re: lucia:
From time to time, there news stories arise where the police failed to protect a person wasn't from assault for some reason other than incompetence. For example, in the past, some police departments systematically wouldn't protect women from assault by their spouses. I know "women battered by their spouses" is a group. But, I was thinking of the hypothetical case where, for some reason, it was one person.
I know as a practical matter, the case of one specific person not being protected probably may not happen and if it did it might be pursued along other avenues. I just wondered if it was literally true their 14th amendment doesn't cover this.
Ah, I see. I've long thought that there ought to have been some way of banning lynching/mandating prosecutions for lynching, under equal protection. But I can't think of how the challenge would have been brought. I think people have tried to sue the police for failing to protect them and lost, though.
7.11.2006 9:39pm
jrose:
To all . . . but to only? That is the question here.
I don't think so. I agree that marriage need not be restricted "to only" those who meet its purpose (if the purpose is lifemates, we can optionally offer it to people who aren't in love or to polygamists - if the purpose is procreation, we can optionally offer it to the elderly or to same-sex couples). Thus, the fact we don't restrict marriage "to only" those who meet its purpose tells us nothing about what the purpose is, and has no bearing on my argument.
7.11.2006 9:59pm
Hans Gruber (www):
"That's the kind of rational basis review I'm using when I ask: Does anyone have even anecdotal evidence of even one child who was helped by banning gay marriage?"

I'm jumping in here late, so correct me if I am off base, but why does even a single child need to be helped? In banning gay marriage the state seeks to promote the traditional family and mildly discourage non-traditional families. In so doing, the state is promoting what it believes to be in society's interest.
7.11.2006 10:36pm
John Armstrong (mail):
Clayton E. Cramer and Michael B: please take note that I have not expressed an opinion one way or the other on the question of gay marriage itself. I haven't said that it should or should not be chosen over the majority vote, or that the status quo does in fact violate the establishment clause.

I am just dismantling the argument from "tradition", since a strict traditionalist should prefer the even-longer-standing model of marriage to the merely long-standing one. Obviously, some choice is being made that the Judeo-Christian model (as Mr. Cramer danced around saying flat-out) is to be preferred, which can only be justified within the traditionalist argument by assigning that structure a preferential place.

Argue long and hard whether or not explicitly permitting, implicitly denying, or explicitly denying gay marriages is the proper policy. Just don't be so shallow as to argue from "tradition". There are always older traditions than yours, and plenty of them have been overturned in the past.
7.11.2006 10:47pm
lucia (mail) (www):
I think people have tried to sue the police for failing to protect them and lost, though.

Tracy Thruman won a suit in Connecticut -- but I think as you said, she argued her whole class (battered women) weren't protected.

As far as I know, (which means very little), no similar suit based on equal protection has made it to the Supreme court.
7.11.2006 10:54pm
Randy R. (mail):
It always amazes me when people like Junk Yard dog make marriage sound so trivial. They want to deny marriage to gay people, but on the other hand, they say that we are not denied any rights at all, because, after all a gay man can marry any ol' woman that he picks up on the street.

Is that what you think marriage is about? Just marrying any person that happens along? If you do, I feel very sorry for you, since you have never experienced what true love is all about. True love, the kind that exists between a gay man and another gay man, and between a hetero woman and a hetero man, is the type that is worth working for. Apparently, to Junk Yard, marrying a person you don't love is a worthy marriage. I say it isn't.

Two gay men deeply in love cannot get married. And that is a right that Junk Yard specifically argues that we should not have. But he also argues that we have the same rights as everyone else -- Well, which is it? We don't have the right to marry the person we WANT to marry! That is no right at all. If there was a law that said that JunkYard dog can marry any woman he likes, so long as she is blond and under four feet tall, Junk yard would have no problem with this, apparently. His right to marry is not impinged at all, since he has the right to marry any ol' woman who fits that description, right?

What a crock. Junk yard, at least be honest in your arguments. You KNOW that there are gay men, and gay women, who want to marry each other because they are in love, and they cannot. Therefore, they do NOT have the same right as you do.
7.11.2006 11:14pm
Randy R. (mail):
Hans: And how exactly will banning gay marriage promote traditional marriage? How is it discouraging non-traditional families?

If you are correct, the fact is that gay marriage is CURRENTLY banned in every state except Mass. And what is the effect? Is traditional marriage promoted? I still see gay men hooking up. I don't see any gay man saying, gee, I can't get married to the man I love, so I might as well shake up with a woman I have no love for. Just doesn't happen.

on the opposite pole, I see plenty of gay men and lesbians having and adopting children and forming non-traditional families. I see plenty of single women and men having and adopting children. That's non-traditional. If you have your statement as a goal, it's a miserable failure. There is ZERO evidence that banning gay marriage promotes traditioanal families and discourages non-traditional ones. That fails even the rational test.
7.11.2006 11:39pm
Michael B (mail):
John Armstrong,

You're advancing a naive argument which can just as easily be turned against you. (In the same way that any stoppage in time - i.e., tradition - cannot solely on its own merit justify itself, neither can social change per se be justified simply and solely on its own merit. If it could, simply and solely as such, then legislatures and more direct referendums would ever and always (i.e., constantly) be changing any and all laws. You're advancing a non sequitur, no one is advancing such a "strict traditionalist" argument per se, as if that's the only consideration.

Regardless, I based my argument upon "We the people ...," arguably upon the most foundational of Constitutional tenets, not simply and solely on tradition per se. You're not addressing what was advanced in the first place.
7.11.2006 11:43pm
Hans Gruber (www):
"There is ZERO evidence that banning gay marriage promotes traditioanal families and discourages non-traditional ones. That fails even the rational test."

If this is true, if marriage equality would have so little of an effect, what's the big deal about marriage? Either the benefits of marriage equality are real, in which case they encourage gays to get married and raise children, are they are not. So, which is it, Randy? Are the benefits of marriage and society's blessing really that trivial?
7.11.2006 11:46pm
Michael B (mail):
"As ordinarily applied, rational basis is a very forgiving standard. The law must be (1) rationally related to (2) a legitimate end of the state. The law need not be very wise or very good to survive. As I once heard Richard Epstein memorably describe it, the rational basis standard basically asks whether any fool could come up with a stupid reason for a bad policy." EV, emphasis added

However, inverting that low scrutiny standard effectively flips it into the highest standard, one which potentially becomes absolutist and unbreechable. From a related link at Volokh here, Mass. Supreme Court Justices Greaney and Ireland, writing a separate concurrence in Schulman v. Attorney General:

"[T]he Goodridge decision may be irreversible because of its holding that no rational basis exists, or can be advanced, to support the definition of marriage proposed by the initiative and the fact that the Goodridge holding has become part of the fabric of the equality and liberty guarantees of our Constitution." (emphasis added)

Rational basis, inverted as such (should the two judges have their way and such a rationale be effected), is translated from a low level of scrutiny to the highest, indeed an absolutist and unbreechable, level of scrutiny - via diktat from the bench.

As such, "We the people ..." is turned into a mere trifle and rational basis in such an inverted form, as negation - voila - becomes an absolutist standard, from the bench. That is why this, upthread, was and is fully warranted. Never underestimate the power of language, of casuistries, as plied in the hands of determined and willful black robed jurists. Potentially, all and everything becomes a mere trifle, the ends sought justify every means. The most foundational tenet of the Constitution, "We the people ...," notwithstanding. Assuming. Assuming the people - naively, trustingly, fearful of censure or otherwise - submit to being plied.
7.11.2006 11:53pm
Toby:
1) There is no way that you can *make* the neighbors celebrate your love. This is true for the boring suburban couple. It is also certainly true for the gay couple, whether wed or not.

2) There is a certain class of binding power of attorney / set up the medical decision-making in advance / can we own real property together that has nothing to do with love, whether goay or straight, but does have something to do with ongoing relationships. It would be to extend these to wider circles, whther gar, fraternal, sororal, ...

3) There is a certain class of financial incentives extended by governement to encourage forming a nuclear family for societal purposes. These cannot be cut to fine (what if you don't find out til later that you arre sterile?) but they can reasonable be restricted from gay couples. And starter marriages. And from those who serially refuse to pay child support. And from the elderly.

4) It can be argued, rationally, that when gay couples horn in on the latter (3), they are stealing from society, snatching medical insurance pools from children to pay for their partners AIDS treatment. Such arguments can be both true and offensive at the same time.

Many who seek Gay marriage are seekiing (1), which they cannot get. Nor can hetero couples.

Many heteros who support gay marriage are supporting (2)

3) is where people argue, byut they argue with their hearts and not their heads.

(4) remains in our silly adherence to policies to let war-industries give raises w/o charges of profiteering from the 40s. Why is any policy which ties your health to your employer, someone whom few claim to trust, something that carries forward?
7.12.2006 12:33am
JunkYardLawDog (mail):
Randy R,


What a crock. Junk yard, at least be honest in your arguments. You KNOW that there are gay men, and gay women, who want to marry each other because they are in love, and they cannot. Therefore, they do NOT have the same right as you do.


There are men who want to marry 12 year olds because they are in love. There are women who want to marry donkeys because they are in love. There are bi-sexuals who want to marry both a MAN and a WOMAN because they are in love.

Your argument applies equally to all the above situations.

The fact is that marriage is NOT a "right". Society is free through its democratic processes and elected representatives to establish those things and institutions which they wish to encourage or to which they wish to provide extra encouragement. The history of the laws of this country are to encourage marriage, between a man and a woman. It is encouraged because the public policy of the state is to encourage the formation of these relationships and families. To accomplish the purpose of this public policy certain benefits are conferred upon those who get married. These people have not "right" to these benefits just like they have no "right" to get married in the eyes of the government.

Gay people and single heterosexuals living with other heterosexuals are free to form whatever relationships and living relationships they desire. The law does not prevent these couplings. The law of society merely recognizes as a good public policy the encouragement of heterosexual marriages between a single man and a single woman. There is no "right" to this recognition or the benefits conferred by society on these married heterosexual couplings. It just happens to be the public policy of the state.

It is for legislatures and the people through their votes to determine the public policy of a state, and a state is perfectly free and rational to determine that certain relationships should have certain benefits conferred upon them in order to encourage those kinds of relationships. Encouraging one specific kind of relationship is NOT the same thing as a bar to other kinds of relationships, and since any male or female, straight or homosexual, can choose to form the kind of relationship that is encouraged by the public policy of a state, there is no denial of equal protection of the laws.

Says the "Dog"
7.12.2006 12:35am
Brian G (mail) (www):
Dale,

Perhaos you can show a paragraph or two then have one of those "click here for the rest" tabs. I am seriosuly tired of having to scroll all the way down.

Besides, I come here for the important legal insights.....like Justice Powell's daughters' influence on Roe v. Wade.
7.12.2006 12:42am
Truth Seeker:
anonyomousss said:
omar, you'll find the right to gay marriage in this little clause guaranteeing all citizens the "equal protection of the laws."

Right, so all blind people can get driver licenses and all quadraplegics can be police officers and all those with mental disabilities can be judges (maybe not the most extreme example). Equal protection is for those equally situate.

jrose said:
The fundamental right at stake is the right to be able to marry *someone* for whom it makes sense for you to marry based on who you are.
We have to first figure out the purpose of marriage. If it is to encourage people to settle down with their lifemate, then my definition makes sense. What purpose to marriage would limit the fundamental right to just opposite-sex couples?


Maybe society is saying that the fundamental right is to marry "someone of the opposite sex" because the purpose is to encourage children which will help that society continue. If the society encourages gay marriage then that society may not continue, it will die out.

Two gay men deeply in love cannot get married. And that is a right that Junk Yard specifically argues that we should not have. But he also argues that we have the same rights as everyone else -- Well, which is it? We don't have the right to marry the person we WANT to marry!

And I don't have the right to walk on the moon as I've dreamed of my whole life! GET OVER IT! You're gay. Be glad it's still not a felony and no one is stoning you to death. Don't try to make a silk purse out of a sow's ear.

My personal opinion is to oppose gay marriage because it makes no sense but to approve civil unions but the ridiculous rabid gay arguments in all these posts really turns me off of any gay rights.
7.12.2006 1:20am
Grover Gardner (mail):
Dear JunkYardLawDog,

Four questions for you:

1) Why is marriage to a juvenile illegal?

2) Why is bestiality currently illegal in most states?

3) Why is polygamy illegal?

4) Why is incest illegal?
7.12.2006 1:38am
John Armstrong (mail):
Michael B: again I ask you to read more carefully. I didn't say that social change does constitute a valid argument any more than an appeal to tradition does. What I said is that there are many examples where society has changed and traditions have been replaced, and even ones where almost everybody would agree it's been for the better. "We've always done it like this" does not in and of itself constitute a justification for continuing.

The touchstone was this:

I submit that laws, customs, and morays that have existed for 100's and thousands of years that become embodied in a societies laws do NOT have to be rationally based.

Long-standing traditions are just as subject to rational overthrow as more recent ones. I do agree that the more entrenched the tradition is in the culture the more overwhelming the case for change must be.

Still, the rational revolution against traditions is built into the foundations of this country. The Declaration of Independence itself starts in its preamble with what any modern mathematician would recognize as a rational axiomatic system -- "We hold these truths to be self-evident" -- and proceeds to lay out a rational argument against the British government's methods of ruling its colonies.

When a group feeling an undue burden has been imposed by its nation's policies cries out, "why?" there may or may not be a just answer, but the response simply cannot be a simpering, "because that's the way we do it."
7.12.2006 1:47am
Grover Gardner (mail):
Truth Sekker--

"If the society encourages gay marriage then that society may not continue, it will die out."

Since the percentage of homosexuals in any given population is historically constant, and homosexuality has been practiced globally for millenia, how would gay marriage suddenly cause the herterosexual population to "die out"?

"And I don't have the right to walk on the moon as I've dreamed of my whole life!"

Of course you do. We all do. If you could afford the means to do it, is there any law that would prevent you from doing so? But, assuming you are heterosexual, you do have the right to marry whomever you want--provided you choose one partner at a time who isn't a sibling or an animal.
7.12.2006 1:51am
Grover Gardner (mail):
"...but the ridiculous rabid gay arguments in all these posts really turns me off of any gay rights."

What's "rabid" about wanting to marry someone you're in love with?
7.12.2006 1:56am
BobN (mail):
As a gay man, I want to thank Clayton, JunkYardLawDog, and Truth Seeker for driving people into the pro-gay camp with their transparent animus and flair for hyperbole.

Really, thank you.
7.12.2006 3:18am
Mrs.Lu:
Excuse me. Call me simple or child-like, but I'm not understanding one point here:

"But how is the exclusion of gay couples "rationally related" to this legitimate interest? How does excluding them and their children from the stabilizing influence of marriage help families headed by heterosexuals?"

Where exactly do homosexuals get "their children"? I mean, no one has naturally produced a child solely from the two participants in a homosexual union. Not in nature, and not in science. So do they find "their children" under cabbage leaves like the rest of humanity, or what?
7.12.2006 9:32am
lucia (mail) (www):
Mrs.Lu:
Gay couples have children. This is an empirical fact which anyone can observe by looking around.

Let's assume the gay parents found their children under cabbage leaves, or that parents found them the crying at the front door (as Betty and Barney Ruble found Bam-Bam), does excluding these children from the stablizing influence of marriage help children of heterosexuals?
7.12.2006 9:47am
anonyomousss (mail):
I agree that marriage need not be restricted "to only" those who meet its purpose (if the purpose is lifemates, we can optionally offer it to people who aren't in love or to polygamists - if the purpose is procreation, we can optionally offer it to the elderly or to same-sex couples).

i dont buy it. if we dont do anything whatsoever to prevent non-procreative couples from marrying even when it would be cheap and easy, that demonstrates pretty conclusively that procreation is not the purpose.
7.12.2006 10:27am
Michael B (mail):
John Armstrong,

We're quibbling and not advancing anything. After contrasting the "strict traditionalist" argument (which no one herein is advancing) with a pure "social change" argument (which I didn't intend to attribute to you personally), what I closed with follows:

Regardless, I based my argument upon "We the people ...," arguably upon the most foundational of Constitutional tenets, not simply and solely on tradition per se.

And, immediately thereafter, that same sovereignty argument is underscored all the more with direct reference to the rational basis review context of this thread.
7.12.2006 10:30am
jrose:
Maybe society is saying that the fundamental right is to marry "someone of the opposite sex" because the purpose is to encourage children which will help that society continue. If the society encourages gay marriage then that society may not continue, it will die out.
It is plausible that the purpose of marriage is to encourage children in which case only that purpose is fundamental. However, the implication is a law which prohibits the elderly and infertile from marrying would be subject only to rational-basis review and would survive. IMO, such a law would not survive - and thus the premise that the purpose is to encourage children cannot hold.
7.12.2006 10:33am
Duncan Frissell (mail):
Isn't it reasonably easy to find a 'rational basis' for a thing which was 'always and everywhere believed' prior to 1990. Particularly if the 'thing' is not a fact of nature but a social arrangement?

And - no - slavery was not 'always and everywhere believed'. Many humans didn't practice it and many slaves opposed it.

I mean, what's so magic about the last 15 years?
7.12.2006 11:39am
Randy R. (mail):
Hans: If this is true, if marriage equality would have so little of an effect, what's the big deal about marriage? Either the benefits of marriage equality are real, in which case they encourage gays to get married and raise children, are they are not. So, which is it, Randy? Are the benefits of marriage and society's blessing really that trivial?

Nope. Read what I said. I said that PROHIBITING gay marriage has NOT promoted traditional marriage, nor has it discouraged gay people from wanting to get married. We want to get married for all the same reasons you do. The benefits of marriage and society's blessing are substantial, no doubt. But show me just one heterosexual couple that has said, "gosh, those gays can't get married, so that's a powerful incentive for us to get married."
7.12.2006 12:49pm
Randy R. (mail):
Marriage is a right, plain and simple. Any person who meets the qualifications of marriage, of which age, singlehood, and opposite sexness are the ONLY two qualifications, has the RIGHT to get married. There is nothing to stop them from being married, no matter how much another person may object. That is pretty much the definiation of a right.

But little matter: Once a right OR a priviledge is granted by the state, the state may NOT discriminate in doling out that right or priviledge unless there is a rational basis for it. The court in Loving held that the state cannot withhold that right (and the court talked about the 'right of marriage,' not the 'priviledge of marriage') from two people of different races because there was no rational reason. My argument is the same: there is NO rational reason to withhold the right of marriage from two men who want to get married.

Now you might say there is a rational reason. Fine. but to say there is no right to marriage is plain wrong, and to say that gay men have the right to marry is 'just like everyone else' is a dishonest argument. At least be man enough to admit that if you don't have the right to marry the one person you love, the 'right to marry' is worthless in that context. And be man enough to admit that marriage is about more than just marrying any old person who happens to walk by, and that love and a desire to share one's life with that person is what marriage is about.

And finally, be man enough to acknowledge that no one has argued that in favor of polygamy or incestuous or bestial marriages, and that only person who has raised that issue is you.
7.12.2006 12:59pm
JunkYardLawDog (mail):
Grover Gardner


Dear JunkYardLawDog,
Four questions for you:
1) Why is marriage to a juvenile illegal?
2) Why is bestiality currently illegal in most states?
3) Why is polygamy illegal?
4) Why is incest illegal?


We aren't discussing the illegality of gay couplings. So the questions above miss the point. We are discussing the demand by a small minority of citizens to a dictatorial change in the PUBLIC POLICY of a state. The Public Policy of the state is to "encourage" single man/single woman couplings and commitments by granting governmental imprimitur and certain benefits upon those particular kinds of couplings and commitments.

Said public policy does NOT prevent gay couplings or group couplings or bestiality couplings or adult juvenille couplings (although separate criminal laws may affect some of these that is not relevant to the discussion of the public policy of encouraging one type of coupling)

The PEOPLE's determination through democratic institutions that the public policy of a state shall encourage one kind of coupling and that this encouragement shall take the form of a government imprimitur and certain benefits is NOT a derogation of the rights of any other group or kind of coupling.

Heterosexual couplings have no "right" to have the state government issue marriage licenses and confer benefits upon their couplings. They have no basis for claiming that the state must grant these rights and benefits to them. However, if a majority of the sovereign people determine that the public policy of the state shall be to encourage heterosexual complings, the creation of this public policy does not create a "right" of other forms of couplings to benefit from this encouragement. To argue otherwise is to argue that the sovereign people of a state can NOT determine the public policy of that state. That they can NOT determine what kinds of contracts can be encouraged. Marriage between a man and a woman is a particular kind of contract like any other commercial transaction the state has the sovereign ability to choose which contracts shall be encouraged by the public policy of the state and which contracts will not be afforded such encouragement.

All this talk about the purpose of marriage, procreation, etc. is just a distraction from the core principal. Heterosexual marriage is just a particular kind of contract out of a set of possible kinds of contracts. The sovereign people of a state have always had the ability to determine which contracts and commercial transactions will be encouraged by the public policy of a state and which ones won't get such encouragement.

There is no "RIGHT" to demand that a particular kind of contract be encouraged. Just like there is no "RIGHT" of hookers to demand that their contracts for services be enforceable in a court of law. Just like there is no "RIGHT" of gambling houses to demand that their debts be enforceable in a court of law. There is no equal protection claim for hookers whose contracts are not enforceable in a court of law when other contracts for services are enforceable in a court of law. Is it discrimination? Certainly. Is it illegal? Certainly NOT. Does it violate due process or equal protection that a hooker's contracts are not protected by the court system?? No court has ever ruled that. The rule is the public policy of a state can encourage certain contracts and discourage others. The marriage contract is NO DIFFERENT than a hookers contract. The state can establish a public policy of encouraging some marriage contracts without encouraging all possible marriage contracts.

Its simple.

Says the "Dog"
7.12.2006 1:11pm
Taeyoung (mail):
At least be man enough to admit that if you don't have the right to marry the one person you love, the 'right to marry' is worthless in that context.

I have the right to bear arms. I have no interest in bearing arms! The "right to bear arms" is worthless to me (in this context)! Is this an argument? It's not terribly persuasive. All of us enjoy rights (e.g. the right to read loli erotica) that we have no particular interest in exercising. That may make the rights worthless to us, but it doesn't mean the rights aren't meaningful all the same.
7.12.2006 1:42pm
John Armstrong (mail):
Michael B: I'm not saying anyone is advancing the strict traditionalist argument. I'm saying that a traditionalist argument that is not strict inherently chooses one tradition to privilege. Some choice is being made, either by an appeal to the vox populi, or by an implicit assumption that one tradition is to be preferred.

You and I seem to be in agreement about the applicability of rational basis review. The argument I'm attacking, as I just cited in my last comment, is that long-standing traditions are not subject to rational basis review. This argument says that tradition -- and tradition alone -- is enough to support the status quo. There is no mention made of the people. A plain reading says that even if the people changed their minds the tradition should stand merely based on the fact that it has stood for so long.
7.12.2006 1:51pm
Taeyoung (mail):
Re: jrose:
I don't think so. I agree that marriage need not be restricted "to only" those who meet its purpose (if the purpose is lifemates, we can optionally offer it to people who aren't in love or to polygamists - if the purpose is procreation, we can optionally offer it to the elderly or to same-sex couples). Thus, the fact we don't restrict marriage "to only" those who meet its purpose tells us nothing about what the purpose is, and has no bearing on my argument.
I would agree with this then. With the caveat, however, that as a social structure that is "evolved" rather than designed (my blather about godlike legislators and all that), it doesn't have an inherent purpose -- it can only have the purposes we ascribe to it. As I indicated above, traditionally, three purposes (and probably more) have been ascribed to marriage. You suggest an alternative purpose. So it seems to come down to a democratic choice of purposes. As you said:
I think the majority can decide whatever purpose it wants for marriage. But, given that purpose they must offer it to all who meet the purpose.
This seems quite sensible to me.

But then your further argument is:
However, I argue there cannot even be a Constitutionally permissible option of forbidding the elderly and infertile from marrying. And that result forces us to conclude the procreation purpose cannot hold.
I don't think this is necessarily so. We could reasonably turn the "penumbra" type arguments onto this particular situation, and conclude that infertile couples (incl. by reason of age) cannot be prohibited from marriage because their marriages fall within a penumbra of protected activities necessary to avoid eroding the core marital right, which is fundamentally procreative (again assuming reduction to a single unitary purpose). On the other hand, we could also note that taking away privileges is different from granting privileges, and may be subject to a different standard. There's plenty of reasons why it might not be permissible to revoke the marital right from the infertile which do not implicate procreation as the underlying justification for state interference.

More realistically, though, any discussion on this point (whether the state can bar infertile couples from marrying) operates in a kind of philosophic fantasy, because as already pointed out, it's not going to happen in the foreseeable future. There is absolutely no consituency for implementing that kind of novel restriction on the scope of marriage. It's not going to come up for Constitutional challenge in the foreseeable future. So it's not really a resolvable argument, unlike gay marriage. And I think it makes no practical sense to try and predicate a "correct" resolution to the gay marriage issue on a separate issue (bannability of infertile marriages) which is not foreseeably going to be resolved. As a theoretical matter, it makes some sense, if you can arrive at an unequivocal answer with unequivocal reasoning (i.e. you can dismiss alternative justifications for your result that I suggest), but it doesn't really advance the argument to throw that up as a preliminary test.
7.12.2006 2:15pm
Michael B (mail):
"Any person who meets the qualifications of marriage, of which age, singlehood, and opposite sexness are the ONLY two qualifications, has the RIGHT to get married." Randy R

Firstly, 1 + 1 + 1 = 3, not 2.

Thirdly, you're running roughshod over all manner of other absolutely pivotal considerations: constitutional considerations and a set of more practical considerations, also civilizational principles and considerations which should be decided by the proper sovereign: the people, not agenda driven and casuistically inclined black robed jurists.
7.12.2006 2:39pm
Grover Gardner (mail):
JunkYardLawDog--

Sorry, I guess I misunderstood your previous comment:

"There is no rational distinction in the homosexual male versus bi-sexual women argument, and in reality no rational distinction between multiple coupling marriages of groups of men and women.

"A man may want to marry his dog so company paid health insurance could extend to his dog. Vet bills are pretty expensive. What is the rational argument for denying male dog couplings if there is found to be a constitutional compulsion to allow male/male couplings?"

I thought you were questioning the rational bases for prohibiting such things vis-a-vis gay marriage. I simply asked you why the aforesaid are illegal, with the aim of understanding the rational basis for prohibiting them. You seem to want to lump them all together with gay marriage. Is it not possible to make a distinction?
7.12.2006 2:51pm
Hans Gruber (www):
"Nope. Read what I said. I said that PROHIBITING gay marriage has NOT promoted traditional marriage, nor has it discouraged gay people from wanting to get married. We want to get married for all the same reasons you do. The benefits of marriage and society's blessing are substantial, no doubt. But show me just one heterosexual couple that has said, "gosh, those gays can't get married, so that's a powerful incentive for us to get married."

The state wants to promote and support traditional marriage, so it provides some benefits and regulates it. The state does not, as of yet, wish to promote and support gay marriage, so it withholds the benefits and regulation.

How is that not rational? Of course it is rational policy if one wants to promote traditional marriage but not gay marriage. And given tradition and available evidence, that is a reasonable policy goal. The policy of excluding gay marriage from state support is a rational way to support that policy goal. Please note: the state policy does not have to herd gays into traditional marriages to be rational.
7.12.2006 5:54pm
JunkYardLawDog (mail):
Grover, certainly there are differences in the various couplings.

For me the proper analysis is that marriage is a particular kind of contract. The state has the right to set public policy as to what contracts are encouraged. The failure of the state to enforce a hooker's contract for services on the basis of pulic policy of that state is not a denial of equal protection even though other contacts for services are enforceable by state processes.

Similarly to the hooker contracts example where the hooker has no "right" to have their contracts enforced by the state legal apparatus, gay couples have no "right" to have their contracts enforced by the state. The state and its sovereign people have and have always had the right to decide the public policy of a state and to decide what contracts the public policy of the state will enforce, support, encourage and what contracts will not be enforced, supported, or encouraged.

To argue that gay couples have a "right" to have their contracts enforced by the state is to argue that the state has no power NOT to enforce the contracts for services of hookers. That isn't the law and never has been the law.

Marriage is a contract. States can control and do control what contracts are enforceable and what contracts are not enforceable. This is NOT a matter of equal protection or constitutional rights, except possibly the constitutional right of the sovereign people to establish the public policy of the state.

Says the "Dog"
7.12.2006 6:34pm
Randy R. (mail):
Michael B: Thirdly, you're running roughshod over all manner of other absolutely pivotal considerations: constitutional considerations and a set of more practical considerations, also civilizational principles and considerations which should be decided by the proper sovereign: the people, not agenda driven and casuistically inclined black robed jurists."

Really? So when two people go down to the state office to fill out a marriage license, what are they asked? Whether the couple is opposite sex, whether they are of age, and whether they freely consent to this marriage. That's it. The application form does NOT ask them for 'constitutional considerations, or "civilizations principles." The ONLY requirements to get married are that you are of age, consent to it, not currently married, and are opposite sexed. (I admit, those are four -- sorry!) Once you meet those considerations, and you have a right to marry. Period. No one asks whether you are in love. No one asks whether you considered weighty constitutional considerations or other principles or anything else. One you meet those four considerations, no one can stop you from marrying, not the governor, not your religious leader, not your parents, not even prof. Volokh. In other words, you have a RIGHT to marry.

I really don't understand why this is so difficult!
7.12.2006 7:09pm
Grover Gardner (mail):
"Grover, certainly there are differences in the various couplings."

Thank you. That was my question.
7.12.2006 7:18pm
jrose:
There's plenty of reasons why it might not be permissible to revoke the marital right from the infertile which do not implicate procreation as the underlying justification for state interference.
The reasons you offered struck me as unpersuasive logical somersaults.
7.12.2006 7:22pm
Colin (mail):
"The state wants to promote and support traditional marriage, so it provides some benefits and regulates it. The state does not, as of yet, wish to promote and support gay marriage, so it withholds the benefits and regulation.

How is that not rational? Of course it is rational policy if one wants to promote traditional marriage but not gay marriage."

You are assuming your conclusion. A policy is not rational just because the state wants it. Virginia wanted to "promote and support" homoracial marriages and withhold that support from heteroracial marriages. That desire did not make the policy rational.
7.12.2006 7:23pm
Randy R. (mail):
Hans: "The state wants to promote and support traditional marriage, so it provides some benefits and regulates it. The state does not, as of yet, wish to promote and support gay marriage, so it withholds the benefits and regulation. "

Hans, we are talking past each other. YES, I agree totally with your statement. I understand this is a rational argument (althought I do not agree why the state would not wantto support gay marriage). Here's my point:

The State wants to promotes traditional family, so it supports traditional marriage. So straight heterosexual couples will more likely get married than to either remain single or just live together as partners. So far so good.

The State bans gay marriage. So what effect does this have upon straight heterosexual couples? how that does make them more likely to get married than to either remain single or just live together as partners? If the goal is to promote traditional marriage, then fine, promote marriage. But banning gays from marrying will have zero effect on straight couples from marrying. And in fact, in Canada and the Netherlands, where gay marriage has recently been approved, no one has found that allowing gay marriage has any effect upon straight people.

Now the State can go ahead and ban gay marriage, as it does in 49 states. Does that discourage gay men from partnering up? Not at all. Does it stop gay men and women from adopting children? Not at all. These are by definition 'non-traditional' families. Banning gay marriage has done NOTHING to discourage these nontrad families.

And how could you think otherwise? The only way it would work is if gay people could be persuaded to marry opposite sex people. In other words, enter into sham marriages. This, most people have no desire to do so, and that alone makes a mockery of marriage, the very thing that people are so worried about!

Let's look at Massachusetts -- they have had gay marriage there for two years. Has this had ANY effect upon 'traditional families' or not?
7.12.2006 7:25pm
Randy R. (mail):
Dog: Great. But no one is talking about contracts in general. What we are talking about is a LICENSE from the state. EVeryone has a right to marry, as long as they qualify under a handful of prerequisites, such as age, singlehood and so on. Once married, you have that right to remain married. No matter how much you abuse the instutition, the state cannot dissolve your marriage without the consent of at least one of the partners. Furthermore, the state cannot say that it denies you a license because the presiding officer doesn't like you, or doesn't want blue -eyed people to get married. If he did, you would simply sue for your right to marry.

Now if you disagree with this, please, by all means, give us an example of a couple who met the basic reqiurements of marraige, have been denied a marriage license, and thereby the right to marry, and that it was upheld by the courts. Personal anecdotes will be acceptable.
7.12.2006 8:00pm
Randy R. (mail):
Taeyoung: I have the right to bear arms. I have no interest in bearing arms! The "right to bear arms" is worthless to me (in this context)! "

No, they are not worthless, because tomorrow, or some point in the future, you may wish to exercise that right. It is no argument to say that any right I don't take advantage of is worthless to me. You may never be charged with a crime, yet you still have many, many rights.
7.12.2006 8:06pm
Hans Gruber (www):
"You are assuming your conclusion. A policy is not rational just because the state wants it. Virginia wanted to "promote and support" homoracial marriages and withhold that support from heteroracial marriages. That desire did not make the policy rational."

One simple point. Virginia's law dealt with racial classifications, it was therefore not evaluated under the rational basis test.


Here is a bit of the Loving opinion, see if you can't spot a pattern.


The argument is that, if the Equal Protection Clause does not outlaw miscegenation statutes because of their reliance on racial classifications, the question of constitutionality would thus become whether there was any rational basis for a State to treat interracial marriages differently from other marriages. On this question, the State argues, the scientific evidence is substantially in doubt and, consequently, this Court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages.

Because we reject the notion that the mere "equal application" of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discriminations, we do not accept the State's contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose. The mere fact of equal application does not mean that our analysis of these statutes should follow the approach we have taken in cases involving no racial discrimination where the Equal Protection Clause has been arrayed against a statute discriminating between the kinds of advertising which may be displayed on trucks in New York City or an exemption in Ohio's ad valorem tax for merchandise owned by a nonresident in a storage warehouse. In these cases, involving distinctions not drawn according to race, the Court has merely asked whether there is any rational foundation for the discriminations, and has deferred to the wisdom of the state legislatures. In the case at bar, however, we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.
7.12.2006 9:07pm
Colin (mail):
One simple point. Virginia's law dealt with racial classifications, it was therefore not evaluated under the rational basis test.

Your point is so simple that it's not worth mentioning. It certainly doesn't support your earlier assertion. I understand that Loving was not decided with a rational basis analysis. But is there any doubt that an interracial marriage ban would fail such an analysis? The policy must be rationally related to a legitimate goal, and the policy in Loving wasn't. (Simple rational relation to some goal isn't a rational basis test.)

Your argument was that the state's desire for a policy (or that policy's goals) is a rational basis: "The state wants to promote and support traditional marriage, so it provides some benefits and regulates it. . . . Of course it is rational policy if one wants to promote traditional marriage but not gay marriage." You've ignored the crucial element, which is that the state must be able to show that the policy is rationally related to the purported interest. "Of course it is rational policy" elides the vigorous debate over whether banning some citizens from marrying their partners actually encourages other citizens to marry theirs.
7.12.2006 9:19pm
Hans Gruber (www):
"But is there any doubt that an interracial marriage ban would fail such an analysis?"

In 1968? Certainly.

"Of course it is rational policy" elides the vigorous debate over whether banning some citizens from marrying their partners actually encourages other citizens to marry theirs."

I really don't know if you're confused or willfully avoiding the obvious. The state wishes to provide support for traditional marriage. You seem to think that giving support to one kind of marriage necessitates giving support to any kind of marriage (or at least marriages that are not easy substitutes). Apply this logic to any other circumstance and see if makes sense. The state prefers X over Y. The state supports X and doesn't support Y. This is rational EVEN if X and Y are not substitutes. What is so hard to understand?
7.12.2006 9:36pm
Randy R. (mail):
I can understand all that you state, Hans. But why is it either/or? Can't a state support traditional marriage by allowing hetero marriages, and still support traditional marriage EVEN IF it allows gay marriages? Why do you assume these two are mutually exclusive?

The bottomline is that whether you allow gay marriages or not, the state is still encouraging traditional marriages by allowing hetero marriages. You still haven't shown any argument why this isn't true.
7.12.2006 10:49pm
Randy R. (mail):
Hans, let's take your example at face value. Suppose the state supports hunting, but not fishing. It gives a whole host of benefits to those who hunt, but prohibits anyone from fishing. The people who like to hunt never engage in fishing, and the people who engage in fishing never will hunt. The fishermen say, allow us to fish, and after much debate, the state finds there is no reason to ban fishing. They allow fishing, and give the fishers all the same benefits. How are hunters harmed? Not at all -- same number of hunters. Why? Because the hunters will not ever fish. In fact, hunting is still encouraged because of all the benefits.

That's the proper analogy, since straight people would never enter into a gay marriage, and gay people rarely enter into straight marriages. (If they do, they are unhappy ones, and often end in divorce, hardly a outcome the state should encourage).

The flaw in this argument is that the state is making a decision that fishing is bad. The analogy, under your own argument, then, is that gay marriage is bad. Until you can come up with any arguments about WHY gay marriage is bad, then your argument fails. There is simply no reason why you can't encourage traditional marriage AND allow gay marriage as well.
7.12.2006 11:02pm
Colin (mail):
Randy has responded well to your confusion, Hans, but I'll say more or less the same thing in my own words. Rational basis requires showing that the challenged policy is rationally connected to a legitimate goal. You've said that supporting "traditional marriage" is the goal, but you're not clearly distinguishing that goal from the policy.

In your own words: "The state wants to promote and support traditional marriage, so it provides some benefits and regulates it. The state does not, as of yet, wish to promote and support gay marriage, so it withholds the benefits and regulation. How is that not rational? Of course it is rational policy if one wants to promote traditional marriage but not gay marriage."

That is a tautology. You are saying that the policy is the same as the rationale, or that banning gay marriages is a rational basis for not allowing gay marriage. A rational basis defense of gay marriage bans must identify the policy's objective, defend the legitimacy of that objective, define the policy, then show how the policy actually advances that goal. If you conflate the goal and the policy itself, then all possible policies can be said to have a rational basis.

Which is the point, in this context, of comparing gay marriange bans to interracial marriage bans. Let's swap objects in your argument:

"The state wants to promote and support traditional marriage, so it provides some benefits and regulates it. The state does not, as of yet, wish to promote and support [interracial] marriage, so it withholds the benefits and regulation. How is that not rational? Of course it is rational policy if one wants to promote traditional marriage but not [interracial] marriage."

Do you see why this is not a sufficient, or even sensical argument that either policy has a rational basis?
7.12.2006 11:33pm
JunkYardLawDog (mail):
Randy R, you are confusing irrelevant things in with the right of the sovereign to determine what contracts will be encouraged and what contracts won't be encouraged through public policy.

*IF* a state sets up a system whereby people who meet certain criteria will have their marriage contracts encouraged then of course parties who meet these criteria cannot be arbitrarily excluded by local bureaucrats. That is entirely IRRELEVANT to the point of whether people who do NOT meet the criteria are entitled to a judicial dictatorial decree substituting the judgment of an unelected judge for the judgment of the sovereign as to what contracts of marriage shall be encouraged by the state's public policy.

Yours and Colin's arguments do not reflect that you understand the court's analyses of rationality versus the much higher standard applied to racial suspect classifications under the 14th amendment. There is absolutely no equivlence between suspect classification scrutiny for racial discrimination and the very loose and easy to meet rationality standard for general equal protection.

Further, there is no lack of equal protection because a gay man can get a license to marry a woman just like a hetero man can get a license to marry a woman. The whole license process is NOT the granting of a "right" but a system of regulation and encouragement of certain specific types of marriage contracts. Gay men are free to contract relationships with other gay men, they just don't get the state to enforce those contracts. Just like Hookers don't get the state to enforce their contracts for services when a John "stiffs" them so to speak (pun intended).

There is no "right" of heterosexuals to have the state encourage their marriage contracts, but the state may choose to adopt a public policy that does encourage heterosexual marriage contracts without having any legal requirement to encourage all possible types of marriage contracts.

Says the "Dog"
7.13.2006 12:43am
JunkYardLawDog (mail):
Additionally, Randy R and Colin, your arguments are NOT legal arguments. They are, in effect, political arguments for the enactment of a public policy that encourages not only heterosexual marriage contracts but also encourages homosexual marriage contracts.

You are free to make those arguments, and if you get a majority of voters in a state to agree with you, then that state can adopt the kind of public policy you advocate. What you are NOT entitled to is to have an unelected judge decree the public policy of the state to be that which you advocate in spite of and in direct derogation of the sovereign wishes of a majority of voters.

Go out and make your political arguments, rally voters to your cause, and get the public policy changed through the democratic process. If you persuade enough people as to your cause you will win in a rational, legal, and democratic manner. Stop arguing for the lazy way out, the undemocratic way out, the dictatorship of the unelected way out. This is your error.

Says the "Dog"
7.13.2006 12:52am
Colin (mail):
I'm not sure what comments you are reading, JYLD. I criticized Hans Gruber's "rational basis" argument as not addressing the legal factors of the analysis. You don't seem to be addressing the legal factors, either. Even under your specious "contract interpretation" theory, the discriminatory enforcement policy would require a showing of a rational basis, which requires a demonstration of a legitimate policy goal and a connection between the policy and the goal.

Insofar as I have a political comment, it is this: gay marriage opponents are advocating denying access to a public benefit to a class of persons based on what I believe is ultimately nothing more than animus. One reason that I fail to see an actual, legitimate non-prejudicial basis for gay marriage bans is the inability of their proponents to advocate a true rational basis for the policy--in particular, and as relevant here, any rigorous showing that the policy of banning gay marriages actually benefits society. What I see instead, and this might be only because the most outrageous comments are also the most memorable, are hysterical rants like Clayton Cramer's latest "gays hate democracy" theme and your own comparison of homosexuality to bestiality.
7.13.2006 2:13am
Colin (mail):
I should clarify that I agree with Dale Carpenter that it's possible to make a legitimate rational basis argument in favor of same-sex marriage bans. But, just as he notes that the New York court didn't bother to complete that argument, I see a lot of commenters here skipping over the necessary steps. Part of the reason is surely that no one wants to put an entire, step-by-step analysis into every blog comment they make. But I also suspect that many opponents of gay marriage haven't even thought the policy arguments all the way through, and couldn't say why banning gay marriage advances a legitimate goal if they were challenged on the point. As briefly mentioned in another thread, I think that most people (not necessarily any regular commenters here) who oppose gay marriage start and stop with, "That's gross."
7.13.2006 2:19am
Brian G (mail) (www):
Why do gays want to get married so badly? Marriage sucks.
7.13.2006 2:22am
JunkYardLawDog (mail):
Colin there is NO gay marriage ban. This is a specious claim. Gays are free to enter into marriage contracts any time they like. They just aren't entitled to have those contracts enforced by the state courts. Just like hookers aren't entitled to have their contracts for services enforced by the state courts.

I suppose you would argue that how does it benefit other contracts for services not to enforce the hookers contracts for services. That is exactly the same argument you make for gay marriage contracts, and its just as silly.

Marriage is a contract between two parties. States have set up certain regulations about marriage contracts in order to regulate and encourage a specific kind of marriage contract but not all possible kinds of marriage contract. If a couple chooses they may comply with the regulatory scheme in order to have their marriage contract recognized by and enforceable by the State legal system. However, there is no requirement that they choose to comply with this regulatory scheme.

The people of a state are free to determine, via public policy, those contracts that shall be encouraged and enforced in the state courts and those that won't. This is not an equal protection matter. There is no more "right" of a hooker to have her contracts for services enforced by the state courts than there is a "right" for multi-party or homosexual marriage contracts to be enforced by the state courts.

I added you in to my previous comment to Randy R because you had endorsed and adopted his comments in a post where you said his non-legal policy arguments were well stated.

Finally, a correction. I never compared homosexuality to bestiality. Nor do I or most people oppose gay marriage out of animus towards gays. These comments by you are the result of your own thought bigotry towards those like me who oppose being ruled by an unelected class of black robed high priests who devine in their sacred scrolls rights and guarantees never adopted by the sovereign people.

As I said in my prior post. Make your policy arguments to the people. Get enough of them in a state to vote your way, and you'll have no argument from me if the public policy of the state is changed so that homosexual marriage contracts are made enforceable by the state courts.

Finally, there is NO ban on gay marriage. The failure to enforce a hookers contract for services is NOT a ban on prostitution. It takes other laws for that. Likewise, the absence of state court enforcement for homosexual and multi-party contracts of marriage is NOT a ban on such contracts.

Says the "Dog"
7.13.2006 7:45am
jrose:
The people of a state are free to determine, via public policy, those contracts that shall be encouraged and enforced in the state courts and those that won't.
A state, via public policy, cannot refuse to encourage and enforce in the state courts a marriage contract made between a deadbeat dad and his female lover (Zablocki). Thus, your blanket claim is incorrect.
7.13.2006 10:13am
Hans Gruber (www):
"The flaw in this argument is that the state is making a decision that fishing is bad."

Right or at least something it doesn't want to encourage with tax payer money. And it's wrong to talk about a fishing "ban" because what we are really talking about is a lack of state intereference in gay marriage. Gays are free to "marry" and live as they please, especially after Lawrence. We are not talking about a ban on gay marriage, we're talking about a ban on the state's recognition of gay marriage.

I think you would agree that the state is perfectly within its right to, say, give a tax credit to hunters but not to fishermen, under the theory that hunting is better than fishing, even if they were not substitutes. This is really what we have with the gay marriage debate, the state is choosing to recognize and support one kind of marriage but not another--it's not banning gay weddings of cohabitation--it is merely choosing which form of marriage it wants to encourage. There is absolutely nothing "irrational" about that.
7.13.2006 10:36am
Colin (mail):
Hans,

You say that the state is "it is merely choosing which form of marriage it wants to encourage," and that there "is absolutely nothing "irrational" about that."

But again, you're skipping important parts of the argument. "Merely choosing which form of marriage it wants to encourage" is not enough to make the policy rational; the challenged policy in Loving was "merely choosing which form of marriage to encourage," and no one argues that it was a rational policy. If Virginia passed the same law today, and it were analyzed under a rational basis test, it would fail.

The critical piece, which I have yet to see addressed with any sort of rigor or solid evidence, is the argument that choosing to support only heterosexual marriages actually advances some legitimate goal.
7.13.2006 10:45am
Hans Gruber (www):
"You are saying that the policy is the same as the rationale, or that banning gay marriages is a rational basis for not allowing gay marriage."

No, I am not. What was being attacked, initially, was whether or not the policy was RATIONALLY RELATED to a legitimate state interest, the legitimate interest being conceded, I thought. That is what was being discussed. The legitimate state interest, as I see it, is promoting what the state identifies as the best family structure. Unfortunately for you, the rational basis test is exceedingly deferential to the state, and the basis of this policy would easily pass an ordinary application of precedent.
7.13.2006 10:55am
Hans Gruber (www):
A ban on interracial marriage very well might pass rational basis review, but I don't know, I have never looked at it, nor do I intend to. Rational basis review is an extremely easy test to pass, even highly offensive and stupid policies can sometimes pass examination. But, of course, racial classifications are NOT EVALUATED BY RATIONAL BASIS ANALYSIS. Further, race=/=sexuality. Not under the Constitution, and not in the view of the general public.

It's a familiar trope of gay marriage advocates to bundle themselves to the civil rights struggle. It's a mistake: Nobody buys it and you just alienate the majority of blacks by the comparison.

I will continue to debate gay marriage, I will ignore any further attempts to conflate gay marriage with unrelated (especially in a legal sense) issues of race.
7.13.2006 11:09am
Michael B (mail):
Loving/Virginia would fail under virtually any test, not so homosexual marriage, which is not substantially comparable to miscegenation laws.

"As ordinarily applied, rational basis is a very forgiving standard. The law must be (1) rationally related to (2) a legitimate end of the state. The law need not be very wise or very good to survive. As I once heard Richard Epstein memorably describe it, the rational basis standard basically asks whether any fool could come up with a stupid reason for a bad policy." DC

"The critical piece, which I have yet to see addressed with any sort of rigor or solid evidence, is the argument that choosing to support only heterosexual marriages actually advances some legitimate goal." Colin

The rational basis standard does have a way of moving around, from the supposedly lowest level of scrutiny, to the absolutely highest.

And, anyone, can you point to a post of yours in this thread which reflects any of this "rigor" supposedly being sought? Rigor, that is, in support of the notion that same sex marriage would not have broad, societal implications which would be undesired by the majority of Americans?

And it's additionally telling that any debate related to allowing the American people decide has been positively, one might say rigorously, avoided. Both overtly and as subtext the message from the ideologically "progressive" crowd is: "If we can do this in a manner that avoids any democratic appeal and referendum and instead utilizes black robed jurists to usurp and elide such an appeal and referendum, we'll be only too happy to do so."

Such referendums, democratic referendums and appeals, were considered more substantively progressive, circa the era of John Locke (d. 1704). Presently, they seem to be passe, given the agendas on the block. Perhaps they no longer pass the standard of "rigor"? Or the generously moving goal posts of rational basis review?
7.13.2006 11:26am
Hans Gruber (www):
I would also like to point out that you are also factually incorrect that Virginia was "merely choosing which form of marriage to encourage." It was a criminal statute. It was a crime to marry someone of the a different race in Virginia.

It makes me wonder, do you even read the cases that you think support your position?
7.13.2006 11:30am
Colin (mail):
Hans, I don't think you've been reading very carefully. I have not argued that Loving was decided under a rational basis test, nor that the Loving statute was non-criminal. While I do think that anti-gay animus is substantially similar to racial animus, I haven't argued that here, either. I used Loving as an example of a statute that would fail rational basis review because there is no rational connection between the policy and the stated goal, as is the case here if no one actually states what that connection is. Unfortunately, more people seem to want to talk about how gays hate democracy and are comparable to child molesters and bestialists than to propose such a connection.

You replied, "Unfortunately for you, the rational basis test is exceedingly deferential to the state, and the basis of this policy would easily pass an ordinary application of precedent."

I agree, as I noted above. But the rational connection between policy and goal should still be at least described, and Dale suggests the New York court skipped that step. I don't think that's a serious stumbling block, because as you note all that's necessary is for someone to allege some conceivable connection, and that's not hard.

But at the more colloquial level, where we ask whether the policy is actually rational, as opposed to merely passing rational basis review, sooner or later there should be a serious, well-supported argument that banning gay marriage actually has a positive effect.

What we get instead is hostile invective, pleas to let "we the people" decide (ignoring that the constitutional argument rests on the principle that "we the people" are proscribed from certain discriminatory actions), and for some reason, Michael B's obsession with the black robes of the evil jurists.

Seriously, Michael, it's "black robes" this and "black robes" that. Most of your audience sees black robes on a daily basis. It doesn't make the 'scary jurist' image any more menacing.
7.13.2006 12:01pm
Michael B (mail):
Colin, I don't regard your categorical dismissiveness and contempt "seriously".
7.13.2006 12:09pm
JunkYardLawDog (mail):
JRose, Zablocki is clearly inapplicable. Zablocki dealt with a state law that would prevent in some circumstances a person who otherwise met the legal criteria to get married from ever getting married. This is NOT the situation with homosexuals and the state's encouragement of a specific kind of marriage contract. As I have pointed out several times homosexuals are able to obtain a marriage license on the same terms as any other person. Gay men are free and able to marry any woman they choose. They are therefore NOT prevented from getting married in the kind of marriage contract that the state has chosen to encourage. There is NO equal protection argument.

Finally, Zablocki is full of talk about procreation and traditional families and all the stuff that makes it clear it speaks ONLY to heterosexual marriages of the types normally encouraged by a state's public policy. The dissents of Powell and Rehnquist are also quite instructive.

So I repeat. A state is free to establish via public policy what contracts it will encourage and what contracts it won't encourage. A state can encourage one form of a marriage contract without being required to encourage all possible theoretical forms of marriage contracts.

Says the "Dog"
7.13.2006 12:22pm
Michael B (mail):
From another thread, my description of judges:

"Judges are very much like corporate executives. They run and manage a business, a business of a different kind than most businesses to be sure: different assets and liabilities, different interests and risks, a different set of management principles, a different set of shareholders, different ways and means of holding them accountable, etc., but it's a business operation nonetheless; little or nothing more than that. They are not philosopher kings, they are not inherently or necessarily noble - perhaps even to the contary or perhaps they are merely common, average types - and certainly, they are not necessarily venal or to be viewed cynically either."

So much for your categorical dismissiveness, including your rank dismissiveness as pertains to a democratic referendum, as if such is simply passe.

Too, where's the "rigor" you were supposedly seeking, in your own argument?

In terms of the rational basis std., it's not a simple, deductive, ratiocinated set of arguments which can be made - it's not as simple as 1 + 1 = 2. And if you and others can simply and even blithely and mockingly dismiss "We the people ...," you're certainly not going to have any problem dismissing the set of varied and variously complex social arguments which can point to the fact that a rational basis standard, most certainly so as defined by DC's definition, though also more rigorously than that, can in fact be met. That is yet one more reason why "the people" should be allowed to make that determination. (And btw, we discriminate all the time, the choice is not between exercising discriminating tastes and choices and not exercising such discrimination, it's between what standards we use to discriminate.

But again, where's your own rigor?
7.13.2006 12:39pm
Colin (mail):
You seem to have forgotten that the focus of the constitutional argument is whether discriminating against gay marriages is one of those things that "we the people" cannot do. Just as "we the people" cannot extend tax benefits solely to couples married in Baptist churches, or solely to left-handed coupes, there is a serious argument that the constitution prohibits discrimination against same-sex marriages. That's not a complex or difficult point, and there's nothing to be gained by ignoring it.

There is a separate policy argument as to whether "we the people" should ban gay marriages if we have that power. That discussion is probably more important and more useful in the long run, but it is a separate discussion.

The rational basis analysis is interesting because it spans the two arguments; it goes to the probable constitutional standard and the dearth of rigorous arguments showing an actual benefit to banning a class of marriages. You seem to think that it's very clever to turn my demands for "rigor" back on me by asking where my own rigor is. This is it: I want to see a legitimate argument, replete with at least the suggestion that evidence exists, that there is an actual connection between the supposed benefits of marriage and the policy of prohibiting same-sex couples from getting married. What I see instead is naked hostility, and that doesn't cut it for me. That's not very rigorous, but then, I'm not making a positive argument--I'm asking for one.
7.13.2006 1:08pm
JunkYardLawDog (mail):
Colin, there is no ban on gay marriage contracts. You keep misstating this point.

There are serious people making arguments that the constitution prevents states from not endorsing gay marriage contracts, but the argument itself is NOT serious. It is just as laughable as the argument that the constitution prevents states from not endorsing a hookers contract for services or contracts of adhesion, etc.

Says the "Dog"
7.13.2006 1:37pm
jrose:
Dog,

Assume a state wishes to encourage and enforce a ceratin form of marriage contract: unions between two people of the opposite sex, but of the same wealth. So, the state refuses to enforce marriage contracts between the rich and poor. Every person can get married in the kind of marriage the state has chosen to encourage. Do you think this law would pass Constitutional muster?
7.13.2006 1:45pm
Colin (mail):
Why do you characterize it as a purely contractual issue, Junk? There are noncontractual benefits to marriage, such as taxation.
7.13.2006 1:47pm
Michael B (mail):
"You seem to have forgotten that the focus of the constitutional argument is whether discriminating against gay marriages is one of those things that "we the people" cannot do."

More categorical dismissiveness. No, I haven't forgotten, nor am I simply resorting to cleverness, nor to naked hostility.

Firstly, the focus of the Constitutional argument is several and varied, not merely a single, solitary focus, one which you deem to be the most prominent, while dismissing or marginalizing or deprioritizing those which you deem to be less important or unimportant all together.

And as already noted, "we discriminate all the time, the choice is not between exercising discriminating tastes and choices and not exercising such discrimination, it's between what standards we use to discriminate." "The people," as you now mockingly intone, have the a priori right to decide without having that right usurped, not by the executive, not by the judiciary.

And as you say, you're not making, you're not so much as attempting a positive argument yourself, indeed, you're avoiding one. That is why I also noted, "In terms of the rational basis std., it's not a simple, deductive, ratiocinated set of arguments which can be made - it's not as simple as 1 + 1 = 2. And if you and others can simply and even blithely and mockingly dismiss "We the people ...," you're certainly not going to have any problem dismissing the set of varied and variously complex social arguments which can point to the fact that a rational basis standard, most certainly so as defined by DC's definition, though also more rigorously than that, can in fact be met."

I.e., I don't regard you as a sincere interlocutor seeking mutual comprehensions, you're making syntactical power moves, manipulating symbols, etc., not seriously engaging, but instead merely dismissing concerns which are directly related to the rational basis question and in fact take priority over such considerations.

The "Constitutional argument" is several and varied, not one, your own forgetfulness, cleverness and naked hostility notwithstanding. You're positioning your own forays as if people need to respond to your demands, while you simply sit in judgement, as the accuser, without needing to answer or respond to the demands made of your own argument, assumptions and positioning. That doesn't cut it - for me.
7.13.2006 1:50pm
Michael B (mail):
Too, as noted, it's not a simple, logically deductive argument which can be made, in the mode of 1 + 1 = 2. Several arguments can be forwarded, one example is afforded by Dennis Prager, which very much does indicate a civilizational, rationally founded basis.

"The people," constitutionally, retain the right to decide when it comes to this type of issue.
7.13.2006 2:06pm
JunkYardLawDog (mail):
Colin,


Why do you characterize it as a purely contractual issue, Junk? There are noncontractual benefits to marriage, such as taxation.


I think it helps maintain better clarity of analysis for one. I think it better brings into focus the relative roles of the legislatures, courts, the people, and public policy. It avoids the false comparisons to matters of race, etc.

Its true that there are some benefits that flow intentionally or unintentionally to married couples whose marriage contracts are the type encouraged by the public policy of a state. Taxation of married couples has varied over the years from being a negative thing for state sanctioned marriage contracts to a positive thing. It depends on the state of the tax code at any particular time. There have been many years (most of my lifetime) where state sanctioned marriage contracts were a tax negative for two earner couples.

There are other benefits or negatives to state sanctioned marriage contracts. Those that are intended to benefit state sanctioned marriage contracts are part of the "encouragement" of those particular types of marriage contracts.

However, the biggest by far and most pervasive and most important entanglement of state power with marriage contracts is the ability to enforce the contract in a court of law. By that I mean, of course, the ability of one party to be awarded property and compensation and alimony in most states for the failure of the marriage contract's term, until death do us part.

Homosexual marriage contracts and multi-party marriage contracts can be entered into, they just aren't enforceable in divorce courts. Contracts that aren't enforceable in court are not a new idea. The hooker and gambling examples I have given numerous times. The people of a state are free to establish the public policy of the state as regards what contracts will be encouraged and what contracts will not get encouragement. They are free to establish what contracts can be enforced in the court system and what contracts can not be enforced in the court system.

A state is not required by the constitution to recognize and encourage all types of marriage contracts just because its history and tradition and continuous public policy has been from its inception to only allow one type of marriage to be enforced by the state courts.

Says the "Dog"
7.13.2006 3:25pm
JunkYardLawDog (mail):
JRose,


Dog,

Assume a state wishes to encourage and enforce a ceratin form of marriage contract: unions between two people of the opposite sex, but of the same wealth. So, the state refuses to enforce marriage contracts between the rich and poor. Every person can get married in the kind of marriage the state has chosen to encourage. Do you think this law would pass Constitutional muster?


From the standpoint of a pure contractual analysis I believe it would. However in your Zablocki case for example the Supreme Court has ruled there is a fundamental right to a single man/single woman heteosexual marriage. If you buy in to the existence of this fundamental right, then to the extent such a law prohibited traditional heterosexual marriage it might be unconstitutional.

The Supreme Court has NEVER ruled there is a fundamental right to any kind of marriage EXCEPT the traditional family heterosexual single man/woman marriage contract. The Zablocki case which you cited is chuck full of references to traditional families, procreation, and other descriptions of the fundamental right to marry that makes it remarkably clear that the court is holding that ONLY the traditional heterosexual marriage of a single man/women is a fundamental right that predates our constitution.

A fundamental right for homosexual marriage has NOT existed in history, does NOT predate our constitution, has NEVER been found to exist, and is NOT supported by our traditions, laws, and continuous public policy since the founding of our country. Therefore, if a fundamental right for homsexual marriage is to be created it CAN NOT be created, constitutionally, by fiat of a JUDGE. Such a NEW and UNPRECEDENTED fundamental right can ONLY be constitutionally created by the people through their elected representatives.

That is our history and system of government. If you want a NEW fundamental right for homosexual marriage the ONLY legitimate place to achieve it is at the BALLOT BOX and NOT the courthouse.

Says the "Dog"
7.13.2006 3:37pm
JunkYardLawDog (mail):
I would compare fundamental rights to the observations over time of planets in our solar system. While it took longer for some planets to be observed and recognized than others, the planets themselves existed from the very beginning of human history. They were there in existence prior to being observed.

When fundamental constitutional rights are observed they must pass this test. They must have been in existence from the very creation of the words from which they spring. Fundamental rights don't properly "evolve" into existence. They are created whole at the time of the adoption by the "people" of the language which creates them. This remains true even if a case which brings such fundamental rights into focus of our legal telescopes doesn't occur for many decades after the language creating them was first adopted.

There is no fundamental "right" to homosexual marriage. There is no fundamental "right" to multi-party marriages. The only fundamental "right" to marry, if there is one, is the traditional family, pro-creation centered, society stabilizing, heterosexual single man/woman marriage contract clearly described in Zablocki as a fundamental right that predates our constitution itself.

Says the "Dog"
7.13.2006 3:57pm
Colin (mail):
Junk,

I think it helps maintain better clarity of analysis for one. I think it better brings into focus the relative roles of the legislatures, courts, the people, and public policy. It avoids the false comparisons to matters of race, etc.

Leaving aside my personal feeling that the comparison to racial discrimination isn't false, I think this makes sense. I would only add that the non-contractual aspects of marriage can't be ignored, even if some--especially taxation--are only occasionally beneficial to married couples. There are also significant peripheral issues, such as the marriage debate's impact on the adoption debate. But you aren't ignoring those matters as I originally thought you were, and I agree that the contractual analysis is at the very least a useful way to approach the question.

Michael,

The more florid your prose gets, the more porous your arguments become. Or, should I say, rather, that our initial pedagogical assumptions as to the value of a grandiloquent implementation of the writing art become attenuated in the very face of the lamentable realization that an anfractuous method of relaying argumentation is, betimes, the less-than-ideal method of transferring actual contextual and syntactical meaning. This understandably invites another iteration of your threnodic complaint that I am tout court dismissing your reasoning, which, in addition to its resupinate qualities, yet again fails to present that which has been requested: a serious assertion that a rational link exists between the challenged policy and the desired goal. I will suffer such meandering paragraphs as you see fit to present in rebuttal, noting ab initio that I do discount Prager; my list of reasons includes, but is not limited to, the fact that I find his arguments from design mostly vapid.

But in response to your repeated claim:

And as already noted, "we discriminate all the time, the choice is not between exercising discriminating tastes and choices and not exercising such discrimination, it's between what standards we use to discriminate." "The people," as you now mockingly intone, have the a priori right to decide without having that right usurped, not by the executive, not by the judiciary.

This is, again, not true. "The people" are forbidden from making some discriminatory choices. The judiciary's role is to determine which choices are beyond the pale; that is not "usurping" a right, but preventing the majority from exercising a power that the constitution forbids them. The courts, in other words, discriminate between allowable and forbidden discrimination. For example, in determining who may benefit from legal recognition of marriage, "the people" do not have "the a priori right" to set a standard for legal discrimination that hinges on religious denomination.

The tests are different in their applications, but not their effects. The majority cannot make some discriminatory choices, and the judiciary is tasked with determining when a challenged law or policy is unconstitutionally discriminatory. Your insistence that "the people . . . have the a priori right to decide without having that right usurped . . . by the judiciary" is wrong.
7.13.2006 4:06pm
Colin (mail):
I would compare fundamental rights to the observations over time of planets in our solar system. While it took longer for some planets to be observed and recognized than others, the planets themselves existed from the very beginning of human history. They were there in existence prior to being observed.

I disagree with your application of this principle, obviously, but I like the analogy very much. I intend to steal it the next time I'm in a similar conversation. Just so you know.
7.13.2006 4:17pm
jrose:
The Zablocki case which you cited is chuck full of references to traditional families, procreation, and other descriptions of the fundamental right to marry.
We could plausibly conclude from Zablocki that the fundamental right concerns marriage's relationship to procreation and that would leave out same-sex marriage. However, what if a state chooses to not encourage and not enforce marriage contracts of infertile and elderly opposite-sex couples? Wouldn't that law be upheld because no fundamental right is implicated? On what basis do you argue that the elderly and infertile have a fundamental right to marriage while same-sex couples do not (it can't be procreation)?

You have suggested deep roots in our nations's history (which I believe is one of the standards SCOTUS uses) as a distinguishing factor. And it is true that elderly and infertile marriages have deep roots that same-sex marriages do not. However IMO, you are making the same mistake the Bowers court made in misunderstanding the right at stake which was corrected in Lawrence. The case wasn't about a right to sodomy, but a right to sexual autonomy as one aspect of a personal relationship. Similarly, this case isn't about same-sex marriage, it's about the state encouraging people to settle down with their lifemate - and that formulation of the fundamental right applies to same-sex, opposite-sex, infertile and elderly couples alike.
7.13.2006 4:35pm
JunkYardLawDog (mail):
Colin,


I disagree with your application of this principle, obviously, but I like the analogy very much. I intend to steal it the next time I'm in a similar conversation. Just so you know.



Well I'm appropriately complimented and concerned about providing the opposition a useful analogy all at the same time. (wink)

JRose, imo you argue for such a drastic reinterpretation of the fundamental right to marry that it in fact constitutes a recognition of a *new* fundamental right that has never before existed, and the recognition of *new* fundamental rights is the sole province of the people through their elected representatives and NOT at all within the proper constitutional authority of judges.

I'm not saying such a new right can't be created just that it can't be properly created by a judge.

Says the "Dog"
7.13.2006 5:12pm
Michael B (mail):
Colin,

In being subjected to more disdain for failing to play by your rules you provided an entertaining performance, little or nothing more. Shocked, I'm shocked ... Additionally, your own errors abound, much as your categorical dismissiveness continues unchecked.

"... noting ab initio that I do discount Prager ..."

And you are welcome to do so, both as a discussant and more formally as a voter and participant in the democratic process in general. That would be the very purpose of letting the people decide, as opposed to a "self-aggrandizing" and "imperious," to use a couple of Tribe's terms, elite, an elite which seeks to establish a "hegemonic view of judicial authority," to use another of Tribe's florid phrases vis-a-vis the Greaney/Ireland concurrence.

Too, that was one of the purposes of noting the moving goal posts of the (purportedly) low scrutiny standard represented in a rational basis review. But, that too was a fact you managed to elide and dismiss.

Of the notion that "the people" - which conception you're now well practiced in dismissing indeed - are not (entirely) allowed to select the basis upon which they descriminate, you're slighting constitutional amendments, for one. No one suggested it was a modest effort required to amend any of the state or the federal constitution, but that recourse to "the people" exists nonetheless.

You offer little substance indeed which reflects a willingness to straightforwardly face the scrutiny directed at your own arguments. So, you've now added "florid" to your list of rationales. Again? Or a different rationale altogether this time?

And note, my position is not to seek an executive or judiciary or legislature willing to override the will of the people, very much to the contrary. Mine is simply, or perhaps not so simply, a classical liberal, or Lockean, position, very much willing to let the people decide and then accept that decision, regardless of the outcome.
7.13.2006 6:39pm
Colin (mail):
"In being subjected to more disdain for failing to play by your rules you provided an entertaining performance, little or nothing more."

I think what you mean is, "In subjecting me to more disdain..."
7.13.2006 8:10pm
Randy R. (mail):
Thanks, Colin, for doing yeoman's work here. I know how tough that can be....

Some of said that they won't countence arguments of race and sexual orientation. But why not? both are immutable. We don't discriminate based on religion, which of course IS a choice. If two people want to get married, and one is black while the other is white, they should be able to get married. I don't understand the problem with that. And yet, almost every state in the union had a problem with that by the 1940s. Today, none do. What has changed?

If two people want to get married, and one is a man, and while the other is a man, they should be able to get married for the same reasons. I don't understand the problem with that. And yet, almost every state in the union has a problem with that in 2006. Tomorrow?

Say what you will, but the bottomline is this -- what is it to YOU if two gay men get married? And I mean married where the contracts are recognized by the state. Are you so insecure about your own marriageability that you simply cannot fathom two gay men living happily together? Or two gay women? I mean, constitutional arguments aside, what's the real problem you have with it?

I mean, really, for a few supposedly straight men to devote night after night arguing with people. rehashing the same old arguments over and over -- either you are single, or you really have a problem with gay people.

You know what? I have a lot of straight friends, some in favor of gay marriage, some against. But most of them have a lot more going on their lives than to spend much energy arguing about something that doesn't really affect them. Me? I'm gay, so this really does affect me, and I'll post til the cows come home. But you, Hans, and you, Junk Yard Dog.... I mean, what's your bone in this?
7.14.2006 1:10am
Michael B (mail):
Btw, Prager's arguments are socio-historical, rational and civilizational arguments, not "fundamentalist," simplistic or "from design". The fact he refers to the influence to the Torah and the Talmud at the outset of the social/historical influences they invoked takes absolutely nothing away from that.
7.14.2006 8:49am
Michael B (mail):
"... doing yeoman's work here." Randy R.

If "yeoman's work" consists in repeatedly, categorically, contemptuously - and at times artfully - dismissing any counter arguments, as opposed to countering arguments on a more "rational basis," then your bidding has been done.
7.14.2006 9:01am
Colin (mail):
Michael B:
Btw, Prager's arguments are socio-historical, rational and civilizational arguments, not "fundamentalist," simplistic or "from design".

Dennis Prager:
And the reason for considering homosexuality abnormal is not its minority status. Even if the majority of men became incapable of making love to women, it would still not be normal. Men are designed to make love to women, and vice versa. The eye provides an appropriate analogy: If the majority of the population became blind, blindness would still be abnormal. The eye was designed to see. That is why I choose the third response -- that homosexuality is unhealthy.

Perhaps you didn't read all the way to the bottom of the article?
7.14.2006 12:37pm
raj (mail):
JunkYardLawDog 7.13.2006 11:22am

JRose, Zablocki is clearly inapplicable. Zablocki dealt with a state law that would prevent in some circumstances a person who otherwise met the legal criteria to get married from ever getting married.

I can't believe that you read what you write. If they don't meet the legal criteria, they don't meet the legal criteria, whether or not you believe that they "otherwise meet" the legal criteria. What's the difference?

This is NOT the situation with homosexuals...

Oh, no? According to you, homosexuals who wish to marry someone of the same sex do not "otherwise meet" the legal criteria to marry.

You know, at some point, this dodging and weaving by the anti-same-sex marriage crowd becomes ludicrous. Let's cut to the chase. What is your proposed "rational basis" for the state to refuse to recognize same-sex relationships (so-called "gay marriage") on the same basis that it recognizes opposite-sex relationships (so-called "marriage")? If you are a "LawDog," junk yard or otherwise, I would presume that you would recognize the question as being the classical "equal protection" issue.
7.14.2006 12:52pm
JunkYardLawDog (mail):
Raj,

The answer to your question was given in the same post from which you chose to quote. Perhaps you should try re-reading it and my other posts for comprehension this time.

All the best,

Says the "Dog"
7.14.2006 2:09pm
Michael B (mail):
"Perhaps you didn't read all the way to the bottom of the article?" Colin

Ok Colin, will concede your point, though only to a limited degree; essentially, I didn't clarify my response. What I should have said follows:

Prager's arguments [notice the plural] are socio-historical, rational and civilizational arguments, not "fundamentalist," simplistic or simply and solely "from design". The fact he refers to the influence of the Torah and the Talmud at the outset of the social/historical influences they invoked takes absolutely nothing away from that.
7.14.2006 2:56pm
Elais:
JunkYardDog

There was never a 'fundamental' right for women to vote. Yet it was recognized that woment DO have the right to vote.

I'm heterosexual and I apparently have the 'fundamental' right to marry. If tomorrow I discovered I was homosexual, what happens to my 'fundamental' right to marry? I had it before, and then I lost it. How is can a right be 'fundamental' if it can be taken away from me in an instant?
7.15.2006 9:30pm