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.
Related Posts (on one page):
- The hardest day of the cruelest month:
- Washington High Court Upholds Exclusion of Gay Couples From Marriage:
- The Road to Gay Marriage After New York:
- Is it rational to exclude gay couples from marriage?
- The New York Marriage Decision and Equal Protection:
- The New York Marriage Decision, Due Process, and Defining Fundamental Rights:
- New York High Court Rejects Gay Marriage Claim:
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?
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 --
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.
"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
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.
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.
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.
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.
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?
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).
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"
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.
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?
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.
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."
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.
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]
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?
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.
"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.
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.
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."
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.
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.
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?
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.
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".
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.
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.
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.
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.
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.
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.
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?
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.
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.
Where in the text will I find the right to marry? Can someone point me in the right direction, please.
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.
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.
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.
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."
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.
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.
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.
From the majority opinion:
Apparently, you do not disagree:
What's your beef?
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.
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.
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"
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.
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"
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.
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.)
Make this argument if you want, but that's an argument of persuasion, not of rights.
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?
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?
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?
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.
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.
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."
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?
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.
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.
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?"
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.
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 --
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.
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.
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.)
So much for taking what they do seriously.
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:
Hypothetically, if a state denied one specific individual the legal protection granted others, that would be a prohibited, 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?
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.
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.
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.
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.
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.
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?
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
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:
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?
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.
Of course this argument is crap, but crap arguments are good enough for rational basis.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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?
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.
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?
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"
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.
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.
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?
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."
"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.
What's "rabid" about wanting to marry someone you're in love with?
Really, thank you.
"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?
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?
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.
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.
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?
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."
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.
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"
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.
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.
This seems quite sensible to me.
But then your further argument is: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.
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.
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?
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.
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"
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!
Thank you. That was my question.
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.
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?
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.
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.
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.
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.
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?
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.
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.
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?
*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"
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"
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.
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"
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.
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.
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.
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.
"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?
It makes me wonder, do you even read the cases that you think support your position?
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.
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"
"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?
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.
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"
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?
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.
"The people," constitutionally, retain the right to decide when it comes to this type of issue.
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"
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"
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"
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.
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.
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.
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"
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.
I think what you mean is, "In subjecting me to more disdain..."
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?
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.
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?
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.
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"
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.
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?