The New Jersey Supreme Court has just held that the New Jersey Constitution's equal protection principles require the legislature to recognize at least same-sex civil unions. (Whether the legislature must recognize outright same-sex marriage is left open.) I'm not sure I'll have much to add on the big picture questions this raises, but I did want to note one thing -- this decision, whether you like it or not, seems to be an illustration that the slippery slope is a real phenomenon. Even when there are conceptually quite clear distinctions that could be used to distinguish the first step A from the final step B, A may nonetheless help bring B about.
Consider how the decision relies on the enactment of past gay rights laws. The backers of such laws often argue that these laws do not create a slippery slope towards same-sex marriage or civil unions. Thus, for instance, an editorial in the Boston Globe, Oct. 15, 1989, at A30, said "[A proposed antidiscrimination law barring sexual orientation discrimination in credit, employment, insurance, public accommodation and housing] does not legalize 'gay marriage' or confer any right on homosexual, lesbian or unmarried heterosexual couples to 'domestic benefits.' Nor does passage of the bill put Massachusetts on a 'slippery slope' toward such rights." See also Phil Pitchford, Council Members Wary of Partner Registry, Riverside Press-Enterprise, Apr. 30, 1994, at B1, quoting Riverside Human Relations Commission member Kay Smith as saying that "[t]hose that truly have a problem with homosexuality will see [a domestic partnership proposal] as part of the 'slippery slope' [toward gay marriages] . . . . But, this legislation needs to be looked at on the face value of what it is, and it really does very little." And see the Editorial, A Vote Against Hate, Louisville Courier-J., Feb. 3, 1994, at 6A, rejecting as "arrant nonsense" the claim that a hate crime law "would lead to acceptance of gay marriages."
Yet the New Jersey Supreme Court's equal protection argument begins by citing such non-same-sex-marriage, non-civil-union gay rights laws (citations omitted):
In addressing plaintiffs’ claimed interest in equality of treatment, we begin with a retrospective look at the evolving expansion of rights to gays and lesbians in this State. Today, in New Jersey, it is just as unlawful to discriminate against individuals on the basis of sexual orientation as it is to discriminate against them on the basis of race, national origin, age, or sex. Over the last three decades, through judicial decisions and comprehensive legislative enactments, this State, step by step, has protected gay and lesbian individuals from discrimination on account of their sexual orientation.
In 1974, a New Jersey court held that the parental visitation rights of a divorced homosexual father could not be denied or restricted based on his sexual orientation. Five years later, the Appellate Division stated that the custodial rights of a mother could not be denied or impaired because she was a lesbian. This State was one of the first in the nation to judicially recognize the right of an individual to adopt a same-sex partner’s biological child. Additionally, this Court has acknowledged that a woman can be the “psychological parent” of children born to her former same-sex partner during their committed relationship, entitling the woman to visitation with the children. Recently, our Appellate Division held that under New Jersey’s change of name statute an individual could assume the surname of a same-sex partner.
Perhaps more significantly, New Jersey’s Legislature has been at the forefront of combating sexual orientation discrimination and advancing equality of treatment toward gays and lesbians. In 1992, through an amendment to the Law Against Discrimination, New Jersey became the fifth state in the nation to prohibit discrimination on the basis of “affectional or sexual orientation.” In making sexual orientation a protected category, the Legislature committed New Jersey to the goal of eradicating discrimination against gays and lesbians. In 2004, the Legislature added “domestic partnership status” to the categories protected by the LAD.
The LAD guarantees that gays and lesbians, as well as samesex domestic partners, will not be subject to discrimination in pursuing employment opportunities, gaining access to public accommodations, obtaining housing and real property, seeking credit and loans from financial institutions, and engaging in business transactions. The LAD declares that access to those opportunities and basic needs of modern life is a civil right.
Additionally, discrimination on the basis of sexual orientation is outlawed in various other statutes. For example, the Legislature has made it a bias crime for a person to commit certain offenses with the purpose to intimidate an individual on account of sexual orientation, and has provided a civil cause of action against the offender. It is a crime for a public official to deny a person any “right, privilege, power or immunity” on the basis of sexual orientation. It is also unlawful to discriminate against gays and lesbians under the Local Public Contracts Law and the Public Schools Contracts Law. The Legislature, moreover, formed the New Jersey Human Relations Council to promote educational programs aimed at reducing bias and bias-related acts, identifying sexual orientation as a protected category, and required school districts to adopt antibullying and anti-intimidation policies to protect, among others, gays and lesbians.
In 2004, the Legislature passed the Domestic Partnership Act, making available to committed same-sex couples “certain rights and benefits that are accorded to married couples under the laws of New Jersey.” With same-sex partners in mind, the Legislature declared that “[t]here are a significant number of individuals in this State who choose to live together in important personal, emotional and economic committed relationships,” and that those “mutually supportive relationships should be formally recognized by statute,” The Legislature also acknowledged that such relationships “assist the State by their establishment of a private network of support for the financial, physical and emotional health of their participants.” ...
In passing the Act, the Legislature expressed its clear understanding of the human dimension that propelled it to provide relief to same-sex couples. It emphasized that the need for committed same-sex partners “to have access to these rights and benefits is paramount in view of their essential relationship to any reasonable conception of basic human dignity and autonomy, and the extent to which they will play an integral role in enabling these persons to enjoy their familial relationships as domestic partners.” Aside from federal decisions such as Romer v. Evans and Lawrence v. Texas, this State’s decisional law and sweeping legislative enactments, which protect gays and lesbians from sexual orientation discrimination in all its virulent forms, provide committed same-sex couples with a strong interest in equality of treatment relative to comparable heterosexual couples.
Later in the case (opinion pages 48-49 and 51-52), the court refers back to this reasoning, and uses it as an integral part of its equal protection argument.
Now maybe this entire discussion, though detailed and prominently placed, is all makeweight; maybe the court would have reached the same result even if such laws hadn't been enacted, and would have found that something else besides those laws "provide[s] committed same-sex couples with a strong interest in equality of treatment relative to comparable heterosexual couples." But if we take the New Jersey Supreme Court at its word, it sounds like in New Jersey antidiscrimination laws, domestic partnership laws, and hate crime laws did indeed help bring about same-sex civil unions, just as they did in Vermont (PDF pages 59-61) and, as to same-sex marriage, in Massachusetts.
One can condemn this slippery-slope effect, or praise it. (I support same-sex marriages and civil unions as a policy matter (see PDF page 37), but I don't think that state courts should mandate them as a constitutional matter.) But I think that one can't dismiss the possibility that slippery slope effects, good or bad, are indeed present here, and can be present in similar contexts. And this is so even when, as a purely logical matter, the initial steps (employment discrimination bans, domestic partnership laws, hate crimes laws, and the like) are eminently distinguishable from the final step (same-sex civil unions).
Related Posts (on one page):
- The Third Way in New Jersey:
- The New Jersey marriage decision and the unstable middle ground:
- Gay Rights Laws, Slippery Slopes, and a Constitutional Right to Same-Sex Civil Unions:
- Third Way Result in New Jersey Marriage Case:
Oh, and a small point, I thought the "final step" of the slippery slope of gay equality was the destruction of society...
Give it a few days, at least until the election.
One slips unintentionally, no?
But the quotes Mr. Volokh cited from various opinion makers and officials - the ones preceding the large blockquote from the decision itself - make clear that they purported that the preceding changes would not grease the skids for gay marriage, whereas they most certainly did.
One can argue whether it was disingenuous and intentional on their part (or not?), but from the pt of view of the average voter, the pt remains that those laws were indeed shown to be the start of a slippery slope after all, in spite of previous assurances to the contrary.
Who says we've made it to the bottom of the slope yet? (If you can be snarky, so can I.)
If this ruling confers a Constitutional right that cannot be revoked on the neccessary basis of laws passed by the legislature, then in effect it is imposing stare decisis on the legislature, since that body must now be unable to repeal its own laws.
This is my issue with Prof. Volokh's slippery slope theory: it can seemingly be validated, but never invalidated. You can never prove that we're not in the middle of the process of slipping.
Uh, no.
If this were true, then in every instance (or a significant mahority of instances) in each state that has outlawed active discrimination against gay people in hiring, etc. would have judicial decisions recognizing gay marriage. Many, many states have recognized or enacted laws against active discrimination against gays in hiring, but have still - nonetheless - enacted laws barring gay marriage.
I mean, if the form of argument is 1, 2, 3 were steps down the slippery slope as proven by step 4, how do you account for all of those states where you have steps 1, 2, and 3 but -negative of step 4-?
Perhaps, evolution is a better way of describing this "development". I understand all of the legislative arguments, but how does one craft a remedy for discrimination without telling the legislature what to do? If there is an institutional discrimination which is evident in a whole range of laws, is the only remedy for the discriminated individual to petition his legislators? And if this individual is a minority . . . ?
Let's take this out of the charged atmosphere of the culture wars:
I set up a foundation that gives aid to drug addicts but can find no public funding, yet every religious group doing the same service receives money. Let's say that I re-define my foundation and become born again. Suddenly I am funded. Is there any Constitutional problem with this? Do I have recourse? And is my only recourse statutory and not Constitutional?
On the one hand the argument is that the government has a legitimate right to support marriage and grant certain rights to support the "institution". Yet can the government support any "institution" that is inherently discriminatory, i.e. defined as heterosexual? Is this really a legislative problem or merely old common law ideas bumping their heads into a new fangled conception of government call the US Constitution?
It is obvious where I fall in this debate; but I do not think that all of this talk about "textualism" and judicial "legislation" is in good faith. There are many, many places where "tradition" was expressly thrown out the window by the Founders. It is only present day "purists" who seem to find the language of the Constitution so confining and rigid. The Founders expressly wanted a rational system of government to be limited in its power and granted the individual citizens a universe of rights. That tradition may have provided certain privileges and rights to certain individuals is directly in opposition to this principle. And yet here we go again with the slippery slope.
The slippery slope I am concerned about is the grant of despotic powers to the executive branch of this government. But a decision by a State Supreme Court saying that the government is giving one set of citizens rights and denying them to other similarly situated citizens . . . this I do not find so controversial. The "libertarian" response should be that the government get out of the marriage business. And that would be a rational and reasoned position that comports with the letter and spirit of the Constitution. But of course it would mean repealling all of those laws that do favor heterosexuals. And there's the real rub.
I think you misunderstand Prof. Volokh's point. The presence of a slippery slope doesn't imply the inevitability of slipping down it, only an increased propensity to do so. So it is entirely possible to have 1,2, and 3 without 4. 4 may be difficult to acheive, so that even with the help of a slippery slope, it doesn't happen in most states.
The fact that the passage of antidiscrimination laws by the legislature plays an integral role in today's decision indicates that the Court was more likely to reject gay marriage if those laws had not been passed. But that is exactly what a slippery slope means: the passage of certain (perhaps desirable) laws will increase the likelihood of some unintended (and perhaps undesirable) result.
The upshot of the court's reasoning on this subject appears to be this: "In light of the policies reflected in the statutory and decisional laws of this State, we cannot find a legitimate public need for an unequal legal scheme of benefits and privileges that disadvantages committed same-sex couples." I would suggest that this reasoning supports my proposed alternative view: what the court is claiming is that these prior legal developments "reflect" an underlying policy. In turn, this underlying policy eliminates the possibility that there is a legitimate need for the unequal scheme in question.
Accordingly, it is this underlying policy which is doing the actual legal work, not the prior statutes and decisions, although the latter do in fact "reflect" the same policy. I think that is conceptually equivalent to what I suggested: in the court's conception, the series of statutes and decisions represents not a causal chain, but rather a series of legal effects of an underlying policy which has developed over time.
A slippery slope is when the reasoning behind question A (e.g. gay marriage) can be applied to question B (e.g. polygamy) such that achieving result A may implicitly achieve result B, at least in part.
That's not what the NJ court did at all! They did not use the reasoning of the legislature in enacting anti-discrimination laws as an argument for civil unions. Rather, they used the enactment of anti-discrimination laws as evidence concerning the status of homosexuals. The argument for civil unions came about through a constitutional argument, which is completely different from the way the anti-discrimination statues came about.
You can say that the anti-discrimination laws "paved the way" or "opened the door" or "provided ammunition" or something, but it was not a "slippery slope" situation.
You seem to almost recognize this when you point out that anti-discrimination and civil unions are "eminently distinguishable". Duh! That wouldn't be surprising if you weren't irrationally trying to pretend this is the long-feared "slippery slope". It isn't.
I don't understand what you mean when you say that you don't think state courts should mandate them as a constitutional matter.
State courts should in fact enforce state constitutional provisions, which are ratified by a state's legislative supermajority and its chief executive.
If you are saying that you don't think state courts should mandate them in the absence of state constitutional authority to do so, of course I agree. But that's not how I read your comment, which just states that state courts shouldn't mandate SSM. If a state court is honestly interpreting the state constitution, I don't understand how a constitutional requirement for SSM is a judicial mandate in any unusual sense. And if it s not a judicial mandate in any unusual sense, I don't understand why courts "ought" not to enforce it.
Again, though, one alternative explanation for this apparent progression is that the prior laws and the later laws both have a common cause (e.g., changing norms in N.J. society), and that the court is merely making that observation.
In that sense, perhaps if the prior laws had never been passed the court would have failed to identify this underlying change, which may have led it to a different decision in this case. But that is an odd counterfactual hypothetical: if the prior laws were passed because the underlying changes were occurring, then to hypothesize the priors laws not being passed would seem to require us to assume the underlying change had not been occurring. And that would be a different world than one in which we live, not just because it posits a different set of laws, but also because it posits by inference a different sort of society in N.J.
Of course, it would be a different matter if one posited the prior laws actually had so profound an influence on N.J. society that they in fact caused these underlying societal changes. Personally, though, I doubt it--I strongly suspect that other forces have played a much larger role in shaping N.J. society.
Can anyone explain to me why the arguments for gay marriage would not apply to polygamy? Isn't it essentially analogous to gay marriage? Just as is any other alternative lifestyle choice?
I dunno, wouldn't allowing a gay person to be elected President no different than allowing there to be two simultaneous Presidents?
I think I understand your point (if I may paraphrase) that a slippery slope does NOT mean that 1, 2, and 3 perforce causes 4.
But, if the "slippery slope" is to be valid I think that occurrence of 1, 2, and 3 would lead to an markedly increased chance of 4.
I guess the control question would be are there any instances where you have 4 without 1, 2 and 3 as compared to the instances where you DO have 1, 2, 3 and then 4.
But it seems that all this would get us to is the ad hoc ergo prompter hoc fallacy.
One poster above notes that societal attitudes towards gays have changed in recent years (with the exception of the "end of days" religious nutjobs whose beliefs do not lend themselves to rational analysis in any event.) So it is possible that the shift in societal attitudes caused each of these changes independently rather than depending on the occurrence of each prior change to "grease the skids" or whatever.
One thing that is absent from this is the the fact that the overall objections to gay marriage seems to be that it will somehow "harm" traditional marriage but that traditional marriage has been on the decline for decades independent of any push from gay folks goin' to the chapel.
That is a serious objection to Prof. Volokh's view. If your hypothesis of an underlying policy shift is correct, I think you may be right not to attribute this judgement to any sort of slippery slope. It would be better explained by the inexplicable decision to enshrine the unpopular logical consequence of current policy trends as enduring constitutional law, but that is a different discussion.
Sometimes proponents will (deliberately or accidentally) conflate "A can lead to B" with "A must lead to B", demonstrate that B doesn't necessarily follow and claim that a slippery slope fallacy has been argued, and conclude the objection has been removed. But, all the proponents have done is create a straw man and demolish it. The question of A possibly leading to B is not resolved.
Even without that dead-end, proponents will rarely concede that a mere possibility of B should constitute an objection overthrowing A. If B transpires, they'll retreat behind a defence of "good intentions". Therein liesthe difficulty: how certain do adverse consequences have to be?
The same-sex marriage/polygamy discussion is a good example. Polygamy doesn't have to follow from SSM, but it can; and, in the case of polygamy, most of the same lines of reasoning apply (in the Canadian context, the right to express one's sexuality ultimately decided the question - no prizes for guessing what precedent that sets for non-monogamous sexuality). When the debate takes place, it will be delightfully ironic because some of the people who argued for SSM will object to polgamy (having already done so in the course of dismissing the slippery slope from SSM to polygamy). They will take their turn complaining about slippery slopes: arguing adverse consequences (B) of polygamy (A).
The thread is over. This post wins.
I don't presume to speak for Eugene, but I don't think you're being fair. If a state constitution had a clause that unequivocally mandated same sex marriage ("Marriage in this state shall be the unuion of two people regardless of sex" or some such) then I'm sure he (and I) would support that state's court enforcing that measure. But there are no US states that haver such a constitutional clause. In order to argue a right to SSM as a constitutional matter you have to extrapolate from the text in ways that are controversial. I think it's reasonable to believe that a court shouldn't mandate new controversial rights based on extrapolation.
I've always thought it illuminated the question somewhat to ask whether SSM is itself a slippery-slope consequence of marriage-as-we-know-it.
SSM is really only relevant to polygamy if the multiple spouses of a partner are married to each other as well as the partner. This is not traditionally the case.
People generally get uptight about polygamy because they think it means "one man with many wives". If you take into account that polygamy in a society with equal rights has never existed in human history, and that such a society would necessarily include "one woman with many husbands" and "many husbands with many wives" in the equation... it looks a little different.
Slippery slopes are often slippery later even when they aren't slippery now. All it takes is a minor shift in the interpretation of what a particular group is or means. We currently have a lot of states deciding whether their constitutions, written in the eighteenth and nineteenth centuries, protect the right of same-sex marriage. The question would never have been asked when those documents were written; the idea that such a thing would be called "marriage" was simply foreign to the document's framers. The same sort of reasoning could turn something we can now easily distinguish (like a gay president from two presidents) into something we cannot sufficiently distinguish from a legal perspective to prevent.
Ordinarily I'd just assume this was sarcasm, but these days I can't be sure...
I think you're playing fast and loose with your portrayal of constitutional interpretation. All constitutional interpretation involves some sort of interpretive intermediation on the part of a judge. As a colleague once put it, after a few drinks:
How about the equal protection clause? Does that require equal income? How about equal education? Is progressive income taxation unconstitutional? Is a flat tax unconstitutional as inherently regressive? Are libel and slander laws unconstitutional? Does the right to counsel attach at arrest? Arraignment? Trial? Are jury trials required for all causes of action? Is torture cruel and unusual? What rights are reserved to the states? The people? What process is "due"? Does that vary under the circumstances? Where do I find the non-delegation doctrine? Does the 11th amendment bar suits by citizens against their OWN states? What count as "cases" or "controversies?" Does the full faith and credit clause require Iowa to honor the marrraiges being performed in Massachutts? What are the priviliges and immunities of a citizen of any given state? Can Congress constitutionally fund the Air Force? If the federal government has to gaurantee that each state provides a "republican form of government," are popular referenda acceptable? What things constitute a republican form of government? Can the President fire his cabinet without Senate approval? Where does the Constitution explain that? What about withdrawing from treaties? Are Congressional-executive agreements with foreign nations acceptable? What about sole executive agreements? I forget which Article talks about those.
Since the document is "quite easy to read and understand," please explain the answers to those questions in a few short sentences.
All of those provisions, clauses, passages, whatever, require some THING. And the judge has to figure out what that THING is. My point is fair. Given that we have to determine what that THING is in a number of other contexts, I don't see why we ought not to determine this particular THING. Just because wording is ambiguous doesn't excuse a judge from having to take his or her best stab at interpreting it. Saying "liberty," as a textual matter clearly does not include SSM requires exactly as much interpretive chutzpah as saying it does.
The real question is causation. That is: Did decision A cause decision B (or make it more likely). Which goes to the power of the law to stand in the path of a developing social change. My own belief is that these slippery slopes tend to be inevitable, because they are the product of third factors, but that the law can shape the degree or direction of the slope, to some degree.
To make my point less abstract, assume that state constitutions run the gamut of interpretive possibilities from 1 to 50. 1 being the least susceptible to an SSM acceptance rule and 50 being the most. in band ranges 26-50, in other words, where it is more likely that the constitution requires EP as applied to SSM than not, i don't understand why courts "ought" not to "mandate" that the most likely interpretation of the constitution - a document ratified by a legislative supermajority and the supreme executive - be followed.
This feels like way too fundamental a question to be asking in this forum, but: Isn't the outcome of *any* case that makes it to a top court going to be controversial--and the only variable the number of people who will disagree with the outcome?
Put another way: In any case like this, aren't one man's "new controversial rights" inevitably another man's "existing rights finally being accorded to persons to whom they had been unfairly denied"?
Should the relative numbers or vociferousness of the adherants to those two views really be the deciding factor for courts faced with such a decision?
I agree that legal developments may have some influence on developing social norms, although I think the causation is usually stronger in the other direction. And if I may indulge myself in an extension of the metaphor, if a car is driving down the slope, and would be progressing in the same direction even if the road was flat or uphill, then even if the slope is technically contributing to the motion of the car, I am not sure how important the slope really is.
Kovarsky,
If I may, one might say that whether or not the courts of a state should enforce a constitutional right X depends on that state's constitutional law. One might further suggest general normative claims about constitutional law, such as that whether or not the state's constitutional law should recognize right X should be a matter of strictly construing the text of the state's constitution in light of its original meaning (or not, depending on your constitutional theories).
But none of this depends yet on what right X happens to be. And what I would ask Professor Volokh is whether his statement ("I don't think that state courts should mandate [gay marriages or civil unions] as a constitutional matter") is simply an application of such general principles in light of the specific status of constitutional law in each of the 50 states, or whether instead it depends in part on something specific about this particular issue.
In particular what is necessary for a slippery slope argument to be effective is that one ought not to support law A, even if one thinks it is a good idea, because it will increase the probability that law B will come into place which you may not think is a good idea. Thus in order for a slippery slope argument to be effective it is necessary that it is the enactment of the first law that increases the probability of the second not the preexisting sympathy for the first law that does the same.
As I read the NJ court decision it was not the enactment of laws that give gays rights that justified a guarantee of equal treatment but rather a social acceptance that gays deserve equal rights. The laws that guaranteed gays those equal rights were just an easy way to show that society believed discrimination on the basis of sexual orientation was wrong.
In other words, assuming the same level of opposition to gay marriage, clear evidence that NJ would have passed anti-gay marriage laws EXCEPT for the worry about the slippery slope would have served exactly the same argumentative purpose as NJ having actually passed those laws.
Still I agree you have a point as I am tacitly assuming rational action and informational omniscence. One might very well think that gays deserve equal treatment, but that gay marriage isn't an instance of such and knowing others are likely to assume it is have an incentive to deny that one believes in equal treatment for gays. Additionally one might practically realize that the success of a slippery slope argument in defeating a law will give extra emphasis to public opposition.
But none of this depends yet on what right X happens to be. And what I would ask Professor Volokh is whether his statement ("I don't think that state courts should mandate [gay marriages or civil unions] as a constitutional matter") is simply an application of such general principles in light of the specific status of constitutional law in each of the 50 states, or whether instead it depends in part on something specific about this particular issue.
see my original comment:
If you are saying that you don't think state courts should mandate them in the absence of state constitutional authority to do so, of course I agree. But that's not how I read your comment, which just states that state courts shouldn't mandate SSM. If a state court is honestly interpreting the state constitution, I don't understand how a constitutional requirement for SSM is a judicial mandate in any unusual sense. And if it s not a judicial mandate in any unusual sense, I don't understand why courts "ought" not to enforce it.
The "slippery slope" that leads to the acceptance of gay marriage rests in our notions of equality and freedom - and in that sense, it is the Bill of Rights, and the NJ State equivalent, that was the "slippery slope" to gay marriage or its civil union equivalent.
Read this, slowly.... And once again tell me why these words are not directly applicable to polygamy:
With same-sex partners in mind, the Legislature declared that “[t]here are a significant number of individuals in this State who choose to live together in important personal, emotional and economic committed relationships,” and that those “mutually supportive relationships should be formally recognized by statute,” The Legislature also acknowledged that such relationships “assist the State by their establishment of a private network of support for the financial, physical and emotional health of their participants.” ...
I submit to you that this logic is directly and inescapably applicable to polygamy.
I can only imagine that this makes you uncomfortable, and a bit desperate to change the subject. There is no holding of any court anywhere, ever that provided a legal logic for 2 presidents. But the above quote from the NJ Supreme Court wouldn't even require a clever lawyer to turn into a defense of polygamy.
You're right! We're so desparate to change the subject from the gay marriage = polygamy arguments. Desperate I tell you! The last time I felt so backed into a corner was when i thought about the logical consequences of miscegenation. Please no! Not the polygamy! I've already got the mens rea!
That said, the slippery slope this presents is interesting. The promises of the past certainly are not binding. But what of the promise makers? Currently the debate over marriage includes a "slippery slope" argument that same-sex marriage will lead to other alternative marriage arrangements. Like polygamy, polyamory, etc... The arguments are made, and have been made, that decisions such as this one will not lead to those. What of the promise makers now?
I'd appreciate some review on this, but it seems that this ruling more than the others seems to slide that slippery slope. In this ruling we see a relationship between individuals treated with the same protections of equal entitlements and rights that were drawn up for individuals. As some have said, we have progress. Sometimes we step forward without knowing altogether why, and look back and see entirely different rational than was offered at the time. An action that moves from contemporary to historic context is interpreted much differently.
In this decision, what protections are in place to keep this decision from extending to any relationship, be it romantic, collaborative, economic or political? Who is to say that a marriage isn't any of those, and more? To be honest I'm not even sure what rational is presented to extend individual protections to relationships?
This declaration is laughably wrong. Legislatures have _always_ legislated morality. The US is no different. However, most people only notice when a particular law runs afoul of their own personal sense of morality. Just think about your own particular vices, and then you'll realize that the government does all sorts of moral legislating.
I would think that any state supreme court, being comprised of people who actually went to law school, would be aware of this little historical fact. Oh well.
In this decision, what protections are in place to keep this decision from extending to any relationship, be it romantic, collaborative, economic or political?
Weren't you the "On lawn" that 3 paragraphs earlier was complaining about the court unnecessarily intruding on policy decisions.
Another phrase for slippery slope is "unintended consequences."
Fans of gay marriage like to caricature their opponents as gay bashers. In reality, what gives thoughtful people pause when faced with a social change like gay marriage is the unintended consequences that lie ahead.
The slippery slope that brought us here is taking us where? It is not a trivial question. Some people (not you, Justin) want to run screaming from that question. Some people, I suspect, are a bit peeved at Prof. Volokh for even bringing it up. "What's he trying to do? Make us doubt the rightness of this development???"
You can currently marry anyone and anything you want. This it not in dispute. However, the state only confers benefits on those marriages it considers a value to society. Currently, you cannot get state recognition if you marry someone underage, too closely related, if you marry an animal, or for polygamy or polyandry. all these things are still marriages, but they do not recieve state sanction. ( As far as those examples, they are all done under the auspices of various religions, and I make no judgement here as far as their moral value. i also make no judgement here as far as homosexual moral value.)
IMHO, adding homosexuals to the list of who gets state benefits for being married requires the supporters of expanding this privilege to state clearly what benefit society gets from it, and also what benefits they hope to obtain that they cannot get through other legal means.
Btw, being married, the only benefit that I gain from marriage is that, in the event of my wife being in a coma, i can make medical decisions for her without requiring another legal document. and that would only happen as long as no other adult with an interest in her health (i.e parent, adult child, sibling) challenges my decision. (i.e. Schiavo) There are no tax benefits, there are no property benefits, and with the tightening of the HIPPA regs, I dont even get informed of any medical matters unless my wife specifically allows it.
In a semi-related aside, I reside (at the moment) in TN. We had a constitutional amendment on the ballot effectively banning same sex marriage. I voted against the amendment, but it's because I don't feel that the state constitution is the correct place for this. I feel it is a legislative matter only. (and yes, we have early voting here)
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i think that the philosophical principle that states dont legislate morality is about paternalism, not what you're describing.
You can't take "learning that our fears were completely unfounded" and call it an "unintended consequence." Well you can, but in doing so, you have to take out the normative impact that it is supposed to have.
plunge has already given one of the great responses of all time, and I'll never match that. But no, the logic is not the same, and for a simple reason: there's no equal protection issue in your argument. You're focusing on the social benefits argument, but that's subsidiary to the fundamental point that there first must be an equal protection violation.
I'm with Kovarski on the court's role here. It seems to me that there are only two real arguments:
1. The court was wrong on the merits, i.e., either there is no equal protection clause in the NJ constitution, or the current law does not violate that clause.
2. The court was correct as a matter of law.
If the court was wrong on the law, the argument should be made on that basis. If the court was correct on the law, why on earth should it not rule? Equal protection is a core principle of republican government. Oppression of minorities is the specific concern of Federalist 10. If ever a court should NOT defer to the legislature, it's in an equal protection case.
that's why i find people that simultaneously argue for constitutional amendments and that courts are not the appropriate place for these things to be decided are almost morbidly stupid. the whole "courts aren't the right forum" argument is premised on the idea that this should be a majoritarian decision, but the whole point of an amendment is to impose a countermajoritarian rule on future preference collections.
I happen to agree with you on the arguments. I believe that the court was wrong on the law, that the court unnecessarily conflated privileges with rights, and found a right (the right to have your marriage recognized by the state) where none previously existed. Your right to marry whom you chose was not affected by the current law. If you could find a leader in your religon to perform it, you were married. What these people wanted was state recognition of their intent to marry, and thats a privilege not a right.
Any thoughts?
I agree completely.
I may have misinterpreted the opinion; however, I think that your response to Mark misrepresents the court's holding. The court said that same-sex couples have a right to have their union (very pointedly not "marriage") afforded the same benefits bestowed upon heterosexual marriages.
Although I'm unfamiliar with the laws of TN, contrary to your comment earlier in the thread marriage does confer a plethora of benefits upon the other partner in most jurisdictions. Take, for example, what happens if the marriage is dissolved. Equitable distribution of the marriage property (&equal distribution, etc., depending on jurisdictional rules) can offer protection to the spouse who earns less. In jurisdictions that recognize a tenancy by the entirety, probate (time-consuming &potentially expensive) can be avoided. The list of such potential benefits is quite lengthy.
The logic in no way needs to be the same. May as well argue that politics in general is a rational enterprise.
I didnt think of protection during dissolution. thats a good point. However, i am unaware of any jurisdiction that recognized tenancy by the entirety to any property not explicitly jointly held. (ie a house, car, bank accts held in both names) I dont intend to assert that they dont exist, i just don't know of any. And as far as probate issues, without a will the protections of marriage amount to squat if someone complains.
As far as misrepresenting the court's holding, i don't think so. Having their union afforded the same privileges granted to het, of age, single spouse unrelated couples is exactly what I was referring to. I don't find a right here. I find a privilege, and I don't see anyone even trying to show where SSM has any real or percieved societal benefits. And I still hold that the state has the ability to grant or withhold benefits based on a benefit to society.
I guess my issue here is the affected law didn't prevent these people from marrying whom they chose. It in effect said that the state did not find sufficient societal benefit to encourage it by granting special benefits.
My main objection to gay marriage is this.
When the gay Congressman whose name I don't remember died recently, he couldn't leave his pension to his partner because he's only allowed to leave it to his spouse.
The gay marriage agenda would allow others like him to pass on their pensions by redefining the word "spouse". Similar effects would apply to most laws and policies, including those of private companies. It would be difficult to further quantify the contractual provisions without looking like a homophobic jerk.
So while I agree that extending these privileges to gay couples is the Right Thing, I don't believe this is the way to do it. I believe that when you back-door your way into an existing contract by redefining the terms, this is fundamentally fraud.
Since I don't see any other substantive reason why gays need to marry, it's difficult for me to support a plan with obvious and intentional consequences that I find ethically odious.
Thanx
thats awesome... it'll never happen, as most sane men see no need to be emasculated by more than 1 woman....
heheheheh
My partner and I have spent the last 26+ years living insofar as possible as a married couple. Shared finances, shared living arrangements, shared dealing with relatives. We intend to care for each other until one or both of us dies. Is that "back-dooring" our way into an existing contract just by fiddling with a definition?
are you and your partner trying to get state recognition of your commitment to each other? if you are, and intended to use the courts instead of convincing a majority of the voters that your arrangement had sufficient societal benefit to grant those privileges, then yes, that is 'back-dooring'
It has nothing to do with your (honestly admirable) level of commitment and love for each other and everything to do with the tactics used.
How does society benefit from extending you the benefits of state recognition? and why can't you convince enough voters of that? I simply feel that the NJSC overstepped their mandate. This is a legislative question of privileges, not a constitutional question of rights.
Do you believe society benefits from recognizing straight marriages?
I think a case could be made that SSM would offer society the same benefits that a heterosexual marriage does. The benefits that at first blush would be available only to heterosexual marriages, such as procreation &a preferable child-raising environment, have been and will continue to be debated. However, there is evidence (and the groups of plaintiffs in all the recent court cases are generally composed of such examples) of committed same-sex couples that would refute this, as they've conceived through artificial insemination and/or provided a healthy environment for upbringing.
Beyond these biological issues, I haven't been able to come up with benefits of heterosexual marriage that wouldn't be applicable to SSM. One could say that encouraging long-term monagamous relationships tends to decrease the occurrence of STDs. From an economic perspective, acting as a joint entity can offer societal benefit (pooling their resources to maximize the good of the couple can achieve a greater result than the sum of what the two would be able to achieve independently). As in heterosexual marriages, if one partner has a far greater earning capacity, that partner can spend more time working, and the other could spend more time engaged in activities such as child-rearing.
Also, while property that is held in a tenancy by the entirety must be jointly held, there is a non-negligible difference between a tenancy by the entirety and standard joint ownership. A tenancy by the entirety offers greater protection to the spouses from each other, primarily because neither spouse can dissolve it without the consent of the other.
However, I admit I'm torn on the right / privilege distinction. I haven't looked through the cases cited as precedents. IMHO, I see real benefits that could result from recognizing such unions, but I recognize others believe differently.
Any thoughts on the effect of the issue of language? (what the opinion referred to as "title of marriage", IIRC) It seems semantic to me, but I wonder how people on either side who feel strongly about this language issue will react to the opinion.
I dunno, I think the "slippery slope" in this case is that "judicial legislation" acts on justices in a manner alarmingly similar to crack...
There are perceived benefits, the most likely to be real is that straight marriage 'civilizes' young men. For evidence of this, simply look at auto insurance actuarial tables. Young single men have the highest rates of accidents, and therefore the highest premiums. As soon as you get married, the rate drops drastically, in some places 50%. To be fair, i do not know if those actuarial tables have a seperate category for GLBT drivers, but since it is illegal most places to discriminate in services, i would doubt if they ask. I have never been asked, anyway...
There is also the perceived benefit to children of having a parent of each gender to use as a role model, but I don't know how real it would be. I do see the benefits in my own children now that their mother and I are back on speaking terms and are both remarried.
Those are the main 2 I see off the top of my head, I dont know if anyone can think of any more. (other than tradition) I dont see any to SSM at the moment, but I honestly feel that it is the responsibility of those who want to be extended benefts that bear the burden. I'm more than willing to listen and consider the benefits, and I don't have any indoctrination to overcome to accept it.
Thoughts?
As others noted, what the plaintiffs actually got here was not a recognition of marriage, but of the right to certain economic benefits. This is a particularly tricky issue in CA, where I live, and in other community property states.
Whether you call these benefits "privileges" or "rights" seems a bit semantic to me. For example, the law is clear that I don't have any "right" to a driver's license. At the same time, however, that "privilege" can't be denied me absent a legitimate reason (a reason that varies according to the classification scheme). All the court did here was reject the rationale given by the state for the denial of benefits. I can't see any problem with that.
I think Professor Carpenter is actually the person to ask, since he has written extensively on the topic.
Personally, I think the most obvious social benefits to marriage involve caretaking: when a marriage is a success, the couple takes care of each other, and also of any children they might raise, who in turn might take care of their parents in the future (this mutual caretaking can be in material, psychological, and other ways). This creates a benefit for society because this mutual caretaking tends to lead to the people involved being more productive, more law-abiding, more healthy, and so on.
So, as far as I am concerned, the central question from a public policy standpoint is whether gay marriage would lead to similar mutual caretaking between gay couples and any children they might raise. And I see no reason to assume marriage would be notably less effective at encouraging mutual caretaking among gay couples and their children than it is for straight couples and their children.
In response to the 2 points addressed to Chumund -- I think that these benefits may well spring from something other than heterosexual marriage. I wouldn't be surprised if the cause of the increase in safety reflected in the actuarial tables is something other than the heterosexual nature of the marriage. Of course, I have no statistics to back it up, but I wonder how the findings would break down if one were to separate out a new category for GLBT drivers who are in committed relationships -- the thinking being that the commitment has the effect regardless of gender. Another possibility is comparing accident rates of young married men with dependents to those without dependents, and see how much the findings change (if at all). Again, it's completely hypothetical on my part, but it seems likely to me.
In regards to your second point, might your children's benefit come more from the re-establishment of speaking terms between you and their mother (thus, a "healthy" relationship), rather than from having a parent of each gender? Thus, having a model relationship, rather than simply from a role model of each gender?
If the anti-SSM people want to use the argument of "It's about children." to "protect" marriage, then let's prohibit divorce for families with minor children.
None of these arguments are a valid reason to discriminate against Same-sex couples in law.
> My partner and I [etc. etc. etc.]
> Is that "back-dooring" our way into an
> existing contract just by fiddling with
> a definition?
No. But you didn't need to be married to do it, either, which means it's *not* a substantive reason why you *need* to be married.
A need to be married really means "show us something that you deserve but can not have unless and until you are married". Thus far, the only thing I've been shown is existing policies and contractual obligations that say your "spouse" can have certain rights and privileges.
@ EL SL:
> Beyond these biological issues, I haven't been
> able to come up with benefits of heterosexual
> marriage that wouldn't be applicable to SSM
But that doesn't make any sense. The biological issues are what distinguishes OSM from SSM in the first place. You may as well say that beyond the cheese question, a cheeseburger and a hamburger are the same thing. It's true, but it's a completely pointless restriction of the discussion.
> I wonder how people on either side
> who feel strongly about this language
> issue will react to the opinion.
The largest reaction to this language issue, I think, is that heterosexuals can no longer imply heterosexuality by saying they are married. They have to specify they're married to a woman... which, of course, is an odd thing to specify. It then implies not that one is heterosexual, but that one is homophobic. That is a significant change.
I think there is a corollary demand from the gay community, because they find a certain value judgment in the terms "civil union" or "life partner" as opposed to "marriage" or "husband". This is also a significant change, but it doesn't actually fix anything: just because you call yourself "married" and say your partner is your "husband" doesn't really make people think any differently about you.
So the heterosexual community suffers very real damage, while the gay community receives no actual benefit. I find this dilemma very, very easy to resolve... but I also think the dilemma in and of itself is stupid.
My point on the tenancy issue was that it only referred to property already jointly held. seperate bank accts, property severally held, etc isn't protected, and is subject to probate. as far as far as it having better protection while living, i had not considered. I was under the impression, though, that even though one party can unilaterally end joint ownership, it must be done within the applicable contract law. IE, if I own property jointly with my brother, while either of us can execute a quitclaim and walk away, niether of us can "commandeer" full ownership from the other. (unless provided for in a seperate contract)
The STD issue is pretty good, and I would perceive it as a societal benefit. I'm still on the fence on children raised in a same sex household. I simply havent seen enough evidence that there isn't harm to the child's psyche. and it has really only been in the last generation that enough children are being raised in openly gay households for us to start having reliable data pools.
procreation issues aside ( i dont particularly care for IVF for anyone, but thats another topic) I can reasonably see that there is no reason not to expand the legislation to include SSM.
That being said, I still feel that it is inherently the responsibility of the GLBT community to convince voters, instead of trying to get the courts to invent a new constitutional right.
I feel the wording was a weaselly attempt to limit the (imho justified) backlash. I dont think it will have any real effect once both sides spinners get done with it.
As far as this mobilizing conservative voters, it wont. Those who really care about this are already planning on voting. (on both sides) I think this will be used to justify what I expect to be an unprecedented level of turnout and the failure of the democratic party to gain a majority in either house. So, we get 2 more years of the Ultra-hard left calling everyone who doesnt agree with them homophobes.... yay.....
Today's decision lists more than a dozen substantive benefits that married couples receive under NJ law that even the state's domestic partners don't.
A daughter comes home from school with boy trouble. She goes to her two dads. Is either of them qualified to interpret how she feels? Do either of them think like a girl?
A boy comes home with girl trouble. He goes to his two dads. Is either of them qualified to help? Have either of them ever had girl trouble?
It is nothing short of ludicrous to propose that homosexuals are in any way qualified to consult on the mechanics of heterosexual relationships. It is every bit as ludicrous to propose that heterosexuals are qualified to consult on homosexual relationships.
I think every child deserves to have a close relationship with an adult who has a similar gender identity and sexual preference. I do not believe that relationship needs to be parental. I believe the gay community is excellent at supplying such friendships with everything under the sun EXCEPT heterosexuals.
What we need is a way that children of all persuasions can be provided with appropriate sexuality-tutoring relationships across the board. Every teen needs someone to ask those weird questions you can't ask your parents, like whether you did something right.
The heterosexual community is doing a hideously bad job at this, which is the only real justification I can see for needing a two-sex parental situation.
As to the "biological issues," I wasn't clear in my earlier post. I pointed to the biological arguments as ones that may or may not be sound at present, depending on one's perspective. Given the arguments on either side, they hardly seem like a satisfactory basis for a decision in the matter.
If one feels that the advantage is in having those two people in the marriage procreate, creating a baby whose DNA is specifically from those people, then I can't do much but disagree. I wouldn't see a benefit from having a baby created specifically from the DNA of those two people. I feel that adoption, surrogate mothers, artificial insemination, et al., allow same-sex couples to produce the same benefit. Moreover, there is fairly extensive evidence that a same-sex couple can offer just as rich an environment for child-rearing as a heterosexual couple can.
As to the "biological issues," I wasn't clear in my earlier post. I pointed to the biological arguments as ones that may or may not be sound at present, depending on one's perspective. Given the arguments on either side, they hardly seem like a satisfactory basis for a decision in the matter.
If one feels that the advantage is in having those two people in the marriage procreate, creating a baby whose DNA is specifically from those people, then I can't do much but disagree. I wouldn't see a benefit from having a baby created specifically from the DNA of those two people. I feel that adoption, surrogate mothers, artificial insemination, et al., allow same-sex couples to produce the same benefit. Moreover, there is fairly extensive evidence that a same-sex couple can offer just as rich an environment for child-rearing as a heterosexual couple can.
Here's the thing. Either discrimination on the basis of sexual orientation is a violation of equal protection or it isn't. If it isn't, the courts should of course not pretend that it is. If it is, the courts have a duty to recognize that and act accordingly.
Likewise with the LGBT community. If members of the community believe that sexual orientation discrimination violates equal protection, then their "responsibility" is to press that case in the courts. The courts can then accept or reject their arguments.
This all seems obvious to me.
Isn't semantics the heart of law? (heh)
seriously, though, the difference btw rights and priveleges is significant. Under our constitutional model, we get rights once we start breathing. Privileges are things handed out by the government as rewards for certain behaviors.
in the example of your DL, here you have to be a citizen or resident alien, speak and read passable english, learn the rules well enough to pass a test, spend a certain number of hours driving under competent supervision, and then it can be taken away from you for a myriad of reasons. some of which I find well beyond the states constitutional mandate.
oh, and the recognition of marriage is what was required to gain the benefits. they could have been married at any time. I have attended same sex marriages in SC, GA, TN, PA, NY, AZ, and FL. They were married in their religions and in their hearts, and for them, that was enough.
Touche, i hadn't considered how silly that sounds.
there was no discrimination invloved. It was not illegal for them to marry. It was not seen as being in the states interest to reward them for marrying.
Of course, I think there are a lot of women with gay male friends who might find this conversation amusing as well.
Anyway, to me this all illustrates an interesting difference in thinking about such subjects. People like me are very much about considering the individual when it comes to most caretaking issues, and I think it is quite likely that individual characteristics will swamp any weak generalities one could offer about people based on gender/sexuality. But I understand others think differently.
Or is your hostility aimed more at outcome, in that every state that's ever voted on this has removed the issue from the pens of judges? (That's my guess.)
And Gary, are you arguing for a prohibition of multi-party contracts on all levels? If not, yours seems like a pretty weak answer to a question--the polygamy dilemma--that is less ridiculous than you and others will allow.
Most of that is either outdated or bunk. Het couples have to cross adopt each others children, and with the new hippa law if your spopuse isn't in a coma they have to specifically put you on the list or you get no info from the hospital. Hell, they even had to check my wifes id to confirm that she was on the list when i had hernia surgery this summer.
As far as inheritance tax, i don't know the applicable NJ law... could be true. Federally, there is no difference in the tax rate no matter who your will specifies.
As far as employers not granting benefits to DP's, this is an issue? I have worked for employers that didnt even grant benefits to employees, some that didnt include spouses, etc. Each company is free to decide whom it will offer benefits to. and, if i remember correctly, FMLA does cover DP's now.
So, i've found 1 thing, NJ inheritance tax.... why not just have tax reform?
So let gay people decide whether we "deserve" to be married.
I get from you writing (please correct me if I'm wrong) that to you discrimination is as simple as expressing a preference for one thing over another?
If you grant people a right or a privilege because they possess attribute X, and deny others that right or privilege because they lack attribute X, you're discriminating on the basis of X.
Sometimes such discrimination is appropriate, sometimes not. But if you say that appropriate discrimination isn't discrimination, you're just muddying the waters.
Go read the decision --- pages 43 through 48. I count eighteen enumerated ways in which domestic partners in New Jersey are disadvantaged in relation to married people. If you'd like to try to debunk all eighteen claims, by all means have at it. I'm all ears.
To me the more pressing question is whether group marriages can be reconciled with the principle of equality within marriage which our society in particular has adopted. On that issue I think considering other group contractual situations are indeed useful, because generally they do in fact incorporate some sort of hierarchical structure (e.g., a lead partner, designated officers with lines of authority, and so on). And that may be a necessary structural feature once one expands marriage (or any group relationship) beyond a couple.
Any double-dad or double-mom scenario would depend on parental relinquishment.
Adoption is a related but seperate social institution. The presence of children does not bestow marital status on two adults. On the other hand, marital status is a legitimate factor in the approval of adoptive placements.
Third party procreation is extramarital. It also depends on parental relinquishment -- in this case, prior to the conception/birth of the children created.
So the presence of children in same-sex households illustrates that the double-mom or double-dad are the virtual inverse of the mom-dad combos in married households.
The statistics on the child population in same-sex households further illustrates this. About 11% of the adult homosexual population resides in same-sex households; about 3% of the adult homosexual population resides in such households with children. About 95% of that child population was not attained by adoption and third party procreation. The majority, by far, migrated from the previously both-sexed relationships of one of their parents (typically marriages). These kids have nonresident moms and dads -- in addition to the parents of the other sex at home. This is the inverse of the child population living in married households.
Marriage is the combination of sex integration and responsible procreation. This is extrinsic to the one-sexed arranagment. Meanwhile parental relinquishment is intrinsic to the same-sex household with children.
Whether or not this remains important to society and that state recognition of marriage protects the unique status of marriage, well, that's in contention.
In my view, the New Jersey Court makes a superficial case for protecting the word marriage but then goes ahead and substantively merges state recognition of marriage with recognition of an intrinsically nonmarital alternative that selectively segregates the sexes and cannot provide for responsible procreation within marriage.
Now, the State made its argument half-heartedly, I think, overall, and so the Court did not think it was obliged to protect what is recognized, the social institution, by the enactment of statutes that created the legal shadow of that social institution. It has replaced the thing recognized with its shadow.
I don't see how that can do anything but erode the social esteem for the social institution of marriage. Replacing it is a radical measure for the judiciary to have adopted for all of society.
I grant that what you describe is discrimination. It took me getting 3/4 through this post to realize what you meant... starting over,
I dont feel that this is discrimination covered under article I, there are no rights in play. The NJSC created a new right out of whole cloth. (imo)
Look at it this way, if I start with no state benefits, and then decide that I want to encourage a specific condition, and to do that I will make this enticement available to those who satisfy this codition. Those who dont meet the condition arent being unfairly discriminated against except in the most broad sense.
My point is that it within the states right to say if you give me outcome A i'll give you benefit B. Since under the current definitions only het couples are seen as giving me outcome A, they are the only ones who get benefit B. If you want benefit B, show me that you give me outcome A. If you can convince 51% of the voters, the definitions get changed.
Ill reread the decision and get back to you tomorrow... gotta go get horizontal...
be well
I think if you define "parental relinquishment" broadly enough, your claim is probably correct (although sometimes "parental relinquishment" is nonvoluntary, such as when a parent dies).
But why exactly does that matter? Once, for whatever reason, one or both of the genetic parents is no longer raising the child, and instead the child is being raised by a gay couple (one or neither of whom might be a genetic parent), would the child be better off with an unmarried gay couple?
Or are you claiming that we can actually prevent the "parental relinquishment" in the first place if we later prevent the gay couple from marrying? I suppose that might be true in some cases, but the fact that so many gay couples are in fact raising children already suggests to me that cannot be true in all cases.
Even with privileges, classification has to meet a rational basis test. My point was that the NJ court seemed to hold that the classification here couldn't even meet that standard.
As I also said, the issue gets really tricky with community property. That's directly tied to marriage -- no marriage, no community property (under current law). CA public policy sees CP as very important; depriving someone of that benefit would seem to require a very substantial reason. What is it?
Obviously "parental relinquishment" in this broad sense occurs whenever one or both of the parents is not a genetic parent. So, this issue is not really restricted to gay couple raising children, but would include straight couples raising children where at least one member of the couple is not a genetic parent. In fact, I would assume the number of such straight couples is far, far higher than the number of such gay couples, and also that many of these straight couples are in fact married. Accodingly, adding similar gay marriages would really not add significantly to this phenomenon.