The New Jersey court gave the state legislature 180 days to do one of two things: either (1) amend the state marriage laws to permit same-sex couples to marry or (2) create a parallel statutory system “which will provide for, on equal terms, the rights and benefits enjoyed and burdens and obligations borne by married couples.” This parallel system could be called “civil unions” (as in Vermont and Connecticut) or “domestic partnerships” (as in California) or something else. Under #1 the state will have fully met its constitutional obligation. Under #2 the state may meet its constitutional obligation but will invite further litigation on the issue. Litigants will get a second bite at the marriage apple.
The question is, having concluded that gay couples are entitled to all of the rights of marriage, why did the New Jersey court not simply order the state to issue marriage licenses to same-sex couples? The gay-marriage litigants in the case likened a parallel system to “separate-but-equal” and “second-class citizenship,” terms that emphasize the dignitary harm done by a law that denies them the status of being married. They argued that marriage is not simply an entitlement to legal goodies, but is a status rich in cultural and historical meaning. Marriage works because the status of marriage is synergistic: it combines important legal rights with important cultural rites. A parallel system can capture the former but cannot fully capture the latter. Very eloquent and even moving affidavits from the couples, quoted at length in the concurrence, make the point that there is ultimately no substitute for marriage.
The court’s tentative answer to this dignitary concern is this:
Raised here is the perplexing question – “what’s in a name?” – and is a name itself of constitutional magnitude after the State is required to provide full statutory rights and benefits to same-sex couples? We are mindful that in the cultural clash over same-sex marriage, the word marriage itself – independent of the rights and benefits of marriage – has an evocative and important meaning to both parties. Under our equal protection jurisprudence, however, plaintiffs’ claimed right to the name of marriage is surely not the same now that equal rights and benefits must be conferred on same-sex couples.
It’s hard to imagine a court saying that the question whether interracial unions will be called “marriages” or “civil unions” might not be “of constitutional magnitude” or could be dismissed as a controversy over a “name.” This suggests that the answer to the question – “what’s in a name?” – is, “Sometimes, a lot.” The “sometimes” here is important because it may be that, in the context of our poisonous racial history, a difference in nomenclature would send an especially demeaning and corrosive message about interracial couples, where a difference in nomenclature alone for gay couples would still signal a tremendous advance forward for gay families. But at least courts should recognize that “names” can matter in ways that law should take into account.
The court also conflates the status issue with a social acceptance issue: it treats the claim for the legal status of marriage as if it is a demand for equal social acceptance. “Although courts can ensure equal treatment, they cannot guarantee social acceptance, which must come through the evolving ethos of a changing society,” argues the court (a challenge: find a parallel claim about social attitudes and law in Plessy).
Of course no court can mandate social acceptance; but that is not what gay-marriage litigants asked for. What a court can do is remove any role the law might play in reinforcing social inequality. Denying the status of marriage to gay couples lends some continued legitimacy to the idea that they should not be accepted socially as the equal of married couples. For many people, that may be the correct message to send. But we cannot deny that it is sent and that law has played a role in sending it. Erasing that final status distinction at least ensures that, if social inequality between gay and straight couples remains, it will be no fault of the law.
The court has not shut the door to a claim for the status of marriage. It suggests that the legislature may be able to come up with a reason to restrict the status of marriage to opposite-sex couples, even though it has failed to come up with a sufficient reason to restrict the rights of marriage to opposite-sex couples. The court doesn’t tell us what this reason might be, but says that “marriage” has a “shared societal meaning” passed down through the ages as the union of one man and one woman. “To alter that meaning would render a profound change in the public consciousness of a social institution of ancient origin,” says the court. Having been hard-headed positivists about legal rights for most of the opinion, here the judges become mystics in their reverence for “marriage.” Perhaps the legislature can cite the unknown consequences of changing the “shared societal meaning” of an ancient social institution as reason enough to choose a parallel system for gay couples, but it is hard to see how this would be different from the tradition-based rationale the state offered and the court rejected for denying rights to gay couples.
Two courts so far have squarely confronted this question of nomenclature and have come to opposite conclusions. The Massachusetts high court could not think of any reason other than prejudice for the legislature to deny the status of marriage to gay couples even as it was required to grant them the rights. A Connecticut trial court recently held that a claim for the status of marriage, where all the rights have already been given, was beneath the constitutional radar.
At any rate, it is now clearer than ever that judges in future gay-marriage cases will see three options:
(1) Democracy-permitting decisions: Deny the gay-marriage claim and do nothing more, leaving all decisions about status and rights to the legislature. This was the route taken recently by the state supreme courts in New York and Washington, although the Washington court left open the possibility of choosing route #2 or #3 in the future.
(2) Status-forcing decisions: Mandate the status of marriage, and all of its rights, for gay couples. This was the route taken by the Massachusetts high court in Goodridge.
(3) Rights-forcing decisions: Mandate the rights of marriage, but not the status, for gay couples. This was the route taken by the Vermont supreme court, and now by the New Jersey supreme court.
Rights-forcing decisions are the “Third Way” in gay-marriage litigation. The gay-marriage litigants in Washington and other states have rejected this remedy. But courts sympathetic to gay-marriage claims in other states will probably see the Third Way as the most attractive option. The advantage of a rights-forcing decision over a status-forcing decision is that it leaves some room for democratic decision – specifically, whether to grant the status of marriage to gay couples. And rights-forcing decisions engender less democratic backlash than do status-forcing decisions, producing potentially more stable gains for gay couples in the long run. On the other hand, rights-forcing decisions may be may prove unstable if they lead to subsequent status-forcing decisions.
Note that the number of states where courts can be expected to be somewhat sympathetic to gay-marriage claims has dwindled to a handful. New Jersey was probably the last, best hope for a full gay marriage victory in a state court for some time to come. California, where gay-marriage litigation is pending, seems more doubtful. In that state, full rights recognition (#3) has already been achieved legislatively so the only real question will be whether the state supreme court is willing to recognize the dignitary concerns that might push it into a status-forcing decision (#2). In a growing list of states, where status-forcing or even rights-forcing judicial decisions were already very unlikely, all three options have been taken off the table by sweeping state constitutional amendments that prevent even ordinary legislative action to protect gay families.
Nevertheless, by the end of next April, New Jersey will join four other states – Massachusetts, Vermont, California, and Connecticut – in giving gay couples access to all of the rights of marriage under state law. All by itself this is a significant development. Of the 300 million people who live in the United States, about 54 million (over 1/6 of the nation’s total population) will live in a state where gay couples have access to the same rights and obligations as married straight couples. Of those 54 million, about 40 million will live in a state where this result was achieved entirely legislatively (California and Connecticut). All of that has happened in just the last six years. The experience we gain and the lessons we learn from protecting gay families under the law in those states will be difficult to ignore in the years to come.
A. Someone say homosexuality is exactly like race and the case Loving v. Virginia means gays must get all marriage rights.
B. Someone answers that homosexuality is nothing like race and that marriage has always and should require a man and a woman.
C. Someone answers that marriage isn’t about a man and a woman, it is about being allowed to fulfilled in the relationship you want.
D. Someone answers what about people who need 3 wives to be fulfilled.
E. Someone says marriage is about finding one person, not three
F. Someone counters, if you want to limit it to one person, why can’t society limit it to one person of the opposite sex.
G. Someone else says, okay, what if I want to marry my sister or my daughter. What if that is the only person who brings me fulfillment.
Then posters start calling each other names and the discussion ends.
How about adding other aspects to the debate?
What about the issue of if our society embraces gay marriage, is there any hope to convince the world’s 1.3 billion Muslims that democracy and freedom are the way to go? These guys are 14th century barbarians who want to stone gays to death. Wouldn’t a Western society that tolerates gays be more likely to appeal to them than one that celebrates gay marriage? It seems clear that if we don’t convince the Muslims to be more tolerant, we are going to end up in a hundred year clash of civilizations that may end up as nuclear war.
Public Agenda (http://publicagenda.org/index.cfm) is a nonprofit, nonpartisan group devoted to public opinion and public policy.
I'm confused as to why the court didn't draft the statutory language themselves, since they clearly feel that they have the power to do so. Abolishing the legislature would be the next step.
Not to hold you to the facts or anything, but what in the opinion justifies this comment? The Court found that the current statutory regime is unconstitutional, and provided a grace period so the legislature could draft its own remedy. The only difference between this and the typical instance is that the Court provided a grace period.
Huh?
This seems to me to be patently false. It is the COURTS that gave gay people "all of the rights of marriage under state law" in NJ (as well as Vermont). The legislature is confined to deciding what to call the arrangement - but it is the COURT that decided that gay people have "all of the rights of marriage under state law" in NJ.
H. Debates over whether homosexuality is a "choice" or at least mainly genetic;
I. Debates over how children raised in households with single sex parents do.
J. Some hardcore libertarian arguing that the state should "get out of the marriage business entirely."
K. Clayton Cramer describing all the Gross Things he's seen gay men do, and concluding that this means gays and lesbians are disproportionately the result of abuse as children and/or mentally damaged.
L. Debates over whether "homophobe" is a proper and appropriate term for certain people/statements/positions.
As to the merits, to the extent that Truth Seeker is suggesting that by granting gays and lesbians various legal rights and forms of equality, we can differentiate our society in a positive way from Islamist (or other types of) theocracy, I agree that we should do it. In the short term, I doubt that will convince potential Al-Qaida members to lay down their arms. But you know, there must be a pretty large number of gays and lesbians in the Islamic world; life must be pretty miserable for them; and it would be nice to show them a better way.
Beyond that, I thought Dale's post was excellent.
Yes, of course, the nuclear family has been disintegrating for several generations. To me, this is cause for alarm, and a genuine apprehension about who is going to be raising the children of the future. What does society become when the majority of children have no idea what "family" means?
I have no beef with gay people, and I am largely sympathetic to their struggles. But, marriage has always been about family and children, not social acceptance. The social esteem/benefit that attaches to marriage is an tacit acknowledgement of it's central importance to the lifecycle of our culture. Say what you will, but gay marriage will never be primarily about children and their rearing. Find another way to "equalize" gay relationships! Find another way to help homosexuals find the social acceptance that they surely deserve.
There needs to be a way for society to acknowledge the hardships and sacrifice that attend parenthood and the raising of children. There needs to be an easy way for society to identify and support families. It is too important to ignore or denigrate. If marriage ceases to do this, then a different social institution will rise up that does. Or not... at which point we will have spun out into a social experiment that leads who knows where.
Now, go ahead. Everyone can scald with their oh-so-witty suggestions that I am nothing more than a homophobe and a creep. Fine; I can take it, but what I am saying contains an fundamental truth. You are not half as smart as you think you are if you fail to see it.
Its interesting that 50 years on , another court now says that separate but equal is ok when it comes to gay marriage.
At least the 3 dissenters had the courage of teir convictions. The majority took a cop out. I have n orespect for them.
Omar Bradley:
Not quite, but very close. Who's going to step up and recite item B?
As I remarked in the previous threads I also find these third way results utterly unjustified. I think precedent compels full marriage rights but I can see at least a plausible case that this precedent ought to be overturned. Going the third way seems pretty clearly to reflect public pressure or hesitancy rather than a good legal deciscion.
--
Truth Seeker,
You missed
M: Someone whining about Turner v. Safley and Zeblocki v. Redhail and complaining that no one else is even paying attention to the relevant precedent.
Of course no one does pay attention but I think the cases on the fundamental right of marriage are a lot more relevant than Loving v. Virginia that was specifically about a protected class. This just gets us into the morass of what triggers 14th ammendment protected class.
As your name suggests, you seem to think that because there is a legal logic to some outcome, it must be so. I look at the broader picture. The law is nothing more than an attempt to codify our collective moral sense. What "the governed" think and feel matters very much. More, in fact, than an abstract legal argument.
We are not slaves of the law. We are consentually governed by it. Logic alone leads to tyranny. I believe that it was Emerson who said something about "a foolish consistency...."
Marriage is a status rich in cultural and historical meaning. Now let's buck the prevailing culture and all of human history and redefine marriage to include gays.
That anybody could argue that is baffling.
It would make more sense to order the county clerks to hand out the marriage licenses but use language that makes it clear that if the legislature wanted to pass a separate civil unions statute, that would be A-OK with the court.
The court also conflates the status issue with a social acceptance issue: it treats the claim for the legal status of marriage as if it is a demand for equal social acceptance. “Although courts can ensure equal treatment, they cannot guarantee social acceptance, which must come through the evolving ethos of a changing society,” argues the court (a challenge: find a parallel claim about social attitudes and law in Plessy).
This is probably the only correct portion of this decision.
The objective of the movement for homosexual "marriage" begins and ends with changing the law. This movement does not attempt to convince homosexuals to in fact enter into the civil marriages allowed by law and indeed only a tiny percentage of homosexuals do so. Rather, this movement is an attempt to equate homosexual unions with marriage under the law in an attempt to gain equal social status which society has not itself granted.
Of course no court can mandate social acceptance; but that is not what gay-marriage litigants asked for. What a court can do is remove any role the law might play in reinforcing social inequality. Denying the status of marriage to gay couples lends some continued legitimacy to the idea that they should not be accepted socially as the equal of married couples. For many people, that may be the correct message to send. But we cannot deny that it is sent and that law has played a role in sending it. Erasing that final status distinction at least ensures that, if social inequality between gay and straight couples remains, it will be no fault of the law.
I disagree.
To borrow a metaphor, there are a rainbow of different social and sexual human relationships but the state is choosing to elevate only one - marriage - above all others. Homosexual unions are not being singled out as the only human relationship which does not gain the benefits of marriage.
Conversely, when a court arbitrarily rewrites the law to make homosexual unions the legal equivalent of marriage, it elevates homosexual unions above all other human relationships.
Rights-forcing decisions are the “Third Way” in gay-marriage litigation. The gay-marriage litigants in Washington and other states have rejected this remedy. But courts sympathetic to gay-marriage claims in other states will probably see the Third Way as the most attractive option.
This "third way" is perhaps the worst of the judicial legislations in this area of the law. When these courts correctly find that there is no fundamental right to homosexual "marriage," they are then forced to hold that there is no rational reason to hold marriage above other human relationships because marriage is only a civil contract awarding benefits and not the cornerstone of procreation and the raising of civilized children. In sum, to equate homosexual unions with marriage, these courts have to denigrate the importance of marriage to the equivalent of irrationality.
The advantage of a rights-forcing decision over a status-forcing decision is that it leaves some room for democratic decision – specifically, whether to grant the status of marriage to gay couples.
Color me underwhelmed. The outlaw NJ court arbitrarily rewrote a massive section of state law and then barred the democratic process from doing anything about this power grab except to decide whether to call this new category "marriage" or "civil union."
And rights-forcing decisions engender less democratic backlash than do status-forcing decisions, producing potentially more stable gains for gay couples in the long run.
As my state votes to join several others to constitutionally define marriage to block our courts from legislating in this area, I have a hard time accepting that argument. Indeed, the NJ decision made a mockery of the argument of gay marriage advocates here that such an amendment was not necessary.
What happens if the legislature does not act, does marriage go away in New Jersey?
The good news is that the picture is becoming ever clearer that a federal defense of marriage amendment is needed to stop this anti-democratic process from continuing. A fraction of 1% of a society's population should not and does not have the right to impose its vision of fundamental social institutions on the rest of that society.
Anyone who is enough of a traditionalist to believe that children are better off if their parents are married should want same-sex couples to have full marriage rights.
Homosexual unions and marriage are not remotely comparable concerning children.
Marriages can procreate children, homosexual unions cannot. Homosexual unions gain children when a lesbian conceives with a man outside of the union or when the state grants one or both in the homosexual union custody of a child conceived by a heterosexual couple.
Moreover, homosexual unions have the same limitations raising children as do single parent heterosexual homes - the absence of a parent of the opposite gender. Science is debunking idea that mothers and fathers are interchangeable or that friends outside of the family can fill the role of a father or mother.
Marriage is held above all other human relationships because it is the best vehicle for procreating and raising civilized children, for civilizing men and for protecting and providing for women raising children. Moreover, marriage provides mental and physical health benefits for each spouse. While these concepts are denigrated in many elite quarters such as our courts, they are scientifically indisputable.
I'm just waiting for the day a guy sues to get "equal rights" for reproduction. I mean, after all, the law allows a woman to chose to get pregnant, or not get pregnant, or terminate a pregnancy once she is pregnant. How come men don't get the same choice?
It couldn't possibly be that men and women are actually different, or that the courts should recognize those differences. Nah. All men and women should be given the exactly same identical rights regardless of the laws of nature (or common sense).
If marriage truly existed for the sole purpose of procreation, we would have to return to the old custom of handfasting to ensure fertility before a marriage. Under that argument, couples where one or both halves are infertile should not be permitted to marry because they cannot procreate. Should women be forbidden to marry after they pass menopause and can no longer biologically have a child? Should all couples be required to promise they intend to have children, to avoid all the "childfree" married couples currently in the world?
There are many reasons for marriage other than biologically having and raising children, as evidenced by the many marriages in this country (and world) where the couple either does not have biological children or does not have children at all. If we allow artificial insemination, adoption, or childfree status for heterosexual married couples, why should gays be prohibited from marrying simply because they cannot procreate?
I'm of two minds about the issue of gay marriage, but I don't believe the "procreation" argument is a sound one.
Well, you've just spit in the face of every adoptive parent and adopted child, and of every infertile couple in the country. If that's "family values", I'll have none of it.
Because gay couples in those states who are not married have none of the obligations that a married straight couple has (vis-a-vis being married), right?
Judging by the respose to the Mohammed cartoons, getting rid of that pesky first amendment would probably help your relationship with fundamentalist Muslims. Sound like a good idea? We're trying to avoid nuclear war, after all.
You did notice that the New York Times, Washington Post, Time, Newsweek, CNN, etc., etc. all avoided showing the Mohammed cartoons. Why didn't any of them stand up for the First Amendment?
The difference here is that the court can, I think, legitimately force society to accept rights. But status is really a function of societal acceptance, and by status-forcing, courts would be acting to override societal norms.
Of course, it is likely that if the courts force rights, then ultimately they will become accepted, and that may indeed ultimately result in the status that is being sought. And, I think that is just fine with me. My big problem is with the anti-democratic nature of the status-forcing.
If you go back to, say, the early 1990's, before gay marriage became a serious item of public debate, and look at the literature put out by 'family values' organizations, you'll see them listing a variety of purposes served by marriage. What's interesting is that procreation doesn't even make it on the lists. This idea that procreation is the principal function of marriage is an invention of anti-gay activists, adopted for purely strategic reasons.
Bart: Moreover, homosexual unions have the same limitations raising children as do single parent heterosexual homes - the absence of a parent of the opposite gender. Science is debunking idea that mothers and fathers are interchangeable or that friends outside of the family can fill the role of a father or mother.
The thing is, there's no shortage of reputable studies on this issue, and all of them find no significant differences between kids raised by gay parents and those raised by comparable heterosexual parents.
Actually, there are a shortage of rigorous studies in this area. The studied populations of homosexuals with children are tiny, the variables examined are not rigorous and the examinations do not occur over significant periods of time.
Indeed, many appear to be politically motivated to find a certain outcome or lack of outcome. Doing rigorous science on homosexuality appears to be virtually radioactive in academia.
If you have any particular studies you would like to discuss, provide a link to the methodology and data used. I am a civil and criminal defense attorney used to cross examining paid whores posing as scientific experts for plaintiffs. Merely pointing to a study means nothing to me. You have to demonstrate the methodology and data are sound.
That people adopt children has no bearing at all on the role of procreation in marriage as an institution.
(If you think procreation is irrelevant to marriage as an instiution, just say so. There's an argument to be made there, and it might even be a strong one.
Inventing an insult to the infertile or to adoption doesn't help.
Remember that he was praising the effect of two different-sex parents on raising children. That's at worst neutral to adoption in the vast majority of cases, and more likely for it in the case of children with no available parents.)
But seriously, if he's so wrong, do better, and show us how he's wrong, rather than saying he's insulted people he hasn't.
Kenvee: Same thing. He said "Marriage is held above all other human relationships because it is the best vehicle for procreating and raising civilized children, for civilizing men and for protecting and providing for women raising children".
That explicitly does not say marriage is justified only by childbearing, does it? Primary justification is not sole justification.
Nuance, people.
(And to say "marriage has other justifications" by bringing up adoption and artificial insemination, well... that seems rather contradictory, no? Especially since he already said "for civilizing men" as one of the other justifications?
I repeat, the fact that some people are infertile has no bearing on the institution of marriage as a whole, any more than the fact of the conviction of innocent people and failure to convict the guilty would prove that the justice system is not about punishing the guilty and protecting the innocent.
There have to be better arguments against his case than, to paraphrase, "some people are infertile so marriage can't be about raising kids", right?)
Full disclosure: I vacillate between neutral not-caring-much-either-way, being lukewarm pro-civil-unions, and "get the state out of the marriage business entirely", so I don't really have a dog in this fight.
But I prefer a higher level of argument that involves addressing what someone else actually said rather than what appears to be a cardboard cutout stereotype of "The Other Side" (which applies in both directions; I just happened to see these two comments at the end going in the same direction and making points I can't help but see as non-sequiturs).
Bart sez: Homosexual unions and marriage are not remotely comparable concerning children. Marriages can procreate children, homosexual unions cannot.
Well, you've just spit in the face of every adoptive parent and adopted child, and of every infertile couple in the country. If that's "family values", I'll have none of it.
Nonsense.
1) This discussion has nothing to do with "family values," which is a meaningless term.
2) The fact that marriages can procreate and homosexual unions cannot has nothing to do with the issue of adoption. That is a red herring.
As a traditionalist, I say that it is odd that the word "family" and "children" are largely absent from this debate. The traditional role of marriage has been two-fold: produce children, and civilize them. The nuclear family has traditionally been the workshop wherein the future of our culture and our society is forged.
Yes, of course, the nuclear family has been disintegrating for several generations. To me, this is cause for alarm, and a genuine apprehension about who is going to be raising the children of the future. What does society become when the majority of children have no idea what "family" means?
I have no beef with gay people, and I am largely sympathetic to their struggles. But, marriage has always been about family and children, not social acceptance. The social esteem/benefit that attaches to marriage is an tacit acknowledgement of it's central importance to the lifecycle of our culture. Say what you will, but gay marriage will never be primarily about children and their rearing. Find another way to "equalize" gay relationships! Find another way to help homosexuals find the social acceptance that they surely deserve.
There needs to be a way for society to acknowledge the hardships and sacrifice that attend parenthood and the raising of children. There needs to be an easy way for society to identify and support families. It is too important to ignore or denigrate. If marriage ceases to do this, then a different social institution will rise up that does. Or not... at which point we will have spun out into a social experiment that leads who knows where.
Now, go ahead. Everyone can scald with their oh-so-witty suggestions that I am nothing more than a homophobe and a creep. Fine; I can take it, but what I am saying contains an fundamental truth. You are not half as smart as you think you are if you fail to see it.
Godfather this is position that is very understandable and one I am sympathetic to even though I disagree with it. I understand wanting to preserve the nuclear family for the nuclear family is an ideal situation (maybe not the perfect ideal but an ideal situation) for the raising of children. It creates stability economically and psychologically for the children and if some unforeseen circumstance happens to one parent there is always another one for the children to rely on during crucial development years.
This thought process though misses an important part of the debate. The part whether the state have the power to create this discrimination. Does the state have the power to try to enforce the idea of a nuclear family. Our Federal and States constitutions set the bounds for the power of our government, and it limits on the ways a state can go about pursuing its interests (and even what legitimate governmental interests are). Creating nuclear families isn't a legitimate state interest though creating stability for these families by giving benefits to marriage is. If a state is to give benefits to one group of society and not another it must have a rational reason why it does so, and that reason must be one that is pursuing a legitimate state interest.
This position can’t be argued in court, for because tradition says this is a good thing isn’t a legitimate state interest, or we want to create an ideal world with more traditional nuclear families isn’t a legitimate state interest. Our world would be better with more successful nuclear families, but it isn’t in the government’s power to try to create that vision if to do so the government must step outside its bounds.
I think Bart's argument is more general than you recognize. He is saying that marriage is a centuries old, bedrock institution of all societies because it provides a mechanism for the safe, effective raising and civilizing of most children. Like any human creation, it is not absolute-- not like the law of gravity or something. Marriage is a practical "work around" that solves a number of pressing social issue in one swoop. Issues like "who raises children?" "who is responsible for children?" "how is property inherited?" "how do we civilize, and control the behavior of young men?" "how do we provide for the protection of women?" "who protects pregnant women?" "how do we codify sexual behavior so that we don't have abandoned children?" The list is nearly endless.
Marriage is a universal institution because it satisfies a multitude of basic individual and societal needs. Gay marriage is not a universal institution because it satisfies the individual needs of a very small fragment of society. As far as I can see, gay marriage is meant exclusively to sprinkle "social acceptance" on a small number of gay relationships. I am skeptical that this is compelling enough of a reason to mess with a vital social institution like marriage.
Perhaps many of you disagree. That's fine; I am open to persuasion. I am not by nature a "rock the boat" kinda guy. I just would prefer that basic decisions like this one be made after an open and public debate (ie. in the legislature), rather than coming from on high with little warning and even less public discussion.
As far as courts ordering legislatures to do things, I await the legislative body that impeaches and removes such courts for usurping power. Not, however, with bated breath.
If marriage truly existed for the sole purpose of procreation...
So many straw men...
I never argued this. Procreation is but one benefit marriage provides to society which homosexual unions cannot. See my posts above.
Because marriage provides many social benefits beyond procreation, I also never argued that marriage should be limited to men and women capable of procreating.
If we allow artificial insemination, adoption, or childfree status for heterosexual married couples, why should gays be prohibited from marrying simply because they cannot procreate?
The vast majority of married couples can procreate when they enter marriage. The fact that the definition of marriage includes a minority of those who cannot procreate does not elevate homosexual unions to the equivalent of marriage nor does it create an equal protection problem. The law does not require a perfect relationship between the governmental purpose and the statutory definition. That argument was resolved back during the New Deal.
and:
Which is it? Has science indisputably proved the superiority of heterosexual marriage to homosexual marriage? Or is there a shortage of studies and data from which one can draw a conclusion?
I may be wrong, but these two statements look a wee bit inconsistent.
I repeat, the fact that some people are infertile has no bearing on the institution of marriage as a whole, any more than the fact of the conviction of innocent people and failure to convict the guilty would prove that the justice system is not about punishing the guilty and protecting the innocent.
But the requirement for entry into the justice system, so to speak, is being found guilty and in need of punishment. Therefore, even if the system by which you ARE found guilty is flawed, that's still the underlying premise. By contrast, there is no sort of requirement whatsoever that to enter into the institution of marriage, you need to have any ability or desire to have children. Until there is a requirement that people getting married must be physically able and intending to have children, then I don't believe we can say the underlying purpose of the institution of marriage is procreation.
Please note that my comment was directed specifically toward Bart's more limiting (in my view) comment of marriage being a special institution because it is the best vehicle for procreation, not godfodder's more general description of the many societal benefits of marriage. As I said, I'm still of two minds about the subject. It's just the procreation argument I disagree with.
They didn't say that. They explicitly declined to address that issue.
They said that lesbian and gay couples are entitled to the rights and benefits of marriage. Period. They left open the question of whether marriage by another name would pass constitutional muster with them. If the NJ legislature passes a civil union statute, expect further litigation.
But it really doesn't matter. As I say here, the legislature can call it whatever it wants. In the long run, it won't make any difference.
This has been relatively uncontroversial. Governor Davis signed the original bills, and Governor Schwarzenegger has signed others extending the rights; and attempts to qualify a referendum on the bills and/or an initiative outlawing it have all failed.
This leads me to believe that those supporting them don't just want the decisions made at the legislative level; they want the decision to always be 'no gay marriage', and are willing to force states that choose differently not to do so.
Ah, I see Dale has clarified that the 40 million referred to Cal. and Conn. My prior comment was wrong (the numbers should have tipped me off). Sorry.
These are legitimate issues, but none of them were addressed by the New Jersey Supreme Court. That was shameful.
The court blamed that oversight on the fact that the executive branch conceded limiting marriage to heterosexual couples is not necessary for providing the optimal environment for raising children. How convenient for the judges.
This is another judicial decision treating children (born and unborn) as a form of property inferior to adults. Children barely merit mention in this opinion. Of course, if children had nothing to do with it, then I too might agree with the court's decision.
The opinion was based on a constitutional provision adopted way back in 1844. In 1845, the New Jersey Supreme Court held that the provision was declaratory rather than restrictive, and thus did not ban slavery. So now we're supposed to believe that the provision bans the New Jersey marriage laws, even though the provision didn't ban slavery. Right.
non insulting non personal .
All still true though.
truth hurts sometimes.
I understand.
thedaddy
I find it pretty impressive that NJ could go 161 years with no intervening precedent on equal protection issues.
Citing pro-slavery precedents in support of your position certainly is an interesting public relations strategy.
How do you figure that denying lesbians and gays the protection of same-sex unions makes it significantly more likely that kids will grow up in opposite-sex families?
If one wishes to make changes in society, the courts are not the avenue such changes should be made. The Founding Fathers never envisioned the courts to be used for social engineering against the will of the people, and make rulings in a social/cultural vacuum. Let those who want to champion change do so within the proper venues, the court of public opinion and the legislatures, and not through trying to impose judicial tyranny with rulings that do not have the support of the people/society. Marriage is originally a societal construct, some may say religious, not a legal one. The legal recognition came about because of recognition of that societal norm. A government of the people, through legislative acts or referendums, has the right to make such recognition and confer upon that societal institution the rights and benefits that society is willing to accept. Government, under the Constitution, DOES NOT have the right to impose rulings upon the people/society which they DO NOT support.
This ruling takes a step in the direction of a Marxist type society, one where governmental institutions, in this case the judicial branch, wants to dictate to society what they must accept.
Children and marriage are not connected, maybe they should be (in your vison) but they currently they are not connected in reality. Children raised by single parents, they are raised by two parents who may be together but are not married. Additionally marriages occur with people later don't have children.
Until the reality of the situation, or the law reflects your view, the idea of marriage and children being intimately connected is not a thing the court has to deal with. Instead it should deal with the law as currently written, and the state and federal consitution.
> Omar Bradley:
Imagine in 1954 if Earl Warren had said that the Board must create a parallel structure that will “provide for, on equal terms, the rights and benefits enjoyed and burdens and obligations borne by white students”. They dont have to call it integration, they can call it "civil schooling". Come on.
Interesting. I look at this correlation strongly through the lens of segregation and integration. It is always interesting to me how people such as yourself take a case of integration as being more equal and valuable than segregation, and apply that to demanding gender segregated marriages. Or at least that those gender segregated arrangements be equalized with the existing integration standard.
> Omar Bradley: Its interesting that 50 years on , another court now says that separate but equal is ok when it comes to gay marriage.
Indeed. Prof. Volokh and Dale made an interesting case yesterday how this decision was a slippery slope. Since the DP's were established to privleledge homosexual relationships, the court wondered why they got different sets of benefits. When the future court looks at this decision, they might wonder why if they have the same benefits they are called a separate name at all. And no doubt wonder why other alternate family setups are not given the same treatment.
Then, when everything is marriage we may find that nothing is.
> Kenvee: If marriage truly existed for the sole purpose of procreation, we would have to return to the old custom of handfasting to ensure fertility before a marriage.
A purpose of a law does not justify any means of ultimate enforcement. Law is often debated in a context of appropriate and limited enforcement along with the purpose. The Bill of Rights, I could argue, is a means to limit enforcement of any purpose written into law.
Boiled down, your argument is one that is simply fallacious.
> Kenvee: Under that argument, couples where one or both halves are infertile should not be permitted to marry because they cannot procreate.
The problem with this correlary argument is that it undermines the specific recognition we give to disabilities, and the people who have them. In the case of infertility, that is a handicap or disability. In law we can demonstrate that the handicapped are special protected class. One that we give exception for, and give extra resources to based on their handicap.
For you to suggest that homosexuality deserves the same status, you would have to explain where you feel homosexuality is also a handicap. I for one think homosexuality is not a handicap.
> Kenvee: Should women be forbidden to marry after they pass menopause and can no longer biologically have a child?
An interesting note, at least in California (though I believe this is true in other states) elderly couples are give the option for DP's and CU's along side homosexuals.
> Kenvee: Should all couples be required to promise they intend to have children, to avoid all the "childfree" married couples currently in the world?
This requirement is debunked further in this article.
> Kenvee: There are many reasons for marriage other than biologically having and raising children, as evidenced by the many marriages in this country (and world) where the couple either does not have biological children or does not have children at all.
Technically this would be an argument to recognize arrangements outside of marriage. There are other reasons other than procreative responsibility to recognize a relationship, but that is not a reason to remove that purpose from marriage.
> Kenvee: If we allow artificial insemination, adoption, or childfree status for heterosexual married couples, why should gays be prohibited from marrying simply because they cannot procreate?
At some point, especially when granted as a right to any relationship, procreation looks more like a commercial enterprise than a responsible relationship. When parents are paid to abandon their children, as much as have them, or when they are simply constructs of purchased genetics, their rights to their heritage are infringed. I'm putting this rather shortly, a better, longer explanation is provided by Prof Velleman of NYU.
> Kenvee: I'm of two minds about the issue of gay marriage, but I don't believe the "procreation" argument is a sound one.
For the reasons I have given, I believe you dismissed it far too quickly.
The clause upon which the NJ Supreme Court relied yesterday says nothing about "equality." A draft did say that, "all men are born equally free and independent," but the word "equally" was struck out. And, the provision does not include the word "shall" or any similar indicia of a judicially enforceable command.
Fortunately, the Equal Protection Clause of the US Constitution applies to New Jersey, and the NJ Supreme Court were free to apply that Clause yesterday. The only reason they didn't is becaujse they knew they'd be overruled by the federal courts.
The court required yesterday that gay couples must receive equal prefernce in adoption cases as other couples. The court also required that gay couples are entitled to equal state-funded incentives to stay together and raise children, as other couples are entitled to. Whether these momentous decisions are correct is one issue. A second issue is whether these decisions were mandated by the constitutional provision at issue. And, a third issue is whether the court should have addressed these issues squarely, instead of basically blowing off the issue of child-rearing.
Just a nit... it is my understanding that California law prevents anything from being "equal" to marriage between one man and one woman. As a result, the Domestic Partnership law in California withholds exactly one right--the right to file joint tax returns. This has exactly zero impact on Domestic Partnerships as the IRS refuses to accept same-gender joint tax returns.
A.S., there are roughly 36 million Californians. That might help make the "40 million" figure easier to understand.
Have you actually read the decision? The people and government of New Jersey have taken numerous steps in recent years to demonstrate that they regard discrimination against lesbians and gays to be socially, culturally, and legally objectionable. The court yesterday drew on that history in its decision, and the remedy it mandated is one that polls show New Jerseyans support by wide margins.
You can say that the court usurped the role of the legislature. But you can't say that it did so "in a social/cultural vacuum."
Then I wonder if equal protetion will allow brother/sister and faher/daughter marriages.
But the biggest questions will be when multi-millionaires marry their grandkids to avoid the estate tax (if it is not abolished). The IRS will claim sham marriages so how will the participants prove otherwise? Will a grandmother/granddaughter marriage need to be consumated? Then, dare I ask how exactly would such a marriage be consumated?
Science is debunking idea that mothers and fathers are interchangeable or that friends outside of the family can fill the role of a father or mother.
Marriage is held above all other human relationships because it is the best vehicle for procreating and raising civilized children, for civilizing men and for protecting and providing for women raising children. Moreover, marriage provides mental and physical health benefits for each spouse. While these concepts are denigrated in many elite quarters such as our courts, they are scientifically indisputable.
and:
Actually, there are a shortage of rigorous studies in this area. The studied populations of homosexuals with children are tiny, the variables examined are not rigorous and the examinations do not occur over significant periods of time.
Which is it? Has science indisputably proved the superiority of heterosexual marriage to homosexual marriage?
Perhaps I did not make myself clear.
My first to statement referred to the science concerning the problems children have when they grow up without a father or a mother in a single parent household.
My second statement referred to the science concerning the many benefits of marriage to the spouses and children
My third statement was a response to the claim that there is equivalent science allegedly establishing that homosexual unions can provide the same benefits to children they gain from outside the union. There is very little science concerning this issue therefore the issue open.
The first two statements are independent of my third.
I don't know about gay marriage, but I think we can all get behind a constitutional provision about lollipops. But then again, some blowpop loving a-hole would probably make a stink about how his views weren't being represented and blowpops are just as good as plain lollipops even if they're not quite "lollipops" in the traditional sense of the word, but hey, this is America, the land of innovation and who is the government to intervene in my choice of candy anyway?!?
On second thought, that lollipop amendment might not be such a good idea...
There is no record for the NJ Supreme Court to act upon in regards to marriage, hence the vacuum. They simply try to extend other actions, unrelated to marriage, to the societal construct of marriage, hence they are engaging in social engineering. There has been no movement within the people of New Jersey that implies that the majority of society in that state wishes to change that social construct to include 'gay marriage'.
The law must, and is intended to, represent the societal norms or it becomes tyranny. I am all for society evolving and accepting change, I am against forcing or dictating change through judicial fiat that does not represent the society's mores and folkways.
i realize this was posted a while ago, but if anyone really thinks this, then they really need to do some research. it's demonstrably false, in a multitude of ways (current unions of non-child bearing het couples, historical basis of marriage, etc). so please, stop making this argument. it's not a strong one in the panopoly available to opponents of SSM.
The appeal to stop using an argument is noted. The rational presented seems vacant.
Marriage's link to family and procreation is inherent even in gay-advocacy that same-sex marriage should be about family and procreation, too.
The problem with this argument is in the first part of my post above: an Amazon of legal water has flowed under the bridge since that 1845 case you cite. The current NJ court was not the first court to read Art. I, para. 1 as establishing an equal protection right. Previous courts had already done this, and had also established the standards to apply under that interpretation.
The current court simply relied on those existing precedents for the standard to apply. You're free to criticize those precedents, but unless you're arguing that the current court should have overruled them, it had little choice but to apply existing law.
What are you saying then? Marriage is largely a social institution for "social acceptance"? Acceptance of what? Obviously there are other settings in which people may have children, but what does that have to do with marriage? Nothing?
The fact that children are raised outside of marriage says literally nothing about the topic of marriage. The fact that some married people don't have children says nothing about the fundamental social function of marriage. What about the "historical basis of marriage" convinces you that marriage is not an social institution concerned with "family and children"?
I am afraid I don't get your point at all.
It's not at all clear what California's restriction on same-sex marriage does and doesn't do — we'll find out more sometime next year. BUT that "one right" that doesn't apply to same-sex couples that you mention (there are actually dozens) has just been fixed.
The average savings in state income tax for a same-sex couple is around $2000, as I recall.
The state does promote child-rearing by the biological parents. It also promotes child-rearing by adoptive parents. Turns out, the latter requires more incentives because there aren't enough people willing to adopt kids in need.
Surely you were aware of this.
OK, one set of studies, you say, show that hetero marriage is the best way to raise kids. One of the alternative ways to raise kids is with homosexual couples. Surely, the first study must have considered this alternative and found it wanting. Yet, you say there is no significant, reliable research on this alternative. So how does the first study conclude that the hetero marriage option is preferable to the unstudied option?
You make a good point. Maybe we should cloister our women (well, your women. I'm a gay man, I don't have any women).
More seriously, it's pretty odd to promote freedom by restricting it. Who do you think is at the vanguard of the forces of liberalization in authoritarian cultures? People who don't fit in, that's who. Sometimes those people are gay.
that wasn't the original posters argument. the original argument was that, historically, marriage has always been primarily about procreation. that's simply not true, regardless of the evolving standards of society that have pushed procreation to the forefront in terms of what marriage represents.
actually, i was just saying to stop using the "well, marriage has always been primarily about procreation!" argument. i make no claim one way or another as to the status of marriage regarding acceptance, or of the existance of bastard children.
i'm not going to say there aren't arguments against same sex unions, or that the NJ supremes didn't overstep their bounds in declaring that there will be some level of legal equality between SSC's who choose to enter a binding agreement (be it civil union or marriage) and heterosexual couples who do the same. i'm merely saying that the historical argument that is espoused by opponents of SSM is often flawed. if you want to make the argument about procreation, that's fine. but be careful, because you're probably using the same sort of evolving definition of marriage that you might accuse those who are looking to use the "societal acceptance" argument.
on a different topic, and in an effort to find some empirical data on the topic: i believe i once heard Professor Carpenter list that the current figures have 770,000 same sex couples existing in the US. of those, 250,000 have children. these numbers, small on the national scale, are hardly insignificant. i also believe that if Bart has any study that shows that same sex couples negatively affect a child's development, he should cite it. as such all he's done is called foul on the allegedly politically motivated studies that have been done.
Reputable Studies, of course, has two definitions:
A) "studies that agree with me"
B) "studies cited by authorities that I agree with"
exactly. it's how i know that global warming isn't real.
In California, one can opt to have ones marriage withheld from the public record. The witnesses are not on record and the license is not available for inspection as a public document, although it must be duly filed. I recently presided over a California marriage (first and probably last time I will do so) and noted that the certificate I completed still had all the check boxes and procedures to declare the marriage secret.
As I recall the history, in the 1870's(?), the legislature wanted to clean up some of social issues left over from the gold rush, including tidying up inheritance and families. It was considered that people who had been living together for 20 years, and who has daughters of marriagable age, and other complexities would be reluctant to go get married, and thus inform one and all that they had not previously been married. So the secret marriage was created, allowing you to go downtown and do the deed with no one being the wiser as to the timing of the deed.
It strikes me that many like to cite some politically charged missive from the 70's or from the 90's as depositive as to the long-term purposes of marriage. Is anyone knowledgable as to the reasons in debate in California in the [1870's] If so, those debates might be more interesting, as well as supporting more diversity by citing anyone from outside the current cultural/political much, a rubrick that describes both sides to my mind.
The institution of marriage was designed millennia ago primarily for the purpose of establishing a beneficial environment for raising and otherwise benefitting children, and that has been the primary motivation for the states' favored treatment of marriage over single poeple and over other conglomerations of people. There have been other factors involved in state support of marriage, but that's been the primary one. And instead of recognizing that yesterday, the New Jersey Court basically decided to join the current occupants of the NJ executive branch in dismissing it, and instead dictating to the NJ legislature.
I don't see any dispute about the fact that the court required yesterday that gay couples must receive equal state-funded incentives to stay together and raise children as other couples are entitled to. So, the state is being required to subsidize arrangements where, for example, one of two women partners opts to become impregnated so that she and her partner can raise children. In cases where scarce funds are used to encourage couples to adopt unwanted children, those funds will have to be distributed without any preference for traditional households as compared to gay households. The decision yesterday will have a million other implications for the raising of children in New Jersey, all of which the court basically chose to ignore.
I'm not taking a position about whether any of those implications are good policy or bad policy. What I am saying is that this small group of unelected lawyers had no business issuing a fiat like this. That's all.
Not giving marriage benefits just because the document says Steve and Adam, instead of Sara and Adam does not have a legimate rational state interest behind it.
I can't for the life of me see where you say that with a straight face.
For instance, marriage, conjugal, and gamos are words to describe the life-long mating we find in the human species. Those describe, literally and etymologically both an act of procreation down to the gamete level and the marriage institution that act takes part in. The link is so intrinsic it is unalterably embedded in language.
The historic evidence is there, I've not seen you actually refute the historic evidence.
So what is your purpose for marriage? What is your purpose for specifically targeting homosexuality for privilege and status, even to the cost of human rights for children and undermining the assistance we give the handicapped?
Those gay taxpayers will contribute less taxes if they were suddenly married.
It still is.
It includes many gay parents now too.
There needs to be an easy way for society to identify and support families.
That is exactly what the families of many gay people are saying
Probably nothing to do with rights, per se. But that isn't important right now.
As I understand it, for the handicapped special privileges are not so much rights as a status of being a protected class. We actively support and give aid to overcome handicaps. I've explained this elsewhere in the recent posts on this issue. But the explanation of how the argumentation of neutered marriage abuses this assistance for others is here.
On what grounds would they be sham marriages?
Do the grandparent/grandkid love each other? Check.
Does the couple want to allow the other to make medical decisions on their behalf? Check.
Do they want to be able to pass their property on to the survivor in the event of death? Check.
As near as I can tell, they've met all the requirements put forth for a state sanctioned marriage as per SSM proponents. Where's the compelling reason to disallow it?
Really? Care to share your source for these world historical truths? Did the ancient Egyptians and Chinese convene a grand counsel to establish the parameters of heterosexual marriage? Was it the mesopotamians? Maybe there was some kind of Jungian mindmeld among our hunter gatherer ancestors. But we know it couldn't have been the ancient hebrews, seeing as they were polygamists. Please enlighten us.
" . . . [A]nd that has been the primary motivation for the states' favored treatment of marriage over single poeple and over other conglomerations of people."
Its really amazing how ancient mesopotamian institutions have been maintained and nurtured by state legislatures. Your doctoral advisors must have been blown away by these kinds of insights. Really, first rate work.
Too bad ancient pre-literate people, or even folks before the 20th century spent so little time explaining culture and why they developed it to post modernists...
Of course, if you want to think that I'm just making stuff up, feel free.