I haven't seen the actual decision yet, but a Chicago Tribune story suggests that the judge was persuaded that limiting marriage to opposite-sex couples is a form of sex discrimination. That's been a common and usually unsuccessful argument in gay-marriage cases.
There's apparently an immediate route available to the state supreme court, which could handle the case itself or decide to let the intermediate state appellate court consider it first. While the same-sex couples involved are celebrating, my guess is that the decision will be stayed pending appeal. Iowa does not have a state constitutional amendment banning gay marriage, but this is sure to fire up support for one.
If the decision seems to break any new ground, I'll have more to say about it.
UPDATE: If you're having trouble accessing the Tribune story, here's one from the Sioux City Journal.
FURTHER UPDATE: The decision is available here. Thanks to Steve Sanders, who filed an amicus brief in the case, for making the text available.
Related Posts (on one page):
- Giving away the (Iowa) farm:
- Iowa state trial court judge rules for gay marriage:
But I would imagine that treating the classification as sex discrimination was intended to (a) trigger an increased level of judicial scrutiny, and (b) defuse slippery slope arguments.
Relying on a sex-discrimination rationale (which triggers heightened scrutiny), rather than a sexual-orientation discrimination rationale (which doesn't, and involves rational-basis review), not only increases the level of judicial scrutiny, but also makes it easier to distinguish the ruling from any subsequent equal-protection challenges that would rely on rational-basis review, like challenges to current marriage laws by polygamists.
Even if it does end up being upheld (which is unlikely), it's just going to fire up the religious conservative base and not only force Republican presidential contenders to gay bash, and may effect Iowa's swing-state status like the anti-gay constitutional amendment did during the 2004 Presidential election in Ohio.
Good news? Sure. But it could also have very negative ramifications.
What is being mandated, then, is an obligation on the rest of society as to the sorts of marriages it must support. That would seem to leave it up to society as a whole - in a democracy that means either via its elected officials or via a referendum etc - to decide. Marriage has ever been a licensed activity, not an inalienable right, which is why the marriage license was invented in the first place.
If the case under discussion involved criminal sanctions against the couples for, say, cohabiting, then it would indeed constitute a civil liberties violation. But it does not; it involves an obligation to be imposed upon others, and that path could be a very slippery slope, thinks I, into areas far removed from the issue at hand.
If I'm missing some details that would counter such an argument, I'd be happy to stand corrected.
I am not looking for args that boil down to rephrasings, however impassioned, of "it's not fair and it's time we changed our morality for the better," nor for generic screeds against judicial activism, just args that can address the legal distinction between a right and an obligation in this instance.
And, if it's not already obvious, IANAL, so please be gentle.
SSCs can marry all they like. It prohibits government permission for marriage. Not marriage. I thought libertarians opposed state licensure of anything.
But in fact, no one has to support gay marriage at all. The law allows all kinds of things that all kinds of people do not support: excessive drinking, pornography, cursing, divorce, leftism, etc. etc. I'm sure you can think of dozens of things to add on to this list - things that some or even most of society doesn't support, but the state cannot outlaw. That is one of the great strengths of our nation: you can do all kinds of things that I don’t like or virulently hate, and vice versa, but as long as we aren’t harming each other, we can’t use the power of the state to stop each other from doing those things.
What society supports, and what the state is prohibited from doing or obligated to do are two different things. As Duncan points out, we really shouldn’t need state license to enter into a contract to share our property and bind our lives together with another person. But as long as we do, (this judge says) the Constitution’s equal protection clause prevents the government from discriminating by gender when it hands these licenses out.
[not directed at you ras]
I don’t see why people think that government sanction of particular conduct forces them to support or approve of that conduct. Why do so many people look to the state for some kind of existential satisfaction? If the state allows gay people to get married, you can still teach your children that homosexuality is evil, deviant, against God and so on – much like you can teach them that divorce, abortion, alcohol use, uncovered boobies, NASCAR, or whatever, is absolutely taboo.
anyways hope this helps
Per my rather long-winded q above, I don't think that Dale is at all calling for govt licensure of intimate relations, but he is applauding the courts for imposing a new obligation on people, one that the people never agreed to.
That doesn't seem very libertarian, true, but perhaps Dale considers this an exception of necessity where the ends justify the means. Or perhaps we are simply misunderstanding his position and he can elaborate. Dale?
I can't think of any legitimate race-neutral reason for anti-miscegenation laws (you were correct to put neutral in quotes).
It's an Equal Protection right (not just a license) per Zablocki. The state was obligated to recognize the marriages of dead-beat dads.
But I don't think there will be an appeal--a gay couple quickly took out a marriage license, causing the sky to fall on the county. There were no survivors.
Really? So a New York landlord would not be required to continue the lease of a rent-controlled apartment to the widower of a gay man? The child of a lesbian would be her sole heir, so long as he rejected her gay marriage? A drunk driver who killed a homosexual but didn't support gay marriage would be immune to a suit from a surviving spouse?
Pericles said, "You may not be interested in politics but politics is interested in you." The most appealing aspects of gay marriage to its proponents are those that extract support from potentially unwilling bystanders: inheritance, medical decision-making, various kinds of legal standing.
(Which I should say, is fine with me. If government is going to license private behavior, it should at least do so as broadly and neutrally as possible.)
Because it's a trial court opinion, there's some discussion re: the admissibility of the State's putative expert witnesses, which goes the plaintiff's way. The court's analysis of why the experts do't meet Iowa standards of admissibility seems a bit thin to me, and I don't think it breaks any new ground, but then I'm not an evidence guru. Perhaps Prof. Bernstein could weigh in on that.
The question, as I see it, is whether and when a society believes that its interests are advanced by imposing obligations on non-parties to a contract. So far, this society has decided that its interests are advanced by requiring non-parties to recognize marital unions between people of opposite sexes only. The next question is whether something about the judiciary makes it qualified to decide whether the society has determined its own interests correctly, and to impose those third-party obligations by decree.
/sarcasm off
This judge could have ruled that such an arrangement was not illegal under Iowa law, as the legislature had not yet spoken on the issue. Instead, he created something out of nothing.
Judges exist to apply the law, not to create it.
All this does is fire up SSM opponents into writing such bans into the state constitutions. Expect Iowa to have such an amendment, approved by well over 60% of the electorate, by the 2008 election.
Thx for the reply.
we really shouldn’t need state license to enter into a contract to share our property and bind our lives together with another person.
You don't, which goes to the heart of my q. What wholly private acts - aot obligations on society and its people - are not permitted to the gay couple? Can they live together? Choose their own friends? Move into their own house together and move out if they so choose? As near as I can tell, the changes that come with by legalizing gay marriage all fall upon other people not in the marriage.
Sorry if I'm being a bit thick here, but I still see a slippery slope far larger than the orig issue at hand, one best addressed by having the changes, and they are changes, approved thru a democratic process.
And if the people don't want the changes today, all that will be accomplished by enacting them from the bench is to promote countervailing constitutional amendments that will make it that much harder to enact those same changes tomorrow, when they might have otherwise passed. The current approach seems like a long-term lose-lose for its supporters.
Summary of our arguments: 1) you said Loving implies that anti-miscegenation laws which apply equally to the races nonetheless are racially discriminatory. 2) I agreed, but only because of an additional element (White Supremacy) which established one race was preferred over the other. That additional gender element does not apply to current marriage law, 3) you countered that my argument would require anti-miscegenation laws not intended to favor one race over the other to be found constitutional, 4) I countered there can never be such an anti-miscegenation law.
I don't see an argument for why my distinction (anti-miscegenation laws always are designed to favor a race, current marriage law does not favor a gender) is invalid.
You do realize that the United States Supreme Court has already decided that traditional marriage laws limiting marriage to the Union of One man and One Woman DO NOT offend the Constitution of the United States? Yes, the decision was only a summary one, but it's still binding law on all lower Federal Courts to this day.
(Baker v Nelson 409 U.S. 810 (1972). Loving is not applicable. Baker is the correct precedent to cite.
Here's a partial list of such wholly private acts that are or have been forbidden to gay people, and whoe burdens, such as they are, do not fall on society if gay marriage is legalized:
1. Visiting their partner in the hospital
2. Deciding whether to continue life support for their partner
3. Inheriting from their partner if (s)he dies intestate.
I could go on with a few more. I'm sure Professor Carpenter and others who have experienced thesethings and/or think more systematically about this question than have I could name a few dozen more.
Excellent points; thank you. #1 I wholly agree with. #2 and #3 however are easily handled, even by straight couples, with a living will and a will, respectively.
Presumably, gay or straight, if I do not want my partner to inherit all of my estate, I can put that in my will. If I do want her to get it all, ditto.
But I see the jist of your pts and agree with it as a theme: that there are various implicit rights that have to go to someone and, in the absence of countervailing instruction, we normally make that the spouse.
So, could not the larger q's be handled, with neither judicial interference nor amendments, by a civil contract of some sort saying that in all private matters where a power of some sorts would normally default to a spouse, we wish it to default to someone else instead?
Would that approach not better address the private-rights vs public-obligations dilemma by unbundling the default legal mixture of the two that we call marriage and thereby provide the most libertarian solution of all; i.e. let the couple's private decisions remain a wholly private matter?
I suspect that it would, but that the crux of this matter is really emotional recognition, not legal rights.
1. Visiting their partner in the hospital
2. Deciding whether to continue life support for their partner
3. Inheriting from their partner if (s)he dies intestate.
Are "wholly private acts". They are personal and important, but not "wholly" private. (1) and (2) place impositions or limits on medical facilities and practitioners. (3) may be wide-ranging in who it impacts, including the State.
Not that same-sex partners shouldn't be able to do the above. But the acts (actually only 1 and 2 are 'acts'; '3' is not an act) aren't wholly private.
The desire to be recognized as an equal culminates in the desire to be recognized as equal by everyone else. And it is the state that is best able to fulfill that desire for recognition precisely because it represents society in its greatest collective capacity (which can, among other things, force non-parties to a marriage contract to honor it).
I have wondered this too. I'm sure someone here knows.
I have great respect for your views. Nevertheless, I think it is ridiculous that one judge can order the recognition of gay marriages. I do believe that legislative recognition of gay marriages will come sooner or later. And, I think the long-term stability of your position will be better off if it is enacted by legislatures rather than being imposed by judges.
For the record, I am against legislating from the bench in all respects. As for gay marriage, the way I see it, why shouldn't gays be every bit as miserable as the rest of us? Why shouldn't gays start hearing "not tonight, honey, but I'll pencil you in for the 22nd of next month?"
Governor Culver has already stated he thinks marriage should be restricted to a woman and a man. I think that is the prevailing view of most Iowans. The judges are aware of that and I would be astonished if they make a decision before April.
No private contract can get you health care through your spouse's employer, nor require your employer to give you family and medical leave to take care of your sick lover, nor get Social Security and Veteran's spousal benefits, nor get an exemption from the estate tax, nor get the ability to sponsor your lover for his green card, nor get preference to adopt your lover's child, nor receive the privilege not to testify against your lover, nor get domestic violence protection from the law.
So in your view, a state could bar interracial marriage as long as the law neither intended to nor did support White Supremacy? That would, I take it, be the equivalent statute wrt race.
Sooner or later? It took roughly 300 years for VA to allow interracial marriage, and even then it happened only because the SCOTUS enforced it. Seems like you're willing to accept a rather longer engagement than most couples would prefer.
Sorry I wasn't clear. I was asking why people seek to have their particular religious or moral views enforced on non-adherents to their religion through the state. Many seem to have the attitude that "what the government permits, is moral" when that isn't true - or at least I hope it is not true that legal = moral and illegal = immoral.
Any intent or effect that favored one race over another would result in the law discriminating on the basis of race - and that would cover any miscegenation law I know of. Contrast that to current marriage law which in no way favors one gender over the other.
Perhaps it's a reach, but could you argue that it favors women because men tend to earn more money? Or men because there are more women to choose from and women tend to live longer, or are less likely to be violent to their spouses?
Whites were restricted from marrying non-whites. The system was based on the false notion, with even stranger criteria, that humankind consists of subspecies. And that one subspecies was superior.
The requirement that both sexes be included in marriage is a recognition of the nature of marriage.
But if you want cut marriage recognition off from the social institution that the state recognizes in marriage law, then, you would propose a different type of relationship status.
However, on the man-woman criterion, apart from the nature of marriage, the law requires both sexes and neither is treated as superior to the other. Such inclusion is necessary if equality of the two sexes is to be established. Exlcuding one or the other would not.
There is one human race and its nature is two-sexed. The nature of human generativity and of human community is both-sexed. Marriage integrates the sexes; it does so in combination with the responsible procreation.
Pressing the gay identity filter into marriage recognition is no more just than pressing the racist identity filter into marriage recognition.
If not for the gay identity filter, what would distinguish the subset of the same-sex category which would be eligible for "marriage" from the rest of the category?
Message to Iowa voters: Take your vote and shove it up your ass, you meanies!
No private contract can get you health care through your spouse's employer, nor require your employer to give you family...
But your entire list - a laudable one - consists of obligations placed on third parties, obligations that they do not have currently nor do they agree to.
If the people, thru their democratic process, choose to take on those obligations, that's one thing, and healthy. But for a judge to impose them as a policy preference - for however he justifies it, that's what he is doing - is a mistake, for self-government, for gays (as I note above, it's more likely to be lose-lose in its effects), and for libertarianism, too, as it says "Nanny knows best what's good for you and Nanny will decide."
Whether Nanny is right or wrong in this particular case is a matter of opinion on which reasonable people can disagree. But from a libertarian perspective, Nanny is wrong to impose.
I understood that to be your position. What I'm trying to get at is whether you'd accept a miscegenation law IF there were no discriminatory intent or effect. IOW, would separate be ok if truly equal?
Although it's true that legal doesn't necessarily mean moral, many of both the opponents and proponents of SSM argue that SSM (over the long run) would tend to affect people's views about same sex relationships (because people do tend to equate legal with at least acceptable), and at a minimum, SSM would affect the character (ethos) of citizens because it would habituate them into treating equally same and opposite sex marriages in just about every public venue (government, businesses, workplaces, hospitals, etc.).
How about a one sentence statute that says "No person may marry another person of the same race?" How does that favor one race over another?
You're late to the party, Democracy ended in 1967 when the Supreme Court decided Loving v. Virginia. The Supreme Court flouted the will of the Virginia electorate, declared their Racial Integrity Act unconstitutional and forcing them to acknowledge interracial marriage, something they had never agreed to (and, by the way, something opposed by greater majorities at that time than oppose same sex marriage today).
Heck, Democracy ended in 1803 when the Supreme Court flouted the will of an elected Congress in Marbury v. Madison and declared part of the Judiciary Act unconstitutional.
1. Virginia was not simply refusing to recognize interracial marriage--it punished it. The Lovings were threatened with 25 years in prison if they both returned to Virginia together after marrying in DC. What state is threatening a same-sex couple with punishment for marrying elsewhere?
2. At no point in American history was there a majority of states that banned all interracial marriage. There were some states like Virginia that complete bans; a number banned marriage of non-blacks to blacks, or of whites to non-white, but not Asians to whites. The idea of interracial marriage restrictions was a comparatively recent innovation (17th century). Same-sex marriage is a much more revolutionary concept.
3. You can make a case that the 14th Amendment's equal protection language was intended to prohibit the states from violating the rights of black people. The language isn't explicit on that, but the historical record is very clear about why Congress passed it, and why the states ratified it. There is simply no equivalent evidence that the 14th Amendment was intended to prohibit discrimination based on sexual orientation.
This is called the educative effects of law. But you can make the same case for laws that ban homosexuality--it educates people to the idea that homosexuality is immoral, and over time, will discourage people from taking that path.
Now, you may not like the reasoning of such an argument (especially if you think that were born gay)--but once you accept the idea that passing laws is a valid method for persuading people to change their attitudes in favor of homosexuality, what makes the reverse invalid, other than your own disapproval of the end?
Monogamous, faithful one man-one woman marriage is a very artificial construct, as witnessed by the ineradicable human tendency to commit adultery - and by humanity's long history of polygamy, een within Judaism and Christianity, whether officially recognized (King Solomon's 1000 wives) or tacitly acknowledged (Abraham and Harah). Again, there is no intrinsic "rightness."
The nuclear family is both artificial and recent. Western culture families were, and non-Western(ized) culture families still are, multi-generational and extended in nature. "It takes a village" - and aunts, uncles, grandparents - to raise a child.
Marriage, monogamous marriage, and nuclear families being all artificial constructs, there is no inherent, intrinsic, logical reason to oppose SSM.
1. Virginia was not simply refusing to recognize interracial marriage--it punished it. The Lovings were threatened with 25 years in prison if they both returned to Virginia together after marrying in DC. What state is threatening a same-sex couple with punishment for marrying elsewhere?
I see, so the Virginia statute would have been constitutionally acceptable if it had merely refused to recognize the existence of interracial marriages, rather than prescribing penalties for being in one.
2. At no point in American history was there a majority of states that banned all interracial marriage. There were some states like Virginia that complete bans; a number banned marriage of non-blacks to blacks, or of whites to non-white, but not Asians to whites. The idea of interracial marriage restrictions was a comparatively recent innovation (17th century). Same-sex marriage is a much more revolutionary concept.
Ah yes, constitutional interpretation by popular vote. I'm not buying.
3. You can make a case that the 14th Amendment's equal protection language was intended to prohibit the states from violating the rights of black people. The language isn't explicit on that, but the historical record is very clear about why Congress passed it, and why the states ratified it. There is simply no equivalent evidence that the 14th Amendment was intended to prohibit discrimination based on sexual orientation.
You can make the case that Congress was thinking about the plight of black people when they enacted the 14th Amendment. And yet despite that, they avoided any mention of black people or race in the text of the 14th Amendment. One view is that that was just a terrible drafting oversight and they only meant to restrict the 14th Amendment to protecting blacks from discrimination. Another view is that they chose broader wording for a reason because they could foresee that someday the issue would be about something other than blacks, something other than race.
Translation: The Constitution is just a piece of paper that no one should take seriously. Well, except for the 2nd Amendment.
I think Clayton's pt was that same-sex marriage was never intended to be recognized back in the day, and I would agree w/that, and by extension today's ruling is an attempt to introduce new legislation from the bench, and I would agree w/that too.
The q is: who decides when it's time for a change? I am not arguing the nature of the change, at least not in broad terms, but rather that it must come from the people, democratically, and w/out the logical contortions of fitting a square peg into a round hole.
For the right to live your life as you please, the people have spoken: gays have the right to live their private lives as they, in their private wisdom, see fit. As do we all. There is broad agreement on this, on princile as well as on details.
But for the obligation(s) to be imposed upon society - whether we think it right or wrong to do so -I contend that it is society's right to choose, not a judge's right to choose for them. Moreover, it is long-term unhealthy and counterproductive for a judge to do so.
You'd have a hard time finding evidence that the drafters of the 14th Amendment expected the result of their work to be that bans on interracial marriage were unconstitutional.
I haven't actually said I think the ruling is correct as a matter of state constitutional interpretation. I've never seen the Iowa constitution, nor have I read the decision, but simply saying a result is unpopular or unexpected doesn't carry much weight with me.
For the right to live your life as you please, the people have spoken: gays have the right to live their private lives as they, in their private wisdom, see fit. As do we all. There is broad agreement on this, on princile as well as on details.
Broad perhaps, but hardly unanimous. I recall the wailing of many posters here when Lawrence v. Texas overturned a conviction imposed on two adults for the crime of having consensual sex in the privacy of their own home.
But for the obligation(s) to be imposed upon society - whether we think it right or wrong to do so -I contend that it is society's right to choose, not a judge's right to choose for them. Moreover, it is long-term unhealthy and counterproductive for a judge to do so.
Why wasn't it the right of the people of Virginia to refuse to recognize interracial marriage? What gave 9 unelected judges the right to chose for them? Was Loving v. Virginia "long-term unhealthy?"
And as I've said above, I'm not saying the ruling is correct, I'm just looking for a material distinction between this situation and Loving v Virginia and in this thread so far I haven't seen one.
I think Clayton made a key pt when he said: "Virginia was not simply refusing to recognize interracial marriage--it punished it."
...Punishing it relates to the rights of the participants in the marriage.
...Refusing to recognize it relates to the obligations of others.
Had the result been as you implied in an earlier comment - hypothetically, that Virginia had permitted but nonetheless refused to recognize certain marriages - almost certainly that policy would have changed w/the realities on the ground over time. The gulf is wide between suppression and indifference.
But moreover, unlike the failed Dred Scott decision, the 14th amendment was from the people, not the courts, and so its implicit condemnation of racial discrimination had their support. The former started a war; the latter ended it.
Maybe, mabye not. I'm not convinced interracial marriage would be recognized even today in all southern states if the matter were put to a vote of the electorate on those states.
Section 256 of the Alabama Constitution states ". . . Separate schools shall be provided for white and colored children, and no child of either race shall be permitted to attend a school of the other race." How hard could it be to repeal that?
I think Clayton made a key pt when he said: "Virginia was not simply refusing to recognize interracial marriage--it punished it."
...Punishing it relates to the rights of the participants in the marriage.
...Refusing to recognize it relates to the obligations of others.
Nothing in the 14th Amendment says that discrimination is OK provided it's not accompanied by criminal penalties. If a man dies without a will, his property will go to his wife (some or all of it depending on the state and whether there are children). That won't happen if his spouse is another man. It's his property, he wants it to go to the same sex spouse, how is it "the obligations of others" to refuse to him the same benefit of intestate succession he would have if his spouse were a woman?
You people are living in a dream. The reality is, Iowans will overwhelmingly pass a Constitutional amendment protecting marriage from the homosexual movement, radical judges, and anyone else who wants to tamper with marriage. And all your arguments about Loving, the 14th Amendment, equal rights, and etc., will be for naught. Too bad, we still live in a democracy - and that means people can amend their Constitutions when they want to in order to protect marriage from the likes of you people. Cry me a river.
The dream will be reality within 20 years, 50 at the most and we can laugh off the vitriol of the dinosaur who can see the writing on the wall but can't accept it. Today's Paul Gulfer is tomorrow's Strom Thurmond.
Are these the same criteria people today would use?
The system applied a racist filter to procreation (past and prospective future) and thus to marriage (at that time).
So it obviously depended on the both-sexed nature of marriage; it was the pressing of that racist filter into marriage that was unjust.
Equality of the sexes means recognizing the two sexes and integrating them as equal. How does excluding one sex make the sexes equal? It does not.
The analogy with sex is profoundly flawed.
The analogy with identity is more apt. The gay identity filter and the racist identity filter selectively segregate the sexes.
Also, there is no test for sexual orientation that could sort out the gay subset from the non-gay subset within the very broad same-sex category.
That two persons of the same might want to form a "gay marriage" does not make one or both of them gay.
If that was the test, then, there could be no prohibition on any of the same-sex category. For merely wanting to "marry" would qualify all-comers and would not exclude closely related people, for example.
So, like the racist filter, the gay filter, in addition to being selectivey sex-segregative, is useless in determining eligibility, anyway.
Now, it might come to mind that there is no "straight" test for marriage. True. There is no such identity filter. However, marriage is a sexual relationship as per the marriage presumption of paternity and consumation and other provisions in marriage law.
So the analogy based on the supposed dichotomy of straight versus gay fails, as well.
Iowa has kind of a strange Constitutional amendment process. An amendment to the Iowa Constitution only has to pass by majority vote in both the Iowa House and Iowa Senate -- but in two consecutive legislative sessions. Then it is only a proposed change. It must go on the ballot in the next general election and Iowans must vote on the Constitutional change. If a majority vote for the change, the Iowa Constitution is amended. What is so interesting about the Iowa Constitution amending process is how slow it is... legislative sessions are held only once a year. So it will take at least 2 years, maybe 2 and a half years before this will be on the ballot if it even gets there. To make things more interesting, the Legislature is controlled by Democrats, and Democrats in a pretty hefty majority in the Iowa Senate. This Iowa legislature EXPANDED gay rights last legislative session by adding sexual orientation to the Iowa Civil Rights Act last legislative session, and in 2004, an Iowa Senate CONTROLED by Republicans, refused to pass a proposed iowa constitution Gay Marriage ban -- while under considerable political pressure. So don't be so quick to assume that Democrats in Iowa will cave and pass an amendment to the Iowa Constitution.
What is much more likely is that, the Iowa Supreme Court will take the matter up on appeal now, and reverse. But you never know, they could affirm. Now, this decision was based on a reading of the Iowa equality clause and the Iowa due process clause, which is usually determined based upon looking to similar clauses in the federal constitution. Thats why federal case law is often cited. But the Iowa Supreme court has shown a willingness recently, to interpret certain provisions such as the equality clause slightly differently than the United States Supreme Courts analysis. For example, in the RACI case, the IA Supremes struck down a tax law as unconstitutional under the Iowa Constitutions equality clause using the rational basis test. The United States Supreme Court per curium reversed and remanded, stating that tax laws such as the one at issue which tax people differently are generally upheld under rational basis. When it returned to the Iowa Supreme Court, they held that they determine the final meaning of the Iowa Constitution, and that while they generally agree with the federal constitutional interpretation of similar clauses, in that specific case, they decided to apply a different test than the general federal equal protect clause rational basis test for such tax laws, and would instead, evaluate such laws in Iowa under a "rational basis with bite" standard... requiring a more exacting scrutiny. The point being is... since this decision hinged on an interpetation of the Iowa Constitution, the Iowa Supreme court could very well tailor the decision as one unique to Iowa Constitutional law, and thus try to avoid United States Supreme Court review of their analysis -- so while chances are low that this decision will be affirmed when its all said and done, it could very well happen, and it could happen in a way that ultimately prevents review by the United States Supreme Court.
That's like asking if I would accept water consisting of two oxygen molecules and one hydrogen molecule.
Was Zablocki a mistake (SCOTUS forced these obligations to be offered to dead-beat dads against the will of the majority)
Regarding Loving, of course the Virginia law would have been struck down even without the punishment aspect. Virginia was going to be forced into providing the obligations.
It might be argued that the eventual disappearance of races is discriminatory.
I can't see how such a law would be motivated by anything but fostering racial inequality.
You are too smart to realize that folks won't pick up on the little points of sophistry that you and your fellow op-eders love to pepper your arguments with.
You would have a valid point if we passed a law that said only men can marry men; only women can marry women. Permitting same-sex couples to marry is not excluding one sex from marriage as long as opposite sex couples are also permitted to marry. It would be like saying permitting interracial couples to marry is excluding the same race from marriage. Given that most folks prefer to marry within their own race, they'd probably be mightly ticked off if same-race marriages were illegalized as same-sex marriages are.
The analogy with identity is more apt. The gay identity filter and the racist identity filter selectively segregate the sexes.
As noted, the overwhelming majority of folks who marry, do so within their own race: That's their own choice; unless you think that folks who have never dated or married outside their race are immoral, there is thus, nothing wrong with selectively segregat[ing] the races in marriage by voluntary choice, as long as interracial marriage as still legally permitted. Likewise even if permitting same sex marriage qualified as selectively segregat[ing] the sexes by voluntary private choice, that still doesn't rise to reason for not recognizing same-sex marriage as long as opposite-sex marriages are still legally permitted.
Racial discrimination triggers strict scrutiny and sexuality discrimination triggers (at best) animus-based rational-basis scrutiny.
If (as Cornellian has suggested) the situations are parallel to a very great degree, it is incumbent on those who are urging them to be treated differently to give reasons why that should be show. Your response would make sense in a legal brief, but not as much in a discussion of what the law ought to be.
So, try it again: why should this case be treated differently from Loving?
If (as Cornellian has suggested) the situations are parallel to a very great degree, it is incumbent on those who are urging them to be treated differently to give reasons why that should be show. Your response would make sense in a legal brief, but not as much in a discussion of what the law ought to be.
So, try it again: why should this case be treated differently from Loving?
We are discussing the constitutional implications, not the preferred policy. Current marriage law does not discriminate on the basis of gender.
It should be noted, and contrary to Chairm's assertions, that the thousands of year history and tradition of marriage to which anti-ssm side appeals are most certainly not premised on the equality of the sexes, but rather on patriarchy. An old saying was when a man and woman get married they become one person, and the husband is that person.
The rise in sympathetic sentiment towards SSM has occurred in a recent time in history where men and women truly have become, in the eyes of the law, true equal gender partners in a marriage.
An old saying was when a man and woman get married they become one person, and the husband is that person.
The "old" I'm referring to was how marriage was viewed according to common law.
But the point is that if the current state of constitutional doctrine is what you say, it still needs to be justified. Saying "the Supreme Court currently says X" is non-responsive to the claim that they should stop saying X and start saying Y, or to the claim that X is an improper or illegitimate rule of law. That was Cornellian's point (I think).
And you are just flatly wrong if you think there is no discrimination based on gender here. I am forbidden to marry another man, solely on account of my own gender. That is facial gender discrimination. Now, your point may be that it is not invidious discrimination because it is not motivated by a desire to preference men over women, but that doesn't make it non-discriminatory. The question is whether there is a state interest powerful enough to make discrimination justifiable in either case.
Imagine that a legislative committee composed of equal numbers of black and white representatives unanimously passed an anti-miscegenation statute, on the grounds that mixed-race couples tend to be unhappy due to social stigma and differences in cultural values, and their children even more so. They act in the good faith belief that this legislation will improve the lives of both white and black people. Is this constitutional? Maybe your answer is yes, based on your motive-based theory of discrimination. But if it isn't, the analogy to the gay marriage situation follows fairly strongly.
At the U.S. Supreme Court level, but didn't the state Supreme Court of Colorado insist that Romer v. Evans be considered under strict scrutiny? Not a lawyer here, just asking.
I'm sorry I applied binding precedent, rather than creating a new Equal Protection theory.
Philodikis: And you are just flatly wrong if you think there is no discrimination based on gender here
We are both expressing opinions, not facts. Most courts agree with me. Only one case that reached a state Supreme Court (Hawaii) found current marriage law to even implicate gender discrimination, and thus trigger intermediate scrutiny. Nor did O'Connor find that intermediate scrutiny was triggered in her Lawrence concurrence (Texas outlawed only same-sex sodomy). The dissent reached the same conclusion, and Kennedy's dicta strongly suggested likewise. The Kansas Supreme Court ruling in Limon (reduced penalty for statutory rape only between opposite-sex couples) was ruled based on sexuality discrimination after SCOTUS remanded it to be decided consistent with Lawrence.
The Colorado Supreme Court ruled the 14th Amendment (not state law) required strict scrutiny. So, SCOTUS got the last word. Moreover, Colorado applied strict scrutiny only because they concluded the fundamental right of access to the political process was implicated, not because of sexuality discrimination.
Care to respond to my hypo now??
You're dodging, so I'll approach the issue another way. The proper question is NOT whether the sexes are treated equally under current law, as you suggest. The EPC does not guarantee protection for groups, it guarantees protection for individuals: no person shall be deprived of the equal protection of the laws. As Philodikos pointed out, current law does discriminate. It tells men that they can only choose women as their spouses (and vice versa), just as VA told blacks they could only choose blacks.
From the people? The 14th A was enforced on the Southern states at gun point. They were not allowed back in to the Union until they ratified it. There's no way in hell it represented the views of even a majority of the people in 1868. It did represent the majority in the North, but it's safe to say there was near unanimous opposition to it on a free vote in the South. In fact, you still today find people arguing that it was unconstitutionally adopted and therefore isn't "really" a part of the Constitution.
Well the National Review Corner doesn't disappoint, the ones who are focusing on the issue are the ones you expect (Stanley Kurtz and Kathryn Jean Lopez). At least one echo chamber still exists.
On distinction between Loving and the current issues on same-sex marriage requires examining the context in which Loving was decided. At that time ALL sexual relationships were regulated by the government. Not only were homosexual relationships illegal but heterosexual relationships between people not married to each otgher were also banned. In the context of the time, to disallow marriage was to disallow sex. The Virginia laws had the practical and intended effect of keeping the races, as they saw it, in existence at all. And note that these issues would never be mentioned directly in a decision because everyone assumed that that was the way things must be. Extra-marital sex was "clearly" something BAD and that would never change, as people saw it.
The current circumstances are different. Laws against gay-marriage do not ban gay sex. Nor do they deny anyone the right to have children with whomever they want as Virginia did.
This, I think, provides a difference between Loving's circumstances and the current one.
One could certainly argue that. The question that would arise is what purpose would such a law serve? Since it would not keep the races from mixing, it would seem to have no purpose and would fail on that ground. Remember that the concept of marriage is not actually a legal one, though it has legal implications. It is a societal concept and a cultural one. Note that in Jewish law as given in the Torah, one is obligated to marry one's widowed sister-in-law. Many state disallow such a marriage and are forced to provide religious exceptions to it. In some societies, one cannot marry except within one's clan and in others one must marry outside of it(or other such group subdivisions). Examine Sharia law where a woman cannot marry a non-Muslim.
The term "sex" can be used not only to describe gender -- for example on an employment application, drivers license application, or a passport application, where the question "Sex?" is intended to be answered with an "M" or an "F" (and NOT, as the very old joke would have it, any answer that describes how, with whom or what, or how often)-- but also any of a variety of acts, heterosexual, homosexual, interspecies, with the dead, or even autoerotic. When the Judge in Iowa decided that this was "sex discrimination", he twisted the use of the term "sex" in exactly the same way one would if, on your Passport Application, you responded to the question on sex by writing "no more than twice a week, and only with my wife".
I think you are confusing two separate but related concepts. Marriage is, in fact, a legal institution and relationship; it changes the legal obligations and rights of two people. It is also a social/civic/religious institution. The two statuses are not identical; one can be religiously married but not legally married, or vice versa.
The legal components of marriage have to satisfy constitutional requirements, regardless of how they are religiously or traditionally defined. So, the fact that a particular church or social group might consider certain marriages invalid cannot control the legal meaning of marriage, which is dependent upon legislative definitions, is subject to judicial interpretation and cannot exceed the bounds of constitutional limits.
So, all of this "Marriage = X" talk, when based upon traditional definitions, is actually beside the point, at least in a discussion of constitutional law. It is relevant to a policy discussion, but not determinative; the fact that we have limited a legal relationship in certain ways in the past does not always mean it should be so limited in the future. See, e.g., Loving.
The reason that people today are against same sex marriage is that it makes some folks viscerally angry to see two men holding hands or [eww] kissing. It does not make those same people angry to see me kiss my wife or hold her hand. This is likewise animus, and laws based on this animus should not stand.
My point stands.
The both-sexed criterion treats the two sexes equally.
You may want a different kind of relationship type to be recognized as if it was the same as marriage. But that only returns you to the gay identity filter as per my previous comment.
Look to the criteria for the racist filter and you'll see a confuddlement regarding degree rather than kind.
The gay identity filter is confuddlement based on kind rather than degree.
Hence the former unjustly segregated the sexes, selectively, based on irrelevant criteria that were incoherent anyway; and the latter would unjustly bring selective sex-segregation under the auspices of a social institution that integrates man and woman; the gay identity filter is based on an incoherent set of vague criteria (if any criteria are actually offered) that don't distinguish "gay" from the entire same-sex category and, as such, this filter is about a difference in kind rather than degree.
It would unjustly abolish the man-woman criterion which treats the sexes equally.
The racist filter selectively segregated the sexes. The gay identity filter would do the same.
I haven't pointed to history nor to tradition. The man-woman criterion treats the two sexes equally.
Equality of the sexes requires both sexes.
>> The rise in sympathetic sentiment towards SSM has occurred in a recent time in history where men and women truly have become, in the eyes of the law, true equal gender partners in a marriage.
Corelation does not mean causation, as SSMers are fond of reciting.
But as you concede, the two sexes in marriage are treated, in the eyes of the law, as equal.
Couples, not individuals, qualify for marriage. Not all both-sexed combinations are eligible because of the both-sexed nature of marriage.
So how you can now claim that an individual man ought to be entitled to enter marriage without a wife is a sign of your assuming more than is merited about the thing being recognized.
This is about a relationship status that requires both man and woman. Individuals, with their husband or wife, enter the social institution that society, through the state power, recognizes and prefers. The nature of marriage is at issue in SSM arugmentation, not individualized rights.
SSMers argue for the right to enter a different kind of relationship, which is intrinsically sex-segrgative and which does not provide contingency for responsible procreation. Its nature is not the nature of marriage.
Look, why should society treat all unions of husband and wife as if they lacked either husband or wife?
Baker is only binding for federal courts. Baker deals with the Federal Equal Protection clause.
This is a state court with their own unique equal protection clause that is separate and additional to the federal 14th amendment. Here is the clause
It is much broader than the 14th amendment and the logic in my mind holds up why marriage under Iowa's constitution is unconstitutional.
The nature of marriage is at issue in SSM argumentation but not in the constitutional question. The both-sexed criterion is constitutional and does not treat the sexes unequally. The only way to get to an interpretation that it is unjust discrimination is to presuppose the nature of the relationship is not the nature of the conjugal relationship.
It remains a legislative issue whether merger of two kinds of relationships is desirable. I doubt it is actually feasible, in the longterm, because there is no good criteria for distinguishing marriage from non-marriage once the man-woman criterion is removed. It is central to marriage recognition and all that flows from it.
This is not an area of judicial competence.
Is it correct that marriage has a legal definition? I looked through the California on line statutes and the closest to a definition I can find is in Family.code Section 300. An it is clearly no defining it in terms of rights and responsibilities. As far as I can see, the legal accoutrements are added to an already assumed definition and were never enacted to define the concept. Thus I would conclude that the laws about marriage do not define the institution but only apply to it legal rights and obligations.
Some statutes specify how people get married; these generally include both procedural requirements and who can get married, including prohibitions on consanguinity, nonage, and same-sex status (in many states). When read together with annulment/divorce statutes, these rules legally define who is married (= proper people, + proper procedure, +no annulment or divorce).
A seperate set of statutes, as well as a bunch of common law rules, set out the rights and duties of married persons, including laws specifying elective share rights on the death of a spouse. These laws incorporate the Family Code's requirements for a valid marriage by reference.
So there is a legal definition. It just isn't repeated every single time they assign a right or duty based on the status of marriage.
Word Human has no legal definition, so human can be equalized with animal.
Can I marry an animal?
The Iowa Legislature has said they will pick this up in January. A constitutional amendment is not far behind.
You'd need to spell out, explicitly and with sufficient detail and rigor, what would carry much weight with you in the first place when it comes to legislatures, as representative bodies tasked with legislating for their polities and constituencies, vs. judiciaries, tasked with interpreting legislation and Constitutional precepts. Then you'd additionally need to indicate why you believe, assuming this is in fact your implication, miscegenation laws are equivalent to anti-SSM laws, at least so for all practical/legal intents and purposes.
Doing so would have the effect of setting the standard against which your future statements could then be measured.
Not something most are willing to do.
1. Should gay marriage be licensed by the state?
2. Who should decide?
In general, many of those who answer yes to the first q seem to feel the answer to the 2nd is "by any means necessary because it's important." [Clearly, then, this libertarian blog also attracts those who wish to argue against libertarianism; that's fine, as ideas are strengthened thru challenge.]
But I would remind the "any means" group that it can work both ways, which is why that approach is such a danger. Imagine if the judge had ruled that, say, free speech was no longer legal, not at all. Would you still support the idea of the judge ruling for their own policy preference in that instance? Would it matter if if the judge had carefully cited some logic of his own in support of his thesis?
IANAL, but I can see that the precedent set in any decision is not in who wins or who loses, but in the rationale behind the decision. A rationale that allows judges to invent new law - regardless whether it's law we agree or disagree with - is a precedent that cannot end well.
Still waiting for your reply to this.
invent new lawapply the state constitution - regardless whether it's law we agree or disagree with - is a precedent that cannot end well."Fixed that for you.
IANAL, and I am a Canadian to boot. I will try to look over Zablocki and reply later as best I can.
Colin,
No, the judge invented new law. I think you know it, too, but because you feel so strongly about both the desirability of licensing gay marriage and the preferability of judicial restraint, you attempt to square the circle by redefining what the judge did.
It is not an an easy decision, to be sure, but denial is not the way to resolve it. No right to gay marriage was ever intended to be put in the constitution over a hundred years ago, only to have been suddenly discovered ("well ain't that the bees' knees; how long has that been in there?") just in the last few years.
Should it be added? OK, but that's a change, and who gets to aquthorize thet change is a real issue, not to be denied.
True and, essentially, the primary cause of that prejudice.
"The reason that people today are against same sex marriage is that it makes some folks viscerally angry to see two men holding hands or [eww] kissing." gust from Texas
Largely false; in this case the "anger," if it exists at all, is secondary and even tertiary to far more primary concerns.
I.e. you're merely being equivocal about two fundamentally different issues, issues that have a different socio-historical, cultural, moral/ethical and judicial lineage. Likewise, you're making use of the "anger" charge much as people forward the "hate" charge and other forms of contempt. It makes for a compact piece of rhetoric that attempts to marginalize the alleged "haters" out of the social/political debate while simultaneously attempting to elevate the moral/legal status of the purported "victims" of the "hate."
Plenty of irony is manifested in all this as well.
Thus such charges ("hate," "anger") are oft-repeated, ad nauseam, in lieu of being supported with better empirical/rational arguments and with arguments that respect the proper role of judiciaries vis-a-vis legislatures and the citizens they represent. Those are citizens, btw, as supported by the most basic tenet of the U.S. Constitution, the tenet represented in the three opening words of the U.S. Constitution.
Again, more sophistry on your part:
The racist filter selectively segregated the sexes. The gay identity filter would do the same.
What was wrong about anti-race-mixing marriage laws was government forbade interracial couples from marrying. There is nothing wrong with "selectively segregated the sexes" on the basis of race, so long as couples do it volutarily and interracial marriages are still legally permitted. Given that the overwhelming majority of marriages are intraracial, the overwhelming majority involve "selectively segregated...sexes." So if "selectively segregated...sexes" in marriage, in the racial context (i.e. intraracial marriage) is fine as long it is voluntarily with the right of different races who wish to marry secured, it is likewise fine for same-sex couples to voluntarily gender segregate in marriage as long as the option for OS marriage remains secure.
In short, your argument fails.
The state is a necessity, whether we libertarians like it or not, if only as a repository for the monopoly (mostly) on violence. To do without one leads to a power vacuum quickly followed by local warlords, possibly followed by a strongman dictator, all of which no one wants.
So if I wish to be a practical libertarian, and I do, I must find a way to create and control a limited-size state so that it doesn't just become one big warlord itself. If there's a better way to do so than democracy, I haven't found it.
After all, having the majority vote for it is no less anti-libertarian than judicial review
I could not disagree more. A majority vote is not perfectly libertarian, but relative to a single judge, it is definitely moreso. Let not the perfect be the enemy of the good.
However, as an individual voter, sure, he may influence the social policy of whether or not marriage is to be accorded the preferential status is has and which other types of relationship are not.
Likewise, with the decision about a special relationship status based on gay identity politics. Is it merited? Maybe, maybe not, but it is not something that cna be decided, at the societal level, by an individual alone.
The interesting part about this is the division by age and educational level on this issue and how many folks are turned off by the mindless bigotry of the conservative christians.
There's no mindlessness involved. The interesting thing is how many people are turned off by the mindless contempt of presumptives who wish to avoid the legislative process.
Perseus,
I would suggest that every law has moral import, whether directly or indirectly, whether in one area or another, whether as a primary or merely a secondary aspect of the law in question. Laws are not enacted to enforce pure abstractions, they exist to reflect society's varied concerns. If there are laws that have literally no moral import I haven't heard of one and if they exist I suspect they'd be viewed as arcane, outdated, etc. (Likewise, what would it mean for a law to be "morally neutral"?)
Obviously, that is not to imply every moral concerns is legislated, to the contrary only a subset of society's moral concerns are legislated - those deemed to be important enough to be subjected to, potentially, enforcement mechanisms, i.e. the police and judicial arms of the law.
The idea the law should be "morally neutral" is oxymoronic. Indeed, the Gramscian "long march through the institutions" is in fact a long moral march through those institutions, based upon a decidedly Leftist, neo-left, multi-culti, pomo, etc. moral view of the world. As such the debate isn't over "morally neutral" laws, but over what moral/ethical view of the world will be reflected in legislative initiatives and the jurists and judiciaries which interpret those laws (or "interpret" and create/absolve laws and moral code via judicial fiat).
That's fine as a theoretical POV, but we don't live in a pure democracy. A written constitution inhibits majority rule in a great many ways; in fact, every single word in a written constitution restricts majority rule in some way.
If we take seriously the issue of constitutional democracy, as opposed to purely majoritarian rule, then we have to admit that we can't leave matters up to the majority to decide. Doing so would defeat the whole purpose of writing down our rights. Indeed, it would defeat the whole concept of rights altogether.
A libertarian, practical or otherwise, should be a supporter of rights. If not, I don't understand what you mean by the word; a majority could engage in all sorts of tyrannical practices (e.g., slavery or taking private property without compensation) inimical to any libertarian.
I'm not sure what you mean by this. We define marriage in two different ways: a religious definition, by which each church can decide for itself who to recognize as married; and a legal definition, by which we allocate rights and resources to those who register with the state as "married".
But this doesn't end the inquiry. As my response to ras indicates, we also recognize certain individual rights independent of general social norms. Thus, I can teach my child German even when we're at war with Germany; I can attend the religious service of my choice rather than the one the majority picks for me; etc. Because those rights are individual, they can conflict with other policies. And when they do, we allow certain of those rights to trump the policies set by majority rule. In this sense, the individual very much does get to decide.
Not quite. They are saying that the romantic, sexual love shared by same-sex and opposite-sex couples is equal - and hence both are distinguished from non-sexual relationships.
Hence the criteria of "romantic, sexual love" is far less qualitative in its distinction from non-sexual love than man-woman sex is in its distinction from anything else. If SSM is legalized, the argument that marriage must entail a sexual relationship will be far harder to maintain logically, and most likely legally as well. Hence there will be no logical reason to deny marriage to mere friends, or family members. Why, indeed, should there be? Ultimately, is it just about "love and commitment"? And if not, why not? Once you've broken the main line, you can't just arbitrarily draw new lines any old place and expect that they're going to be any stronger.
Now, sure, SSM argumentation points to the current ebmattled condition of the social institution in our society. However, the effect if not the intent of the SSM campaign is to further the attack the nature of the social institution. It wrips marriage into bits and pieces and leaves incoherence -- in the name of radical individualism or for the sake of "diversity".
Naming something a right does not foreclose direct consideration of the nature of the social institution. SSM arugmentation depends utterly on closing that discussion by invoking the radical individualism, diversity, and a supposed right to treat nonmarriage as marriage.
I'd give the SSM campaign much more credit for intellectual honesty and open regard for society's well-being if the argument they pushed as for replacement of marriage recognnition with something else. Because that is the effect of their arugmentation even if they wish to hide it under various euphemisms for deconstruction of a vital foundational social institution.
SSMers do not argue for entry into marriage. They argue for merging marriage recognition with a special status based on gay identity politics. Such a merger must lop-off anything that does not fit the one-sexed arrangement. And so it would no longer treat men and woman as equals, but as segregated even within the auspices of marriage.
As R.K. points out above, and as I had said earlier, there is no criteria offered by SSMers that would make a distinction between the gay subset of the same-sex category and the rest of the category for which this merger is not envisioned nor intended (at least on the surface). There is no legal requirement for romance let alone for same-sex sexual behavior in the relationship type that SSMers are pushing as replacement for the nature of marriage, the social institution.
If an individual wants to call their relationship, marriage, that's the key to opening the gate. This Iowa trial judge said as much in his long, meandering, nonsensical advocacy of the merger.
Chairm, what I can see John "conceding" is that the two sexes in married can be treated, in the eyes of the law, as equal. Your failure to see the difference is a clue to your disinterest in equality of the sexes in marriage.
No it isn't. Not by a long shot. If what you say is true, then no one past the age of child bearing could get married, yet they are allowed to. No sterile or infertile people would be allowed to get married, yet they are allowed. More so to the point: The state, in issuing a marriage license, cares so little about child bearing as an issue for marriage that it doens't ever ask if the couple is capable of bearing children.
That is a something that you should (as you put it) get through your thick skull.
"If SSM is legalized, the argument that marriage must entail a sexual relationship will be far harder to maintain logically, and most likely legally as well."
And yet, gay peoplea are quite capable of having sex, even after marriage. And who says that marriage must entail a sexual relationship? Does the state inquire as to how many times you and your spouse have sex? Why would it care?
Oh please, spare us the 'gays just want to destroy marriage' argument. I won't even dignify that one.
So the effect of SSM is that it attacks the nature of marriage? How so? Please, give me real examples from Canada, Spain, The Netherlands, Belgium, or Massachusetts of how marriage has been ripped to bits and pieces and has left only incoherence. Ask anyone from those juridisdictions whether people are still marrying, throwing the bouquets, passing out little favors, and going on honeymoons. Surely, after several years, if your theory is correct, there should be some evidence of marriage just falling apart, no?
Now, it's quite possible that you are married, and your marriage is so weak that if gays are allowed to get married in your state, your marriage will be ripped apart and will be incoherent. I don't know. Please inform us if it does. But until you can produce such proof, please spare us the hystrionic language. The sky hasn't fallen, and most sane people have realized that allowing gays to get married hasn't affected their ability to place a ring on their betrothed's finger.
And yet, in almost every state (except Florida and Utah), gay couples may adopt and raise children. So you already have thousands of families where the parents are two gay men or two lesbians women, and one or more children. isn't it to the benefit of the children to have their parents legally wedded? How can you justify allowing children to not have the benefits of married parents?
Or is marriage only for parents who have natural kids, and those who adopt be damned? Apparently, you either haven't thought of it, or you simply don't care.
Exactly the point I've been making. Where's the line now? Why NOT two who are just friends? Why NOT brothers and sisters, or even two brothers or two sisters?
Again, you've broken the line. Don't expect to draw another one and think it will somehow hold.
"The sky hasn't fallen, and most sane people have realized that allowing gays to get married hasn't affected their ability to place a ring on their betrothed's finger."
The constant repetition of this strawman argument demonstrates the biggest problem with the pro-SSM position: it's utter shortsightedness. It's not about OUR marriages, SSM supporters. It's about the next generation's view of what marriage is. And that won't really be known for about 30 years. Unfortunately, by the time the damage is obvious, it will probably be too late to undo it. That's the argument, not that "SSM will wreck MY marriage". Get that through all your thick skulls.
That should read "And that, and the effects thereof, won't really be known for about 30 years".
"Don't give me that about how putting a few chemicals into the air is going to cause mass environmental disaster. We've been doing it now for years. Where's the flooded coastlines? Where's the hurricanes that are going to sink New Orleans? Where's all the terrible doomsday scenarios that are supposed to happen?"
Entering an unknown and unprecedented element into a complex system is always a risk, especially when that system has survived thousands of years and never adopted that new element which is easy enough to have been thought of anywhere along the line.
If this were true, the state could constitutionally prohibit the infertile and elderly from civil marriage. Yet, I have no doubt such a prohibition would be found unconstitutional.
Firstly, the common practice that marriage is reserved for romantic lifemates is cultural, not legal. The law already permits sham marriages, and would with or without same-sex marriage.
As to the cultural question, I do not see how extending civil marriage to loving, romantic, same-sex lifemates in any way weakens the common practice that marriage is reserved for romantic lifemates. You make it sound like same-sex couplings blur the distinction between romantic and non-romantic relationships. But, these same-sex couples clearly fall on the romantic side of the bright line. Thus, the line is not at all weakened.
They are still "in the box" built around reproduction and the act which produces it. In the case of the infertile, among male/female couples the line between fertility and infertility is very narrow. Many couples once infertile are later fertile. And vise-versa, of course, most obviously when they grow old. Marriages that occur late in life are thus allowed in the box because they resemble once-fertile couples who had children, but who have grown old and are no longer fertile. Two men or two women are never fertile with each other through natural means. And fertile couples do not turn same-sex in their later stages.
"As to the cultural question, I do not see how extending civil marriage to loving, romantic, same-sex lifemates in any way weakens the common practice that marriage is reserved for romantic lifemates."
"I do not see how....". Years ago, did anyone see how all the fluorocarbons would destroy the ozone layer and possibly cause global warming and flood the coasts? The "I don't see how" defense is lame for any proposed unprecedented change to a highly complex system such as the environment or culture. It is not only mankind's right, but responsibility, to ask questions about all of the possible negative effects which may be caused by such changes.
Simply put, my argument was that the line is blurred because the line between "sex" and "non-sex" is blurry when applied beyond the one form of sex which has a clear qualitative difference from all others. Building a new marriage box around "any kind of sex" makes the distinction with no sex at all far less. But this is not the only likely negative effect of SSM by any means.
That's quite a dodge of my point. It also is fundamentally antithetical to the concept of liberty in America. You're espousing (pun very much intended) what is, ultimately, a totalitarian theory.
Either you misunderstood Chairm's point or I did. S/he claimed that marriage constituted a coherent, defined social practice which individuals couldn't contravene. This claim is factually dubious: just for example, Catholics and Protestants have different views about the nature of marriage and the propriety of divorce. In any case, the claim that individuals must comply with "coherent social practices" is fundamentally unAmerican. Our whole society is constructed on the theory that individual liberty trumps social practice in a great many cases.
As for the state, your claim dodges the fundamental issue, namely, whether the rights of individuals trump the power of the state in this case. If you want to claim power for the state, you have to address that issue directly.
If it is "totalitarian" for the State not to recognize same-sex pairings as "marriages" on the ground by which you argue, please explain how it is then not totalitarian for the State to not recognize a polygamous marriage, a brother-sister marriage, or anything else not currently allowed. You are arguing for no definition of marriage whatsoever.
As an Iowa attorney, my guess is that Iowa was selected by SSM advocates because: a) the state constitutional language is favorable to their arguments; b) the state supreme court is fairly liberal (at least compared to many courts these days); c) the state supreme court has shown an openness to equal protection arguments that are broader than federal EPC decisions; and d) although a Midwestern state, most of Iowa tends to be more liberal/libertarian and supportive of gay rights (more like Wisconsin or Minnesota, less like Nebraska or Missouri). Polk County was probably selected because the state capital is here, and Des Moines has the largest gay community in the state (if most of the Plaintiffs live in Des Moines, then Polk County is the logical venue). Also, other than Johnson County (home of the University of Iowa), the judges in Polk County are probably more open to the SSM arguments than judges in other more conservative counties. Finally, I suspect the fact that Iowa media tend to be based in Des Moines had a large impact on the decision to pursue the case in Polk County.
That's not "twisting" the definition, that IS the definition. It's exactly the same as interracial marriage, for example. Those couples demanded from the state recognition of their situation regardless of the fact that the culture defined it differently. Similarly, Nazis get to exercise free speech rights under police protection, regardless of the fact that our culture despises Nazism. Etc.
I think these issues have been beaten to death already. If you're convinced by these weak analogies, I doubt there's anything I could say to convince you otherwise. Perhaps you might consider, yet again, how interracial marriage might be barred under your reasoning.
There was a legislative process that was declared unconstitutional. The legislature was told it was unconstitutional before they passed it and they passed it anyway.
Mindless happens to be my opinion and that of the people I was quoting.
Sorry, but you are not thinking through to see the obvious. You are saying that any combination should have their relationship recognized as a marriage if they wish to. Interracial marriage was not recognized simply because someone wanted it. It was recognized because it did not violate the universal cultural definition of marriage, and it did not make any logical or practical sense. Interracial couples can procreate. They give children a mother and father. They are not more likely to produce deformed offspring. They are not polygamous. They do not confuse the bond between sibling love and romantic love for the next generation, nor do they confuse the difference between friendship and romantic/sexual attraction. Because of all this, bans on interracial marriage made no sense.
Still, if the state had thought they made sense, it was within the state's power to not recognize them, just as they now do not recognize polygamy or sibling marriage. Yes, the state does have the power to set limits on what it recognizes as marriages. What those limits are is the only question. I and most here who oppose SSM believe that they should only be granted to two of the opposite-sex who are not related any closer than first cousins, and where neither is under age of consent. Correct me if I'm wrong, but I think you believe they should also be granted to same-sex couples, but still not to more than two persons, and still not to brothers and sisters or parents and children, or to minors. Am I right? If so, then you do not believe that "individual choice overrides the state and cultural definitions" any more than I do. If not, that is, if you really believe anything anyone might call a marriage should be recognized as such, then lay those cards on the table. Otherwise, time to develop another argument.