There aren't any new legal arguments in the Iowa trial court decision of yesterday declaring the state's exclusion of gay couples from marriage unconstitutional.
What's unusual in the legal analysis (pp. 43-61), at least if you compare it to the various state supreme court decisions so far on the issue, is the conclusions reached. The court concludes there is a due-process-based fundamental right to marry that includes same-sex marriage. This is contrary to all of the state high court decisions on the issue, including the ones ruling for gay marriage or civil unions. Against that tide, the court offers almost no analysis beyond asserting (without citation) that strict scrutiny is warranted because the state marriage statute is "an absolute prohibition on the ability of gay and lesbian individuals to marry a person of their choosing." (p. 45) The same could be said of consanguinity or numerosity limitations, or any of the other requirements that frustrate the choice of marriage partner. There's actually some loose language in one Supreme Court decision supporting the view that complete barriers to marriage should be viewed more skeptically than minimal barriers, like the need to pay a nominal license fee, but that language comes in the context of an opposite-sex marriage case and the trial court doesn't cite it. There are respectable arguments for the fundamental-right position, but the Iowa court doesn't make them. I doubt this rationale will be accepted by higher courts in the state.
The equal protection argument — based on sex discrimination — breaks no new ground either. It, too, is contrary to the vast majority of decisions (even pro-gay-marriage decisions). On substance, the trial court doesn't get us beyond the familiar arguments about Loving. While the sex-discrimination argument has a certain logic-chopping appeal, it doesn't capture the Supreme Court's underlying concern in Loving about how the racial classification there sustained a system of race supremacy in a way that would tie traditional marriage to a similar concern about gender supremacy. I also doubt this rationale will be accepted by the higher state courts.
Perhaps recognizing these weaknesses, the trial court devotes most of its attention to a Goodridge-style argument that excluding gay couples from marriage isn't even rational. No new ground here, either. If the same-sex couples win in the higher state courts — a very big "if" — it will probably be on this argument.
The most interesting thing in the decision isn't even the legal analysis section. Procedurally, the decision is a ruling on cross-motions for summary judgment. The agreed or uncontested facts are critical. The county's attorneys made extensive and serious concessions or failed to adequately dispute many of the plaintiffs' asserted facts about marriage, sexual orientation, and especially gay parenting (see especially pp. 21-43).
The "undisputed" facts read like a gay-marriage advocate's dream brief. I don't want to go through them all, but suffice it to say that many of the "undisputed" facts — like the methodological validity of studies showing that gay parents are just as good as straight parents — have been hotly disputed in gay-marriage litigation. Indeed, the existence of disputes about parenting in particular have been used by some courts to argue that on rational basis review the state legislature is entitled to make its own conclusions about maintaining traditional marriage.
If these facts are treated as undisputed by the higher courts in Iowa (and I assume the state will try to challenge the conclusion that they're really undisputed), the plaintiffs' chances of winning on rational-basis review will go up. The Iowa marriage litigation might then turn out to be more interesting than I thought, though I still expect the plaintiffs to lose on appeal. I doubt gay marriage is going to come to Iowa by default. One way out for a higher state court might be simply to reverse the decision on the grounds that the trial court misapplied the summary judgment standard in ruling for the plaintiff about the undisputed facts or its exclusion of the county's expert witnesses. This would return the issue to the trial court and allow the higher state courts to avoid the substance of the marriage issue — for now.
Meanwhile, after one gay couple obtained a marriage license, the trial judge stayed his decision. There will be no summer of love in Iowa.
Related Posts (on one page):
- Giving away the (Iowa) farm:
- Iowa state trial court judge rules for gay marriage:
All marriages should have the right to conceive together, but no one should have the right to conceive with someone of their same sex.
Should not such distinctions - e.g. the quality of gay parents as a group (and aot a particular couple, no less) - be moot as far as the court is concerned, in that it is not the court's job to select the "best" policy and make it law, but rather to let the elected representatives do so?
No, unless your are willing to condem every jduicial ruling that invalidates a statute.
There's more info on same-sex conception at my blog. Here's a teaser, an article that was in GayCityNews in 2005, entitled "Science’s Hope of Two Genetic Dads".
Again, I have seen (and agree with) plenty of practical arguments in favor of SSM but not polygamy. But what's the principled CONSTITUTIONAL argument to this effect urged by those who wish to have the courts decide this issue - which I recognize may not include Prof Carpenter?
DC: How easy it would be to distinguish a successful gay-marriage claim from a subsequent polygamy claim would depend on why the gay-marriage claim was successful.
If the claim was successful on a sex-discrimination ground, a distinction would be easy, since a restriction on the number of partners one may have is not the same as a restriction on the sex of one’s partner.
If the claim was successful on the ground that sexual-orientation discrimination should be subject to heightened scrutiny, that would also provide an easy distinction since polygamists would need to make their own substantive arguments for heightened scrutiny.
If the gay-marriage claim was successful on a substantive due process/fundamental right ground, a distinction might be harder depending on how broad the rationale was. If it was simply, “there’s a fundamental right to marry anybody you want” (unlikely), why not polygamy? If it was more narrow, along the lines of, “gay couples function like straight couples in every way,” or “there’s an emerging trend toward recognition of gay relationships,” these would offer better grounds for distinction since one might think a multi-partner marriage would have an entirely different dynamic than a dyadic one and one might think the historical trend in modern liberal societies has been away from polygamy, not toward it.
If the claim was successful on the grounds that the exclusion of gay couples isn’t even rational, the state might still be able to come up with sufficiently strong interests to justify a limitation on polygamy (protecting women and children from abuse and exploitation in what have historically been one man/many women arrangements, preserving equality of the sexes, the administrative difficulty of deciding property, child care and support rules, etc). Maybe none of these would be great reasons, I don’t know, but they’d have to be dealt with – and they’d be distinct from the state’s interests in excluding same-sex couples from marriage.
Would you mind letting us in on some of the practical arguments for SSM? I, for one, have seen far more practical arguments favoring polygamy. For example, it substantially obviates biological limits on procreation, and reduces or eliminates divorce and the attendant litigation and emotional disruptions. No need for a "broken" family when you can always just add a new member :).
This is like saying Barry Bonds' steroid use threatens my natural right to swing a bat at a baseball. What now?
Some possinle arguments, all based on the premise that marriage is a fundamental Equal Protection right.
1) Restrictions based on classifications of people must overcome rigorous scrutiny. Prohibiting same-sex civil marriage classifies people based on their sexuality (rigorous scrutiny applies), but prohibiting polygamous civil marriage does not classify people, it is based solely on behavior (rigorous scrutiny does not apply).
2) Rigorous scrutiny appplies to both, but given the overwhleming prevelance of one-man-many-women polygamous marriages, the state overcomes its burden in the name of protecting women and children.
3) Rigorous scrutiny only applies to restrictions that implicate relationships that fall within the purposes of civil marriage. Same-sex marriages fall within one of the purposes (encouraging single people to settle down with their lifemate), polygamous marriages do not.
No, unless your are willing to condem every jduicial ruling that invalidates a statute.
I don't follow your logic at all. A judicial ruling that invalidates a law on the basis of it being essentially illegal - e.g. a genuinely unconstitutional law - is no prob by me simply because it is invalidating. The heart of the matter is not in the what, but in the why.
What I said, or tried to, was that it is not the court's job to determine which laws are "good" in the policy sense; that's the job of the elected representatives of govt. Thus, a court may well have to uphold a law that the court thinks is terrible policy, but is nonetheless a valid law, validly passed.
In that light, why should the court be so concerned with whether the stats say that - to continue with the orig example - gays are on average good or bad parents (even presuming that averages made sense to use). The cutoff line for "good enough" or "bad enough" is not for the court to decide.
In this particular case, we can argue other factors as well, such as individual rights. But whether we think pro or con re the policy in dispute, or any other policy, the importance and interpretation of the statistics in formulating policy are not for the court to decide, only whether the law is legal.
So why do the courts focus on such stats so often? To what purpose? Reasoning from a conclusion seems to be the most likely explanation, at least in most cases, tho I am open to args on the matter.
There is almost never a law which is plainly unconstitutional. In virtually all cases, laws are invalidated because they do not meet the necessary standard to infringe on a constitutional right. The standard used varies from case to case based on a number of factors. But, those standards include things like "is the law rational" and "does the state have a compelling interest". These judgments necessarily require fact finding and line drawing (e.g., are gays good parents).
If you believe such judgments are policy preferences only disguised as constitutional law, then you must accept that virtually all court decisions which invalidate laws are illegitimate.
Under Iowa's appellate process, the case is appealed to the Supreme Court. The Iowa Supreme Court under Rule 6.401(1) "may by order, on its own motion, transfer to the court of appeals for decision any case filed in the supreme court except a case in which provisions of the Iowa Constitution or statutes grant exclusive jurisdiction to the supreme court."
Cool right? But then Rule 6.401(2) rears its ugly head:
The supreme court shall ordinarily retain the following types of cases: a. Cases involving substantial constitutional questions as to the validity of a statute, ordinance or court or administrative rule...c. Cases involving substantial issues of first impression...d. Cases involving fundamental and urgent issues of broad public importance requiring prompt or ultimate determination by the supreme court.
Well, is this "ordinary"? Hardly. So, what is the Iowa Supreme Court to do? Kick it to the Court of Appeals and let them chew on it first? Or take the bullet now?
By the way, did I forget to mention 4 out of the 9 members of the Court of Appeals and 3 of the 7 members of the Supreme Court are facing retention elections next year?
The only standards the court must test for are those specified by higher laws, right up to the constitution. Any other standard is applied on the whim of the court, not by the will of the people.
For example, let's say that the right and honorable judge jrose ruled one day that it was ok for the state to jail ras, solely because the state had a compelling interest in doing so in order to enhance diversity in the prison system (ras being, er, a kinda different fellow in this example).
But where does it say, where have the people decided, that diversity in the prison system is a compelling interest? It doesn't, and no matter how many stats the fine &lerned judge uses to prove that ras belongs in jail, for the sake of the common good, that is simply not a standard that the people have said the judge could use. And, by extension - and at the heart of most such arguments as this one - this applies to sophistry that achieves the same effect, however fine, hoever noble in intent.
Would you agree with judge jrose in this example?
Really, that's obviously incorrect on its face; it's certainly not an absolute prohibition on the ability of a gay male to marry the person of their choosing - only a prohibition on one choosing another male to marry. True, a gay male is unlikely to choose a female as a marriage partner, but such things do happen, given societal expectations, tax benefits, etc. Obviously there's a disparate impact, but the prohibition is clearly not "absolute".
Further, the judge implies that the prohibition applies only to gay and lesbian individuals, yet this too is obviously incorrect. As a straight male I too am barred from marrying a male. True, I am unlikely to want to, and I'd certainly agree that the rules have a disparate impact - but the fact that I am unlikely to want to marry a fellow male doesn't change the fact that I'm not allowed to.
The rule in question barred anyone - gay or straight - from marrying someone of the same sex. That's not really the same thing at all as a rule which bars gays from marrying anyone - of the same sex or not (even if the practical impact is effectively identical).
jrose,
You are making a value judgment that being gay is a "status" and not a descriptor for someone who engages in a particular behavior, whereas a polygamist is simply engaging in an inherently sexual activity independent from his own sexuality. I don't buy it at all. Humans are just as "naturally" likely to be polygamous as any other sexual orientation.
The bottom line is: it's ALL about regulating behavior, discouraging or prohibiting behavior of which the majority disapproves, and rewarding the behavior the majority admires. Legislating morality is what the government has always done, and will always continue to do.
Then you necessarily reject very well-settled constitutional precedent and virtually every court decision that has invalidated a statute, including Loving.
ras: For example, let's say that the right and honorable judge jrose ruled one day that it was ok for the state to jail ras, solely because the state had a compelling interest in doing so in order to enhance diversity in the prison system
In your hypothetical, the state jailed you based on a statute as approved by the will of the people. Thus, the court did what you said they must do: accede to the will of the people. But of course that would be wrong. The court needs to step in, gather facts, draw lines, use their judgment, and overrule the will of the people by ruling there is not a compelling interest.
You are of course free to believe that, and also that the Earth is flat.
No, in my hypothetical the people had *never* called for such a test and there was no such statute approved by the will of the people.
See, I make you a judge and already you're slacking off!
It amazes me people can be this ignorant about the nature of human sexuality. On second thought, many people believe in UFOs, think intelligent design is a scientific theory, and can't grasp basic math.
It looks like Jon Stewart had it correct when he said same-sex marriage is "a debate about whether you think gay people are part of the human condition or just a random fetish."
Courts do not preemptively take cases. They only hear real controversies. So in your hypothetical, the state must have been jaling you before the court got involved. If not through a statute (the will of the people), on what authority did they do that?
The legislature says, "We cannot craft a political compromise on securing the rights of polyamorists, it's too complicated and there are too many opinions with no rational basis for choosing among them, so we decline to spend the people's money to do so. We can reach compromise on the single-partner heteros, so here are the laws, and here is the funding to administer those laws."
The Iowa judge then comes along and says "well, by over-riding principles of law and the constitution, if you're going to secure the right for some people, you have to secure the same right for everyone."
So what am I missing here? Shouldn't the judicial response in Iowa be that the marriage laws in Iowa are unconstitutional, and that therefore if Iowa is unwilling to recognize SSM, it cannot recognize any form of marriage? Which means that Iowa can no longer, if this decision holds, issue marriage licenses to anyone. It's either all, or nothing.
OK, so it's anarchy for awhile. And then after a while, the Courts will realize that they created a legal mess, that all sorts of crazy partnerships are springing up, with no rational way to adjudicate conflicts or protect dependents; and they will plead with the Legislature to craft some laws that support at least some of these partnerships. And so finally, the Courts will come to realize that life isn't fair, and the law can't be perfect, and some people will always be unlucky in not having some of their rights to do as they please secured by all the rest of us.
Following your argument, then there is no point to finding that the laws that prohibit interracial marriage should be struck down. Blacks are not barred from marrying anyone -- they have a whole pool of other blacks to marry. So isn't that enough for them? Why do some black people insist on marrying white people? If we want to prohibit them from interracial marriage, what's the problem -- just find someone of your own race to marry, and there is no burden. Afterall, most white men marry white women, and most black men marry black women anyway.
And that was indeed the arguments in Loving v. Virginia. But the Supreme Court held that marriage is a basic right to everyone. Presumably, "everyone" includes gay people too. If two people want to get married, why should you care whether the two are of difference races, ages, nationality, maturity or gender?
How very easy of you to hold this attitude when you don't have to suffer the unfairness.
Of course, we should tell all minorities that life is unfair, and that business in the Constitution about 'equal protection' is just a fancy ideal that no one really takes seriously. So just buck it up and drink from the dirty fountain already!
I wasn't aware that Richard Loving and Mildred Jeter were arguing for their right to procreate (though they did in fact have children). Didn't the SC decision in Loving only address their right to marry?
The issue with anti-interracial marriage laws is the following:
Joe (black) may not marry Jane (white) but may marry Jill (black).
James (white) may marry Jane (white) but may not marry Jill (black).
The rules are different for different people based purely on the color of their skin. In the defense of these rules we might note that they have a very limited impact, and we might hypothesize that the impact of these rules will be felt relatively equally by all - but that hardly matters; the key problem with these rules isn't their impact but their basis. Even if only a handful of couples found themselves crosswise with these rules, they are still, obviously, unfair.
All this changes when we look at gay marriage laws.
Bill (straight) may marry Brenda, but may not marry Bob.
Bob (gay) may marry Brenda, but may not marry Bill.
Here the rules are identical for all - everyone is presented with the same rule, and the rule takes no account of sexual orientation. That's qite fair at least from a certain point of view - both may choose a partner from the exact same pool of mates - just the opposite of the previous case where we had two separate pools. The impact, however, is both large and disparate. Bill is as unlikely to find that his chosen partner is outside the legally endorsed pool as Bob is to find his is inside.
Laws against gay marriage, it seems to me, are fair in a way that laws against interracial marriage are not - even though the actual negative impact of the laws is, I suspect, an order of a magnitude greater.
In case it's not obvious, I'm against bans on interracial marriage or gay marriage - but I don't think we can always usefully apply the same arguments in support of each.
jrose: You appear to be arguing that a gay male will never choose a female to marry. This is obviously incorrect; many homosexuals have married people of the opposite gender for a variety of reasons (often in order to hide their sexual orientation).
Being siblings is a supportable basis, and so is being of the same sex, because same-sex procreation is unethical and unwise and unsafe.
Reg: Where's the fetus going to gestate? You going to keep it in a box?
1)Some people say marriage is about procreation and procreation is inherent in the definition of marriage.
2)Others argue about the chemical "pair-bonding" effect in two people who are in love, how these people will try to pair off and they will stabilize. These two people will form a relationship regardless of society recognize them or not. This is a "natural right" (using the common Locke enlightenment definition) any society that doesn't recognize natural law is unjust. (note both religious groups and same sex marriage advocates both claim natural law, religious from god, same sex marriage from inate human nature.)
Just because you find 1 to be your definition, it doesn't make your definition better than definition, 2, same thing for definition 2 vs 1. No one owns language, there is no "better definition" nor is there a "right definition."
1)Create a stem cell from one of the man's cells/dna.
2)Use stem cell and coax it into an egg. (very easy to do compared to number 1)
3)Fertilize the egg with the other man's sperm
4)Artificial insemination.
But in reality they aren't, else Skinner would have settled the right to marry as well as the right to procreate and there would have been no need for Loving. And Loving holds even in the absence of the intent to procreate. Shortly after Loving, the SC established the right to marry and *not* procreate.
I would agree that it makes no sense to allow the right to marry and *forbid* the right to procreate, since the two things tend to go hand in hand, so to speak. Which brings us to...
"Is that different now, we choose one person to procreate with, and a different person to marry?"
In many cases, yes. That bridge has already been crossed. I suppose you could try to reverse the trend, but you're going to have a lot of angry straight people to deal with. The ethical issues surrounding genetic manipulation will have to be decided on on their own merits. No doubt same-sex marriages will bring pressure to bear on these decisions, but IMO this should not be the basis for denying people of the same sex the right to marry.
But that's the point. You can marry whoever you WANT to, but a gay or lesbian person can't. Yes, in some legalistic sense everyone is treated *equally*, but would you really call it "fair," in any meaningful sense of the word?
I happen to think that it would be good policy to at least give men who want to join men, and women who want to join women, some kind of arrangement analogous to marriage. Maybe even identical in all respects save the name. But it being good policy is remarkably different from it being constitutionally mandated.
See this for why constituionally-mandated same-sex marriage does not lead to constitutionally-mandated polygamy (the first two reasons also apply to consanguinity).
Additionally, gays currently cannot effectively marry anyone, not merely that they cannot marry the person of their choice (please save us the argument that gays can marry a person of the opposite sex). For polygamy and consanguinity restrictions, at least the person still can mary someone.
Finally, how do you reconcile that dead-beat dads must be given the right to marry at least someone and likely the person of their choice (Zablocki) with how current marriage law treats gays.
You aren't making any sense. How does "nobody can marry a person of the same sex" translate into "gays can't marry anyone". They can marry someone of the opposite sex, and in fact some of them choose to do so. They may or may not want to, but they can.
You say, "please save us the argument that gays can marry a person of the opposite sex". Umm, huh? They can, so the statement that they "can't marry anyone" is false.
Is it rational to say a prohibition on inter-racial marriage means that a black man in love with a white woman "can't marry anyone" since the only person he wants to marry, he is prohibited from marrying?
What if the only person I want to marry is my sister? Is it rational to say that the laws against incest prohibit me from "marrying anyone"? No, they don't. They allow me to marry many other people. That I don't *want* to marry them doesn't mean the law doesn't let me marry them.
Societal policies encouraging sham marriages by gays, during the Crazy Years, is referred to as being "pro-family."
I'm not even an amateur scholar of Iowa constitutional law, so I don't know if the Iowa cites are reasonable.
What I find more interesting -- and new, although perhaps I'm wrong -- is where the court comes to the point where the ban on gay marriage has to survive the "strict scrutiny" test and concludes (although it's a bit gentler) that it doesn't even survive the laugh test.
What I find most interesting is the social parallel between this and shall issue handgun permit laws -- which is something that I do know something about. Always, before a SSM court decision|domestic partner act|commonsense carry law goes into effect, there are specific claims of exactly how the sky is about to fall, and the claims don't change, no matter how many times the thing has happened before elsewhere without the sky falling. And, always, years later (and we are years after the Vermont DP thing, and not as many years after MA; we're now just past the fourth anniversary of carry reform in Minnesota) the locals, by and large, look back and wonder what all the shouting is about.
The one exception are folks who look at the excesses of the small number of marginal folks who marry folks of the same gender | get carry permits, and who see that as representative of the SSM | gun community; for them, the sky always does fall. (I don't know that I've got words to express how very much I admire Clayton Cramer's work on Second Amendment | pro-self-defense issues -- let's just go with "a whole lot" -- but he fits quite neatly into that category on GLBT issues, just to take an example that will probably be familiar to many of the folks here.)
Red states get guys walking around as married couples, and Blue states get folks walking around armed. Where do you think we'd find the most tolerance?
How about Civil Unions that are identical in every respect, except they don't give the couple the right to conceive children together, using their own gametes? No person, gay or straight, should have the right to conceive children with someone of their own sex, because that would require genetic engineering. Only reproduction that doesn't change any of our genes, that joins the unadulterated genes of two people, necessarily a man and a woman, should be allowed.
All marriage should continue to have the right to attempt to conceive children together, using their own genes. No marriage should be prohibited from doing that, or required to use a lab to do genetic engineering. But same-sex couples should be prohibited from conceiving together using their own genes, because it requires a lab to engineer changes.
Skinner was about individuals being sterilized, people having their right to conceive with anyone taken away. They were allowed to marry, but they wouldn't be able to conceive. But the court in Skinner found that being allowed to procreate is a "basic civil right of man", so states can't sterilize people (in Skinner, there was also the issue of the law being applied unequally, but the finding was that everyone has a right to procreate.
Then, over twenty years later, the court said that the basic civil right to procreate means a right to procreate with the person of your choice. That's why Skinner was cited in Loving. Loving did allow for their being "supportable basis" to restrict the choice, such as being siblings, etc, but said race was an insupportable basis. No one, the court, the state, the Lovings, the public - NO ONE - ever tried to put forth the arguments that the Lovings are already allowed to procreate without marriage and thus don't need a right to marry each other, or that they should be allowed to marry but just prohibited from conceiving together - miscegenating - or suggested that they just go ahead and have kids without marrying, because EVERYONE knew that marriage was the right to procreate, the right to procreate was marriage, they were the same thing. Virginia, in denying interracial marriage, was prohibiting interracial conception, that is how prohibiting conception is done. Only married people have a right to conceive together. That is still true even as we allow people to get away with conceiving without having a right to.
I would agree that it makes no sense to allow the right to marry and *forbid* the right to procreate, since the two things tend to go hand in hand, so to speak. Which brings us to...
Right, this is a very dangerous situation to allow to happen, in this age of genetic screening. All marriages should - must - be allowed to conceive together, using their own gametes. So the only way to prohibit same-sex conception and genetic engineering without stripping marriage of its central right it has been synonymous with since the very first marriage, is to also prohibit same-sex marriage. Civil unions could be defined as being exactly like marriage but without conception rights, to preserve marriage's rights.
"Is that different now, we choose one person to procreate with, and a different person to marry?"
In many cases, yes. That bridge has already been crossed. I suppose you could try to reverse the trend, but you're going to have a lot of angry straight people to deal with.
Yeah, we need to reverse that trend. There have been people marrying and procreating with different people for only about 50 years, and at first it was done secretly, because it was illegal, a form of adultery. It is only in the last twenty years that it has come into the open, and now that many donor-conceived children are reaching adulthood, they are telling us to stop allowing this, that people should only have children with someone they love and marry.
But of course there will always be out-of-wedlock births. The thing to worry about is the right to conceive IN marriage, which is in jeopardy if we allow same-sex marriage but then choose to prohibit same-sex conception.
The ethical issues surrounding genetic manipulation will have to be decided on on their own merits. No doubt same-sex marriages will bring pressure to bear on these decisions, but IMO this should not be the basis for denying people of the same sex the right to marry.
We should prohibit same-sex conception and genetic manipulation first, before it is used to create a person, and if scientists want to persuade us why it should be made legal again, the burden should fall on them to explain how it won't lead to a Brave New World and won't divert money from real health care for existing people.
James (white) may marry Jane (white) but may not marry Jill (black).
Bill (straight) may marry Brenda, but may not marry Bob.
Bob (gay) may marry Brenda, but may not marry Bill."
except that you're creating a false dichotomy with your SSM analysis. In interracial marriage your analysis was essentially correct, race was the limiting factor regardless of personal preference (David Duke was similarly barred from interracial marriage regardless of whether he'd take advantage of it).
The problem however with gay marriage bans is EXACTLY the same as with interracial marriage bans.
To illustrate, let me expand on your example:
"Bill (straight) may marry Brenda, but may not marry Bob.
Bob (gay) may marry Brenda, but may not marry Bill."
Brenda (straight) may marry Bill but may not marry Linda.
Linda (gay) may marry Bob but may not marry Brenda.
By adding these additional two examples we can see the discrimination plainly. Under interracial marriage bans Joe could marry someone James could not and James could marry someone Joe could not. Under SSM bans Brenda does not have the ability to marry someone that Bob or Bill could because of the mere fact of her gender.
Anyone willing to trade same-sex marriage for CCW permits under Full Faith and Credit?
Red states get guys walking around as married couples, and Blue states get folks walking around armed. Where do you think we'd find the most tolerance?
While I can appreciae them humor, I have to say that it absolutely stuns me that the respective groups of people you refer to have so much difficulty in recognizing their respective lack of reason on these two issues.
I wouldn't trade those two, because I want both. Arms rights for all, and marriage rights for all. And I mean that very seriously. Take away the marriage penalty tax, and give me my selective fire rifle, and get your damn laws off my body all at the same time!
Billions of dollars worth of unsuccessful, agenda-driven "research" has produced no significant evidence that sexual preference is something other than a preference, no different from preferring chocolate to bananas. Yet those who believe what all that research has failed to refute are somehow the equivalent of people who think the earth is flat? The logic in that must required cultivation at Harvard or Stanford.
I also find it bizarre that there are people who think that straight people have a right to marry anyone they want. How do people say and write that with straight faces?
All I know is that Linda should not have the same rights with Linda that she would with either Bob or Bill. With Bob or Bill, Linda should be allowed to conceive children together, but if she chooses another woman, she should not have the right to conceive children with that woman.
I know it might not be as much fun now that I have identified an actual concrete right that should not be given to same-sex couples, and many of you might want to ignore this so you can continue talking in abstract about this and that. You might want to say that they are separate questions, but they are not. To call them separate questions is an attack on the reproductive rights of everyone, it is an attack on the reproductive rights of marriage, it is a eugenic belief that reproductive rights are to be decided apart from a couples desire to choose each other - outside of supportable restrictions - to conceive with. They should be reconnected to marriage in people's minds, and creating civil unions that are exactly like marriage but do not grant conception rights is the way to do it.
I expect to see a response from Carpenter or Volokh explaining their position on the rights of same-sex couples to attempt to conceive together, and how essential that is to marriage rights and equal rights. If it is essential, they should not be hiding this and pretending they haven't heard about it: the essential thing they are demanding is genetic engineering and a brave new world of lab-created babies, along with eugenic control of which marriages are allowed to conceive with their own genes.
Thumper - are you suggesting that in my example Bill has the same rights as Brenda? or Linda the same rights as Bob?
You wonder how people can make the claim that
"straight people can marry anyone they want" and indeed, phrased this way on it's face the claim is laughable.
Straight people can not marry those who refuse an offer of marriage, nor can they marry children, nor those that are already married (for as long as polygamy is not permitted) nor can they marry someone else if they are already themselves married (without a divorce from their current spouse). Nor can they marry relatives in most states (some states allow a degree of cousin marriage).
However, straight (for these purposes 100% heterosexually attracted people) people are not legally barred from marrying the person they love assuming they aren't barred from marriage by one of the above factors. Gays (100% homosexual attracted people) are restricted in that manner.
For those of you who are curious, I'm an attorney in Iowa and generally handle sveral civil appeals a year. From my experience, I think the supreme court will almost certainly (and correctly) retain this case for consideration. SSM is a new issue in Iowa, and the supreme court has been very conscious of its responsibility to decide these kinds of "big issues" without punting them to the court of appeals for political cover.
I really cannot project how the court will decide this case, but I would note that the three most recently appointed justices (Wiggins, Hecht, and Appel) are probably far more liberal than their predecessors. I would also note, FWIW, that the Iowa supreme court has recently ruled that the Iowa Constitution's Equal Protection Clause is more expansive than the federal EPC. In fact, the Iowa court effectively gutted a US Supreme Court ruling that overturned an Iowa supreme court EPC decision by ruling on remand that the Iowa Constitution still justified their prior decision, no matter what the US Supreme Court said. Racing Ass'n of Central Iowa v. Fitzgerald, 675 N.W.2d 1 (Iowa 2004). Even more interesting is that Justice Ternus, who authored the RACI II decision, is now the chief justice of the court (she typically favors a very rigorous analytical approach to constitutional and statutory language, which may benefit the SSM avocates). Also, one of the two RACI II dissenters has since left the court. On the other hand, the court has issued numerous cases over the past decade which emphasize a significant deference to the legislature on issues of public policy.
Procedurally, I doubt the Iowa supreme court will enter a decision prior to the 2008 elections, although the timing may be uncomforably close. Briefing to the court takes roughly 3-4 months at the quickest, and typically drags out a couple extra months due to extensions of time limits. Oral argument typically doesn't get set for at least 3-4 months after briefing is completed, and the court typically takes from 3-6 months after argument to issue a decision. Assuming briefing is done by early spring, and oral argument is held in mid-to-late summer, the court could easily delay releasing a decision until after the elections if they didn't want the decision to come out in the weeks prior to the elections, as happened in MA.
This is startling, because not only is it obviously wrong, but even if it were right, it's not clear how that helps the anti-SSM argument. I might prefer certain hair color or body types in women, but I still have a right to marry a woman who fits my preferences (and honey, if you're reading, you do!)
OK. Can you list the pertinent aspects of the nature of sexuality that relate to SSM?
And what if "honey" didn't? Would you still have a right to marry her? If we don't have a right to marry anyone if we can't marry according to our preferences, then there is only a slim chance that a person who fits our preferences even exists, let alone is eligible for marriage, let alone would choose us. The chances of us both fitting all of each others preferences are nil, effectively canceling completely our right to marry according to our preferences. So all of us, then, have to marry a person who merely satisfies enough of our preferences to be acceptable. For one person, they might have to live with the wrong hair color, for another, they might have to live with the wrong genetalia. No one is ever completely satisfied, we just live a lie.
The only thing that matters is "should we allow people to conceive with someone of their same sex?" That was the question back in 1967, but with race, and that is the question now.
Okay, I'll take the wrong hair color. You take the wrong gentalia. Ten years from now we'll check in and see who's more "satisfied."
Sexuality is who you are, not what you do - a primarily immutable trait. Gay people, simply because of who they are, have romantic, loving relationships with people of the same sex. The argument that gays can currently marry a person of the opposite sex, and thus there is no inequality, is a non-starter. The ability to enter only into sham, loveless marriages is not equality.
Once again, gays cannot effectively marry anyone (anyone for whom it makes sense to marry), not just they cannot marry the specific person of their choice.
The only thing that matters is whether or not it is ethical for that sort of relationship to conceive children together. Same-sex conception is not ethical and should not be allowed. People should only have a right to conceive with someone of the other sex. All marriages should guarantee the right to conceive together, using the spouse's own natural gametes.
Who cares is sexual preference is as simple as preferring chocolate to bananas? My sister hates bananas. She would certainly object to spending the rest of her life eating them.
And in your view, I don't have the option.
"The only thing that matters is whether or not it is ethical for that sort of relationship to conceive children together."
Shades of 1967.
Actually, that's not right. Of course John would give me the option to marry someone with the wrong genitalia--or not. The proper response, I suppose, is to count my blessings.
No. I'm saying that your attempts to restrict gay relationships on the basis of as-yet undefined technologies and bioethical issues reminds me of the dire warnings about the genetic threat posed by "the mixing of the races" in past decades.
This is already an issue in regard to single women and unmarried couples. Many health plans do not offer infertility coverage, and only a dozen states mandate it. It's only one of many issues that will arise, and it will probably be messy.
That doesn't single out gay people, it applies equally to everybody: we all will have to choose someone of the other sex to conceive children with, and have children naturally, using our own gametes.
You see, the whole point of my efforts is to stop genetic engineering. If you aren't opposed to genetic engineering, then you probably don't see anything wrong with same-sex conception, or with gay marriage. But people should realize those all come as a package. And yes, it will be a huge insurance nightmare if we start to have to fund same-sex conception and genetic engineering. We shouldn't allow it at all.
If Al and Bob find themselves at the fertility clinic to see if they can arrange for either of them to bear a child, they've got bigger problems than health insurance can cover.
More seriously, for a moment, lesbian couples have fertility issues much less often than straight couples do, for the obvious reasons.
Sexuality is certainly a significant aspect of who one chooses to be, but from a trans-cultural and trans-historical point of view (what might be loosely termed an "absolutely objective" point of view) the empirical evidence is manifest that human sexuality is polymorphous. Recently, it was either at the Cannes or Sundance film festivals, a film exploring the bestiality of a man who "loved" his horse was explored, and was explored in an "objective," affirming and "understanding" manner.
Was this man's sexuality "immutable"? Was it a "choice," a "preference"?
In sum, your statement reflects PC based dogma and popular and received opinion, opinion supported by rhetorical browbeatings inveighed against those who fail to conform and via other methods as well; absolute bare minimum it can be said there simply is no proof, even while there is evidence to support various points of view.
By contrast, the empirical/historical evidence, again from what might be termed an "absolutely objective point of view," is abundantly manifest that human sexuality is polymorphous. That doesn't mitigate in the least the extremely problematic qualities that attende human sexuality, including psychological, familial, societal (including political), cultural, morphological and biological more broadly, etc. Indeed, that very complexity itself is affirmed by such a recognition, not disaffirmed; by contrast those who seek to dichotomize sexuality into homo/hetero variants (on both sides of the debate) are the ones who are simplifying, who are reducing the manifest evidence to fit their pov, the prejudices, their inclinations and biases.
Hence what comes to the fore here are the critical sui generis aspects of this debate. Simple fact is, the debate concerning SSM, and for that matter homosexuality in broader terms, has a different historical, social, cultural, moral/ethical, civilizational, juridical, etc. lineage than did the debate over miscegenation laws, to cite one example only. Those differences and sui generis qualities are basic, they are formative, and deserve to be treated as such and given that respect, by judiciaries in one sense and by representative legislatures in another sense. A simpler, a more basic fact still from a Constitutional pov is that those legislatures are representative of the single, most fundamental tenet enshrined in the U.S. Constitution: "We the People of the United States ..."