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Observations on oral argument in the California marriage case:

I've now listened to the oral argument in the California marriage case — all 3 hrs, 38 minutes of it -- and have a few impressions.

First, the most likely result is that the gay-marriage litigants will lose 4-3 or possibly 5-2. I defer to those more expert about that court, but based on the oral argument I would count Justices Baxter, Chin, Corrigan, and Werdegar as likely votes against the petitioners. These justices were much more hostile to the petitioners' arguments than to the state's. I would count Chief Justice George and Justice Kennard as likely votes for the petitioners. They were more hostile to the state's arguments and often intervened in helpful ways for the petitioners. I'm uncertain about Justice Moreno, though he seemed slightly more skeptical toward the petitioners.

This prediction assumes both that (1) the dominant tone and substance of the comments from an individual justice actually reflect his or her views about the case and that (2) the justice will not change his or her mind post-argument.

Even if the court doesn't order the immediate recognition of same-sex marriages in the state, however, the opinion it writes will matter for future litigation. It could issue an opinion in which it signals that it may revisit the issue if domestic partnerships do not, in practice, give substantive equality to same-sex couples. There is some evidence, noted in the oral argument today, that civil unions in New Jersey have fallen short in several ways.

Second, the state is defending a small sliver of territory in this case, which weakens the force of its arguments overall. California has already created domestic partnerships for gay couples that grant them all of the rights and benefits of marriage under state law. All that remains to do, under state law, is to call these relationships "marriages" instead of "domestic partnerships." That's ultimately what these six consolidated marriage cases are about.

The state cannot and does not justify the exclusion of gay couples from marriage based on things like promoting procreation and the best interests of children. AS a matter of state public policy, it has already surrendered much substantive ground about the differences between gay and straight couples. The state's counsel was left to argue that withholding the title of "marriage" is justified by the state's unadorned desire to "preserve the common and traditional definition of marriage."

Third, even the justices that seemed sympathetic to the state were skeptical about child-raising rationales, primarily because the public policy of the state is to make no distinction between same-sex and opposite-sex couples in child-rearing. Neither promoting procreation, nor its cousin, promoting responsible procreation, played a significant role. Procreation wasn't even mentioned until more than three hours had passed.

Fourth, the most impressive performance among the eight lawyers (yes, there were four on each side) came from Therese Stewart, representing San Francisco. She was sharp, articulate, succinct, incredibly knowledgeable, and calmly passionate. If same-sex marriage litigants are hobbled by weak constitutional arguments and now by the weight of much adverse precedent, they have repeatedly enjoyed an advantage in quality of advocacy.

By contrast, the main counsel for the state and the governor, both very fine lawyers, seemed unenthusiastic about their case. The governor's counsel began his presentation by asking whether the justices had any questions.

Fifth, there were a couple of mildly entertaining moments. Shannon Minter, for the petitioners, began his rebuttal by borrowing from Shakespeare: "Same-sex couples have come here today to praise marriage, not to bury it." That drew competing Shakespeare quotes from the justices along the lines of, "What's in a name?" and "A rose by any other name would smell as sweet." (Apparent references to the question of whether the name "marriage" makes any substantive legal difference.) Ok, I don't recommend a listen for the comedic quality of the arguments.

Finally, if gay-marriage litigants do lose the case, the loss may turn out to be a blessing in disguise for the gay-marriage movement as a whole. On the one hand, a pro-SSM ruling from the California high court would lead to a state-wide voter initiative to amend the state constitution to ban not only gay marriage but legislatively created civil unions as well. Nobody knows how that vote would turn out, but I would not be confident of a victory for gay marriage. That has always been a serious risk of this California litigation.

Beyond California, a ruling for the SSM litigants would increase the perceived risk to legislatures in other states that if they extend domestic partnerships or civil unions to gay couples courts will use that progress as a reason to force the states to go all the way to marriage. This might make them less likely to experiment with statuses that grants some rights and protections to gay families.

On the other hand, a ruling that leaves the issue to the state legislature (which has twice voted to recognize gay marriage) and the governor (who has twice vetoed gay-marriage legislation, deferring the issue to this litigation) will mean that this issue will be resolved democratically. Either this governor or a future one will eventually sign a gay-marriage bill which, as I understand California law, means that the voters of the state will have another go at the issue. (In 2000, they voted to define marriage as the union of a man and a woman in state statute.) In that event, the issue will be presented to them in the best possible light: with the state legislature and the state governor solidly behind the change — not simply the sympathy the state's high court.

Related Posts (on one page):

  1. Observations on oral argument in the California marriage case:
  2. California Supreme Court hears gay marriage case:
Cathy (mail) (www):
FYI - for another take on the hearing the Legal Pad blog liveblogged it starting here.
3.5.2008 1:42am
Kazinski:
I'm not as familiar with California legal procedure as a should be, but I'm guessing this means that the CA Supreme Court had a hearing on the bill today, they'll mull it over for a while then the Supreme Court will vote on the legislation and announce the results in a month or two?
3.5.2008 2:12am
NickM (mail) (www):
The State of California could justify limiting marriage to opposite-sex couples on grounds having to deal with the potential for joint prcreation, but the state Attorney General explicitly disclaimed that ground, even though public arguments for the state initiative passed by the voters banning same-sex marriage often argued that marriage should remain connected to procreation. CA's then-Attorney General Bill Lockyer, who was charged with the defense of statutes, was publicly hostile to this one and did his best to sabotage it. CA's new Attorney General, Jerry Brown, isn't taking a much different position.

Nick
3.5.2008 6:24am
Public_Defender (mail):

By contrast, the main counsel for the state and the governor, both very fine lawyers, seemed unenthusiastic about their case. The governor's counsel began his presentation by asking whether the justices had any questions.

I think this is common. Many government lawyers are see anti-gay laws the same way they would look at anti-Jewish laws. I once saw a prosecutor concede that she thought an anti-gay statute was unconstitutional. She basically said she was only there in case the court had questions. I thought that went too far.

Here, the government lawyers had a duty to argue that the ban was legally correct, but they had no duty to argue that it was fair, right, or moral.
3.5.2008 6:46am
Randy R. (mail):
Dale, can you be more specific? You stated that some judges were hostile. To what arguments? What were they upset with?

Also, did plaintiff's make the contentiont that even though they have all the rights of marriage because of domestic partnership, they still wouldn't have any rights at the federal level?

DC: The petitioners faced considerable skepticism on a number of fronts: whether the CA court's 1948 decision to end the ban on interracial marriage was really analogous, whether the state had already given same-sex couples substantive legal equality as a matter of state law, whether there was any basis for heightened scrutiny, and whether the 2000 passage of Prop 22 defining marriage should preclude court intervention. There was not any discussion, as I recall, of the federal consequences of domestic partnerships v. marriage.
3.5.2008 10:00am
Hans Bader (mail):
I think the above post is likely not far off the mark in terms of the ultimate breakdown: probably 4-to-3 against the petitioners. (There is a small but real chance that it will go 4-to-3 the other way, striking down the gay marriage ban).

But it may have the future votes of Chief Justice George and Justice Werdegar backwards. I think she's the more likely vote for the challengers than the Chief Justice, and he's a more likely vote for the state than she is (taking into account past rulings, such as their ruling about whether San Francisco could go ahead with performing gay marriages without first challenging the gay-marriage ban in court; and their general approach to constitutional challenges).

In general, the Chief Justice's votes are not as predictable from his oral argument comments as some other justices.

I also think there is a considerable likelihood that Justice Moreno will vote for the challengers.

I think you're right about how Justices Baxter, Chin, and Kennard will vote. Justice Kennard will vote to strike down the gay-marriage ban, and Justices Baxter and Chin will very likely vote to uphold it.

How this case SHOULD be decided boils down to the standard of review. The challenged classification can't logically survive strict scrutiny, but it certainly does logically survive rational basis review. (In cases like the 1979 Gay Law Students case, the California courts said that the state constitution provides more protection against sexual orientation discrimination than the federal constitution, but they did not clearly say how much). I'm not sure exactly what standard of review should apply, given past rulings.
3.5.2008 10:19am
Tony Tutins (mail):

The challenged classification can't logically survive strict scrutiny

Nothing stops gays from marrying; half the gay people I know were once married. There is no separate-but-equal institution of same-sex marriage, however.
3.5.2008 10:28am
Cornellian (mail):

How this case SHOULD be decided boils down to the standard of review. The challenged classification can't logically survive strict scrutiny, but it certainly does logically survive rational basis review.


Is there no intermediate scrutiny under the California Constitution?


Nothing stops gays from marrying; half the gay people I know were once married.


And prior to Loving v Virginia, nothing stopped black people from getting married, as long as it was to other black (or at least non-white) people.
3.5.2008 10:38am
cjwynes (mail):
If the court should hold that this classification does violate their state constitution, does the court have flexibility on remedy? In principle, an imbalance can be corrected two ways. Rather than extend marriage rights to gays, they could reduce married couples' status to that of domestic partnerships, correct?

My hunch is that being able to use the word "marriage" to describe their relationships is more important to the gay rights crowd than the actual substantive rights are. All those postmodern deconstuctionists they borrowed from the feminist movement would probably see the word as more powerful than the rights.
3.5.2008 10:43am
Tony Tutins (mail):

Nothing stops gays from marrying; half the gay people I know were once married.

And prior to Loving v Virginia, nothing stopped black people from getting married, as long as it was to other black (or at least non-white) people.

In contrast to the interracial couples at issue in Loving, gay people were never prevented from marrying; the institution of marriage was simply never extended to cover same-sex couples. Further, the rationale behind banning interracial marriage is a complete non-issue when it comes to same-sex marriage:

Assuming that the natural and probable outcome of marriage is children (assuming youth, health, and sexual activity), the anti-miscegenation laws were enacted to prevent multiracial babies, because they were considered to be inferior. This is the same rationale outlawing the marriage of close relatives -- the fear of inferior (defective offspring). On that point: My grandparents' marriage is currently illegal in half the states -- they had to move to a state that would permit their marriage. Nothing stops same-sex couples from moving to Massachusetts.
3.5.2008 11:40am
Kent Scheidegger (mail) (www):
"This prediction assumes ... (2) the justice will not change his or her mind post-argument."

A good assumption, generally. Cal. Supreme is constitutionally required to decide within 90 days of argument. (Art. VI § 19.) For this reason, a "conference memorandum" which is actually a draft opinion has been prepared and circulated before argument. It is generally true in American appellate courts that cases are decided mostly on the briefs and little on the argument, but it is even more so in California.
3.5.2008 11:58am
MPP (mail):
I don't agree with Dale about his reading of the justices. It think the only clear pro-government justice was Justice Chin, who seemed utterly incapable of understanding the difference between "marriage" and "civil unions," and who somehow missed the boat on the fact that separate simply cannot be equal. I also don't think that that argument was made as clear as it could have been (there was a lot of focus on the minor procudural differences between civil unions and marriage). I wanted someone to ask the government: "if there is no difference between the two, then why are YOU opposing the label of marriage?"

Another point that seemed to elude the government and some of the justices is that there are two theories here: (1) suspect class (gays and lesbians); and (2) fundamental right to marriage. That is, you don't have to find that gays are a strict-scrutiny-worthy suspect class, you can simply find that they are people deprived of a fundamental right to marry, and since that gets strict scrutiny, they win.

Finally, this has to be resolved under the California contitution lest the ever-biased US Supremes get there hands on this.

My prediction is: 5-2 in favor of gay marriage.
3.5.2008 12:18pm
Randy R. (mail):
"Rather than extend marriage rights to gays, they could reduce married couples' status to that of domestic partnerships, correct? "

Oh, I don't think so. The federal gov't confers lots of benefits to married couples that it doesn't to partnered ones, so that would substantially hurt all the current married couples in CA.

Tutins: "In contrast to the interracial couples at issue in Loving, gay people were never prevented from marrying."

Well, sure. I guess I could just marry any woman off the street, and that would be perfectly legal and valid. Moreover, any person who claims that SSM 'destroy's marriage would have no problem with me entering into a totally sham marriage. Why that doesn't destroy marriage, I don't know.

But consider my friends Josh and Tony. Both are gay. They are committed couple, and have adopted two children. They would like to get married to each other, not to any woman, but to each other. they cannot.

Why this concept is so difficult to grasp, I really don't know. Is it that you are being sarcastic? you don't understand that two men might want to marry each other? That you think it's okay to prevent two men from marrying? What part of this don't you understand?
3.5.2008 12:27pm
Ghostmonkey:
"[I]ndeed, there is a decision of the United States Supreme Court, binding on all other courts and public officials, that a state law restricting marriage to opposite-sex couples does not violate the federal Constitution’s guarantees of equal protection and due process of law. After the Minnesota Supreme Court held that Minnesota laws preventing marriages between persons of the same sex did not violate the equal protection or due process clauses of the United States Constitution (Baker v. Nelson (Minn. 1971) 191 N.W.2d 185), the decision was appealed to the United States Supreme Court, as federal law then permitted (see 28 U.S.C. former § 1257(2), 62 Stat. 929 as amended by 84 Stat. 590). The high court later dismissed that appeal “for want of substantial federal question.” (Baker v. Nelson (1972) 409 U.S. 810.) As the United States Supreme Court has explained, a dismissal on the ground that an appeal presents no substantial federal question is a decision on the merits of the case, establishing that the lower court’s decision on the issues of federal law was correct. (Mandel v. Bradley (1977) 432 U.S. 173, 176; Hicks v. Miranda (1975) 422 U.S. 332, 344.) Summary decisions of this kind “prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” (Mandel v. Bradley, supra, at p. 176.) Thus, the high court’s summary decision in Baker v. Nelson, supra, 409 U.S. 810, prevents lower courts and public officials from coming to the conclusion that a state law barring marriage between persons of the same sex violates the equal protection or due process guarantees of the United States Constitution. The binding force of a summary decision on the merits continues until the high court instructs otherwise. (Hicks v. Miranda, supra, 422 U.S. at p. 344.) That court may release lower courts from the binding effect of one of its decisions on the merits either by expressly overruling that decision or through “ ‘doctrinal developments’ ” that are necessarily incompatible with that decision. (Id. at p. 344.) The United States Supreme Court has not expressly overruled Baker v. Nelson, supra, 409 U.S. 810, nor do any of its later decisions contain doctrinal developments that are necessarily incompatible with that decision... Until the United States Supreme Court says otherwise, which it has not yet done, Baker v. Nelson defines federal constitutional law on the question whether a state may deny same-sex couples the right to marry." Lockyer V San Francisco (Kennard, J. Concurring and Dissenting)
3.5.2008 12:31pm
HipposGoBerserk (mail):
"Rather than extend marriage rights to gays, they could reduce married couples' status to that of domestic partnerships, correct? "

"The federal gov't confers lots of benefits to married couples that it doesn't to partnered ones, so that would substantially hurt all the current married couples in CA."

unserious hypothetical: CA Supremes decide CA Constitution requires equal treatment of gays/straight. Can allow gay marriage, but that doesn't resolve inequality due to federal preferences; so bars state recognition of marriage - CA only recognizes dom.parts. Is there then a basis for a CA challenge to the Defense of Marriage Act?
3.5.2008 12:46pm
Tony Tutins (mail):

Why this concept is so difficult to grasp, I really don't know. Is it that you are being sarcastic? you don't understand that two men might want to marry each other? That you think it's okay to prevent two men from marrying? What part of this don't you understand?

Same-sex marriage is an oxymoron. Marriage is a relationship between two people, one member of each sex. Two men who might want to marry each other thus want to enter into a heterosexual relationship while being homosexual. In what ways would a same-sex marriage resemble marriage as we have known over the past millennium or so?
3.5.2008 12:49pm
IB Bill (mail) (www):
Tony: Yeah, that's been my argument. There is no such thing as a "same sex" marriage.

The people in favor of SSM are essentially philosophical nominalists -- abstractions have no meaning independent of people's minds. It's a pretty crappy philosophy to build a civilization upon, opening the door for critical theory and deconstruction and such to be applied to our law. Freedom means whatever we want it to mean. Or freedom is just a cover for power relations. Marriage means whatever we want it to mean. Freedom of speech means whatever we want it to mean. There goes natural law ... the constitution ... the whole ball of wax. Of course, it'll take a few generations to really work out the consequences, and SSM will be only one leaf on the tree.

Unfortunately, there's a mystical element at the core of our Western thought, whether Platonic or Judeao-Christian or Kantian, and SSM is a direct attack on it. It's far from the first, and it won't be the last. But it's one of the biggest ones going right now.
3.5.2008 1:14pm
martinned (mail) (www):
L.S.,

@Tony Tutins: Even without taking a position on the merits, surely you can see that this last comment isn't helping? Essentially what you're doing is making the issue go away by choice of definition, even though the definition of the word marriage is exactly the question here.
3.5.2008 1:18pm
Daniel Chapman (mail):
"Moreover, any person who claims that SSM 'destroy's marriage would have no problem with me entering into a totally sham marriage. Why that doesn't destroy marriage, I don't know."

I don't know where you're getting that idea from... I have all kinds of problems with that scenario. Would you feel better if we could wind back the clock and re-fight the "no-fault divorce" battle? I'd be all for it.

The fact that I'm worried about the implications of gay marriage does not mean I've got no problem with heterosexual abuse of the institution.
3.5.2008 1:20pm
martinned (mail) (www):
L.S.,

@IB Bill: Last I checked, what we're talking about here is the law regarding marriage, and, yes, we can write the law in whatever way we please. If I were in an active mood, which I'm not, I could assemble a list as long as my arm of words that are defined differently in certain statutes or precedents than in normal english.
3.5.2008 1:22pm
MarkField (mail):

In contrast to the interracial couples at issue in Loving, gay people were never prevented from marrying


The Lovings were not prevented from marrying. They were only prevented from marrying each other.


Assuming that the natural and probable outcome of marriage is children (assuming youth, health, and sexual activity), the anti-miscegenation laws were enacted to prevent multiracial babies, because they were considered to be inferior. This is the same rationale outlawing the marriage of close relatives -- the fear of inferior (defective offspring).


So that's why we ban marriage for women over the age of procreation. Leaving them, I guess, with their Lesbian partners.
3.5.2008 1:27pm
Daniel Chapman (mail):
Yes, and the statute uses the term "civil union." The lawsuit is to force people to use the term "marriage." This isn't just about a legalism that doesn't conform to common usage.
3.5.2008 1:28pm
MPP (mail):
Tony/IB Bill:

We call this type of an argument a "tautology." It is logically unsound to argue that marriage is between a man and a woman because a marriage is between a man and a woman. The question (as martinned points out) is what is it about marriage that means it should or has to be between a man and a woman.

Under your rationale, "free Blacks" is an "oxymoron" because by definition Black people are slaves. Do you not see how that is unhelpful?

[Also, I am not sure you quite understand what an oxymoron is. An oxymoron is the combination of two seemingly contradictory terms in order to produce a completely legitimate idea (e.g., "a deafening silence")]
3.5.2008 1:33pm
MPP (mail):
Daniel: The lawsuit isn't to force people to do anything. It's to force the government. You will be totally entitled to continue to disregard gay relationships as marriages, just as Catholics disregard marriages that aren't performed in the Church.
3.5.2008 1:38pm
IB Bill (mail) (www):
Martinned:

yes, we can write the law in whatever way we please

Um, no, we can't. We can't do the impossible, for example. So we couldn't declare gravity should now be half as strong to save energy. We can't outlaw inalienable rights. That's against the Constitution.

And we can't interfere with natural law without incurring a penalty in our society. Otherwise, we could just pass a law declaring everyone to be rich, thin and beautiful.

For marriage, abstracting the concept of gender leaves the definition rather, to use a critical theory term, contingent. But even if we do change the definition, all we'll do is confuse the next generation about what marriage is about. And the last two generations have been confused enough, without adding to the problem.
3.5.2008 1:40pm
PubliusFL:
For centuries, the law reserved rights and privileges to males that were not available to female. The solution wasn't to legally redefine "male" to include female, it was to extend the same rights and privileges to females. Similarly, the solution to Jim Crow laws wasn't to keep the discriminatory laws in place but just legislatively define black people as being white. So why should we have to change the definition of marriage in order to provide legal equality for heterosexual and homosexual relationships?
3.5.2008 1:42pm
IB Bill (mail) (www):
We call this type of an argument a "tautology." It is logically unsound to argue that marriage is between a man and a woman because a marriage is between a man and a woman.

I'm thought I was making a Platonic argument, not a tautology.
3.5.2008 1:43pm
IB Bill (mail) (www):
PubliusFL: Never heard that argument before. That's a good one.
3.5.2008 1:44pm
Jake437 (mail):
For centuries, the law reserved rights and privileges to males that were not available to female. The solution wasn't to legally redefine "male" to include female, it was to extend the same rights and privileges to females. Similarly, the solution to Jim Crow laws wasn't to keep the discriminatory laws in place but just legislatively define black people as being white. So why should we have to change the definition of marriage in order to provide legal equality for heterosexual and homosexual relationships?

If people were trying to define homosexuals as heterosexuals, you would have a point. But no one is trying to do that.
3.5.2008 1:50pm
HipposGoBerserk (mail):
"And we can't interfere with natural law without incurring a penalty in our society."

Your ignorance of the richness of human social structures is more pitiable than anything else, but there is no link to a particular social structure of marriage and the strength of a culture.

"So why should we have to change the definition of marriage in order to provide legal equality for heterosexual and homosexual relationships?"

1) I generally think that if the full legal benefits of marriage were extended to all couples that self identify as married, there would be no need to redefine marriage in the way you fear. Put differently, if ALL domestic partners had FULL tax/medical/financial/custody rights, you could retain a bigoted definition of marriage.

2) Given the wide acceptance of homosexual marriage in any number of religious organizations, in what sense hasn't the definition already changed? Why is my marriage to my wife by a Catholic priest different from a lesbian marriage by a Unitarian minister? The harms you fear cannot be avoided by denying homosexuals the privileges you seek to deny them.
3.5.2008 2:01pm
Tony Tutins (mail):
We call this type of an argument a "tautology." It is logically unsound to argue that marriage is between a man and a woman because a marriage is between a man and a woman.

"How many legs does a dog have if you call the tail a leg? Four. Calling a tail a leg doesn't make it a leg." A. Lincoln

Calling same-sex couples married would create two types of married couple. Men and women, however equal, are not identical.

So that's why we ban marriage for women over the age of procreation.

No, that's why the state of Illinois allows cousins to marry if they're over the age of procreation (assumed to be 50 years of age).

Oxymoron: Now often used loosely to mean "contradiction in terms."
3.5.2008 2:02pm
Tony Tutins (mail):

there is no link to a particular social structure of marriage and the strength of a culture.

There is also no link to a culture with same-sex marriage before the Dutch decided to allow it. (And can there be a culture without a cuisine? Oud Gouda doesn't make it.)
3.5.2008 2:05pm
Milk for Free (mail):
The history of marriage is indeed clear-cut if your definition of history extends only as far as the 1950s. I mean, imagine what horrors an openly polygamous culture would birth -- like, for example, the whole of Western civilization! Perhaps we should stick with Solomon's definition of marriage. Shouldn't a man with 700 wives be assumed an expert?

Traditions change. For another example of an institution that has changed over time, let's consider "adulthood." The Jewish tradition sets the bar at 13. Should we give 8th graders the franchise? If not, why not?
3.5.2008 2:34pm
martinned (mail) (www):
L.S.,

@Tony Tutins: Did Lincoln really say that? To me that line doesn't seem particularly convincing: If you call the tail a leg, that puts the total number of legs of a (healthy) dog at five. Similarly, human beings are normally considered to have only two legs only because we don't consider arms legs, even though we are quite capable of using them for walking. (2 legs + 2 arms = 4 limbs, 4 limbs + 1 head = 5 extremities. It's all definition.)

Maybe your point is that a tail is not a leg because definiting it differently contradicts a fundamental truth about something outside language. (Clunky sentence, I know.) It is good practice to use the same word only for things that are really the same. Because of that, we use different words for legs and tails, although we also have a word that refers to both if the need for such a word should prove practical.

Similarly, the question in the present litigation is whether there is any meaningful difference between civil unions and (heterosexual) marriages that requires that the word marriage cannot be used to refer to both, and, if such a difference exists, whether this difference is discriminatory.
3.5.2008 3:24pm
IB Bill (mail) (www):
HipposGoBeserk: First of all, gotta say I love the comment name. That's a great name. I lived in Africa, and indeed, Hippos do go beserk. Especially if you get between them and the water.

there is no link to a particular social structure of marriage and the strength of a culture

Um, yeah there is. Lots of reading out there to show the links.

I mean, imagine what horrors an openly polygamous culture would birth -- like, for example, the whole of Western civilization!

Actually, there is a link between monogamy and the rise of Western Civilization. But this is exactly the sort of thinking I was warning about. Same-sex "marriage," then polygamy, then polyamory, and then marriage means exactly what?
3.5.2008 3:29pm
MarkField (mail):

No, that's why the state of Illinois allows cousins to marry if they're over the age of procreation (assumed to be 50 years of age).


Nice little dance step. Richard Gere is jealous.
3.5.2008 3:29pm
MPP (mail):
Tony:

From a linguistic standpoint, Lincoln is wrong. If you were raised thinking that the tail was one of the dog's legs, then you would never question it. You might notice a biophysical difference, but you would still think of it as a leg. (Indeed, the tail is probably a relic of evolution where it did serve as a leg). Just like your fingers are all called fingers, despite the fact that each one is different from the other.

PubliusFL:

Your argument is mere sophistry. "Homosexual" people aren't being asked to be called "heterosexual." They are asking for equal rights--namely, the right to marry. The accurate analogy would be women seeking the right to vote. The solution was not to change the definition of "women" to include "men," it was to change the right to vote to include women.

This example illustrates the core of the tautological rhetoric we have read here. Arguing that same-sex marriage can't exist by definition is the same as arguing that female suffrage can't exist by definition--i.e., that "suffrage" is defined as the right of men to vote.

Opponents: Explain how this is different.

Also, my question to those oppose same-sex marriage is simply: why? If it is the same as civil unions, as you seem to believe, then why are YOU opposed to just calling it a marriage? Under that view, aren't the opponents the ones engaging in the game of calling rose by another name?
3.5.2008 3:47pm
HipposGoBerserk (mail):
IB Bill,

Never been to Africa - the name is an homage to the greatest author of books for preschoolers.

3.5.2008 4:00pm
HipposGoBerserk (mail):
IB Bill,

lost the link somehow

http://www.sandraboynton.com/sboynton/index.html
3.5.2008 4:01pm
jgshapiro (mail):

Calling same-sex couples married would create two types of married couple. Men and women, however equal, are not identical.

But there would be no difference between the two types of marriage. For example, allowing interracial couples to marry could be said to have created two types of marriage: uni-racial (hetero-racial?) and interracial. But no one bothers to make the distinction because it is a distinction without a difference.


Um, yeah there is. Lots of reading out there to show the links.

The links show the connection between marriage and culture, not between opposite-sex marriage and culture. SSM is too new to have any useful studies associated with it. Really, it has only been allowed in Canada, Spain, Scandanavia and Massachusetts, and not for very long in any of those places. So the studies can best be said to be inconclusive.


But this is exactly the sort of thinking I was warning about. Same-sex "marriage," then polygamy, then polyamory, and then marriage means exactly what?

Take one step back, and you can say the same thing about interracial marriage. First interracial marriage, then same-sex marriage .then polygamy, then polyamory, and then marriage means exactly what?" So do you also (did you also) oppose interracial marriage as a threat to the platonic definition of marriage? If not, what is your beef here?

The slippery-slope argument has a problem in that it prevents ANY change: once you acknowledge that there has ever been any change, it falls apart.
3.5.2008 4:11pm
eyesay:
jgshapiro wrote: "... allowing interracial couples to marry could be said to have created two types of marriage: uni-racial (hetero-racial?) and interracial."

Using the usual definitions of the homo- and hetero- prefixes, that would be: uni-racial (homo-racial) and interracial (hetero-racial).
3.5.2008 4:31pm
IB Bill (mail) (www):
There's no need for a step back regarding interracial marriage. It's still a man and one woman. Interracial marriage didn't start us down the slippery slope. I'd be hard pressed to say exactly how we found ourselves seriously debating this nonsense, but I suppose I'd go backward and say, in no particular order, the following cultural changes:

* improved birth control technology, in effect separating sex from the risk of pregnancy

* improved medications, separating promiscuous sex from the risk of a slow, painful death

* the sexual revolution, which separated lifelong sexual exclusivity, and particularly, virginity, from marriage

* no-fault divorce, which separated the lifelong commitment from marriage

* loss of the social stigma of divorce and the quick acceptance of remarriage, again, weakening the concept of marriage as a lifelong commitment and more in tune with the emotional well-being of its members

* loss of much of the social stigma for adultery

* mass bastardry, which separated marriage from child-rearing.

* acceptance of co-habitation, which separated marriage from living arrangements.

In light of all these changes, I understand why homosexuals say, "Well, shit, all I see as a definition of marriage is an ongoing commitment to another person as long as love lasts -- if that's marriage, why can't I be married to my partner?"

And given these cultural changes, it's a perfectly reasonable thing to say. Unfortunately, not all of us are quite willing to put that last dagger into the definition of marriage. Maybe we're just sentimentalists.

Note: I am not making any value judgments on that list itself -- it's a descriptive list, and I doubt it's complete. I'm not interested in debating the merits one way or the other.
3.5.2008 4:36pm
IB Bill (mail) (www):
Thanks for the link, Hippos Go Berserk!
3.5.2008 4:36pm
Randy R. (mail):
"Same-sex marriage is an oxymoron. Marriage is a relationship between two people, one member of each sex."

Except that currently in several jurisdictions, marriage is in fact a relationship between two people, and that CAN include same sex partners. Those would include Massachusetts, Canada, Belgium, Spain, and the Netherlands. To those who say we can't write laws that allow SSM, well, we did. To those who say it is that 'last dagger' into marriage, you will have to show some proof that in those jurisdictions, marriage is finished. Of course, you cannot.

IB Bill: "Actually, there is a link between monogamy and the rise of Western Civilization."

This, of course, is the funniest comment. Traditionally, if you were of the aristocratic class, your marriage was arranged, especially if you were of the ruling class. The assumption was marriage was for the benefit of the families, and you had affairs with the person you really loved. This was true even for women, and it was true from at least the early middle ages down to modern times.

So, according to you, arranged marriages were the ideal situation. The second best situation was to marry a person merely for convenience, as was more common among the lower classes. Marrying for love wasn't a concept that gained widespread acceptance until the early 20th century.

"I'm not interested in debating the merits one way or the other." in other words, you really don't care if anything you say is true. What a terrific basis to deny other people such a basic right.
3.5.2008 4:52pm
Daniel Chapman (mail):
No, it means he doesn't care if YOU think what he says is true. Hardly an unreasonable position.
3.5.2008 5:05pm
Tony Tutins (mail):

Calling same-sex couples married would create two types of married couple. Men and women, however equal, are not identical.

But there would be no difference between the two types of marriage.

I realize my evidence is purely anecdotal, but I'm still going to insist that my mother was quite different from my father. For some of you, they may well be interchangeable, and maybe even now you're not sure which one gave birth to you.
3.5.2008 5:12pm
Randy R. (mail):
Actually, the next generation IS indeed confused about marriage, but not for the reasons you think.

Before, in generations past, it was an assumption that everyone would get married, or at least most people. yes, even gay people would get married, and those marriages were pretty much a sham marriage with neither partner very happy.

So today, fewer and fewer gays get married to heteros due to the social pressure, but instead come out as gay and, if they are lucky, they find a partner and settle down. Becuase you heteros refuse to allow us to marry (which, thankfully, Tony Tutins finally understands), we live our lives with quiet domesticity. We adopt children and live our lives out in happy, if not holy, matrimony.

So the younger generation sees this and says, gee if gays can live together happily without the benefit of marriage, then why should I bother to get that piece of paper? I can just get the will drafted up like that do to make sure everyone gets everything as I wish.

We gays won't stop being gay, no matter how inconvenient for you. We won't stop partnering, either, no matter how many times you outlaw SSM. And yet each of us will still be an example that no one needs to get married to have a fulfilling, stable and lifelong relationship.

So if there is a final dagger into marriage, it is your refusal to allow, or even insist, that gays get married.
3.5.2008 5:16pm
IB Bill (mail) (www):
What I meant about debating the merits of the list is that I felt that getting caught up in the relative goodness or badness of the list's social changes would be a side issue ... if anything, I was trying to show that I understood the other side, and say they've come to a reasonable conclusion given the social changes we've already experienced. Still, there was once something much better, and we're already pretty far down the slippery slope.

BTW, the rest of the slippery slope, IMHO, is, again in no particular order (that is, the following aspects of marriage will also be abstracted out in upcoming decades):

Gender.
Number.
Age.
Sexual exclusivity during marriage.
Relations. (E.g., familial relations.)
Love itself, and finally
Consent.
3.5.2008 5:17pm
Randy R. (mail):
I forgo to quote from IB Bill's statement: "* acceptance of co-habitation, which separated marriage from living arrangements. " in support of my contention. But in this instance, Bill is of course correct -- when you accept co-habitation in place of marriage, you devalue marriage. this is exactly why you should be insisting that gays get married along with everyone else.
3.5.2008 5:19pm
Tony Tutins (mail):
Randy R.: I think the cleanest solution is civil unions for all. Civil union has not acquired centuries of secondary meaning as they say in trademark law. Any two adults should be able to get civilly united. Leave marriage to the religious or philosophical types.
3.5.2008 5:25pm
Adam J:
IB Bill - "Unfortunately, not all of us are quite willing to put that last dagger into the definition of marriage." Why does the changing definition of marriage matter to you? Is the change in the definition of marriage to include same-sex marriage likely to affect your own marriage?

Of course, frankly I don't particularly understand the symbolism for either side, same-sex "domestic partnerships" have all the same rights traditional marriages, who really gives a rats ass whether the state decides to call it a marriage or a domestic union- its not the name you or I have to call it. Doesn't strike me as a particularly important battle for gay rights.
3.5.2008 5:26pm
IB Bill (mail) (www):
We gays won't stop being gay, no matter how inconvenient for you. We won't stop partnering, either, no matter how many times you outlaw SSM. And yet each of us will still be an example that no one needs to get married to have a fulfilling, stable and lifelong relationship.

Do you realize that none of that bothers me in the least? It doesn't bother me if you're gay, if you partner with another man, and I hope you have a loving, fulfilling, stable and lifelong relationship -- or whatever makes you happy. In fact, it doesn't bother me slightly if you and your partner go before your local Episcopalian/Unitarian/Whatever church and swear before God, your family and your friends your love for one another and your commitment to one another. You would be welcome to live next door as a neighbor with your partner.

But none of that would actually make you married. And you may be able to change the law through lititation and impose your definition of marriage on the rest of the country, which is what your trying to do, but all you'll have accomplished is legally labeling those who disagree with you as bigots, and make the law make that much less sense. You'll have forced us through the courts to accept your definition of marriage.

Cheers, Randy.
3.5.2008 5:27pm
Randy R. (mail):
"Gender.
Number.
Age.
Sexual exclusivity during marriage.
Relations. (E.g., familial relations.)
Love itself, and finally
Consent."

Apparently, you need to learn a little bit more about marriage. In the past 2000 years, there were laws against marrying outside your religion, outside your cast, outside your race, and against marrying handicapped, among other things. Arranged marriages were the norm in many places, times and classes, and is still praticed in India and other places, so no -- love has nothing to do with marriage there. As for sexual exclusivity, it was actually expected that rulers and aristocrats would have mistresses, precisely because their marriages were arranged. As for age, whenever a plague hit europe, the age of consent was ignored. Recall that Romeo and Juliet were in their early teens. The ancient Egyptians, Romans, and in renaissance Spain practiced incest among rulers.

So all your fears have been realized at some point in the past. and they occured precisely during that ascendency of western civilization. BUT, allow a handful of gays to get married, now we are supposed to believe that it will be end of everything? Even children can see through that one.
3.5.2008 5:27pm
Randy R. (mail):
I'm confused. If it doesn't bother you, then why does it bother you?
3.5.2008 5:29pm
IB Bill (mail) (www):
Because you're trying to legally force me to change my definition of marriage, because I think I have a reasonable argument, and I don't like the suggestion that I'm a bigot. That's the personal reasons.

The social reasons concern the social impact of this decision. You will see polygamy - and it's a social disaster. But more important, it further introduces a deeper and more pervasive confusion into the nature of marriage into popular culture. And young people will suffer for that confusion. You will not see the impact for a generation or two, just as our generation suffers for the irresponsibility of the past two or three generations.

I disagree with your reading of history, and let's leave it at that.
3.5.2008 5:39pm
IB Bill (mail) (www):
Oh yes, and finally, SSM further pushes philosophical nominalism as an acceptable epistemological underpinning of legal hermeneutics. And the disease are elite culture suffers from is philosophical nominalism. Which would be OK if they didn't impose it on the rest of us.
3.5.2008 5:41pm
Job:
I'm gay and I don't care about gay marriage. The annoying gay leftists and activists just make me want to puke.
3.5.2008 5:43pm
Pender:
IB Bill: How has polygamy, incest, and general degradation of society increased in Massachusetts since its Goodridge decision? Seems to me the only thing that has changed is that more couples of loving, consenting adults have been recognized by the state as married.
3.5.2008 5:47pm
Pender:
Job: I'm gay and I do care about marriage. No offense, but you also make me want to puke, so I guess we're even.
3.5.2008 5:48pm
Cornellian (mail):
I think the cleanest solution is civil unions for all. Civil union has not acquired centuries of secondary meaning as they say in trademark law. Any two adults should be able to get civilly united. Leave marriage to the religious or philosophical types.

This is actually a fairly pure (from a libertarian principles point of view) and straightforward approach, sometimes described as "getting government out of the marriage business." The short form description is you can contract a "civil partnership" (or "civil union" or whatever term you like) with another person, thereby gain certain benefits and obligations (think of it as a non-commercial partnership agreement) and, from the government's point of view, that's it. Each religion can have its own position on what constitutes a marriage, and the government doesn't need to acknowledge (let alone implement) any of them.
3.5.2008 6:14pm
IB Bill (mail) (www):
I want to puke, but that's because I have a touch of the flu, or something, so I'm going to have to leave.

As far as Goodridge, I said that the effects will take time ... a generation or two. Although look in Canada and you can see that gay marriage imposed by fiat nationally has led to emboldened activitists for polygamy. And I could make a joke about Divine Wrath at Goodridge costing the Patriots the Super Bowl, but that wouldn't take into account the Red Sox.
3.5.2008 6:18pm
jgshapiro (mail):

There's no need for a step back regarding interracial marriage. It's still a man and one woman.

Yes, but the point was that marriage in many states was defined as being between members of the same race prior to Loving v. Virginia. Many people made the same arguments then with respect to interracial marriage that you make now with respect to SSM: namely, that changing the definition of marriage would destroy marriage, or that that type of relationship "was not marriage." Why is there any more reason to be lieve these claims true with respect to SSM than with respect to interracial marriage?


You will see polygamy - and it's a social disaster. But more important, it further introduces a deeper and more pervasive confusion into the nature of marriage into popular culture. And young people will suffer for that confusion.

I'm not sure why you think we will see polygamy if we see SSM. None of the five jurisdictions noted above that allow SSM allow polygamy or are contemplating it. It does not follow that if you change one of the qualifications for marriage, we would then agree to change another. But if you are going to argue the slippery-slope argument, how do you explain how marriage has survived all of the changes to date? (See Randy R.'s post above for a list.) You could have made the same argument each time, and it would have been false each time. Why is it true now? SSM certainly does not seem to have destroyed marriage in Massachusetts.
3.5.2008 6:21pm
martinned (mail) (www):
L.S.,

Over here, in the Netherlands, that's pretty much the situation. While any two people can get married, with all the legal requirements for marriage and possible dissolution, any two people can also have a civil partnership, which simply requires a contract made up by a notary public, and, should the case arise, another one for dissolution. It's a possibility frequently used by couples that, for whatever reason, do not want to get married, but do have children together or own a house together.
3.5.2008 6:26pm
IB Bill (mail) (www):
What is L.S.?

BTW, I visited Amsterdam last October. You guys always have weather that's, um, unpredictable? Sunny, rainy, cold, warm, rainy while sunny ... quite amusing.
3.5.2008 6:31pm
local observer (mail):

This prediction assumes both that (1) the dominant tone and substance of the comments from an individual justice actually reflect his or her views about the case and that (2) the justice will not change his or her mind post-argument.


This prediction completely misreads the oral argument, and assumption #1 fatally weakens it anyway. Justice Werdegar, as observed in at least one earlier comment, has consistently been the court's strongest supporter of rights for lesbians and gays, along with Justice Kennard. She would have upheld the validity of the 4,000 licenses that were issued in February of 2004. The likelihood of her ruling against the petitioners here is very small. If anything, her more neutral tone in the argument came off like an attempt to maintain some decorum in the face of Justice Kennard's virtually gleeful questioning of the respondents.

This entry displayed a clear lack of knowledge of the background and workings of the California Supreme Court. Yes, there was a disclaimer to that effect, but this is a situation where knowing the court is the only way to be able to make any kind of useful prediction. Continuing on to brashly state that "the most likely result is that the gay-marriage litigants will lose 4-3 or possibly 5-2" just comes off as absurd, and tone-deaf to boot.

The prediction of this Californian commenter: 4-3, in favor of petitioners. Baxter, Chin and Corrigan dissenting. I might expect to see a separate dissent from Corrigan.

DC: As I made clear in the post, my prediction is based solely on what I took from the dominant tone and substance of the comments of the various justices. Of course, if someone has additional insight on Justice Werdegar's actual views on whether there's a state constitutional right to ssm that would be very useful to know.

But I am not much impressed with the observation that a pro-ssm vote can be expected from Werdegar based on the views she expressed in Lockyer v. San Francisco, 95 P.3d 459 (Cal. 2004), which (1) held that Mayor Newsom exceeded his authority in ordering the city to grant marriage licenses to same-sex couples, (2) ordered the city to issue no more, and (3) voided the licenses already granted. Werdegar *agreed* with the majority that Mayor Newsom had exceeded his authority and *agreed* with the majority that the city should be ordered to issue no more licenses.

She disagreed only on #3, whether the court should immediately void the licenses already issued or await a decision on the constitutional issues. "My concern here is not for the future of same-sex marriage," she wrote. "That question is not before us and, like the majority, I intimate no view on it. My concern, rather, is for basic fairness in judicial process. . . . By postponing a ruling on this issue, we could preserve the status quo pending the outcome of the constitutional litigation. . . . This premature decision can in no sense be thought to represent fair judicial process."

To read pro-ssm views into this concern about judicial role and preservation of remedies is, it seems to me, just as misguided as it would be to read anti-ssm views into her larger agreement with the majority on the scope of the city's authority and the need to stop it from issuing more licenses.
3.5.2008 6:51pm
Randy R. (mail):
IB Bill: "Because you're trying to legally force me to change my definition of marriage, because I think I have a reasonable argument, and I don't like the suggestion that I'm a bigot."

Well, then, at least have a bit of honesty and admit that gays getting married really does bother you.

You can call marriage anything you like. I'm sure there are racists out their the world who are upset that blacks can marry whites, and view those marriages as illegitimate. So what? I don't know who they are, and no one cares. I haven't suggested that you are a bigot, and even if someone does, does it really bother you what people think of you?

I've been to Boston and to Canada, and no one wears a scarlet B on their clothes. The border guards at Niagara Falls don't ask you your opinion of SSM, you don't have to pay an extra fee to see the Falls if you disagree. No one is required to go to their City Hall and register as a 'legal bigot' and have it imprinted on their drivers licence.

If you can give me one real or practical way your life would change if SSM comes to your state, I would be glad to hear about it. But until then, you are just being afraid of a bogey man. You are certainly entitled to your feelings and your beliefs, but no one is going to force you to attend a gay wedding, nor is any law going to force you to give them presents. You won't even be required to celebrate their anniversary!

"SSM further pushes philosophical nominalism as an acceptable epistemological underpinning of legal hermeneutics. And the disease are elite culture suffers from is philosophical nominalism. Which would be OK if they didn't impose it on the rest of us."

And yet, gays getting civil unionized and having every right and responbility as married couples will have zero effects upon our society, but call it marriage, and this parade of horribles will occur?
3.5.2008 6:59pm
Cornellian (mail):
"SSM further pushes philosophical nominalism as an acceptable epistemological underpinning of legal hermeneutics. And the disease are elite culture suffers from is philosophical nominalism. Which would be OK if they didn't impose it on the rest of us."

This is how the non-elites talk?
3.5.2008 7:16pm
Brian K (mail):
What is L.S.?

I've often wondered this myself.
3.5.2008 7:18pm
Ryan Waxx (mail):
Regardless of the merits of each side in the case, it does seem as if there was merit to conservatives' complaints that civil unions serve as a camel's nose to full legalization.
3.5.2008 7:20pm
Waldo (mail):
The problem with gay marriage is that it changes the meaning and norms surrounding marriage. With gay marriage, marriage no longer defines a relationship between men and their children. As Stephanie Coontz asserts in the NY Times, "Possession of a marriage license is no longer the chief determinant of which obligations a couple must keep."

Coontz Nov 26, 07

Which means that a man can no longer reasonably expect that marraige will last until his children are grown, or even that he will be biologically related to those children. The meaning and norms have changed.

But, more importantly, the institution that defines a man's relationship with his children is now the child support agreement. And that leads to my answer to Randy R.'s question:

Why this concept is so difficult to grasp, I really don't know. Is it that you are being sarcastic? you don't understand that two men might want to marry each other? That you think it's okay to prevent two men from marrying? What part of this don't you understand?

Once the meaning and norms of marriage change to exclude a biological relationship to children, fatherhood becomes a form of involuntary servitude.
3.5.2008 7:21pm
MarkField (mail):

SSM further pushes philosophical nominalism as an acceptable epistemological underpinning of legal hermeneutics. And the disease are elite culture suffers from is philosophical nominalism. Which would be OK if they didn't impose it on the rest of us


Guys, give up the argument. There's no debating with a philosophical realist. They've seen The Truth. The rest of us poor slobs are still in the cave watching shadows on the wall. Well, that and supporting the scientific revolution and all human progress.
3.5.2008 7:27pm
martinned (mail) (www):
L.S. = Lectori Salutem = Hail to the reader.

It's something I write over all my emails, post-it notes (when addressed to others) and blog comments. For the latter, it has the added benefit of making it easier to locate my most recent comment in a long list of comments such as this one.

As for camel's nose arguments: ultimately, the understanding will sink in that, no matter what level of scrutiny one applies, no matter how you phrase the problem, there is no rational basis for treating gay couples differently from straight couples. While they are obviously different, they are not different in any way that is any concern of the state.

Before I go to sleep, to short anecdotes from legal accidents that occurred here in relation to SSM and civil unions:
- As I said, in NL any couple can have a marriage or a civil union. Under the original law, it was possible to convert a marriage into a civil union without much fuss in certain circumstances. Since, as I also said, dissolution of a civil union simply requires a contract before a notary public, this meant the law unintentionally created a very simple way of getting divorced without any involvement of the courts. Obviously, this made the Christian-Democrats and other conservatives very unhappy, which is why they've closed this loophole since.
- The second one is a bit more apocriphical, in that I cannot vouch for its reliability. I thought I'd mention it anyway, for the sake of balance: Apparently, there was this guy who was married to one woman, and had a civil union with another, thus having legal recognition for his polygamous relationship(s). If this is true, it's simply another loophole, and one that can easily be closed, but since there are so many fans of slippery slope arguments, I thought I'd bring it up.
3.5.2008 7:37pm
Waldo (mail):

I'm not sure why you think we will see polygamy if we see SSM. None of the five jurisdictions noted above that allow SSM allow polygamy or are contemplating it.

I must disagree: in Ontario "wives in polygamous marriages are recognized as spouses under the Ontario Family Law Act"

Muslims claiming cash for numerous wives
3.5.2008 7:38pm
Cornellian (mail):
I must disagree: in Ontario "wives in polygamous marriages are recognized as spouses under the Ontario Family Law Act"

According to the story to which you link, some Muslim activist claims that polygamous marriages are recognized under the Ontario Family Law Act, while Ontario government officials deny that you can claim welfare for more than one spouse. Hence, your quote is wildly out of context. I also notice that, while the Ontario Family Law Act contains a reference to polygamous marriages created in jurisdictions where they are permitted, the citation for that law indicates it was enacted long before same sex marriage became legal in Canada.
3.5.2008 7:48pm
Steve2:
I.B. Bill, I'll be honest with you: every item on your descriptive list I regard as something that has improved marriage and society (honestly, the first two items are up there in my mind with sewers, vaccination, and food refrigeration as contenders for "most socially beneficial technology of the past two centuries") after water purification and , I am eager to drive the daggers home to finish off "traditional" marriage and society once and for all, and of the items on your list, I see attacks on three of them as beneficial, attacks on two as irrelevant, and only for two of them are attacks, in my mind, things to be opposed because of a potential to cause actual harm to people - although one of those, love, is just a recent infusion to an institution that was historically about the transfer and accumulation of property or (if you already had a lot of that) political power. Yeah, marriage may have historically been about childbearing, but only because of wanting to lay claim to the children as commodities and laborers.

Which is why I hope you're right, Professor Carpenter, that the litigants fail here and it gets kicked back to a legislature that twice now has tried to do the right thing only to get vetoed by a governor doing the wrong thing.
3.5.2008 8:14pm
MPP (mail):
I.B. Bill: You are being disingenous. As pointed out by others, if you really didn't care, you wouldn't be so adamant. It's not enough to say that the law is telling you what marriage is. The law ALWAYS tells you what things are. I mean, the law defines what a "contract" is or what a "home office" is for tax purposes. Do you get outraged when these don't comport with your personal understanding of what these things should be?

Somehow I doubt it.
3.5.2008 8:33pm
IB Bill (mail) (www):
This is how the non-elites talk?

LOL :) I admit, as per TVC's comment policy, that I would NOT have said that over dinner.

MarkField gets the essential conflict, except the part about philosophical nominalists being the source of the scientific revolution and all human progress ...
3.5.2008 8:40pm
John A. Fleming (mail):
I'm not sure the libertarian ideal, of the state being agnostic over the household arrangements of the citizens, works in this case. We tax everyone to pay for the schooling of children. Even if you send your children to parochial schools or home school, or are childless, you must pay the school tax that provides benefits to parents of school age children. The oft-spoken but not provable justification for this unequal benefit distribution is that society benefits, and this has higher priority than equal protection. And yet this clear unequal protection is almost universally held as right and proper. So the principle is established: unequal benefits are not per se unlawful, or even wrong.

It would seem that SSM proponents are saying that there no longer is a rational basis for unequally encouraging stable hetero households, that the state can no longer favor some social arrangements and ignore or exclude others. So, the SSM proponents seem to be saying, traditional marriage that supports stable families is not a provable net benefit to society, and marriage should now be re-defined to be a secured right for every adult.

And that, I believe, is what makes many people uncomfortable about SSM, in that it seems to decide that stable child-rearing families are of lesser value to society than enabling adults to create whatever living arrangements pleases them the most.

Traditional hetero marriage is not provable as a net society benefit, unless you have a time machine and can travel hundreds of years into the future and see which nations, societies, and customs thrive and survive, and which die out. Likewise, for universal taxation for public education. But it's about a good a bet as can be found, that if a society doesn't place a premium on having strong, stable hetero families, it's destined for the ash heap of history.

Laws cannot always be bright line right and wrong. Some are (un)educated guesses about what is best for the future. Some tolerate inequality for the "greater good". Some are codified social experiments. SSM is that, an experiment, to test the proposition that our society will thrive if we place a higher priority on today's generation by providing legal support for each person to choose their optimum personal living arrangements, rather than funneling them into marriages to support the creation of future generations.

SSM accelerates the social experiement of devaluing stable hetero families already under way. Experimental symptoms include declining marriage rates, single-parent households, common-law marriages, out-of-wedlock rates, and unequal gender-based divorce laws. SSM establishes the precedent of having no rational basis for denying benefits to any arbitrary adult mixture household incorporation. Are we sure about this?

Social experiments aren't necessarily bad. Shoot, this whole nation is a social experiment. The first nation in the history of the world, where the individual is sovereign, where if we work hard, value our children, live moral lives, secure our rights by the rule of law derived from the consent of the people, and place our Trust in God rather than kings, our future and our children's will be better. So far, we're looking pretty good, but we have another 400 years to go to beat Rome, the current record holder.

(This is my trying to think through the issues. I'm with Tutins and Cornellian (see above). Governments should make household law. The people are sovereign, they can make any household they like, but We the People will decide which households have secured rights, which we decline to secure their rights, and which are illegal. If you want to be married, well, you will have to take that up with your family, friends, and communities that you belong to (e.g. religion, ethnic, etc.), and they will let you know the requirements for a recognized marriage.)
3.5.2008 9:10pm
MPP (mail):
John A. Fleming:

So, the SSM proponents seem to be saying, traditional marriage that supports stable families is not a provable net benefit to society, and marriage should now be re-defined to be a secured right for every adult.

There are a couple of things wrong with this:

(1) It relies on a very difficult-to-prove assumption that "traditional marriage" supports "stable" families. As we know, "traditional marriage" fails more than 50% of the time, and even when it doesn't, it rarely provides the pinnacle of stability.

(2) Even assuming you are right, nothing says that same-sex marriages are less stable for family-raising purposes. That is, we don't have to "devalue" hetero marriages in order to "value" same-sex marriages. You are assuming a conflict that simply doesn't exist.
3.5.2008 9:47pm
Waldo (mail):
Cornellian:

The post was in reply to the claim: "None of the five jurisdictions noted above that allow SSM allow polygamy or are contemplating it."

The relevant part of the Ontario Family Law Act is:


Polygamous marriages

(2) In the definition of “spouse”, a reference to marriage includes a marriage that is actually or potentially polygamous, if it was celebrated in a jurisdiction whose system of law recognizes it as valid. R.S.O. 1990, c. S.26, s. 1 (2).

Canadian Legal Information Institute

Polygamous relationships are, therefore, recognized as valid for some purposes within juristictions that recognize same-sex marriage. While some Ontario government officials may deny that one can claim welfare for more than one spouse, it seems clear that the practice occurs. Otherwise, families quoted in the article would simply deny it rather than wish to remain anonymous.

Also, as DC noted above:

Second, the state is defending a small sliver of territory in this case, which weakens the force of its arguments overall. California has already created domestic partnerships for gay couples that grant them all of the rights and benefits of marriage under state law. All that remains to do, under state law, is to call these relationships "marriages" instead of "domestic partnerships." That's ultimately what these six consolidated marriage cases are about.

Similarly, Ontario has surrendered substantive ground on the issue of polygamy, enough to weaken the arguments against it, and enough to meet the definition of "contemplating".

While the law recognizing inheritance rights was passed in 1990, the de facto granting of welfare benefits is likely more recent. Britain recognized polygamous inheritance in 2003, and benefits in 2007. Recognition of same-sex relationships is largely contemporaneous.
Multiple wives will mean multiple benefits

I don't argue direct causality from same-sex marriage to polygamy, but argue divorcing marriage from children logically allows both. Juristictions that recognize same-sex relationships do appear rather more likely to recognize polygamous ones.
3.5.2008 9:48pm
Cornellian (mail):
I don't argue direct causality from same-sex marriage to polygamy, but argue divorcing marriage from children logically allows both.

One would think linking marriage to procreation would lead to greater support for polygamy, since a polygamous marriage is much less likely to be infertile.
3.5.2008 11:03pm
Brian K (mail):
And that, I believe, is what makes many people uncomfortable about SSM, in that it seems to decide that stable child-rearing families are of lesser value to society than enabling adults to create whatever living arrangements pleases them the most.

you have this exactly backwards. homosexuals can already adopt children or they've had children of their own with a member of the opposite sex or they've inherited custody of children for whatever reason. by preventing SSM, you are preventing them from forming "stable child-rearing families". it is the anti-SSM crowd that is devaluing these families not the pro-SSM side.
3.5.2008 11:17pm
John A. Fleming (mail):
MPP:

For traditional marriage, I assume post-Enlightenment extended and nuclear families. I don't believe we can usefully conclude about the nature and purpose of marriage prior to that. Life was nasty, brutish, and short.

(1) there is no proof that non-traditional marriages won't be any better or worse for family stability for several generations. Any empirical social data available now can't be trusted. I expect that if marriage is defined as what is best for yourself, that the children will take 2nd priority. Children do best in stable marriages. A stable marriage requires that, quite often, you give up what's best for yourself, and sacrifice for the future and your children. Married with children, all the benefits are intangible, the disadvantages are legion and right now.

(2) the absolute and relative social value of SSM (and follow on) family raising is an assertion, not a fact, at this time: the results won't be known for generations. The States that permit same-sex couples to adopt are participating in this social experiment. Go States! We won't know unless we try.

Since SSM proponents can't argue empirically that same-sex familes are equally as good as the default hetero family, the claim is there is no rational basis to be denied the secured rights of hetero married couples: no evidence for or against. It seems the preponderance of arguments for SSM is, the benefits of finding and living in long-term relationships with your soul-mate should not be degraded by society's unwillingness to provide the benefits accorded to hetero married couples. And so SSM devalues hetero marriage and family raising, by removing the relative advantage. Once the precedent is set that no adult relationship type can be favored, we have devalued child raising in favor of ourselves. That's not a conflict, but there will be unintended consequences.

so I guess I'm working towards that, as a matter of public policy, hetero monogamous families get first dibs at the goodies bar, because, whatever their numerous faults, we know that works. And if we are going to try social experiments, they need to prove themselves first before they can be equal to the HMFs. And shoot, we've got a 50-state laboratory to try this out in. So there's no reason for those who want to try it one way, to disparage the choices made by the others. History will inform us which choices works, and which don't.
3.5.2008 11:22pm
jgshapiro (mail):
<blockquote>
(2) Even assuming you are right, nothing says that same-sex marriages are less stable for family-raising purposes. That is, we don't have to "devalue" hetero marriages in order to "value" same-sex marriages. You are assuming a conflict that simply doesn't exist.
</blockquote>
I would echo this point: it is not a zero-sum game between hetero marriages and SSM marriages, at least in any meaningful way. I suppose at the extreme, if everyone could be married to anyone or anything with no restrictions at all, then there would be no subset of people not entitled to marriage benefits. But in reality, by allowing SSM, we are talking about extending the franchise to 5% of the people at most, which will not materially affect anyone who is part of a hetero marriage.

Another salient point: the people who would enter into SSMs are not going to be customers of hetero marriages, and vice versa. And even if you were to force gays into a hetero marriage, how stablizing would *that* be for society? It seems to me that the trade-off here is not between hetero marriage and SSM, but between SSM and civil unions. That is the choice that we have for deailing with gay couples: which is more stablizing for society? Given the comments above re civil unions in the Netherlands, the answer does not really seem in doubt.
3.5.2008 11:33pm
Brian K (mail):
The slippery slope arguments against SSM are worthless and completely unconvincing. for them to have any force you would need to show that A will inevitably lead to the B. otherwise all you are engaging in is a transparent attempt to buttress weak arguments against A with stronger, but unrelated, arguments against B.

no one has yet shown that SSM will inevitably lead to polygamy or that they have relation to each other being different forms or family structures. there have been societies that allow polygamy without allowing SSM (think mormons back in the day or many ancient societies) and societies that allow SSM without allowing polygamy. if you don't like polygamy, work to stop its legalization IF (<- a big if) it ever comes up.
3.5.2008 11:42pm
Tony Tutins (mail):
governor doing the wrong thing.
The governor did the right thing by refusing to let the legislature change the law in defiance of both the will of the voters (61%) and the procedure for repealing an initiative spelled out by the California Constitution. The California legislature believes itself to be an elite that can dictate to the citizens, rather than a representative body. One is tempted to shout "A bas les aristos!"
3.5.2008 11:51pm
Tony Tutins (mail):

I don't argue direct causality from same-sex marriage to polygamy, but argue divorcing marriage from children logically allows both. Jurisdictions that recognize same-sex relationships do appear rather more likely to recognize polygamous ones.

Unlike same sex marriages, polygamous marriages are traditional, in Chinese as well as Muslim culture at least. Since Canada was part of the British Raj as much as Pakistan, Malaysia, Hong Kong, and Singapore, I'm not surprised polygamous marriages are recognized there.
3.5.2008 11:54pm
Brian K (mail):
Any empirical social data available now can't be trusted.

so you admit it is impossible for you to have any proof that SSM will have the negative consequences you say it will? if we have nothing to go on but your word, then what makes your word better than mine? or dale's? or jgshapiro's? or MPP's?

if we can't trust any of the empirical social data, then how can you even know that non-SSM is really as good as you say it is? how can we know it is the best, or even a good, family structure in comparison to the other ones out there?
3.6.2008 12:00am
Randy R. (mail):
"Once the meaning and norms of marriage change to exclude a biological relationship to children, fatherhood becomes a form of involuntary servitude."

Fathers of adopted children are in a form a involuntary servitude? Most fathers are asked repeatedly whether they really want to adopt before an adoption occurs. I think most fathers would be offended by your suggestion.
3.6.2008 12:07am
Randy R. (mail):
"Since SSM proponents can't argue empirically that same-sex familes are equally as good as the default hetero family..."

Actually, we do argue that same-sex families are equally as good. First, if children are not involved (and quite a few couples, whether hetero or gay, do not choose to have children), then how can you say that relationship 'isn't as good." By what measure?

Second, if children are involved, every study on the subject has shown that children of gay parents are as normal and as well adjusted as the children of hetero parents. By contrast, there are enough of these children that if there were a problem, I'm sure the anti-gay crowd would pounce upon it. Where is it?


It seems the preponderance of arguments for SSM is, the benefits of finding and living in long-term relationships with your soul-mate should not be degraded by society's unwillingness to provide the benefits accorded to hetero married couples. And so SSM devalues hetero marriage and family raising, by removing the relative advantage. Once the precedent is set that no adult relationship type can be favored, we have devalued child raising in favor of ourselves. That's not a conflict, but there will be unintended consequences."

There are plenty of hetero marriages in which children are the afterthough. Yet I don't see you mandating divorce or dissolution of those families. Why not? And for the children of gay parents, if you care so much about the children, then wouldn't it be better and more stable if their parents were actually married, than if there were simply living together?

"so I guess I'm working towards that, as a matter of public policy, hetero monogamous families get first dibs at the goodies bar, because, whatever their numerous faults, we know that works." Fine, let them have first dibs at the goodies bar. And let us have second dibs. There will be plenty left over for us. Okay?
3.6.2008 12:13am
Randy R. (mail):
ONe of the themes that keeps running throughout this is the issue of stable families. There seems to be a perception that if we deny gays the right to marry, this will make hetero marriages less unstable. Also, they assume that if gays are given the right to marry, all marriages will become more unstable.

What exactly do you mean by 'unstable.? Are you suggesting that more heteros will divorce if gays get married? There is no evidence of that. If you are concerned about stability, then you should be totally in favor letting gays marry, since it is far more stable to have married gay parents than unmarried gay parents. In the example of my friends, Josh and Tony, they have two kids by adoption. Right now, one could just leave and has probably has no obligation of child support or anything. If married, he would, and it would be much more difficult for him to leave. Which is more stable? Which should society encourage?

On the one hand, some opponents are saying that heter marriage is the best thing we have, and SSM will just muck it up. That makes no sense. If gays are only 1% of the population (as all the anti-gay writers contend), and only a tiny fraction of them actually get married, then we are looking at best only a few thousand gay couples getting married in the US. If hetero marriage is so fragile that these few thousand will knock it over, then it isn't as great as you say.

Others say that hetero marriage is in deep, deep trouble, and this will be the final death knell. This is the exact opposite of the above argument, so both can't be right. If so, then hetero marriage is NOT the best solution for families precisely because it is NOT working well. Of course, this isn't the fault of gays, but you are trying to grope for a reason to blame it on gays.

Frankly, if it's the disaster you make it out to be, perhaps we gays who don't get married, have the better solution. And young people see that, and they would rather find a solution like ours than the failed institution you have left to them.

What ever happens, gay people exist, will form longterm relationship, and will form families with children. If you want to deny us the benefits that your children enjoy, then you really don't care about the children as you say, but only about your own status in our society.
3.6.2008 12:23am
inahandbasket:
Randy R.: Can you hear the crickets?

Perfect post.

IB Bill, Tony Tutins, et al, you are bigots. Period. Protest all you want. Before you drag out this old saw to play: "But I've talked this over with my gay friends and they AGREE with me!!!" No, they didn't. They were either 1) so insulted that they said "sure" and changed the subject or 2) played you for the fool and said they agreed just to shut you the F up.
3.6.2008 9:51am
The Unbeliever (mail):
As we know, "traditional marriage" fails more than 50% of the time, and even when it doesn't, it rarely provides the pinnacle of stability.

Careful when you quote relatively recent trend lines like this. You might inadvertently prove IB Bill's point when he provided his slippery slope list in the 4:36pm post above.
3.6.2008 11:01am
Tony Tutins (mail):
I don't think I'm a bigot; I just think that people who favor it are unwilling to admit that allowing same-sex couples to marry will change the institution of marriage as well as divorce, which will have far-reaching repercussions. A couple of examples off the top of my head: Mothers traditionally receive custody of the children and the family home. What will the default be in same-sex divorce? Men are responsible for most of the domestic violence, thus battered women's shelters keep husbands out, and there are no battered men's shelters. When two wives fight, who gets to stay in the shelter? How about when two husbands fight? Where do they go?

Moreover, why do same-sex marriage advocates assume that the redefinition of marriage will automatically stop there? Once the door is opened, the entire institution can be rethought. Why is two the only possible or thinkable number of participants in a marriage? Polygyny is traditional and practiced around the world. Only American prudishness prevents its being recognized here. If two women should want to be my partner for life, why should I deny one in preference to another?

The same ick factor that has stopped gays from marrying prevents close relatives from marrying, helped out by a dollop of pseudo-science (their kids will have two heads!). Certainly genetic defects can be screened for nowadays. And the possibility of children with genetic defects should not prevent brother from marrying brother, or sister from marrying sister.
3.6.2008 12:54pm
Adam J:
Fleming- public schools are not an "unequal" right- everyone has the right to have their children go to public school, some people simply opt out of that right.
3.6.2008 12:55pm
Chimaxx (mail):
SSM accelerates the social experiement of devaluing stable hetero families already under way.


How does extending marriage to same-sex couples devalue it for mixed-sex couples? How does having stable homo-headed families devalue stable hetero-headed families? Is "marriedness" a scarce resource, and the more people you extend it to, the less of it each of them receive?

Yes, same-sex marriage extends the Romeo&Juliet social experiment--the slippery slope begun when young people claimed the right to choose their own spouse rather than the one their parents had selected for them, and extended when women were made equal legal partners in marriage rather than property, or, later, a legal dependent. Neither of those destroyed marriage--despite all the cries of doom and woe from the opponents of these changes--and neither will same-sex marriage. Indeed, extending marriage to same-sex couples is a far less radical change to what marriage means than spouse self-selection or spousal equality--and it is only because of those improvements to marriage that same-sex couples want in.

You want to end the push for same-sex marriage? Roll the culture back to where most marriages are arranged and one spouse is essentially the dependent of the other. Barring that, same-sex couples are going to keep coming back until their marriages are recognized by law.
3.6.2008 1:29pm
Chimaxx (mail):
I just think that people who favor it are unwilling to admit that allowing same-sex couples to marry will change the institution of marriage as well as divorce, which will have far-reaching repercussions.


It might. But your examples aren't particularly compelling:

A couple of examples off the top of my head: Mothers traditionally receive custody of the children and the family home. What will the default be in same-sex divorce?


1. Why should we expect that how this is resolved for same-sex couples divorcing will affect how it plays out for mixed-sex couples?

2. Despite their opposition to same-sex marriage, many in the "men's movement" (divorced father's movement) would probably welcome a change in this default assumption.

3. If there are going to be effects, denying marriage to same-sex couples won't prevent that. The Miller-Jenkins case in Virgnia and Vermont involves a civil union, not a marriage, and courts have already dealt with custody disputes between same-sex couples who have jointly adopted, and they will continue to. Denying marriage to the same-sex parents won't prevent the ruling in their cases from being used to affect the outcome in hetero divorces--it will just make things more difficult and messy for the same-sex couples divorcing.

Men are responsible for most of the domestic violence, thus battered women's shelters keep husbands out, and there are no battered men's shelters. When two wives fight, who gets to stay in the shelter? How about when two husbands fight? Where do they go?


Why don't we ask domestic abuse shelters how they deal with it now? Domestic abuse isn't limited to those with a marriage license. They keep out battering boyfriends, fiances and ex-spouses--and many of them already handle cases of same-sex domestic abuse. How would a marriage certificate between some of the same-sex couples change that?
3.6.2008 1:50pm
Randy R. (mail):
First, Thanks Tony Tutins. Your latest post is reasonable and well thought out. I'm glad you aren't a bigot, and I'm sure you don't mean ill will towards gays, and that's a lot more than I can say for a lot of people in this country. I have no problems with raising legitimate issues.

" couple of examples off the top of my head: Mothers traditionally receive custody of the children and the family home. What will the default be in same-sex divorce? Men are responsible for most of the domestic violence, thus battered women's shelters keep husbands out, and there are no battered men's shelters. When two wives fight, who gets to stay in the shelter? How about when two husbands fight? Where do they go? "

Here's the problem: We gays ALREADY have to deal with these issues. Gay parents exist, and sometimes they break up. So who gets primary custody? I don't know, but courts have already had to handle it. Some gays do get battered. Where do they go? I don'[t know because I'm not up on the topic.

See, here's the thing. People seem to think that if they prevent gays from marrying, it will prevent all these issues from coming up in the first place. But, as Charles Krauthammer has noted, that day is passed. It would be much better to allow gays to get married precisely so that there is some standard laws that can apply, instead of the hodge-podge that exists now. This is exactly WHY gays want to get married in the first place!
3.6.2008 2:15pm
Chimaxx (mail):
All that said, after finally listening to the whole trial, I think Dale's guess is pretty good. And I think right now, that would be the best outcome. In a few more years, the legislature can again pass (and a governor sign) a bill to permit same-sex marriages, which will then put the issue again before the voters in the form of an initiative. By then, it will be more likely to pass.
3.6.2008 3:59pm