The Volokh Conspiracy

A victory for federalism!

But prostitution remains illegal?

Orin, I take issue with your post title "California Supreme Court Holds That There Is A State Constitutional Right to Same-Sex Marriage in California."

I find that the opinion actually holds that a law banning same-sex marriage, but allowing opposite-sex marriage, is unconstitutional. A law banning both opposite-sex and same-sex marriage could be constitutional under the opinion's rationale, which does not rely on a "right to marriage" as you claim in your title, but rather on disparate treatment.

Seriously, if the state doesn't have a compelling state interest in preserving the traditional definition of marriage, then doesn't anything go?

The practical effect? The evangelicals who were luke warm on voting Republican this fall, will be red hot this fall. Activist judges will be a huge issue. This court overturned a ballot initiative voted on just eight years ago.

And thus, another initiative drive is born.

Exactly. The majority's reliance on legislative action to promiscuously mint this new right is really quite breathtaking given the state constitution's priority for the people's will over the will of their representatives (however good or bad that may be).

Without regard to the merits of this opinion, has anyone seen any polls on the current California initiative to amend the CA Constitution to ban gay marriage? I would think this ruling will give that a big bump in popularity, so if the initiative has at least 40% pro-ban support right now, gays have only 8 months to plan a wedding (if amendment is effective 1/1/9).

BTW, I have no idea what % vote is needed to pass a Constitutional amendment in my state of CA. So excuse my stupidity.

And thus, California might be in play in the 2008 Presidential election after all.

Dream on. The Republicans winning California is about as likely as the Democrats winning Alabama.

As California goes, so goes the nation. Good.

I withdraw my previous comments with utmost apology. Your title is correct, Orin. The opinion relies on both a fundamental right and disparate treatment. (I had read only the second half, and assumed they would rely on a single ground.)

BTW, I have no idea what % vote is needed to pass a Constitutional amendment in my state of CA. So excuse my stupidity.

50% + 1

CNN totally blew it this morning. Not only did they announce that the decision had gone the other way (in the rush to get on the air, the anchor had read only the first sentence of the opinion, which talks about the 2004 Lockyer case striking down gay marriages licensed by the City of San Francisco, and didn't realize what she was reading) but told their legal analyst that the opinion had gone the other way and let the analyst engage in 5 minutes of discussion of what a setback this was for gay rights.

Before everyone starts screaming about judicial activism, recall that 6 of the 7 Justices are Republican appointees.

Some Republican appointees are activists. Obviously.

And the gay marriage statute was passed twice in California, but vetoed by Arnold,

And same-sex marriage was voted down by the people of California. Arnold was just following the outcome of that popular referendum.

This is typical judicial activism. Please don't go the six of seven are Republican appointees route. Eisenhower appointed Warren, Ford appointed Stevens and Bush Sr. appointed Souter, three of the worst judicial activists in history. The Justices invented a "constitutional right" and spent many pages justifying their personal prejudices. We recalled Davis ( although Arnold wasn't much improvement ) and we can recall some politicians in black robes.

And same-sex marriage was voted down by the people of California. Arnold was just following the outcome of that popular referendum.

A popular referendum that was passed eight years ago. Eight years ago the voters of California hadn't had four years to evaluate the effects of gay marriage in another state. They hadn't seen a movie about gay cowboys achieve wide success at the box office. The sentiment that referendum captured has depreciated more like a car than like a house, I would wager. We'll find out in November.

The state interest in preventing plural marriages is not merely to "preserve the traditional definition". There are compelling state interests - not only that, but since plural marriage bans do not use gender, there's no equal protection issue.

"Couples" are not protected. Gender of individuals - EVEN if only with respect to the gender of another individual - is protected.

Take a divorcing couple where the gender of the child determines the gender of the parent custody is awarded to - the two girls will go with their mom BECAUSE she is female and so are they. The mom is being judged solely by her gender. This is not a valid decision based on equal protection.

Similarly, if I cannot marry an individual BECAUSE I am female - even if it's just because she's female too - I am being judged SOLELY by my gender and without any good reason. Ergo, equal protection kicks in.

And I'll never understand the idea that a Supreme Court that is doing its job: taking a question put before them about the constitutionality of a statute, applying case law and jurisprudence, and coming up with a decision is "judicial activism". It seems to me that in that case, any judicial decision that does not stick firmly with the status quo is "activist". And that's stupid.

California clearly chose an analytically distinct path by subjecting the statute to strict scrutiny review. I believe this is the first opinion that applies strict scrutiny to sexual orientation classifications.

For those claiming that now incestuous marriage and polygamy will now be legal all over the land. Get a grip.

Even if same-sex couples can marry, brother still cannot marry brother, nor can a woman marry more than one man. Same-sex marriage changes nothing.

I'm sure some idiots will still claim a slippery slope.

In the other thread (which appears to be closed now??) commenter John D suggested that the proposed amendment to the California constitution to define marriage as one man and one woman would NOT trump this decision. Is there some unique rule of interpretation in California which dictates that earlier and more general provisions somehow win out over later and more specific provisions when there's a ocnflict? Because that would seem quite irrational and would go against both of the sensible guiding principles I was taught to look to in such conflicts.

"They hadn't seen a movie about gay cowboys achieve wide success at the box office. "

Ah, yes, it must have been the movie.

Of course, one of those coyboys didn't turn out so well in real life. Be careful about playing gay roles, it might lead to drugs and an early death.

CNN totally blew it this morning. Not only did they announce that the decision had gone the other way (in the rush to get on the air, the anchor had read only the first sentence of the opinion, which talks about the 2004 Lockyer case striking down gay marriages licensed by the City of San Francisco, and didn't realize what she was reading) but told their legal analyst that the opinion had gone the other way and let the analyst engage in 5 minutes of discussion of what a setback this was for gay rights.

Dilan,
That reminds me of the Bush v Gore coverage, with a lack leaping down a flight of stairs to give the opinion to Dan Abrams, who proceeded to declare that "per curium" "means that this was a unanimous decision."

cjwynes brought up my comment in the other thread. Since I am not a lawyer, nor a Supreme Court Justice, nor a soothsayer, I can't make an absolute prediction on this, however, the implication in the hearing was that a later Constitutional amendment would put the Constitution in conflict with itself and the means of resolution would be to strike the later text.

It's an interesting question for the lawyers who comment here: could strict scrutiny be withdrawn through constitutional amendment? Could we amend the state constitution in that matter, or would it be found in violation of the very spirit of the document?

Generally, in the law, more specific pronouncements override general ones. I believe any court would be compelled to find that a specific amendment about gay marriage effectively overruled this decision because it is a specific pronouncement concerning a more general right.

Ugh. Not unexpected, but ugh.

Archon's comment makes me wonder if California has a provision that prohibits overturning a legal decision by statute. Certainly if no such provision existed, whenever the state lost a case, they would simply rewrite the laws. In any case, as of this minute, marriage is available to same-sex couples, and remain so for the foreseeable future.

If, in November, the electorate approves the initiative, it will go into the Court. I do not think that the Court will be so simply overruled.

Now I must telephone my friends who are in long-term relationships and ask them when the wedding is.

Mark Butler -

Decency and morality has been more or less in a free fall for the last 50 years. We just haven't found the bottom yet.

(Although I think we will shortly.)

Hmm, comments not working in the other thread.

In my own defense against an uncharitable assumption in the other thread (and thanks to others who challenged that assumption): As has been mentioned in this thread, the opinion's damn long. I skimmed it for the reasoning, then posted my comment, then went back to read some more. I don't disagree with Tennesseean: "The ends justify the means" is no way to run a state. I expect that my policy preferences won't always be justifiable under the law, and sometimes you can work to change the law and sometimes you just have to shrug and take it. I have lots of photos from the SF gay marriages a few years back, and I'm glad I got to be there, but I can accept the reasoning in Lockyer that Gavin Newsom doesn't get to decide who can get married in California.

As to Baxter's and Corrigan's separation of powers argument, well, I don't know enough about separation of powers doctrine to say. Some things are beyond the power of voters or legislatures to change or override; the violence of the majority faction has its limits. The majority says the right to make a family with whomever you choose is very much a fundamental right. If it's that fundamental, it doesn't seem, from my viewpoint of limited knowledge, that Californians or their Assembly have any power to ban gay marriage, and crying "judicial activism" won't change that.

Not even SCOTUS is immune from criticism that sometimes they just want to see their policy preferences institutionalized when they write their decisions. I don't see how it's *not* institutionalizing some people's policy preferences to add a constitutional amendment banning gay marriage by defining it away. I'm curious about what happens if the constitutional amendment on the November CA ballot to ban gay marriage passes. The privacy clause in Art. I s. 1 of the California constitution was added by California voters, and it was California voters who passed Prop. 22, which was at issue in today's ruling, which relied partly on the privacy clause. And if California voters amend the constitution to forbid gay marriage - then what? Can an amendment that affects one issue and one portion of the population, effectively undermine the very fundamental privacy and equal protection guarantees that came before it?

According to classical liberal theory Liberty and Equality are inalienable rights. This decision is entirely in accord with indeed the logical result of classical liberal philosophy even if the progenitors of such would not have expected the result.

I personally support gay marriage and this decision. Though as an anti-statist libertarian, I also fear government violating the rights of those who might object. Perhaps we should follow James Madison ideal policy of government and religion: no cognizance or separation of church &state. Likewise separate marriage and state. Take the question out of the hands of churches and government altogether, make marriage a private contract and let churches decide whom they will marry.

Should be: "Take the question out of the hands of government altogether...."

Well said Mike. We were thinking and writing the same thing at the same time.

Personally, I think the entire gay marriage issue is simply one of the public's right to legislate morality (I say that is a compelling state interest). So I find it interesting how this opinion appears (based on a skim) to punt on the viability of 'morality' to be considered AT ALL as part of the state interest. From page 55:

The court in Elden v. Sheldon further explained: “Our emphasis
on the state’s interest in promoting the marriage relationship is not based on anachronistic notions of morality. The policy favoring marriage is ‘rooted in the necessity of providing an institutional basis for defining the fundamental relational rights and responsibilities in organized society.’

Further:

There can be no question but that, in recent decades, there has been a fundamental and dramatic transformation in this state’s understanding and legal treatment of gay individuals and gay couples. California has repudiated past practices and policies that were based on a once common viewpoint that denigrated the general character and morals of gay individuals

Note the lack of citation! In fact, aside from passing references to literary publications in the footnotes, the only citation where the court touches on morality is on page 69:

Morrison v. State Board of Education (1969) 1 Cal.3d 214 [homosexual conduct does not in itself necessarily constitute immoral conduct or demonstrate unfitness to teach].)

Well I just read Morrison, and it says no such thing. It said that homosexual behavior didn't fit the particularly statutory definition of "immoral" behavior, because that statute only referred to "immoral" acts which affected the ability to teach. It never said homosexual behavior was moral.

So, it looks to me that the California Supreme Court has followed the modern pattern of (1) dismissing any consideration that the public might possible consider something immoral - despite having voted on the issue in recent history, and (2) assuming that 'traditional' (i.e., Christian) morality cannot constitute a permissible basis for a law. Of course, any post-modern morality remains a-okay (e.g., eco-conservation).

I thought that if a given act was deemed immoral - even if not criminalized - there could be no fundamental right for anyone to engage in such an act. Thus, certain lewd acts can only be accomplished by men, and outlawing those acts does not violate notions of equal rights between men and women.

Marriage is already a private contract. You go to city hall and you apply for a license. In some states, it is granted on the spot. I was married in Massachusetts, where you have wait three days.

Some couples decide that they would like to have clergy bless their marriage, and this is their right.

Others decide that they would rather be married by a justice of the peace, who may or may not be an Elvis impersonator, and this is their right.

At no point do that actions of a representative of a religious group affect the validity of a licensed marriage. On the contrary, an individual who performs a marriage ceremony in the absence of a license, can be found (at least in some jurisdictions) guilty of fraud.

Jon Rowe and Mike G are wrong: marriage is not a religious institution. It is a creation of the state with a whole body of law concerning it. Were it otherwise, the plaintiffs in the Marriage Cases wouldn't have argued in front of the California Supreme Court.

After all, if a beit din won't let you convert to Judaism, you can't take them to the civil courts. If an ecclesiastical court finds you guilty of heresy, you can't have the matter addressed by the civil courts.

Let's be clear here: marriage is a right provided equally the government to its citizens. Let us drop the nonsense that it naturally belongs to religious institutions. In the early days of the Massachusetts Bay Colony, clergy were forbidden to officiate marriages. Perhaps the Puritans had something right.

A few people have now mentioned the idea of states getting out of the marriage game. My question is what would you do about the civil implications of marriage? Things like taxation status, next of kin, survivor benefits, etc.

shorter wooga: instead of having a rational basis, law should follow my conception of morality

Gays marrying each other? Next we're going to have Nazis running around the country on dinaosaurs! Again.

We don't agree on the issue, but this is just plain clever.

So the logic of the decision isn't entirely clear to me..(I confess to skimming, not studying the opinion..)

Are they saying somehow that had the state never given gay couples any official status (civil union) that there would be no case here and that marriage could go on like it always had. It seems to go off on some tangent about once the status was granted, it's then unconstituional to designate it differently...

What am I missing?

Wooga: You would have a point, except that you never explain exactly why homosexuality is 'immoral.'

there are some religious institutions that believe that masturbation is immoral (Mormons). So should their concept of morality prevail, and laws against mastubation should be legal?

Even if you make the argument that being gay is somehow immoral, it still fails. Most people lying is immoral, or exploiting another person, or engaging in emotional abuse, yet none of these things (outside of perhaps perjury), is illegal.

Morality as a basis of law leads us to the Tabiban, not a free and civilized society.

Archon :"When we abolished segregation, again by judicial fait, things just got worse and worse for the blacks. "

Wow! Anyone care to bring back the good old days of segregation? I have friends who are black, and I haven't yet seen this as a groundswell.
Pat Buchanan is the negro's best friend, (lunatic sarcasm). He did make this argument, but otherwise I haven't seen it.

Randy R. -

Denouncing striking down segregation by judicial fiat is not the same as endorsing segregation. You can dispute the action which brought about a result but still agree with the result. So, don't make that leap in logic. It makes you look like a foolish man.

If you must know, I think we should have allowed voluntary integration. Forcing it on people did no long term help to the blacks.

Randy R.: Some black scholars have written of their frustration at the slow progress of civil rights; have insisted (properly) that black communities had dignity even in the days of segregation; and have decried what they perceive as problems in current black culture. This all sometimes gets mis-translated as a cry that the good old days of segregation were actually better, although usually not as crudely and explicitly as Archon is arguing.

Achron,

I bet almost 100% of everyone thinks interracial marriage should be legal. It doesn't matter who "supports" it.

For example, I support not having you post on this thread ever again, but I don't think you should be prevented from doing it.

And how long should blacks have to wait until whites voluntarily give up segretation? I didn't see any voluntary trends in the 50s or early 60s. But yes, it's always easy to tell other people to wait for thier rights. I rarely hear anyone saying that for themselves, however.

John D wrote:

Jon Rowe and Mike G are wrong: marriage is not a religious institution. It is a creation of the state with a whole body of law concerning it. Were it otherwise, the plaintiffs in the Marriage Cases wouldn't have argued in front of the California Supreme Court.

John, it's called an "establishment of religion." And it once was something that was forbidden to the federal governemnt, but was permitted for the several States. (Or done by them as an improper establishment of religion whether the endorsement of a religious ceremony was constitutional or not.) In this case, California took something that started out as a religious ceremony and co-opted it, giving religious marriage its stamp of approval but in doing so also insisting on its own participation in the rite and imposing its own restrictions (such as a ban on miscegenation until 1948).

You aren't really trying to convince us that the Christian marriage ceremony does not predate the founding of the United States, are you? So how can there be any merit in this argument?

After all, if a beit din won't let you convert to Judaism, you can't take them to the civil courts. If an ecclesiastical court finds you guilty of heresy, you can't have the matter addressed by the civil courts.

Yeah. So what?

Look, if you get married in the Catholic Church, you get a piece of paper from the State that says you are married, and the Church agrees. If you then get divorced, you get a piece of paper from the State that says you aren't married any more ... and the Catholic Church disagrees -- according to them you're married until you die, your wife dies, or the Church grants an annullment. If you remarry, in a civil ceremony or in a ceremony in a Christian church that recognizes divorce, the State gives you another piece of paper that says you are married ... which the Catholic Church would not recognize this as a valid second marriage but which some other religious sects would. Fortunately, the Catholic Church does not have the power to throw you into prison for adultery for this.

Extend the concepts involved in "recognition of divorce" to "recognition of initial union" and keep the only legal consequences in the realm of civil government, and it doesn't matter whether you're talking about gay people or straight people. Give the word "marriage" to the priests, ministers, rabbis, imams, and shamans, and let them do with it what they will.

Let's be clear here: marriage is a right provided equally the government to its citizens.

Let's be clear here: Governments do not "provide" rights. But the Conspiracy has other long and inconclusive discussion threads on that subject.

abailey wrote:

MikeG: I'm of the mind that the government should have a civil union license that they offer to any couple that wants it, then that couple can get it ratified in a religious ceremony, or a civil ceremony; whatever they want. But there are plenty of churches who are more than willing to marry gay couples in religious ceremonies--where does that leave things? The religious right will always find things to foam at the mouth about; there's no reason to appease them here.

I don't understand your objection. We seem to be in complete agreement up to the last sentence. By endorsing civil unions (as California already does) and staying out of the issue of who's "married" to whom (as I believe California ought to do), the State would essentially be telling the religious right to go pound sand as far as having the government enforce any religious diktat one way or the other. I don't see this as an appeasement.

(abailey, do you live in San Diego? I know an "abailey" there.)
g

Slater -

Overruling Brown would do little, if anything. The damage has already been done. The same goes for Title VII. Removing a hammer after using it to destroy a statue does little to reconstruct the statue.

As for your obviously loaded question, it is blacks and women who know better for themselves. Some won't confront the reality but others will (like Bill Cosby.)

Again, the damage has been done and white people have once again screwed black people (albeit at least this time we had good intentions.)

In other words, the justices wanted a particular outcome (yes on same-sex, no on polygamy), and found ways to justify it. I'm not commenting on the desirability of the outcome, just he shoddy way it appears to have been reached.

It's there somewhere. You just have to keep searching in the penumbras and emanations, and I'm suure that eventually it'll turn up.

Mike G, of course I'm aware that the Christian marriage ceremony predates the founding of the United States. Christian solemnization of marriages dates back to the 12th century. Does that matter? There were civil marriages before that in the West. There's a long, long history of marriage as a legal issue. Just because the Catholic Church stepped in during the 12th century doesn't give them ownership of the concept of marriage.

Let me flip your example around.

You get married in a Jewish ceremony. Then you get a get, a Jewish divorce. You don't get a civil divorce. Then you remarry. The state does have the power to punish you for bigamy.

We've made a clear distinction here: in the legal sphere, state decrees concerning marriage trump religious degrees.

While a religious denomination can decide for their own purposes who counts as married (for example, a couple married in a civil ceremony are not actually married by the standards of the Catholic Church), they cannot translate that into the public sphere (a Catholic state employee cannot refuse the benefits of marriage to a couple who had a civil ceremony).

Given the large number of laws regarding marriage, I have counter suggestion for you:

Let the religious groups who do not approve of same-sex marriage find some other word. Or, they can even refuse to take part in this. No member of the clergy is obligated to be an agent of the state. They don't have to sign marriage licenses. They can even tell their congregants that it is a corrupt "thing of Caesar" in which they should not participate.

Let them file their taxes as single. Let their joint property be viewed as separate. No skin off my nose.

I do think that if a religious group holds a position that is an affront to justice and equality, they should be told to "pound sand," as you put it. If a denomination refused to perform interracial marriages, that's their right, and it's my right to consider them beyond contempt. I don't have to affirm their decision.

In the interest of disclosure, I belong to a religious group that sided with the plaintiffs in the Marriage Cases.

——————

Oh, and a correction to my earlier musings: Erwin Chemerinsky (who is a legal scholar, unlike me), says that the proposed amendment would reverse the ruling. KCBS has the audio here.

Given the large number of laws regarding marriage, I have counter suggestion for you:

Let the religious groups who do not approve of same-sex marriage find some other word. Or, they can even refuse to take part in this. No member of the clergy is obligated to be an agent of the state. They don't have to sign marriage licenses. They can even tell their congregants that it is a corrupt "thing of Caesar" in which they should not participate.

John, we seem to be substantially in agreement -- at this point we're just arguing over who has the right to use a single word.

Given that religious groups have a strong emotional and historical attachment to the term "marriage," and given that the government already has the term "civil commitment" for a government-recognized (and societally recognized) domestic partnership that is almost exactly like traditional marriage except for ignoring the sex of the participants ... then why invent a third term? Especially when taking the word "marriage" away from religious groups will gratuitously piss them off?

f

cjwynes wrote:

Per your discussion of divergences between when the gov't recognizes a marriage and when the Church does -- recognition as legitimate in some transcendent sense seems to be precisely what the California court's opinion is aiming at.

... But obviously what the court is missing here is the fact that they cannot compel anyone other than the government of California itself to accord "dignity and respect" to anything.

Yup. I never said I agreed with the decision -- I think the majority's argument is flawed, and I think they looked for an opportunity to get the result that they wanted. All I'm saying is that one of their apparent conclusions -- that the government can either (a) endorse the right to marriage betwen couples without regard to their sex, or (b) not endorse the right of marriage for anybody -- leaves open the possibility of using option (b) to get to a solution that most people can live with.

These days even the religious right seems to tolerate the concept of gays in civil unions (even though they're sure that God will condemn them to eternal damnation in the afterlife). And I suspect that most gays would be content with the idea of getting a civil union "blessed," if they wanted to, in a "marriage" ceremony by the Metropolitan Community Church or some other gay-friendly sect, in spite of the fact that Islamic or Catholic theologians would not recognize it as a valid marriage. But it's that business of having the government force a particular religious/moral precept (one way or the other) down everyone's throat that ticks people off.


k

abailey:

shorter wooga: instead of having a rational basis, law should follow my conception of morality

Randy R.:

Morality as a basis of law leads us to the Tabiban, not a free and civilized society.

Wow. You both have let your emotional reaction blind you to basic civic history.

The reason I am in favor of 'legislating morality' is because that is how the law has always been, and always will be. This is basic criminal law stuff (e.g., malum in se). People only happen to recognize it when the law conflicts with their own personal morality. Thus most people think it is perfectly acceptable to outlaw prostitution, drugs, and gambling. But those are all MORAL decisions, imposed by the majority on the minority. The last time I checked, Democrats still hate Libertarians because Libertarians would allow eeevil corporations take advantage of stupid people. Anti-capitalism is, at its heart, a MORAL position.

You can try and dress it up in some sort of statistical rationalization or 'tradition' (as we see people doing all the time on the anti-SSM side), but it really is all about morality. I'm in favor of morality as legislated by the people in their separate states, subject only to the limits imposed on the states by virtue of their surrender of sovereignty on the items identified in the federal Constitution (i.e., if certain states go off the deep end, the others can reign them in through Amendment). Personally, I will avoid living in Utah and Alabama. Federalism at its finest.

Calmom:

Maybe, except (i) there already is an anti-gay marriage amendment in Ohio, so it's not like there's going to be anything specific for the religious right to vote for here; (ii) there's no plausible chance the U.S. Supreme Court would mandate permitting gay marriage in the short or medium term (nor could they overturn this decision), so it's a tough sell that voting McCain is really going to have a huge impact on this; and (iii) honestly, I think this issue will be less and less of a big deal over time, as people see that where legalized gay marriage actually exists, the the ridiculously overblown parade of horribles hasn't (haven't?) happened.

And as others have noted, there are other issues that Ohio folks mind find more important.

Bet that's the fun part though.

Hey, I'm all for having fun. I plan on getting stinking drunk tonight. But I don't expect any sympathies for my inevitable hangover tomorrow. Fun has it's consequences.

President McCain nominating a replacement for a dearly departed Stevens or Ginsburg is something I doubt the California Supreme Court is eagerly anticipating, regardless of how much they want to call a gay civil union a marriage.

I don't have strong opinions about this issue one way or the other, but I have to laugh over the furor surrounding this as I live smack in the middle of one of the largest congregations of gay men in this country and I have to be honest with you guys - the typical lifestyle on display here is extremely not ready for primetime and about as far removed from the institution of marriage as you could possibly conceive. Lesbians, I suppose, have a more credible claim on social policy grounds.

I don't care if:

the Catholic Church, the Union for Reform Judaism, the Evangelical Lutheran Church in America, the Metropolitan Community Church, the United Church of Christ, or the New York Mosque (just to name a few)

recognize my marriage. I am utterly indifferent.

I do care that the governmental bodies in the United States recognize my marriage.

I am not a member of any of the religious groups named above (although I slipped in a couple that I know support marriage equality).

I am a citizen of the United States and a California resident. Why should any government withhold a right from its citizens on the say-so of a religious organization. The Catholic Church says it's wrong. The Latter-Day Saints say it's wrong.

Well, I say if their opinions on how non-Catholics and non-Mormons should live were already irrelevant, the views of the Union for Reform Judaism and the United Church of Christ should trump theirs.

The problem with bowing to religious dictates in law is that religions are going to differ. How do you sort it out?

On giving the word marriage to the religious groups, I worry about the vast body of law which already uses marriage and related words. If the Baptists don't get around to changing their language, it won't affect me. If the legislature drags its feet, it will.

So....what's the compelling state interest in refusing to allow two brothers, or two sisters, from marrying?

(When answering, remember that "grossness" or it being "against culture" and the like is not a permissible excuse, as these reasons are clearly not compelling state interests. According to the opinion, that is.)

What effect does this decision have on those same-sex couples who received marriage licenses in San Francisco in 2004?

On giving the word marriage to the religious groups, I worry about the vast body of law which already uses marriage and related words. If the Baptists don't get around to changing their language, it won't affect me. If the legislature drags its feet, it will.

That's why Word Perfect and Microsoft Word have a "search-and-replace" function. ;-)

Seriously, if this change were somehow to be accomplished, I think it would pretty much have to be by State constitutional amendment. The amendment might simply state that all references in the body of the law to "civil union" would remain intact, and that all references to "marriage" would be interpreted to mean "civil union" ... that plus a disclaimer of any jurisdiction over "marriage" ceremonies and rites performed by non-governmental groups.

On the other hand, IANAL, so the odds are it wouldn't be quite as simple as this ... but it would have to be better than the mess we have now!

How extensive is the current set of references in the California legal code to "civil union"? How did they make those changes?

Is there some unique rule of interpretation in California which dictates that earlier and more general provisions somehow win out over later and more specific provisions when there's a ocnflict? Because that would seem quite irrational and would go against both of the sensible guiding principles I was taught to look to in such conflicts.

cjwynes (and John D),
I just ran across (I was doing real work, I promise) this from Nunes v. Vaughan-Jacklin (1988) 200 Cal.App.3d 1518, :

It is also settled law that when a special and a general statute are in conflict, the former controls. (Code Civ.Proc., § 1859.) The special act will be considered as an exception to the general statute whether it was passed before or after such general enactment. ( People v. Gilbert (1969) 1 Cal.3d 475, 479-480, 82 Cal.Rptr. 724, 462 P.2d 580; Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 420, 128 Cal.Rptr. 183, 546 P.2d 687.)

Granted, this doesn't say "Amendment," but it should apply unless there is some specific rule excluding amendments.

Randy R:

As for morality, again, Wooga, you fail to explain -- if morality is the basis of law, then why are so many things considered immoral NOT outlawed?

Because sometime people thing something is only 'a little immoral.' Coveting your neighbor's ass, for example, is against the 10th Commandment - but nobody is calling for a law against it. But it is still considered immoral by many. Essentially, your question is a tu quoque fallacy.

How is homosexuality immoral? What exactly is your definiation of morality? If it's anything prohibited by the Bible, then you have problems of mixing religion and law (My Taliban argument).

! Law and religion have ALWAYS been intertwined. I don't know of a single legal system in history that was not mixed with religious underpinnings.

Soooo. If I base my voting on the Bible, that's not allowed? As a matter of fact, I do base my moral decisions on the Bible. But as a Christian, I believe that the New Testament 'cleans up' a lot of the inconvenient rules of the Old Testament. At the founding, most states in the US were explicitly religious, some even had official state churches. The 'separation of church and State' (capital 'S') rule has been around for a lot longer than 'separation of church and states (small 's').

If our law is supposed to be based upon morality, then who's morality? The Mormons? atheists? Deists? The Taliban, again?

I already answered that. Popular representative vote, under the umbrella of a Constitutional Federalist system.

Same-sex couples shouldn't have what should continue to be the essential right of marriages everywhere and throughout history - the right to conceive children together. Marriage establishes consent and obligation of the couple and the approval of the state to conceive of children that are of the couple's combined genes.

This is what the Lovings were seeking, and what was being denied to them. The right to mix their genes. Marriage is an international legal structure, recognized in every country and required in many countries if the couple wants to sleep together and conceive children together.

A marriage doesn't need to be limited to two people, polygamous marriages are merely considered contrary to public policy. As long as the husband is allowed to conceive with all of his wives, it still contains the essential element of conception rights. Two wives in a polygamous marriage should not be conceive together, but I think they aren't considered married to each other, only to the same husband.

Romeo,

First, I am well aware of the difference between "marriage" and "holy matrimony." The second is a sacrament of the Catholic Church. It has no legal bearing. Many people manage to get married without being joined in holy matrimony. Were people obligated to be joined in holy matrimony, it would be a violation of the separation of church and state.

As for your comments on my somewhat ad hoc definition of marriage (which was constructed solely to point out that governments can use the word without interference from religious use of it), well,

(1) "Partnership" means something else. "Oh, you're in business together."

As for (2) and (3), well, what's the compelling interest in limiting to opposite-sex couples? The California Supreme Court says there isn't one.

So, we might as well throw in dogs. And I'll put this in simple words.

The mental-health folk insist that being gay isn't a sign that you're sick.

People in incestuous relationships, sad to say, typically get seriously twitchy. As do children who are exposed to sex early. Besides, no couple should be able to use "I'll tell mom" in an argument.

I have the hardest time coming up with a compelling argument against multiple relationships. There's a libertarian voice inside me that says that people have a right to dreadful relationships where one or more people get shafted. I mean, that can happen within a couple. And, after all, the law has no objection to an unmarried group of people who have sex together.

I think it's an unrelated issue though. They both are. Because you don't have a compelling reason for forbidding same-sex couples from getting married. If you think you have one, there's a page where Chief Justice George shot it down better than I ever could. Go read it.

Happily, my standard of proof doesn't have to be "why stop here?" I only need make a case for why straight people and gay people should be treated the same.

Because there is no compelling state interest to do so.

Oh, I forgot dogs. They can't give consent. When they can, I promise to patiently listen to Rover.

JohnD,

I ask about your restrictions on bisexual marriage and you just straight to bestiality and child-sex? Tsk Tsk. And your only argument against aunt-nephew marriage is that "they get twitchy"? I'd love to see that in a legal brief.

Again, let's return to first principles, as I asked in question (3) that you failed to answer: What is the reason for states to create a special category for, and reward, opposite-sex marriages between two unrelated persons?

John Howard,

i agree with you that a couple has obligations to each other.

However, I think it has been established that adults may consent to sex to persons to whom they are not married. (And I'm not even talking about the situation in which many committed same-sex couples find themselves). Although you seem to feel that this is not real consent, it is.

Further, it has been well established that married individuals may refuse to consent to sex. A wedding ring is not an automatic agreement to sex. Your suggestion that a marriage "established official consent to have intercourse" seems to be in conflict with the concept that spouses can say no.

Today's ruling has done less to say what marriage is about than what it is not about. In California and Massachusetts, marriage is no longer about two people having THEIR children, which is to say children who are biologically related to both parents. That impacts heterosexual couples and why and whether they marry. These aren't changes in the future, but changes that are already happening. First, the number of people who are willing to stay married "for the sake of the children" continues to decline, a decline that accelerated after Mass legalized same-sex marriage. More importantly, the percentage of children born out of wedlock has risen to ~37% and continues to increase. It's not a result of teenage pregnancy either (teenage pregnancy rates are actually declining). Instead, women are having kids while waiting for Mr Right rather than settling forMr. Good Enough.

Heterosexual men increasingly get it. If marriage doesn't establish norms in society that link men to their children, then men will have to be practical and protect their interests. First, men will recognize that "loving relationships" are ephemeral, while children born to two people create a permanent bond. Without the link to children, a practical man has to assume that marriage will end and insist on a pre-nup as a sensible precaution.

But a man who wants to maintain a relationship with his kids will have to be even more practical. In divorce, custody generally goes to the parent who is the primary caregiver. In the absense of a link between marriage and fatherhood, men will increasingly marry women with at least as much earning potential so that they can cut back on hours to be with their children (which will reinforce trends in assortative marriage. Men who think keeping their kids is most important will insist on being stay-at-home dads. The combination of women waiting for Mr. Right and men insisting on a guarantee of being with their kids is making marriage less attractive to both.

The end result will be that marriage for the general population will end up like marriage in the black community today. And it's not because desegregation hurt the black community or the 1950s were somehow a golden age. Instead, the decline in black marriage happened because welfare policies in the late 60's and 70's provided benifits to single mothers but not to married families. State recognition of relationships biased against traditional families caused the number of traditional families to erode. Given that black families face greater racism as well in the 60's, I doubt that the average family today will do better.

What is the reason for states to create a special category for, and reward, opposite-sex marriages between two unrelated persons?

To protect their right to conceive together using their own gametes, which they get when consenting to conceiving with each other's gametes and obligating themselves to each other to the exclusion of others.

Couples that we don't approve of conceiving together are not allowed to marry.

John D contends "A wedding ring is not an automatic agreement to sex. Your suggestion that a marriage "established official consent to have intercourse" seems to be in conflict with the concept that spouses can say no."

Well, not whenever either of them wants it, of course, but in general, a spouse cannot refuse to have sex. It has to be an ongoing consent, it can't be a continuing refusal, that is grounds for divorce. But it doesn't give any right to force their spouse to do anything, whether it is have sex or take out the trash.

And I'm not sure it has been established that adults can consent to sex when not married. Are you referring to a specific case or something? Kennedy confirmed in Lawrence that marriage still gives the couple the right to have intercourse, so that must mean that they never really had it before. Eisenstadt only referred to unmarried people making a "decision" to beget a child, it didn't say that unmarried people could go ahead and do it without getting married first.

John Howard answers the question, What is the reason for states to create a special category for, and reward, opposite-sex marriages between two unrelated persons?

To protect their right to conceive together using their own gametes, which they get when consenting to conceiving with each other's gametes and obligating themselves to each other to the exclusion of others.

Couples that we don't approve of conceiving together are not allowed to marry.

I still think you're only about two-thirds of the way home. After all, unmarried opposite-sex couples still have an ability to conceive, even if they don't have your "right". In fact, I've heard that advances in science could even lead to "same-sex conception". Where would that leave you?

As far as the "obligations to each other", haven't those been largely erased (aside from monetary obligations which resemble little other than the breakup of a business partnership) by courts and legislatures?

Speaking as a total atheist, pro- drug/prostitution/bestiality/polymarriages/whatever legalization proponent I ought to point out that the following is virtually a logical truism.

The state should implement those laws that yield the most moral results

Well of course it should. What it is for one state/action to be more moral than another is just that it is preferable. It doesn't make any sense to say that the state shouldn't seek to maximize moral behavior through it's choice of law.

The liberal (classical usage) consensus that 'morality' is not the proper domain of the law is actually the combination of substantive moral assumptions plus empirical observations. If indeed the fundamentalist muslims are correct about morality and the world then the laws really should be designed to maximize conversion to islam. However, we make fundamental moral assumptions that the harms that result from executing people as a result of changing their religion are worse than the benefits of encouraging people to join the right religion (times the probability that the 'right' religion will be victorious).

Waldo, please -- we've already seen Gallagher's thoughts on SSM, so we don't need them repeated here. But I am really getting tired of people like you and her who assume that marriage is only about procreation and having natural children. It's an insult to anyone who has adopted children, and to any married couple who would like to have children but cannot.

If marriage is about procreation, then make it about procreation. Instead of trying to ban SSM, try passing laws that require only fertile people to be married, and make them promise to have natural children and not adopt. That would be the only way to achieve the society you seem to long for.

And by the way, you don't have any statistics to back up anything that you say. Divorce has not risen in Massachuetts, Spain, Canada, The Netherlands or Belgium, where SSM already exists. Nor we see an increase in out of wedlock births in those countries and not elsewhere.

What I really love about this argument is that there are only a handful of gay couples that are actually getting married anywhere. But somehow, you impune to us such power that we can completely destroy society in only a matter of a few years.

But please, when you get me an actual person who has said, well, since these gays get married, the bond between me and my son is now severed. so even though I love my wife, it's better for me to divorce and just drift around.

It's too late in the day and I'm too tired to read the opinion, but -- Who voted with the majority and when are they up for reelection to the court?

Romeo: "Btw, I'm glad you married your boyfriend. So why won't you let me marry my same-sex sibling?"

Because we assume you are mature enough to understand the difference between familial love and romantic love. If you don't, then you aren't old enough for any sort of marriage.

Query: what do you propose would be the best solution for two gay men who can't get married by law but have adopted children?

OMG, bickering beyond belief! I've only done a quick look at the comments and this whole post should be SHUT DOWN. What are you arguing about? What is the point? While there was a bit of election analysis toward the beginning, this has sunk to an argument that could seriously be just handled over g-chat, but that won't give posters their smug self-satisfaction will it? Not a shred of meaningful analysis. The meaning of marriage? Obligations? Reminds me of 'well, that all depends of what you definition of 'is' is... C'mon, guys. Just one big circle jerk of a comment thread. Give it a rest already.

Robert West: Thanks!

Oh, please, Romeo/Chairm:

Marriage existed before the state (the state in abstract, not California). In some times and places it included same-sex (but never same-gender) pairings, because a strict separation of gender roles was essential to the livelihood of the people.

The state got involved because people asked it to resolve issues of property and inheritance around the marriages they had self-performed within their communities. The state decided that if it was going to be asked to resolve disputes surrounding marriage, it would begin to record those marriages when they were formed. In essence, then, the state started providing special status to marriage contracts because people asked it to.

Later the church got involved, after 11+ centuries of staying out of the game of "sanctifying" marriages--again because people asked it to.

In recent times, the strict gender-role separation and gender hierarchy within marriage has dropped away--so marriage has been essentially de-gendered. Now same-sex couples, rather than marrying as mixed-gender couples by one taking on the gender opposite his/her sex, are marrying as openly same-gender couples. They have asked the state to record these contracts on an equal basis, and California has said yes.

You try to shape others' argument toward your predetermined, but utterly irrelevant conclusion about the "core of the relationship type." Any definition that excludes the same-sex (but mixed gender) couples who have married in the past and excludes the same-sex same-gender couples who are marrying now is incomplete, no matter how tidy.

What sort of Romeo are you that would use such empty sophistry to impose impediments to the marriage of true minds?

So why isn't homosexuality considered only a little immoral? Why is it considered immoral at all? Apparently, your definition of morality is merely what the bible says, correct? If we can safely ignore some of the Commandments such as the 10th, and that one about graven images, then why can't we ignore other, lesser, laws.

Randy R,
I feel like we are going in circles here. Personally, I only consider it a 'little immoral,' and much less so than some of the behavior I see in my hetero friends. But I believe that the majority, on a state by state basis, should be able to dictate what they feel is sufficiently immoral/moral to outlaw/tolerate/celebrate. Who cares whether the people make their moral decisions based on the Bible or the alignment of the stars? The will of the American people is paramount.

When the people say they don't want to allow gay marriage, but want to legalize adultery, I think their priorities are screwed up. But we live in a democratic republic, and the voice of the people is supposed to matter. I do not like when a select handful of lawyers get to override the popular mandate of the people on issues of morality (pun intended).

From the majority opinion:

plaintiffs contend that, properly interpreted, the state constitutional right to marry affords same-sex couples the same rights and benefits — accompanied by the same mutual responsibilities and obligations — as this constitutional right affords to opposite-sex couples

Wrong.

The marriage presumption of paternity, one of the strongest laws in our system, does not apply -- can not apply -- to an all-male nor an all-female arrangement.

Married couples consent to what marriage actgually is. And they consent to the marriage presumption of paternity. This entails both responsiblities and rights -- in terms of the individuals and in terms of the couple as a couple -- that are extrinsic to the one-sex-short combination of individuals.

The plaintiffs were blowing smoke.

however, what's wrong with doing it this way? Mass. ruled that SSM should be legal, even though at the time a majority was against it. Now that they have actually experienced it in their midst, a majority are in favor of it, and a resolution to amend the state constitution failed. So the will of the people prevailed.

Randy R.:
I think MEANS are paramount. The judiciary does not exist to act as parental supervisors, laying down the law for little children because the children don't know any better. I vehemently reject any 'ends justify the means' rationalization. Basically, it smacks of self-righteousness and distrust for the common sense of fellow men, and demonstrates a profound lack of intellectual humility.

But that's if you think basic rights should be controlled by the will of the people. I don't. Basic rights, and marriage is a basic right, should not be subject to the whims of the majority. That's why we have a constitution and not a strict democracy, afterall, to protect the rights of the minorities.

Basic rights are always subject to the whim of the majority. For example, voting is a fundamental right. Neither women nor blacks used to be able to vote. How did they get those rights? By the will of the people, via Amendment. NOT by the decision of four old white guys in robes who decided it was their duty to drag the common folk forward in time.

And if the only reason we are denied rights are because of some belief in a religious tenet, well, that's not good enough.

Okay. So who gets to decide whether someone's rationale is 'good enough'?

There are plenty of examples of biblical morality that made it into our law, only to be struck out later. Interracial marriage is one of them. Should we have waited until Virginia repealed it's ban on such marriages? Mildred Loving would have had to waited a long time for that to happen.

Race based restrictions were directly contemplated by the 14th, which is binding on the states. Virginia lost its sovereign right to ban interracial marriage when the 14th Amendment was enacted. But again, sex based discriminations were not contemplated by the 14th - which is why it took the 19th amendment to give women the right to vote. Of course, under the modern power grab by the judiciary, whatever they want to cram into the 14th is apparently fair game. I completely object to the perversion of the 14th Amendment so far beyond what it was meant to do.

BTW, I'm in a mixed marriage with a Persian woman, which is illegal and punishable by death in Iran. She can never return. I really don't have much sympathy for people who complain that a 'domestic partnership' isn't good enough because it isn't called 'marriage.'

First, as a legal matter, the Court has rewritten the "equal protection clause" so that it no longer protects "persons" but instead protects "couples". Obviously, a law that barred every person from same-sex marriage cannot be said to discriminate between persons.

Of course it can as stated in the opinion (without appealing to "couples"):
"By limiting marriage to opposite-sex couples, the marriage statutes, realistically viewed, operate clearly and directly to impose different treatment on gay individuals because of their sexual orientation. By definition, gay individuals are persons who are sexually attracted to persons of the same sex and thus, if inclined to enter into a marriage relationship, would choose to marry a person of their own sex or gender."

If I look into my heart and ask myself, "has gay marriage in Mass. (or now in California, or anywhere else) done ANYTHING to change my marriage or my attitude about my marriage?"

But be honest, JosephSlater. You know that this is the first step toward compulsory same-sex marriage. Your son won't have the option that you had.

jrose: Under your definition of marriage, can the majority deny civil marriage to the elderly and infertile?

It's not "my" definition, I'm explaining the way it is. so, look at the way it is: elderly and infertile are not denied marriage. Infertility is private and unknowable, society looks at public information and determines if it approves of the concept of children from a couple. Unless they are too closely related, or not both adults, or not oth married, society lets people choose each other. It used to make sure they were the same race, and many societies used to have parents arrange marriage, but now we just let people choose each other.

And there's no age cutoff because elderly naturally lose the ability to conceive as it becomes more unethical for them to conceive, so we haven't had to worry about it. I think what marriage means is that we cannot establish an age cutoff for using IVF, hence we have people becoming parents at higher and higher ages, perhaps not so ethically. It's not the best situation, but we can't have an arbitrary age cutoff, as sometimes it isn't all that ethical for a 25 year old couple to conceive either. But the right to marry and the rights of marriage trump society's right to pry into the private health issues of each couple (but being the same sex is not private and doesn't take any prying). Also, the point of marriage is that it is supposed to be security for life.

Let's be serious.

The procreation argument is, at best, disingenuous. That's why we have John Howard tap dancing on this thread around the idea of forbidding infertile opposite-sex couples from marrying. He called infertility "private and unknowable."

It is most certainly knowable. I could get a fertility test. It is more likely than not that my sperm would be able to fertilize an egg. The same is likely true of my husband. We have two presumably fertile people who are not, however, interfertile. John Howard would say that marriage is not for us, even though he supports it for post-menopausal women.

It's a disingenuous argument. Face it, the people arguing against same-sex marriage would save us a lot of time if they expressed their true feelings and told us that they were against gay people having full civil rights.

The arguments that same-sex marriage will lead to having to permit polygamy or incest are likewise invalid.

Just own up to it. You have no real arguments. Please stop trotting out these disingenuous arguments that are mere rhetorical postures.

But the right to marry and the rights of marriage trump society's right to pry into the private health issues of each couple.

My dad was remarried at age 70 to a post-menopausaul woman. It was public knowledge (no prying needed), they were not going to conceive. Under your* definition of marriage, can the majority deny him civil marriage?

* I do not accpet that your definition is the way it is.

The marriage presumption of paternity, one of the strongest laws in our system, does not apply -- can not apply -- to an all-male nor an all-female arrangement.

Hmm. This might make an interesting test case: A married lesbian couple, and one of the partners becomes pregnant. (Infidelity with a man? Artificial insemination? Doesn't matter.) Other partner says, "Wait a minute, this child isn't mine -- I didn't approve of this conception, and I had no part in it!" What parental obligations would the second woman have in the marriage? What parental obligations would she have if the couple were to divorce?

If you don't think this can happen ... just wait. It will. Humans are predictably troublesome.

I'm reminded of the case in Canada in which two heterosexual men wanted to get married solely for tax purposes. Anyone know how that turned out?

Wouldn't it make sense to explore the possible consequences of "hard cases" before they come to pass, and for legislators to write the laws to take them into account ... rather than risk unpredictable, unacceptable, politically motivated, or just plain bizarre rulings by individual random judges?

I think presumption of paternity is not log for this world, not just because of lesbians choosing when they want to apply it and when they don't, but because soon there will be married men getting home paternity tests and sympathetic judges who release the men form their presumption of paternity when the baby isn't theirs, as well as women who don't want their pending-ex husband to be on the birth certificate. Maybe if we restore adultery and stop sperm donation, we can hang on to presumption of paternity.

John Howard and his one-trick pony:

What it comes down to is that we need to prohibit same-sex conception and the use of modified gametes, in order to preserve the right to use natural gametes and prevent a eugenic commercial commodification of human procreation.

Allowing some people to use artificial means of conception in no way infinges on the right of others to use "natural gametes" or "reproduce naturally."

A blanket ban on same-sex conception and the use of modified gametes is not even close to being the least-invasive method of reaching your stated public policy goal: preventing a eugenic commercial commodification of human procreation.

Allowing some people to use artificial means of conception in no way infinges on the right of others to use "natural gametes" or "reproduce naturally."

All people will feel obligated to use improved gametes if they are offered, even if technically they still have a right to use their substandard natural gametes. And at some point, we might decide that using dangerously substandard natural gametes is so immoral and crazy and unfair to children that we would not think twice about prohibiting their use.

A blanket ban on same-sex conception and the use of modified gametes is not even close to being the least-invasive method of reaching your stated public policy goal: preventing a eugenic commercial commodification of human procreation.

It is the least invasive method, the easiest method, the most effective method, and would have the best effect on society than any other method. What method would you suggest?

Romeo,

Since you're really hot for your bro', I guess I have to answer.

There is a preponderance of evidence that same-sex relationships are not harmful to their participants. Fifty years of evidence says that gay people aren't sick. Yeah, there are people out there who say that homosexuality is harmful, but they don't have any evidence. (Or as the science folk say, "their methodology undermines the credibility of their results.")

There is a preponderance of evidence that incestuous relationships are associated with problematic mental states. The evidence says that incest is not healthy.

(Note: this is my layman's understanding. If anyone on this board wants to look up mental health research, have at it.)

I'm contending that this likelihood of harm is sufficient reason to keep you from doing it. You need to find a relationship that is not likely to be psychologically harmful.

What have I left you to choose from? Well, all the single people you're not related to. I won't even flinch if instead of your brother you choose a first cousin. Fine by me. (But not brother, father, uncle, nephew, or grandfather, even if they're currently single.)

And you can choose one. One per customer. That seems fair. If you must have variety, you can do this in serial fashion (however, don't ask me to share the costs of your divorces).

The opponents of same-sex marriage aren't content with dismissing a small crowd of people from my eligible pool. The Maggie Gallaghers of the world would either have me in a loveless marriage with a woman (are you single, Maggie, because making your live a living hell in a sham, loveless, sexless marriage has a great deal of appeal) or...

Well, some (so-called) conservatives seem to have no problem with me just shacking up. Let me get this clear: opposite-sex couples who want to live together ought to get married, and same-sex couples who want to live together ought not. Yeah, I think I got that, um, straight.

Short a sham, loveless marriage, I am being offered the inability to marry anyone. Choice of no married partner.

Other posters have already discounted the importance of love in marriage (that what we want: lots of miserable, loveless marriages, yeah!), but but opposite-sex couples may choose to marry for love. (And the smart ones do.) This is the same option that people with same-sex partners must have as part of a free and equal society.

There was just one man I wanted to marry, and he wanted to marry me. And our life is remarkably like those of our heterosexual peers.

It harms no one else's marriage. It is irrelevant to other people's religious practices And as I said before, all the claims of the importance of procreation or the slippery slope in letting people who doing something perfectly legal marry are all smoke screens.

You want marriages to object to. Look at West Virginia. That's a state where a man over the age of 18 can impregnate a 14-year old girl and escape the statutory rape penalties if he marries her. West Virginia will not let two consenting gay men marry, but the pedophilia laws have a loophole.

So let's be serious. There are no rational objections to same-sex marriage. Just the expression of bigotry.

John Howard:

In every other area of life--prohibition of alcohol being the most prominent--an outright ban has been the most invasive and least effective way of limiting the desired behavior. It leads to underground markets, inferior and dangerous practices, international smuggling and the involvement of organized crime elements and limits the options for legitimate medical treatment to solve problems (and social support to deal with problems) if the procedure goes badly. People banned from doing it here would fly to Europe or Asia, or drive to Mexico or South America, with the aggregate differing results in outcome that would entail.

More effective: Prohibiting Medicare coverage (and coverage within any future Universal Health Care system) either entirely or for those who are able to conceive naturally (most insurance companies would follow suit) and taxing the procedure heavily.

That you think a Gattaca world is a likely outcome of permitting science and medicine to move forward on this suggests that you read/watch too much dystopian fiction--although even some of that warns of the dangers of banning the process (e.g., The 1996 Outer Limits episode
"Unnatural Selection" emphasizes the dangers in a world where the technology exists but is banned and thus happens illegally and underground).

But enough: Your personal obsession on this issue has taken us far afield from same-sex marriage, and I won't comment on this topic any further in this forum.

Nah, being allowed to conceive together is central to marriage, the essential right, found in every marriage throughout history. All the "incidents" are far afield, like visiting in the hospital, inheritance, love, etc.

GE is different from alcohol, because it isn't something that people can sneak around and do. Banning it now will stop it from being developed to the point where someone can do it in their backyard, it'll even prevent people from developing it in other countries. Most other countries already have banned it. We'd have to do sting operations and watch the ads for companies offering genetic enhancement and same-sx conception, but if the penalites were high enough, labs would comply. And if we punished couples that returned from a trip to some country that allowed it, couples wouldn't risk going there.

If you think genetic engineering and same-sex conception would be a good thing, then of course you would object to a ban. But don't pretend it is unrelated to SSM, you have to either oppose both or support both.

Taxing it won't stop it, and what is more likely is that taxes will subsidize it, because it shouldn't be available only to the rich, it would be available (read, forced on) to people with genetic problems so their children would benefit from it.

Oh, and by the way, John Howard, I'm not looking for some presumed right to procreate with my husband. I mean, now we're in territory from The Life of Brian.

I know I can't procreate with my husband. But as I noted above, the link between marriage and procreation is your own invention (okay, others have used the argument as well).

Gay men don't need to know that much about procreation, but I do know that it happens outside of wedlock (I've said this before) and we allow infertile heterosexuals to marry (something you have no objection to).

I don't want to procreate with my husband. It's not even possible.

Through marriage, however, I am his closet kin. I want the state to recognize that. That's all.

Wooga,

You couldn't be more wrong. The drafters of the 14th Amendment stated the following as a matter of public record, not secret intent. For instance, the Illinois Republican Senator Lyman Trumbull -- the drafter and manager of the 14th Amendment -- stated: "If the negro is denied the right to marry a white person, [and] the white person is equally denied the right to marry the negro[,] I see no discrimination against either."

If you are arguing original meaning of the "text" and not "intent" then I'll remind you that the TEXT says NOTHING about RACE. The text simply provides a very abstract principle of "equal protection" which is ambiguous on all sorts of categories, including race, gender or sexual orientation. In order to get RACE you have to get to INTENT. And the INTENT of the 14th Amendment clearly preserved the constitutionality of miscegenation bans.

John D: Civil Unions should be defined as being exactly like marriage and giving all the rights of marriage except the right to conceive together. Those CU's would fly because they aren't marriage with a different name, they could be recognized by the federal gov't and all 50 states. Major progress could be made for couples like you. you could still use the word husband and marriage, it would only be the fine print on the document that noted that it was a CU not a marriage, but by doing that it wouldn't threaten everyone's conception rights.

John: " And here's my point: I am really getting tired of what happened to one of my students, whose wife decided to leave him and their 4-yr old daughter because she found new "love". That's why men need to be practical."

And please ask her if her decision was in any way influenced by the fact that some gay people get married in Massachusetts.

John Howard,

I'm not saying that people don't have reproductive rights. They certainly do and it might even be amusing or instructive to enumerate and discuss them.

What I am saying is that reproductive rights are not tied to marriage.

Yes, everyone in a marriage has reproductive rights. They also have various other rights. These rights derive not from their married state from from their personhood.

Certainly there should never be a law preventing people from procreating. Nor, for that matter should there be a law compelling people to procreate. And a right to engage in sex doesn't necessarily confer the ability to procreate. As you are well aware, some heterosexuals are infertile (yet you allow them to marry, as they should be entitled, since fertility is not a requirement for marriage).

I haven't read the Loving, Skinner, or Zablocki opinions (in fact, I'll admit that of your four, I am familiar only with Loving and Lawrence). Certainly the Lawrence decision didn't suggest that same-sex couples have a right to procreation. Adults certainly have the right to engage in non-reproductive sexual acts (this was the Lawrence decision), with same- or opposite-sex partners. No, I cannot accept that Lawrence affirmed a right to a couple to conceive. It is facetious in the extreme.

And there is no affirmed right to conceive. Remember those infertile couples? If they had a right to conceive, we would all be paying for their fertility treatments (which you seem to view as a dangerous tampering with nature).

People have a right to conduct adult sexual activity as they see fit. If they choose to and are able to conceive, that is part of their rights as adults.

you are asserting that a marriage does not have a right to conceive

Actually, marriages have no rights at all. They are not persons in any sense. Married individuals have certain rights. And, since everything with you gets back to procreation, yes, people have a right to procreate, if they so choose. Married or not. We do not jail unwed mothers.

Finally, I dismissed as absurd the notion that same-sex couples have a right to conceive. It's still absurd.

I grant that the members of same-sex couples are not interfertile. This puts them in the same class as other individuals who cannot combine gametes with their partners (the infertile, the post-menopausal).

Since you are fond of hyperbole, I might as well try it myself.

Linking marriage to procreation will lead us to a fascist regime in which women are stripped of rights to serve as baby machines and the infertile forbidden to share in society as they as ostracized as unfit. The fertility police will impose draconian punishments on those who even contemplate contraception.

Yeah, that does sound like you.

Let me say this one last time.

We do not require people who wish to be married to prove their fertility or desire to have children. Procreation has nothing to do with marriage and can be accomplished without marriages. Likewise, valid marriages can happen without procreation.

Hereafter, I am writing you off a troll. Since you do not pay any attention to rebuttals and write utter nonsense, it's time for me to step away from the keyboard, since it's clear it's easy to start sounding like you.

Jon Rowe,
The ERA in the 70s was sold to most people as a women's rights deal, and I'm sure there are plenty of statements on the Congressional record (which, by the way, is no better than 'secret intent' - because Congressmen frequently spout political BS that they very well know is not consistent with how they are voting on a given bill) which said the ERA would not grant a right to SSM. However, SSM was a widely debated potential ramification of the ERA. If SCOTUS said 20 years later, "Guess what suckers, you passed SSM 20 years ago without realizing it"... I would take the same position I take now on Loving/14th.

What matters is the original understanding of the text. In the 70s, much of congress believed that the ERA would preserve bans on SSM. But it was widely understood at the time that a legitimate legal argument could be made that the ERA would legalize SSM. Certainly, it was widely expected that some judge somewhere would rule as such, and the issue would need to be settled in the courts.

Likewise, the 14th Amendment was obviously intended by many to leave anti-miscegenation laws in place. Much of Congress undoubtedly thought it would. But it was widely understood, at the time of passage, that there was a legitimate legal argument that the 14th outlawed anti-miscegenation laws, and the matter would ultimately need to be settled in the courts. There was ZERO understanding, at the time of passage, that the 14th would legalize SSM.

And that's what matters under the dominant strain of Originalism - the original understanding of the text by the people at the time of ratification. Not the original intent of the drafter, and not textualism. If the original understanding contemplated judicial resolution of a controversial ramification, then it is totally within the bounds of SCOTUS to resolve it in either direction.

And the INTENT of the 14th Amendment clearly preserved the constitutionality of miscegenation bans

I learned early in practice that "clearly" means anything but. I.e., the use of "clearly" is short hand for "I can't articulate a conclusive argument that the counter-position is false." I know you HAVE made a viable counter-argument - I admit that and thank you for challenging me and forcing me to clarify/refine my position - always a good thing. But "clearly" is clearly an overstatement.

jrowe, I'm looking at the actual science and thinking about how use of modified gametes will affect society. Public policy should certainly be driven by considering the impact of real technologies and applications. Whether or not to allow genetic modification and same-sex conception, or preserve natural conception for all people so that all people are created equal, is a public policy question.

It will be impossible to determine the legal status of allowing same-sex conception independently of marriage. Merely suggesting it strips the protection of conception rights from all marriages, implying that a marriage of a man and a woman also has a dubiously secure right to have genetic offspring. That is a terrible effect of everyone's arriage, just to pretend that same-sex couples have the same rights.

Up until now, every marriage has had a right to attempt to conceive children together using their own genes. The idea that a couple could marry but not be allowed to attempt to cocceive together was non-sensical, it never even occurred to anyone until lately. It is incredibly dangerous in light of the new eugenic practices of sperm donors and egg donors, it could easily mean that people could be prohibited from using their own genes and forced to use "better" ones.

You guys don't realize how dangerous your playtime is getting.

Sterile man and old woman can marry because everyone is allowed to marry. They are allowed to attempt to conceive together (these days they are psuedo-allowed to attempt to conceive together without marriage, but once married, they are certainly allowed). THEY ARE NOT PROHIBITED FROM CONCEIVING TOGETHER. That's in caps so you get that it is important to my point and respond to it. Do you get it? They are allowed to try. Same-sex couples should not be allowed to try. People should be PROHIBITED from attempting to conceive with someone of their same sex. That's different from an old couple or a sterile couple - they are allowed to try, their conception should not be prohibited.

And it is not a false assertion that up until and including now, every marriage has had a right to conceive together. It is a false assertion that there has ever been a marriage that has not had the right to conceive together. Find me one single marriage that has been publicly prohibited by a law from conceiving together - even sterile cousin marriages, inmate marriages, ghost marriages, none of them were prohibited from conceiving using their own gametes by a law. Rather they were all allowed to (someday) attempt to conceive together, society approved of the CONCEPT of children from them. Same-sex couples should be publicly prohibited together by a law, they should not be allowed to attempt to create children that are biological offspring, they should not be allowed to mix their genes.

There IS a move to force unfit people not to have children, and you should be on my side. You should affirm that everyone has a right to marry, and every marriage should be allowed to use its own gametes to have children. If you don't affirm that, then you are not on the side of preserving conception rights.

Now the precedent is set to have groups other than gay people obligated to choose "civil union" instead of "marriage" (by your definition of a committed partnership with a right to combine genetic material).

This is a good question, it shows you've been thinking. No one would be obligated to enter into a CU instead of a marriage. Everyone would retain the basic civil right to marry (even you). But just as no one has a right to marry their sibling, no one should have a right to marry someone of their same sex. But all couples, including siblings and same-sex couples, would be eligible for CU's. They wouldn't give the couple the right to possibly conceive (and therefore, they wouldn't give the right to have intercourse), but they'd give all the other rights.

The pool of people one is allowed to marry should remain as it is today, it is determined by public information and certain public relations are prohibited. These are the "supportable basis" mentioned in Loving. You are right to be concerned about invasive genetic tests and private information being used to determine a right to conceive. Private individual health information, such as genetics, fitness, intelligence, or relations based on race or invidious discrimination - these things should not ever used to limit conception rights or marriage. This was established in Loving. But the best way to protect the right of every one to use their own genes is to use the existing protection of marriage, and to protect the existing protections of marriage. Not to suggest that marriages don't have a right to use their own gametes (duh!). It would be real obvious that something bad was happening if a doctor said that Sally and Bob's marriage should be dissolved and turned into a CU because of genetic traits of one or both of them. That would be a public red flag that an invasion of privacy was going on. It would be a lot less obvious if the doctor gently and secretly persuaded them to use a "better" substitute gamete and they remained publicly married as if nothing happened. In fact, that goes on today, a proto-Gattaca situation is happening right now.

If government tried to force any couple that used to be able to marry to get a CU because they shouldn't have conception rights, it would be real obvious, and wouldn't stand, there'd be an outcry. But if they merely strip conception rights from marriage and use "Liberal Eugenics" to make people choose eugenic outcomes, that would slip through unnoticed (indeed it is).

We need to protect the right of every marriage to conceive with the marriage's own gametes, and we need to protect the right of every person to marry, and we need to prohibit the use of modified gametes.

And if your rights with a man are different than your rights with a woman, that should be simply acknowledged with a different legal name for the official recognition of that relationship. That is the corollary of this California decision.

Until you admit that you shouldn't have the same rights with a man that you should have with a woman, and that that right in question is central and essential to the historical legal meaning of every marriage throughout history, you are seriously messing things up for everyone.

John Howard,

(Why am I doing this?)

You should affirm that everyone has a right to marry

I do affirm this. You, on the other hand, seem to feel that horrible things will happen if the rights of individuals to marry someone of the same sex is recognized by the law.

To echo JRose, and repeat what I've been saying,

People have and retain the rights to attempt to conceive children using their own genes. It has no relevance to marriage.

Please stop conflating these questions of reproductive rights (which even the unmarried have) with the right to marry.

no not every couple has a right to conceive together. Siblings (incest), people married to someone else (adultery), children (statutory rape), for a long time different races (miscegenation) - were not allowed to conceive, and therefore not allowed to marry.

None of those are denied marriage because of prohibitions against conception.

That is precisely why they are denied marriage

If that were true, then the infertile in any of your examples would be able to marry. Yet of course, these marriages are (or were) prohibited even for the infertile.

No, because the right to conceive has nothing to do with the ability to, or not to

That statement has no relevance to my point which was why don't we allow two siblings who prove through medical tests they are infertile (it's not private) to marry?

What do mean infertility is not private? Of course it is. Geez, look at how much must be pulled down to the ground to make things equal for same-sex couples. Now you want everyone's medical records public? You want to be able to know who is infertile and who isn't, just because we know that same-sex couples are the same sex?

John Howard,

(Why am I feeding the troll?)

What do mean infertility is not private?

Um... I was rebutting your repeated contention that infertility is "private and unknowable." Yeah, it's private. It's just not unknowable.

Of course, in regard to marriage, it's not worth knowing either. With the exception of the one state that allows first cousins to marry if the woman is post-menopausal (and of course recognizes the marriages of first cousins who travel to the next state over where it's legal), couples aren't asked to furnish the results of a fertility test in order to get married.

I'm going to say this again, even though my repetition in the chorus here has no effect on you.

Fertility has nothing to do with marriage.

Infertile couples may marry. Couples may take measures to prevent pregnancy (Griswold, remember). There in no link between marriage and procreation except in your mind and an opinion that was designed to bar same-sex couples from marrying.

It is one of the shoddiest arguments against same-sex marriage, because no one is ever going to compel opposite-sex couples to procreate or separate. Yet if marriage is for procreation, we should withdraw it from those free riders who refuse to procreate.

Incest is illegal and likely to stay that way. The preponderance of evidence shows that incest causes severe emotional trauma. Even on a site that tends libertarian, I think I'll find support for preventing people from hurting others in that way.

Homosexuality is legal and likely to stay that way. The preponderance of evidence shows that gay people are psychologically healthy and long-term stable adult relationships are good for gay people (just as they are for straight people).

The procreation argument cannot be applied to same-sex marriage. The California Supreme Court has rightly dismissed it. The plaintiffs even argued that marriage equality would enhance privacy rights.

Face it, you (and the other opponents) don't have an argument against same-sex marriage.

John D, right, fertility has nothing to do with marriage. That's what I just got through telling jrose. A marriage is about the mere concept of children, from a conceptual poit of view. They don't have to actually be brought to life. If the concept of children is ethical, if society approves of a couple having children, then they can get married. If society doesn't approve in principle of the concept of two people having children, it doesn't let them marry. (Though society also strongly considers it a right to marry the person you love even if a particular marriage is not approved of, like when a 80 year old millionaire marries as 18 year-old hooters waitress, or a teacher marries her former student when he turns 18 - there has to be a supportable basis that isn't animus or racism and it has to apply to everyone equally).

You both are still avoiding the main issue: I am saying that people should not have the same rights with a woman that they have with a man. No one should have a right to conceive with someone of their same sex. This comes before the question of marriage. Marriage only comes into play because we shouldn't allow marriage to be stripped of its protectino of the right to attempt to conceive. All marriages should be allowed to conceive, no marriage should be publcly prohibited from conceiving. Same-sex couples should be publicly prohibited from conceiving.

Why do you insist on the right to conceive with someone of the same sex? It insults adoptive and blended families, and developing it wastes so much money and puts kids at extreme risk, and is cruel to animals used in experiments. It is totaly unnecessary and shoudl not be allowed. Do you guys agree, or do you insist that it be developed and insist that people be allowed to conceive with someone of their same sex? Forget marriage, just answer that.

Okay, I shouldn't say this, but, I think everyone should have equal access to reproductive technologies. I am against a law that would forbid anyone from using technological assistance to procreate.

If that means that some day some egotistical individual is going to raise a clone, so be it. I feel sorry for the clone already (I mean, many parents today try to mold their children in their own image, imagine what happens to a clone).

Single individuals who want assistance, from surrogate mothers to sperm donors are also fine.

And all this is certainly true for couples, opposite-sex or same-sex.

Yeah, if I felt compelled to raise a child (but I don't and I admit to being selfish), I would adopt and not spend tens or hundreds of thousands of dollars to ensure a child that was genetically related to me. I do not, however, have the right to make that decision for other people.

John Howard, your views are fascist and seek to prevent people from raising children. I suspect your real objections is based on the idea that gay people are not interfertile, and that alone.

If people want to bring a child into the world to love and cherish and to raise to be a good member of humanity, I say "cheers!"

So, I'm finally going to rebut you. If the technologies arise that would allow two men or two women to have a child genetically related to both members of the couple, I say that they have a right to go for it. (I still think they should look into adoption, but they get to make the final decision.)

Your civil unions, as I've argued before, are actually a step to reproductive fascism, giving up control of one's reproductive rights. Your motivation seems to be an animus toward gay people. And that's it.

I am certain that no argument will convince you, because you are troll. Your goal here is to ignore or twist any rebuttal and return to your theme that same-sex marriage will lead to disaster, therefore gay people must be locked into being second-class citizens.

You are wrong. The evil here is that opponents to gay rights will lock gay people into being second-class citizens and destroy liberty in the process.

I'm a civil libertarian. If the government is going to restrict rights, it needs a damn good reason. As a result, I am willing to fight for people to have the right to do things of which I would not approve.

In the case of same-sex marriage, I thoroughly approve. There are no rational reasons for restrictions on same-sex marriage. Your arguments are (as other posters have concurred) irrational in the extreme.

You have conceded, it seems, the marriage has nothing to do with fertility. It also has nothing to do with children.

During the whole Anna Nicole Smith case, I thought, "she's a drugged-out gold digger. But the old fool did marry her and she gets his estate." And that's what marriage is all about. Getting to choose your closest kin. After all, Anna Nicole didn't have a child until long after Marshall died.