Nine years after it became the first state to approve civil unions, Vermont becomes the first state to enact gay marriage legislatively. With just one vote to spare, the Vermont state legislature has overridden the governor's veto of a gay marriage bill. The state house voted 100-49 and the state senate voted 23-5. You can find a roll call for the override vote in the state house here. I previously wrote about the significance of this development here.
The text of the house bill is here. It reads, in part:
Sec. 3. 15 V.S.A. § 8 is amended to read:
§ 8. MARRIAGE DEFINITION
Marriage is the legally recognized union of
one man and one womantwo people. Gender-specific terms relating to the marital relationship or familial relationships, including without limitation “spouse,” “family,” “marriage,” “immediate family,” “dependent,” “next of kin,” “bride,” “groom,” “husband,” “wife,” “widow,” and “widower,” shall be construed to be gender-neutral for all purposes throughout the law, whether in the context of statute, administrative or court rule, policy, common law, or any other source of civil law.
Italics indicate added languague.
Getting two-thirds of each house of the state legislature to approve gay marriage is a much more impressive feat, in my view, than getting even a unanimous vote from a state supreme court, as occurred in Iowa just four days ago. Congratulations to the Vermont Freedom to Marry Task Force and everyone in the state who spent the last nine years organizing, raising money, and lobbying legislators first to defend the state's civil unions and then to push for full marriage.
The marriages start on September 1.
Related Posts (on one page):
- Gay marriage, by legislature, in Vermont:
- SSM advances in Vermont legislature:
On the other hand, I have a major problem with courts creating "rights" out of the whole cloth, like the Iowa Supreme Court just did.
The former shows respect for the people and our democratic process. The latter does not.
We now have four states that allow SSM: MA, CT, Vermont and Iowa. The more people see that nothing had changed once gays get married, despite the apocolyptic pronouncements of some, the more support it will garner.
Legalizing it through legislative action may take longer, but in the long run, it will have far more staying power, and infinitely more legitimacy, even in the eyes of people who oppose SSM. That's my hope, at least.
All they're doing is replacing one restriction ("one man and one woman") with another restriction ("two people").
I want to marry 5 women and one man, where are my full marital rights???!?
There is no rational basis by Vermont for limiting the definition of "marriage" to two people. I and those like me are tired of being told we can't share in the same loving relationships that others can.
I look forward to hearing from lawyers interested in representing me in my suit.
OTOH, interesting how VT has no ballot initiative process to override this.
I am tired of hearing this with no citations. How, exactly, was this out of whole cloth given the general tradition of Iowa Constitutional Law as providing a strong presumption that bans on, say, women practising are unconstitutional?
ISTM that the Iowa Supreme Court was faithfully applying their own precedents, and the slippery slope that started with ruling that slavery was in violation of their Constitution and continued with decisions that women must be admitted to law school has resulted in gay marriage being legalized.
I think the question regarding Prop 8 and the CA Constitution will be an interesting one. The question to my mind isn't just what the court will rule but the reasoning and tests articulated. The ruling either way will be transitory as most political models suggest that Prop 8 will be repealed sooner or later.
However, the reasoning the court implies will be with Californians forever.
Your sarcasm aside, I wouldn't be amazed if it did turn out that children do better with more, rather than fewer, adults in the home. Plenty of people have been raised in homes where grandparents and other relatives lived, along with their parents.
The states have been in the Marriage business ever since religious groups figured out that it was another aspect of religion they could push into the government, however unlike blue laws in the south, they've now found that by tying marriage to a secular entity (government) Marriage has become co-opted and secularized. I've got sympathy for their loss, but because they opted for the short term gain of having Marriage institutionalized, they're now going to pay a long term price, having Marriage defined as a secular term.
I'm sure they could try to pull Marriage out of any legal term and define 'civil unions' for everyone who wishes to enter into a contract with each other. Make marriage a religious only ceremony. Just a thought.
In many states, divorce can occur basically by the judiciary rubber-stamping a private contract, but this may be subject to waiting periods. For example, in Washington State, the period would be 3 months.
I think the state can have a say in the process though in the sense that state benefits really might be best reserved for folks trying in good faith to build a life together.
Funny story though... In Njal's Saga, there is an incident where a married man is caught flirting publically with a young woman (who he just met, not really an affair in the normal sense), an is chastised publically by his wife. His response is to immediately divorce her and ask the other girl's father (that same day) for permission to marry her. THe father's response is classic, "I am not sure that is a good idea. After all you haven't taken leave of your wife for very long...."
Probably because they didn't find that any restrictions on marriage are unconstitutional, and claimed arbitrarily concluded that one man, one woman definitions of marriage are of no interest to the state (when they obviously are).
Completely agree. The only issue becomes what happens when polygamy becomes normalized and you have a surplus of unmarried men.
However, I am fundamentally in favor of bringing grandparents into the home when they start to need modest assistance. Gives them social contact, mental and physical activity, and keep an eye on them for medical care.
You two are perfectly within your rights to start your crusades to marry "5 women and one man," in Rpche's case, and marry two other people (sex unspecified, "wink-wink") in Terrivus' case. I don't think anyone will stop you from giving it a go in court or petitioning your legislators. Of course, you'll have to actually sign your real name to something, and not hide behind your internet names. Oh, and you'll have to actually find real people that would want to marry you, not made-up people that you trot out to make your lame, non-existent point. And money, of course. Perhaps you can start by coming forward to the congregations of whatever church denominations you belong to, because we know how tolerant and supportive they are. Good luck. You should blog about it.
Actually, I wasn't being completely sarcastic. Whether because of an increased total household income, or an increased number of caregivers, or other similar metrics, there are almost certainly data showing that those raised in multiple-person homes do just as well, if not better, than those raised in two-person homes (and certainly one-person).
My point was that proponents of gay marriage have advanced the (almost certainly correct) argument that children raised in homes with gay parents are no worse off than children raised in homes with mixed-sex or single parents, and that this argument has been used to refute claims that the state has a rational basis for distinguishing mixed-sex from same-sex marriage.
So if the same data holds true for multiple-parent households, what are the arguments against marriages of more than two people? What's the state's rational basis for so restricting the definition of marriage?
i've learned that whenever someone says this what they really mean is "i wish it were obvious because i have no good arguments and/or arguments prove the other side but i refuse to change my opinion"
translation: i haven't seen it and haven't bothered to look it up but i'm going to say it exists because i have no point otherwise
Umm..... How does the Iowa decision fit into Iowa judicial tradition regarding slavery, women's admission to law school (25 years before SCOTUS upheld a ban on another state for women in the field of law), and the like?
Seems to me that the slippery slope involved here had nothing to do with gay rights and had to do more with womens' rights.
The horrific judges in Iowa ought to take note.
(PS - yes, the number "two" ought to be removed from this law.)
You need people to make up the next generation of workers. You need to create need. That's a big part of the reason heterosexual couples receive benefits, and other de facto couples do not.
That is an interest to the state. I don't know that it's an interest to the state for gays to feel good about being recognized as being the same as heterosexual couples, when they're not. Of course, you'll likely come up with some lame horse manure liberal newspeak answer, but...you know. The fact that you love someone isn't reason enough to bestow marital benefits. It's obvious because there are still other restrictions on marriage besides gender composition.
Not sure I understand your post. How is it a "lame, non-existent point" to ask how there is a rational basis for the state's limiting the definition of "marriage" to two people? That would seem to be quite a relevant question of constitutional law -- one that will be extraordinarily pertinent as courts and legislatures continue to grapple with this issue.
I could honestly care less about the SSM debate. But as a litigator, I appreciate good arguments and disdain bad ones and relish inquiry into difficult legal questions, instead of just leaving them hanging for another day.
So instead of offering a non sequitur, perhaps you could brush the chip off your shoulder, act like a lawyer (if you are one), and offer a basis for distinguishing two-person marriages from multiple-person ones. Or maybe another commenter -- one clearly more versed in the law than yourself, who obviously only cares about results -- could chime in.
IOW, you find lots of indirect evidence but no direct evidence to support your main point.
However, let me be the first to say that when my eldest son was born, we spent 2 months with my parents-in-law and then another two months with my parents. At least from a parent's perspective, that was really, really helpful.
Bring grandparents back into the home!
...which would make their ruling even more fatuous than it initially seemed.
They based their decision not just on their state constitution, but on the 14A and the federal EPC. When was the EPC used to say that gender restrictions on marriage are unconstitutional, federally speaking? Or better yet, when was the state's EPC used to strike down non-criminal statutes on marriage prior to their decision last Friday?
Having justices try to discern where History is going and following it is Progressive judicial activism at its worst.
Why? Because you say so? If the Iowa Constitution's EP clause is broad enough to include laws that discriminate on the basis of sexual orientation, why in the world wouldn't the Iowa Supreme Court be the appropriate institution to say so? Are courts competent to rule on things like racial discrimination or Second Amendment rights but incompetent to rule on claims of discrimination on the basis of sexual orientation? Without Brown v. Board of Education, how long would it have taken the legislatures of the Old Confederate states to decide that racial segregation is inherently unequal? Maybe they never would have. Without Heller, how long would it have taken the DC council to decide that there is an individual right to bear arms? Probably they never would have. Some people think court decisions are just fine when they approve of the results, but outrageous when they don't. That is a fallacious way of deciding the validity of courts decisions. It's called results-based reasoning.
I wouldn't call the VT veto heroic, but beyond that, uh, the CA state supreme court did want to come down on you guys' side of history. They just got their hands slapped when it came to the people voting on it. It's funny how the Prop 8 issue was about how to amend the constitution instead of whether the people should be able to, and now that seems to be irrelevant if some people dislike the amendment.
IANAL, but here would be my argument:
1) Multiple person marriages pose legal problems not inherent in single marriages. These include questions of who gets power of attorney, inheritance rights, etc. These relationships are fundamentally differently situated relative to the legal rights granted from marriage. Some of these issues could be sorted out by the courts (for example inheritance matters), but some of them are quite a bit more complex. For example, if you have two wives, and you are seriously ill (and incapacitated) at the hospital and your wives disagree on what medical treatment you would want, who gets to decide? While one might argue that in this case, 2-person marriages are indistinguishable from 4-person marriages (in the sense that the other three could vote), and 4 person marriages are indistinguishable from 3 person marriages as a matter of principle, this would lead to a slippery slope with extremely messy questions. The state, and the courts, have an interest in forestalling endless litigation and the court should not venture into this area. If the legislature wants to enact legislation on the matter, however, they are free to do so.
2) There are fundamental questions regarding multiple marriages which the court would have to decide which could be quite complex and lead to unpredictable results. For example, if a man has two wives and dies, are the wives now in a same-sex marriage? These sorts of questions would require the courts to act more like legislators than like judges. Simply striking down a ban would be problematic because it would saddle the court with further decisions which are outside the court's normal power. This is not the case with simply striking down prohibitions on de facto polygamy provided that legal benefits and status are not at issue.
The issues here boil down to the fact that legislatures are better able to tackle the questions involved in legalizing polygamous marriages. Courts lack the resources and appropriate process for making many of the appropriate decisions and if they try, they will make a mess of things. None of these considerations apply to 2-person marriages where the extension of benefits does not pose profound legal problems regarding the structure of the relationship and the legal status of the partners.
Quite the contrary. It is the duty of the courts in the American constitutional system to enforce fundamental rights when all other agencies of government are denying them. They are the guardians of liberty as stated in the state and federal constitutions. When they do this, looking not only backward but forward, they are upholding their highest duties. Those who are on the wrong side of history don't like it. Orval Faubus, George Wallace, James Eastland, and David Duke are cases in point. Thurmond was originally on the wrong side of history. He switched sides and won a measure of honor in his old age.
And where's the consensus that gay marriage is a right?
The argument being put forth, I think, fundamentally misunderstands California's political system, which is based on the notion that the people are the ultimate source of sovereign power, and that it should be easy for us to amend the constitution and change the law (ultimately because we can't trust the legislature to not be captured by special interests).
I think the way the people used our power in November was bad, as it often is; but if you take away our power, California's system of government will fall apart.
einhverfr did a fairly good job of demolishing the procreation argument on this thread yesterday.
Of course, you'll likely come up with some lame horse manure liberal newspeak answer,
ah i see. my initial assumption was right. your going to believe whatever you want because it "obvious" to you that you are right. to those of us not living in the land of the hacks, it's not so obvious.
Would love to hear Professor Carpenter's views on this same question.
Not quite. The Iowa Constitutional law tradition generally holds:
1) The equality guarantee is SIMILAR TO the Federal EPC in structure of inquiry.
2) The equality guarantee is STRONGER THAN the Federal EPC in effect.
3) The equality guarantee meets the State's obligations under the Federal EPC, based on 1 and 2 above.
This is fairly similar to the case in Massachusetts except with additional discussion as to what the equality guarantee requires in Iowa.
The points on #2 above are actually quite interesting. They include:
1) Ruling that slavery was in violation of a similar clause PRIOR TO Dred Scott.
2) Ruling that this specific clause required the admission of women to law school at a time when it was settled law that the Federal EPC did not.
The idea that the Equality guarantee in Iowa is forward looking which is fundamentally different than the federal EPC.
What, in your mind, is wrong with Iowa having a stronger guarantee of equality than the US Constitution requires? How would that be different than Washington having a stronger Right to Keep and Bear Arms than the 2nd Amendment requires?
I think you are missing the word "further" in there somewhere.
Why are you picking on the Old Confederacy? In 1980, I was living in the only racially integrated neighborhood in Saginaw Michigan. Last I checked Michigan was a part of the Union.... The fact is that segregation was the norm in major parts of both the North and the South prior to Brown.
Read "Medieval Iceland" by Jesse Bjock for a very different view of the context. Bjock suggests that the godhar were basically at their root attorneys who handled arbitration and litigation, and held power together through this process involving their bondi (armed followers, thingmen, jurers).
His view of Icelandic law is quite interesting and based on sagas like Njal's Saga, the Eyrbiggya Saga, and the Gragas.
I have argued that this was a rational basis in the past, at a time when the INS was established to help facilitate immigration and bring people to our country to help fill the ranks of workers we so badly needed.
However today, procreation interests are heavily divorced from marriage, pardon the pun, and this is both by judicial and legislative action. We don't distinguish between wed and unwed parents for the purpose of tax credits. Immigration policy has been tightened to the point that it creates a huge black market for immigrant labor. So we have the welfare system backed by legislative fiat, decisions like Griswold backed by arguments of Constitutional law, and so forth. The society has changed to the point where this is the ONLY tie between these issues and these interests are FUNDAMENTALLY undermined elsewhere in public policy.
yes, of course, because anything that treats gays as people is just 'lame horse manure.'
It may seem strange to you, but there are a lot of people who actually do believe that gay couples should be treated equally by the law to straight couples. And their number is growing.
But just to throw in one argument, the state has an interest in making sure that children have married parents, an argument even you will have to agree with a solid one. Since there are thousands of gay couples with children, then you will have to agree the state has an interest in making sure those children have the stability of married parents. Is that argument just lame horse manure to you?
I don't think this is a matter of social decay or progress just a shift in social relationships regarding family matters.
If it really is a special right, then opponents should be able to petition the court in Iowa, Mass, CT, or Vermont to either a) apply the special right to straights under the EP clause, or b) strike it down as unconstitutional on the basis that it benefits only gays, not straights.
I will be anxiously awaiting the pleadings!
What do criminal incest laws have to do with legislative recognition of same sex marriage? Also, what difference does it make whether the incest laws apply to "gay couples" or "straight couples"?
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The advocates of homosexual marriage were prescient, and anticipated this. Some men will have harems of women, others will have harems of men.
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IOW, there can be no such thing as a "surplus of unmarried men." Marriage is and would be available to all -- in fact, now with even more options.
And I think it'd be pretty clear we can't, for EP purposes, restrict polygamous marriages to require that they only involve someone of one gender marrying two or more of the other gender. So the "traditional" model of polygamy isn't possible.
Anyone claiming polygamous marriage is a legitimate issue is being pointlessly absurd.
Ok, that was a public policy objection. However, here is a more fundamental legal objection tied to that:
Who must consent to multiple marriage? If polygamy is legalized, can my wife object to me taking another wife? Could I object to her taking another husband? If one of us dies, does the rest of the unit stay married together?
Now, it seems to me that if both parties are allowed to object, that real polygamy would continue to be extremely rare. However, in most cultures that allow polygamy:
1) It is only one husband with many wives and
2) It is often the extended family's decision.
Now, I am not fundamentally opposed to legalizing polygamy, but I think it is a VERY DIFFERENT issue from SSM. In fact SSM can safely be legalized by the courts, but polygamy raises a huge morass of issues which the courts really should not venture into. See my previous post. If the legislature wants to do so, then they can address those issues in advance.
I'm genetically predisposed to four, myself, although the fourth person might not be permanent - I have a basic psychological need for more attention than one person can provide, which is hideously tiring and annoying if I try to obtain it from one person. Two people can provide it effectively, but they're still pretty well booked by my demands. I have two other people right now who are filling my dance card, but sooner or later both of them are going to want more "me time" and I'll need a third partner to pick up the slack. It's perfectly okay with me if that third person is temporary or even hired (not for THAT, but for freeing up time another partner might spend doing housework).
This has virtually nothing to do with sex. I don't believe I want or need any more sex than the average healthy man. What I want and need is attention. We've all only got so much to give, and most of us want to give some amount of our attention to nobody but ourselves. I don't. I want my life filled with other people, and social interaction with those people. (And without that, the sex suffers, because when I'm in a state of social deprivation I need an outrageous amount of foreplay before anything is likely to happen.)
I fail to see how this could possibly be construed as my lifestyle being detrimental to society. There is this whole thing where the world is bound up in marriage being a conduit to sex which is a conduit to procreation, and that's really not what marriage has been about for a very long time. Marriage is more and more about people agreeing and committing to spend their lives together. Both of my current partners are completely devoted and dedicated to me, and I am completely devoted and dedicated to them, and we have every intention of spending the rest of our lives together.
But from a legal perspective, only one of them gets even the imperfect guarantee of marriage - there could be divorce, certainly, but it's time consuming and expensive and a significant barrier to ending the relationship. The other gets... nothing. Nothing at all. She could be kicked out without ceremony or reason. She is just some random woman in my life, with no special status or even a valid signaling device that we're serious about her being part of the family. And our right to do that impacts her sense of happiness and well-being, even if we have no intention of ever doing it. The ability is there all the same. What I want is not some kind of freaky legal status and all kinds of tax benefits; I want her to feel like she is really part of our family, forever, not some sort of second-class "honoured guest".
Marriage would do that. Nothing else would. The world doesn't have to understand us, or accept us, or approve of us. We're in love. We want to express that love with a real commitment on the same level as any "normal" monogamous heterosexual couple - not because it will make other people do things, or give us things, or pretend to be okay with us, but just because the alternative is bad for us.
Neither of us wants to put up a fence around the other and say "you can't leave". We want to put up a fence around ourselves, and say "I won't leave". That's one of the many reasons marriage is good for normal couples. That's why it was good for my relationship with my wife. But I can't do that for my girlfriend; no matter how much I want to do it, I simply can't, because it's against the law. And this worries her, and makes her less happy, which makes me less happy. But what can we do? I can't divorce my wife and marry my girlfriend. That just moves the variable to the other side of the equation.
It's just an intractable situation if we don't start legally recognising these kinds of nontraditional families. We're still going to do this, with or without any kind of polygamy statute. We're going to talk about it. People will know about it. You can't "protect" the neighbourhood children from my lifestyle. They see the two women. They see me kiss them and hug them and tell them I love them. That doesn't go away if you have a law against making us happy, because we're less happy being monogamous than we are being legally unrecognised.
I'm not stupid. I'm a Republican and a conservative. It is better to have an old bad law than a new bad law. If we can't replace the bad law with a good law, for whatever reason, we are better off with the bad law. This sort of thing takes time. I may not see it in my lifetime, and that's okay. But I'd like my grandchildren to have this freedom.
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Just like now, sure. She can leave the unit. Call it "divorce" for convenience.
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-- Could I object to her taking another husband? --
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Same as above. Divorce and take your share of the financial wealth, or stay. Your choice. Same thing happens now with paired marriages when one or the other party wants to "take a different partner." The law doesn't stand in the way.
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-- If one of us dies, does the rest of the unit stay married together? --
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I think that would be the simplest default. Dissolution by divorce, if that's what the survivors choose.
You put "criminal," I didn't.
Simply put, there are laws (varying state-by-state) prohibiting incestuous marriages, the rationale for which is to prevent accretion of deleterious deadly recessive genes. This rationale does not apply to homosexual incest, therefore there is no rational basis preventing homosexual adult incestuous behavior or relationships.
Hence my question -- what is the basis for applying these laws to homosexual relationships?
Um...what was his argument again? I'm talking to you, not him.
No, I'm thoughtful enough to not dismiss your claims off-hand, but you don't strike me as thoughtful enough to make a thought-provoking point in the first place. So call it a hunch, is all.
Ein--
Cite me where it says 1-3 in the decision.
There is no such thing, in my mind, as a "stronger" guarantee of equality, if we're talking about 1) marital benefits funded by the state for a distinct purpose, 2) overturning one restriction on it on the basis that it is invidious and discriminatory, but 3) tacitly upholding all the other restrictions that exist to one degree or another, irrespective of the equality and ability to bond and benefit that it might bring those who would practice them (if they could under the law), and 4) if that "protection" never meant, and from what I can tell, never was used, to alter the understood definition of something that we understood even before statehood.
Do realize that my contention isn't that you're wrong in interpreting what the Iowa supreme court held. It's that I think all the scholasticism behind Equal Protection in their ruling, and in this issue, is just to front for activist judges who have no problem telling the people to drop dead.
The problem with your argument, which I'm somewhat surprised you don't see, is that while you can show me examples of how we have implicitly or expressed "divorced" procreation from marriage, that doesn't mean we've divorced marriage from procreation.
Not my most profound point, but what I'm saying is, these measures have been to provide alternatives of sorts, not necessarily to suggest that procreation is an arbitrary identifier of marriage. Saying gay marriage is good policy on that basis is actually what socons have warned for the past 30-40 years. That our devaluation of marriage will lead to perversions of it. Hence, gay marriage.
And you're comparing circumstantial premises with an infinite one. Procreation may not be something all heterosexuals, married or unwed, fulfill, but it is something all homosexual couples, married or unwed, cannot fulfill. While that doesn't necessarily mean they don't deserve to be able to marry, it does mean that they aren't situated similarly or exactly the same way heterosexual couples are, and we shouldn't behave like they are.
Randy R.
It's no surprise that some people think gay couples should be treated the exact same way as straight couples. I'd say those people are by-and-large ignorant and misled, but I do acknowledge they exist.
No, I don't have to agree with that. Like I explained to you before, Randy, the whole "married couples are what's optimal for children" social reasoning is based exclusively on social science dealing with heterosexual parents. Gay parentage is a self-identified good; for the rest of us, the jury is still out.
So yes, that is lame horse manure to me.
Ein---
Which says absolutely nothing in why the government ought to ordain that individual choice. It's one thing if the government was actively impeding one's right to marriage as individual choice (whatever that means). It's another to act as if there's a fundamental right (or if it's a moral imperative or social mandate) for the government to "bless" (for lack of a better term) our de facto unions if they really serve no benefit to the state, or the majority of people.
This would be a great argument if we had laws that explicitly stated that homosexuals are banned from marriage.
Randy, in trying to be a smart-aleck, you usually come up with some pretty fatuous remarks. This being one of them.
People who understand marriage policy aren't going to stop making the point that under "old" marriage policy you still had the same right to marry that heterosexuals did. Why would they? It's the truth. People will just see that judiciaries and legislators who are in the back pocket of gay lobbyists have found a special right for them.
just reinforces my feeling that the government should just get the hell out of the marriage business altogether.
There is nothing stopping you from having contractual relationships with as many partners as you want. Sure, it is more complex and annoying, but that is what a lot of gay couples have done for years in order to sort out ownership and inheritance issues in the various states that don't recognize gay marriage.
If they are in fact "fundamental rights," judges should protect them regardless of where History is going (unless History is somehow the basis of the rights).
I don't know that it's an interest to the state for gays to feel good about being recognized as being the same as heterosexual couples
That, of course, is what's really driving much of this. The law might have been more accurately called An Act to Boost the (Self-) Esteem of Same Sex Unions.
Pull together the (rigorous, scientific, peer-reviewed) data showing that some people (1) capable of happiness in polygamous marriages while (2) simultaneously incapable of happiness in monogamous marriages, and then we can talk about analogies to gay rights. That's what gays did. If you can do the same to my satisfaction, you will win a convert to the cause of polygamy. But I rather doubt you'll be able to find the necessary evidence.
Not really. Under the old policy, cmr, you couldn't marry a man. now you can. So now you have all the same rights that I have. Isn't that great?
cmr: "Randy, the whole "married couples are what's optimal for children" social reasoning is based exclusively on social science dealing with heterosexual parents. Gay parentage is a self-identified good; for the rest of us, the jury is still out. "
Oh, now i get it. When straight couples have children, it is better for the children to have married parents. But when gay couples have children, there is no evidence that they should enjoy the benefits of having a married couple The jury is still out? Well, do you have any evidence to back up such a sweeping statement? And what happens if the evidence comes in that children of gay couples do better when their parents are married than those whose parents are not? Will you concede that it would be good for gay parents to be married? Or do you have such animous towards gay people that there is no argument or evidence that would ever sway you to support SSM?
Well, if marriage is all about boosting one's self esteem (and having nothing to do with loving one another, or providing for one another, or making sure the kids have married parents), then we should eliminate marriage for straight people as well. Because obviously straight people don't need to have their egos boosted by something as trivial as marriage.
What about the fundamental right to be free from arbitrary and capricious laws? ISTM, that SSM is not a fundamental right but may in some states be mandated by the combination of fundamental rights and the policy measures adopted by the legislative branch.
Homosexuals have the same right as everyone else to marry someone of the opposite sex, and heterosexuals have the same right as everyone else to marry someone of the same sex.
But I'd still argue that the author of Njal's Saga was nostalgic and saw the destruction of his ideal society --which was pretty much complete at the time of his writing - as due to a breakdown in the legal system at the hands of the elites. Part of this was just thuggery. But some was also elite exploitation of the legal system.
For example, one of the key turning points in Njal's Saga -- I can't remember the details and don't have the text at hand -- occurs when a law suit turns to a blood feud because a clever "lawyer" turns an extremely literal reading of the law to his advantage in clear disregard for the spirit of the law. (I think it had something to do with the type of branch held while taking an oath.)
Incidentally, I find it amazing how few people realize that one of the main sources for Locke's and other liberals' views of government was the Icelandic sagas which provided an example of a political system actually produced by people deserting an inhospitable state and creating a new one by social contract.
I don't have a choice...
when I have sex I live in danger of financial obligation and yet the government of Vermont just gave the same tax credit to those that don't live with that danger. the people will overturn this just like California
how very closed minded to not consider the rights of children when regarding the need for transparent social contracts. It is a sad day in America and a sad day for truth and honesty. I want a law and government that reflects truth... not a lie that a marriage is a business agreement.. truth is that marriage is to protect children and establish an ideal living condition. It is the duty of a government to acknowledge difference and this moment in history says we are all the same for the cookie cutter monoculture. this is not equality. this is hate when you can't respect people's unique talent. It is disrespectful to our biology... it is disrespectful to people who can't control their biology. legislative choice should never be about taking rights away from others. the end result is more children without opportunities because social contracts designed to help our society have become meaningless in the name of disrespecting difference.
Since it's a very small state, even a small absolute increase in out-of-state tourists (coming to get married) will help its economy in relative terms.
And, of course, it already has some attraction for tourists.
I, too, am sick and tired of hearing this trope repeated, time and time again, without references, citations, or justifications. Those who repeat it often argue that the court "found" a right to same-sex marriage that nobody else found in more than 200 years.
The seven Justices of the Iowa Supreme Court were asked, for the first time in the history of the state, to determine whether the statutory prohibition of gay marriage violated the Iowa state constitution -- and they answered affirmatively. Their unanimous opinion was a model of clarity, and their analysis was careful, meticulous, and thorough. This opinion should be required reading for all students of constitutional law, as a primer on equal protection theory and the application of heightened scrutiny (in this case, quasi-strict scrutiny) to the rights of minorities.
To those who argue that this opinion paves the way for the legalization of polygamy, or the legalization of bestiality: nobody is born with an orientation that causes them to fall in love with more than one person at a time. In their obsession with sex, opponents of gay marriage completely overlook the emotional and relational components of marriage, and completely ignore the reasons most romantic partners choose to marry – which are, inter alia, to provide each other with emotional and psychological support, to express and memorialize their mutual love and exclusive commitment to each other, to provide healthcare and other benefits to each other, to provide a stable framework in which to raise children (this is more and more often a pertinent issue in gay relationships), and to avail themselves of the social status of marriage.
Comparisons of gay marriage to bestiality demean both marriage and gay persons. Marriage is about human beings, and in western culture, it is about human beings who are in love with each other. In those societies where polygamy is permitted, bestiality is not, and has never been, an issue; to argue that the legalization of gay marriage is analogous to the legalization of bestiality is a grossly insulting and demeaning.
Nevertheless, I agree that the legalization of gay marriage through democratic means, by the legislature, is preferable to legalization of gay marriage by judicial order.
PHILIP CHANDLER
On number 1, see page 19:
On number 2, see page 17:
And in footnote 6, page 19:
I would ague that #3 is simply a summary of the relationship between the Iowa State constitution and the EPC in the 14th Amendment. It isn't stated explicitly in the immediate and unavoidable conclusion of the portion cited regarding #1 above.
Sure there is. For example, we don't tolerate restrooms which are for white folk only, but we do tolerate restrooms for men only.
Secondly I think the court answered your objection quite clearly in two places:
Pages 14-15:
Page 16:
And their citation of Oliver Wendell Holmes on page 17:
Hope this helps.
Vermont, silly.
And that is everyone?
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I think this is false. I would not be surprised if human nature was to be in love with multiple people at the same time, and the law has stifled that human nature.
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Either way, how or why should the difference between being born with the orientation or grows into it play into laws that prohibit any mutually-preferred grouping of lovers? Do equal rights depend on points of view or characteristics that one is born with?
CMR, any number of us have responded to your 'reproduction will end!' claims whenever the subject of SSM comes up.
Allow me to summarize my own points from past threads:
1) Gays and lesbians can 'have' children, although the children will not be produced using the genetic materials of both partners.
2) Many gays and lesbians already have heterosexually produced children.
3) Gays and lesbians who do not want to reproduce heterosexually are not going to be driven to do so by any refusal to recognize their relationships as marriages.
5) The overall population rate will not be affected by SSM, or it might increase -which you seem to think a good thing - when married same-sex couples reproduce.
Additionally:
A) Many people beleive that the human population should be controlled rather than increased.
B) We do not require heterosexual couples to reproduce in order to be married. Thus, the claim that the State values marriage as a system of reproduction is not borne out in practice.
Now, I do not think any of this will make a dent in your opinions or your opinings. I simply replicate these arguments so that you cannot [continue to] claim that no one has offered them.
Of course you do. The battles for reproductive choice started decades ago and all sorts of clever things have been made available as a result.
There's this new-fangled thingy called a "condom." Word has it that they have a fair success at preventing pregnancy and the transmission of venereal diseases.
Then there was that scientist who invented some kind of pill thing. Some hormone stuff. Real white coat. We'll just call it "the Pill."
I've even heard that there are methods of achieving sexual satisfaction which involve no chance of pregnancy. Yeah, even when practiced by heterosexuals, they all count as sodomy, but after Lawrence, heterosexuals are permitted to have all the sodomy they want. Though if her jaw gets tired, it's the decent thing to stop.
I voted for Prop 8, but I hope you're right. I support legislators and voters legalizing SSM but I don't think it should be decided in the courts. I will vote for an amendment in California to overturn Prop 8 when its on the ballot. I applaud the Vermont legislators and I hope Congress doesn't overturn the DC law.
Not really. But like I said, under the old policy, you could marry a woman, not a man, the same as me.
Normally I hate to accuse someone of a logical fallacy as a rebuttal (because, it's not a rebuttal), but this is a blatant strawman.
You said, or assumed, rather, that having two parents is a benefit to the state. I said the only context people have concluded that "two parents are better than one" is based on children being raised by their biological mother and father in a low-impact household. Studies have shown differences between those children and heterosexual couples where there's a stepparent involved, foster parents, heterosexual adoptive parents...I doubt gay parentage would be any different. But, like I said, we don't know, because it's a new phenomena. You're saying it's all the same thing because of the number two.
As for the "benefits" question, even though it was conceived based on a misreading of my point, gay parents may deserve some of the "benefits" afforded to heterosexual couples. I don't think they deserve the same because I don't believe they're the same, in any way. There's nowhere near the same number of gay parents to "straight" parents, I doubt there's a copious desire from gay couples to raise kids that we as a society should address, and like I said, I don't think we can say for certain that gay parentage is something we as a society should promote.
And why am I not surprised that you couldn't go one post without insinuating my dissent with you is based on animus towards all gay people? You're how old again?
Whoa whoa. An inability to procreate -- more like a certainty of never procreating, since "inability" sounds a lot like a heterosexual union in which a person in infertile, which isn't the same as a union that never would or could, even under the most healthiest of conditions, produce a child -- wouldn't be reason to justify an actual ban on homosexual individuals from marriage. But since they aren't similarly situated with regards to the state's interest in marriage, there's no compelling reason to treat them that way. Civil unions would situate them similarly, but marriage implies a level of sameness that...doesn't exist.
Marriage in the Griswald case was secondary to the larger issue of privacy within a marriage. If anything, that case found that the overarching premise of procreation in a marriage doesn't negate people's privacy within a marriage. And, of course, claiming bans on contraceptive use within a marriage isn't the same as holding that "nonprocreative marriage is a right". It's saying criminalizing contraceptive use within a marriage is wrong.
I wont even touch the "ten years from now things will be different" regarding same-sex procreation.
Right next to the consensus that inter-racial marriage is a right.
Is redhead marriage a right? How about left-handed marriage?
Bringing this back to the discussion at hand....
First, I see the Icelandic sagas as extremely important elements of Western culture and heritage, and possibly more influential on a deep level than most of the religious literature that generally gets brought up. A great many important Western thinkers were quite familiar with the works. For example, for Sir Walter Scott to declare the Eyrbiggya Saga to be the most interesting works in the area would suggest he had a working knowledge of a wide section of the genre. How many people here even know what the Eyrbiggja Saga is about, let alone have read it?
Yet the Icelandic Sagas tend to portray a society which was brutally unforgiving yet extremely libertarian in its outlook. Interestingly, it was quite a bit MORE stable in Iceland where you had basically a "government by attorney" than it was in the Orkneys where one basically had competing nobility with territorial claims.
However one other interesting element here is that homosexual activity at least on the part of men was strongly taboo (generally seen as a moral equivalent to cowardice). My sense is that it had a lot to do with the sort of guardianship roles males had regarding women and the roles of familial protections.
It seems to me that legalized polygamy could facilitate all kinds of fraud. For example, Tommy and Gina are married and covered by Tommy's excellent company health care policy. Gina's best friend Erin, a single mother of two, has lost her job and is in dire straits. Gina asks her husband Tommy to "marry" Erin so that Erin and her children can be covered under their insurance policy. If a court in that state found a fundamental right to polygamy, the company would have to provide benefits or use its own resources to investigate and somehow prove the marriage to be fraudulent.
In fact, this scheme could be turned into an entire business. Tommy and Gina could "sell" inclusion in their marriage to both men and women for say, $200/month. If, in exchange, the new spouses are receiving health care benefits worth, say $600, the deal would be worth it for them, and Tommy's company would get stuck with the bill.
Of course, there is marriage fraud now. But abolishing marital binary exclusivity would throw the door wide open to a torrent of fraud imho.
Of course, there are probably ways to get around this, but wanting to prevent this kind of abuse would be reason enough imo for courts to find a rational basis for prohibiting polygamy.
"I voted for Prop 8, but I hope you're right. I support legislators and voters legalizing SSM but I don't think it should be decided in the courts. I will vote for an amendment in California to overturn Prop 8 when its on the ballot. I applaud the Vermont legislators and I hope Congress doesn't overturn the DC law."
Are you saying that the reason you voted for Proposition 8 was not because you believe that SSM is wrong, but because you did not like the fact that the California Supreme Court decided the issue through constitutional interpretation?
If so, have you given any thought to the pain that you helped cause (through your vote) in your efforts to make this point? Do you really think it was worth it?
PHILIP
Not necessarily. Equal rights depend on a lack of a legitimate interest of the state being pursued as a matter of general policy in a good faith matter.
Yeah... Voting FOR an act and then voting to repeal it just because one likes democracy? I smell a fish...
Oh come on. Do you really thing that there was a single person, even one, that authored the consitutional language that felt he was requiring gay marriage? Now there are plenty of great arguements for gay marriage, and some good ones for interpreting equal protection as requiring gay marriage, but it's hard to argue that they're not based on a new way of looking at gay marriage.
Does that mean you are opposed to adoption, marriages where one party brings children into the marriage, etc? Or am I missing something?
Do you really think Justice Holmes was talking about gay marriage when he said this?
Clearly the tradition in Iowa was clearly established at the time they approved their current Constitution that tradition was no barrier to equal protection in that state.
Marriage is a right and rights are individually based. There are lots of people who license their marriages to men with the state, why can't I license mine?
Fine. It sounds like you're saying that it's OK for courts to make up rights out of whole cloth, or find new rights in the constitution nobody found after 200 years. That's not what the post I was commenting on was saying.
Not really and here the court didn't do so. Unlike in Massachusetts, they did NOT state that choice of a marriage partner was a fundamental right. They merely showed that the current policy failed to provide the fundamental right of equality before the laws as defined by past Iowa Supreme Court precedent.
Do you think that SCOTUS invented the right to religious drug use out of whole cloth in O Centro v. Gonzales?
No, and I regret that I phrased the issue so clumsily as to make it appear that this is what I meant to imply.
My point in noting that the Iowa Supreme Court confronted this issue (gay marriage) for the first time was not to imply that the framers of the Iowa constitution anticipated gay marriage, or were thinking of gay marriage, when they enacted their guarantees of equal protection. It was to note that the issue of gay marriage is new to American politics and experience -- aside from a few lonely voices in the 1970s, nobody (and this includes members of the gay community) ever fought for gay marriage until about 10 years ago.
Therefore, the Iowa Supreme Court did confront this issue for the first time in Varnum.
So when the hard right talks about "finding" a right that had not been found before in 200 years -- yes, in fact, this was an issue of first impression to this court.
PHILIP CHANDLER
One possible solution: http://www.webmd.com/sex/birth-control/vasectomy-14387
Hope that helps.
you were the one that said it was "obvious". why don't you first start by explaining exactly what is so "obvious"? oh that's right, my mistake, you don't actually have an argument...sorry, i forget things sometimes.
No, I'm thoughtful enough to not dismiss your claims off-hand, but you don't strike me as thoughtful enough to make a thought-provoking point in the first place. So call it a hunch, is all.
it sounded an awful lot like you pre-dismissed whatever i would say as "lame horse manure liberal newspeak". those were your own words.
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That argument was asserted in relation to homosexual marriage, as opening the door to providing employment benefits where none are paid now. I'm not saying adding polygamous relationships into the mix wouldn't be a change, but if the 5-10% addition in benefit load that is apt to accrue on account of recognizing homosexual marriage can be accommodated, then a similar load increase [or some other adjustment (e.g., companies refuse to pay bennies for more than 12 people in one household)] should be manageable.
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Not that your argument isn't a good one, but it applies to any increase in the scope of arrangements that fall in the ambit of "married."
Because it treats married citizens differently. The state is a legal construct includes a licenses a contract in the support of marriage, an innate 'inalienable' right of each individual that predates and supersedes the state.
IF the state were actually 'marrying' people you might have a point - but marriage is a natural state of our biological natures. Some citizens marry men, some marry women. As it stand the state contract is only available to a subset of its married citizens with some having no reasonable ability to license the contract in support of their marriage at all.
Hence discriminatory, and unsupportably so in Iowa.
Shelby, did you read the Iowa Supreme Court's decision in Varnum? Had you done so, you would have learned that equal protection theory looks at whether or not the two groups of persons are similarly situated with respect to the legitimate purposes of the law in question. In the context of gay marriage, the question becomes: what are the legitimate purposes of the law (in this case, the marriage law)?
Phrased differently, why do people get married?
Gay persons and heterosexual persons get married for largely the same reasons, and ensuring procreation is only one of those reasons. I have listed some of the others in a post above.
“Similarly situated” does not mean identically situated.
PHILIP CHANDLER
I am a little confused by folks who don't bother to address the court's reasoning in the decision and then make comments which are perfectly well answered by the court in their opinion.
At any rate it is not a simple question and took the court a bit over 40 pages to answer. See pages 19-63 of the opinion.
Not really. Phrased differently: why and how does the state regulate marriage? How do the ends and means fit together? How are the legitimate purposes of the state furthered by this ban?
Its allowing all citizens and their spouses license to the existing contract licensed by the state which is by design for 2 cosignees in a mutually exclusive contract. Again, the state doesn't marry anyone - it just licenses this particular contract in the support of marriage, now all citizens have the ability to license this contract with their spouse.
So what happens when a married guy marries a married woman who already has two husbands who each have another different wife? How the hell do you file an income tax return for that?
Turbotax. The Expanded edition.
Then please tell us which specific benefits straight parents should get that gay parents should not get. Rights of inheritance? Visitation rights? Health care benefits? I wonder what your standard is for determining which rights are good for one set of parents, but not good for another.
"There's nowhere near the same number of gay parents to "straight" parents, I doubt there's a copious desire from gay couples to raise kids that we as a society should address, and like I said, I don't think we can say for certain that gay parentage is something we as a society should promote."
In other words, until there are lots of children of gay parents, you are free to ignore their issues. Also, it's not an issue of 'promotion', it's an issue of recognition of a fact. Your solution is to merely ignore the issue.
"And why am I not surprised that you couldn't go one post without insinuating my dissent with you is based on animus towards all gay people?:
Because you consistently state that gay couples are not anything like straight couples without any explanation as to why, other than to state that we violate 'natural law.' Well, it's been pointed out to you that homosexuality exists in the natural world quite often. Heck, don't you know about the gay penguins in the New York Zoo that adopted an orphan? All the other straight penguins have no problem with the gays being a couple, and the little one is doing just fine. I only wish you could show the wisdom and maturity of a penguin.
But I'll give you the benefit of the doubt -- I'll state clearly that you love gay people just as much as you love straight people, and that you believe there is nothing inherently immoral or bad about gays. Agreed?
Yes, I did and still do think about it. But the courts stepping in where they shouldn't (whatever the issue) is worse, in my opinion. I don't go along with the ends justifying the means. I don't think that's the way its supposed to be. Like I said, that's my opinion.
So why would you vote both FOR Prop 8 AND to repeal it? Do you vote for every initiative that comes along just because that is a great process? Or was there a better reason for doing so?
I am just wondering....
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It doesn't even take that. Turbotax, the current edition, has facilities for "married." Just use that set of options.
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I agree with those who find proscriptions against various forms of social "family" to be arbitrary. "Slavery" is another tough nut that way, see the FL law that mandated people to provide free road repair service (upheld); "the draft," and taxes. All "take" a portion of one's efforts in return for being part of the taxing authority's property. Or see factory towns (e.g., Kohler, Wisconsin). Indentured servitude is radically different as a matter of degree, but similar in its "involuntary" nature.
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My only point being that some legal and social norms defy being rationalized under logic. Certain forms are adopted and preferred; certain lines are drawn, "arbitrarily." Or at least as a matter of logic, the line is arbitrary.
I was speaking more generally that the Iowa opinion, and in any event if you think it was addressed perfectly well in that opinion you probably didn't read it.
I've sure never seen an equal protection analysis conducted in for any other law to see if the class who engages in the behavior being outlawed is a suspect class.
Yes I recall some opponents saying that SSM could lead to men marrying their buddies for purposes of fraud (as was the premise of the movie Chuck and Larry). But this is nothing that a gender-mixed pair of friends couldn't do now. SSMs are no more likely to be fraudulent then OSMs, whereas I can conceive of numerous ways that polygamy would open entire new avenues of fraud. While allowing SSM could only increase the benefit load by 5-10%, polygamy could increase it by several orders of magnitude.
I completely agree; if society did want to sanction polygamy, we could come up with answers to these problems. My main argument was that:
1) Such a change would HAVE to come from the legislature, not the court, because all sorts of arbitrary limitations would have to be placed on polygamous families (ie no more than 12 in a household)
2) In defending its ban on polygamy, the state could argue that the law survives rational basis review because the legislature has a rational purpose in trying to block new avenues of marital fraud.
Sorry, no fish here.
I'll admit there is an argument to be made that if Prop 8 hadn't passed, then that would have been the will of the voters, but that lets the court off the hook. I think all parts of government need to be reminded now and again that the people are sovereign.
Maybe my position is stupid, or crazy. But it isn't a lie. Sorry if you can't accept that. I'll still continue to enjoy your comments :)
Cheers,
What behavior was being outlawed here? This case was about refusal by the government to extend benefits. Not outlawing behavior in the normal sense.
So your view is enacting Prop 8 was there to get a case before the court that the people have the power to amend the CA Constitution?
Sorry, I saw this post after responding to your other one.
My vote for Prop 8 was a vote against judicial over reaching, my vote to repeal it (when it happens) will be a vote in favor of SSM. I just think its an issue for the people or our representatives, not the courts. I think the process matters. Like I said, I could be crazy...
I think the simpler argument is that power of attorney structures would be fundamentally different in polygamous marriages and so the court shouldn't even entertain the question because the relationships are not similarly situated relative to the legal benefits involved.
I can understand that.
OK. But if you don't see the contradiction, I hope you won't take offense if I point it out.
The crazy part, the part about the process, or both? :)
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My point was that there is already an arbitrary limitation imposed by the legislature, and that the arbitrary prohibition is no more valid than the arbitrary prohibition against homosexual marriage, using the same criteria used by the Iowa court. Opposition to polygamy is a form of bigotry.
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The Iowa court easily saw through the arbitrary nature of the law that prohibited homosexual marriage. In time they may be further enlightened and see through the arbitrary and bigoted objection to polygamy.
Well thanks a lot. You seem so concerned about process that you are willing to ignore substance -- or at the very least, so concerned about process that you are willing to inflict lasting harm on a group of persons who have done you no wrong, all for the sake of giving the California Supreme Court a lesson in power politics.
I read the California Supreme Court decision (in re Marriage Cases, S147999 (2008)) and considered it to be a good decision. Of course, that is down to my own philosophy of judicial review. Are you not the least concerned that the court may have been right? As you doubtless recall, the court holds that gay persons comprise a "suspect class" under California state constitutional jurisprudence (this holding survives Proposition 8). Sure, we all differ in terms of personal opinion -- but you voted to withdraw exercise of a fundamental right from a suspect class.
Was that really called for?
PHILIP CHANDLER
Feeling constrained as I do by the posting policy of this site (civility is encouraged if not strictly required), I won't say you are crazy, but I would suggest you are perhaps a bit confused. Do I understand you to say that you don't care about the outcome of this great social question, just so long as the process meets your criteria for appropriateness? Or are you saying that you can be both for and against something, depending on which day of the week you are asked? Or are you saying that you like to keep people guessing what you really think by voting erratically, putting the state and the people to great expense for an election when you really don't care which way the election turns out? Are you saying that all those people who got married in California before Proposition 8 passed, and who are not now sure of their marital statuts, deserve being put in that kind of legal limbo? In any of these cases (or more that I might imagine), your position does seem a bit peculiar, if not not crazy. Most of the other commenters here seem to believe in some sort of principle on this issue, but yours is hard to discern.
I agree but this argument has already been made. I thought my argument that polygamy raises a unique fraud-related threat was novel so I just wanted to see what others thought of it as another way to distinguish SSM from polygamy. I agree it is not number one on the list.
I can understand a conviction that the California Constitution resides in the power of the people and hence that deference should be given to the people in this case.
I disagree with your vote on Prop 8 because I think that as soon as it was on the ballot I think the key question should have been what voters think the best public policy was, but I can understand the desire to send a message about process. I don't agree with it, but I can understand it.
My principle is that the ends don't justify the means. I thought it was pretty simple.
Are you saying that these people never considered the backlash this decision was likely to generate? They had no idea that there would be an attempt to overturn the decision? Really?
I'm pretty sure we were going to have an election anyway (you know, that president thing?)
Maybe you missed
Thank you. FWIW, the argument you make
was the argument I had with myself.
As a fellow Californian, I see it quite differently. SSM aside (I too voted against Props 22 and 8; I don't care who gets married to whom), the initiative process has wrecked California. The initiative process itself has been captured by special interests, very few (like Prop 8, though you can make an arguement that it was a special interest initiative) are truly sponsored by grass root Californians. Most are sponsored by corporations, billionaires, or utilities that would benefit from their passage.
Even initiatives sponsored by citizens corrupt the state by imposing tax and spending burdens on the public and hamstringing the state government. For example, the state is required to spend 48% of its budget on education. Now that might be good thing, but it doesn't give the Legislature the ability to prioritize. In FY 2007-08, the state spent over $4 billion on principal and interest on bonds approved for various projects; this will increase to over $9 billion by 2017--even if no new bonds are approved. The state is spending $6 billion on bonds for stem cell research--a laudable effort, but is that really a function of the state (esp. with the repeal of the Bush Administration rules)?
While the Legislature must approve new taxes and spending (i.e. the budget) by a 2/3 majority, it only takes a 50% + 1 vote of the public to do the same thing. The state's initiative process is just as broken as the rest of state government. California's system of government fell apart a long time ago--we just didn't figure it out until now.
I don't see you really contradicting Robert West's points. Really, you can make a point (and I think you argue this well) that California has become too democratic and that this extra democracy means more power to special interests at the expense of Californians.
Having said this, would you mind sponsoring an initiative to mandate that the state pay me four million dollars for me to conduct a study as to the best way to move to modernized touch-screen voting systems complete with paper audit capabilities and transparent controls? Your cooperation would be most appreciated.
However, I also have the right to change how I treat marriage. Since heterosexual marriage and divorce law treat men and women differently, it's reasonable for people to opt out of marriage. So, I see no reason why I should discriminate between married and unmarried couples. Also, if marriage is divorced from proceation, then why should someone think that marriage is permanent. After all, all of about 13 percent of people reported high levels of romance in their long-term relationships. And legally, there is no-fault divorce.
I agree that Iowa and Vermont represent a tipping point. But instead of extending rights, we've reduced the depth and meaning of an institution in order to extend its benefits to a broader number of people.
In short, marriage is the new dating.
Thank you for the citations.
Restrooms are delineated based on gender and not race, because what people do in restrooms delineates based on gender and not race. It would be a de jure premise to restrict restrooms based on race.
Those citations don't address the point I made, though. Making racial comparisons, overturning policies enacted that were meant to propagate vestiges of slavery, are not the same as concluding that heterosexual marriage is an arbitrary and discriminatory and sectarian premise of marriage. That's what those analogies are supposed to mean, but I disagree.
And I was making those statements to you, not based on the decision.
Whadonna More
More like their legislature, silly.
cboldt
It is false, to an extent. It's the male impetus to spread our seed that makes us a successful species. Of course that shouldn't be reason to allow polygamy, but if we're going to rely on silly arguments to allow SSM, eh...
That's impossible, as I haven't made those claims to begin with. But, thank you for letting me know where you're coming from with the first line. This should be interesting. And by interesting, I mean: you're going to stump for gay marriage like everybody else, imply I'm some kind of idiot/bigot/anti-intellectual for disagreeing with you, and repeat back to me arguments I've heard before and that make no sense to anyone but people who like the conclusion.
Let's see if I'm right.
1) They can get kids. Unless they decide to sleep with people outside their relationship to have them naturally, their relationship is barren. As such, there isn't a compelling reason to provide marital benefits for them like we do heterosexual couples.
2) Hyperbole. "Many". Riiight. Some. A few. Not many.
3) And likewise, that doesn't encourage me or most other citizens to support gay marriage rights. They don't fulfill a core function of marriage to an infinite degree. Fine. But that makes an argument for civil unions, not marriage.
4) (which you called 5)) You don't know that, and I don't know why you're acting like you can predict that. In fact, plummeting birth rate is a social pathology that has been going on in the West for decades. Gay marriage isn't responsible for it, per se, but it does exacerbate it.
a) Which has nothing to do with letting gays marry legally.
b) Because heterosexuals will reproduce with or without regulation. By comparison, homosexual couples will not. Why waste political capital regulating the 5-8% of heterosexual couples who wont reproduce? That's no comparison to the 100% of homosexual couples who wont.
I know people have offered them. They're just not relevant.
I will say you were less self-righteous and antagonistic than I figured you'd be. First impressions can be deceiving.
shawn
You're an idiot.
Ein
No, it doesn't. Why would you ask me such a simple-minded question?
Bob VB
Because you and yours are barren and serve no interest to the state or the taxpayers. Instead, you'd like to siphon off benefits that we all pay for just for the illusion of equality — which seems both hollow and trivial when you have to go to such lengths to get it.
People have defined heterosexual marriage as a social sacrament, not gay marriage.
ShelbyC
That is what he's saying. But he's also saying it's OK because BLACK PEOPLE.
Brian K
Yeah, like the rules of capitalization. At any rate, I suspect you don't even know what you're talking about. You seem to be just responding. What did I say was obvious? And have I explained anywhere in this thread why it's obvious? I think I have.
Yeah. I figured that's what you'd give me. So far you've...given me less than that. What is your point? I mean, aside from you disagreeing with me.
Rights of inheritance are a bit complex. I can't give you a straight answer on that, because I'd have to think my opinion through. Yes, I do that.
Visitation rights: whatever, there's no such thing. Health care benefits should be, and are, based on employment. If the employer wants to provide those, fine. I don't think they should be forced to provide them, though. I have no respect for gay couples trying to get them on a technicality of the law.
Heh, yeah, Randy. You don't have a response, so you default to being a smart-aleck. Like you always do.
I didn't say what you said. You did.
I've consistently stated that gay couples aren't like straight couples for the purposes of marriage. And...they're not. They're de facto couples. They shouldn't be actively discriminated against, but it's not a derogatory point to say THEY ARE NOT SITUATED THE SAME WAY AS HETEROSEXUAL COUPLES. And Randy, you know they're not. That's why it bothers you so much when people make that statement. A lot of gay couples don't know what their worth is to the rest of society, so they turn to empty rhetoric about "rights" and "equality" and make all the analogies they can to the civil rights movement (and in your case, penguins), because that was about something substantial and important. This is about gays getting the acceptance they never felt at home, and it's a self-centered attempt to MAKE people like them.
You can list all the "rights" you don't get all you want. But this isn't about that. You don't miss them, because you never had them. You were never promised them. No one ever you gave the idea that you deserved them. And because of that, you feel especially entitled to them.
No, Randy, how about I give you the benefit of the doubt that you aren't a ridiculously immature middle-aged man with a chip on his shoulder? That the only way you can have a discussion about anything is by first accusing someone of hating you for the most basest of reasons? How about I do that?
Well, if marriage is principally about procreation, it necessarily follows that marriage ends sometime around when the woman hits 50, give or take five years.
But if we're talking about childrearing rather than procreation (and I agree that supporting childrearing is an important function of marriage) then the "gay people can't procreate" argument is out the window again, since gay people are eminently capable of raising children.
Love your rant! No,of course you don't hate gays. Nope. You just know us all much better than we do! We don't know what our 'worth' is to the rest of society. So since, I don't know our worth, perhaps you can enlighten me? What IS the worth of my relationship to society?
So it bothers me that you point out that we are not situated the same way as straight couples? I guess this is one of those "the truth hurts" moments. I simply must accept that my 'situation' is different from straights .... or else. Strangely, though, history marches on, and people realize that of course, every single relationship is different, and therefore a different situation. But all should be treated the same under law.
I am sorry that you can't admit how much you love gays and think that we are indeed deserving of equal rights.
Then I think you miss the point. The point of the Constitution is to set forth the structure of government. The Iowa State Constitution does not specifically mention race as it relates to uniform application of the laws even though this clause dates to well before the 14th Amendment. The Constitution defines the structure of government, its function and duties. The goal of Constitutional analysis of a law is to determine whether a law falls within the powers granted to the government or not. The idea that the Iowa State Constitution can be seen as incompatible with racial segregation long before Brown v. Board is quite relevant on this point because it sets an equal protection bar quite high. The same reasoning regarding denying blacks the right to sit together with whites at the diner must be analyzed to see if it applies. In this case, it doesn't apply, but parallel structures the courts have built up for 150 years to answer these questions do apply. That is what I think you are missing.
Part of the point of precedent is that it creates stability in the law by forcing courts to adopt reusable tests as applicable. On one hand this can lead to some rather interesting slippery slopes (commerce clause out of hand) by simply piling up one straw at a time, and on the other it leads to a level of predictability in the legal system that wouldn't exist otherwise.
What I don't understand is why people who see the courts following their own precedents as somehow "activist." They aren't activist. They are following their past decisions. You may not like them. I don't like all the decisions of the judiciary, but this doesn't make them all activist. They are real people, trying to fit current controversies through past tests.
What the court found in this case is that the relationship between the couple and the legal benefits from marriage is similar enough for equal protection analysis. This would be different for a couple seeking a polygamous marriage because the relationship between the couple and issues like power of attorney would be fundamentally different. This is a low bar, and it is the beginning point, rather than the ending point of the inquiry.
Having determined this, the court then goes on to ask what the offered justifications are from the state, whether they are legitimate interests, and whether they are pursued in good faith by the state. In the area of procreation, the court concluded that it was a legitimate interest, but the ban was so overinclusive and underinclusive at the same time, that the interest was not furthered in good faith by the state. In layman's terms, the state's reaction to procreation doesn't closely associate to the marital status of the couple and therefore procreation is not an interest furthered in good faith by the state.
The slippery slope to gay marriage occurs in Iowa occurs from two directions: equal protection analysis developments and family planning law.
Like it or not, the Iowa Supreme Court was merely applying their own precedent to a new controversy brought before them. That is no more activist than the court was in O Centro v. Gonzales.
Given the current statistics, most Americans probably agree that marriage isn't permanent.... Furthemore why would procreation MAKE it permanent? Why should couples choose to stay together and not have kids or stay together after their kids are off at college?
I would argue that the most stabilizing features of marriage are the entanglements which occur when one seeks to build a life together. These include economic entanglements, legal entanglements, and so forth. Shared biological or adopted children can add additional entanglements as well.
The most effective policy IMO in reducing divorce rates is to emphasize these entanglements. For example, we could increase the waiting periods for divorce and even if all divorce was no fault, it might make it easier for couples to reconcile and stay together. (I personally think divorce should be handled in ways which are as procedurally streamlined as possible, and all divorce should be no-fault, but that waiting periods should be a year.)
However procreation policy and childrearing policy are quite heavily divorced from marriage policy. These two have almost nothing in common. We don't legally penalize unwed moms. We don't prevent single individuals from adopting kids. We don't penalize married childless couples aside from marginal tax credits for children which for most couples don't amount to much beyond a very minor subsidy.
So my suggestion to you is to worry less about SSM in your state and worry more about harmonizing procreation, childrearing, and marriage policies.
In a typical at-fault divorce what happens is both parties go get lawyers and they start arguing about whose fault the divorce was.
"She treated me cruelly"
"He wasn't faithful"
"She legally forgave me for that! And she wasnt faithful either!"
"He can't admit to adultery and accuse it in the same pleading! Besides he failed to meet the obligation to X"
and so forth. It isn't hard to see how once this process gets started it is almost impossible to put things back together. Basically one has the most formal and bitter fight of the marriage out in front of a judge to see who the judge will side with. Like it or not, no-fault divorce at its best could provide a way to help couples step back from this sort of fight.
Also many of these fights can continue on well past the divorce and the kids can end up being raised by parents who are constantly fighting over them in court.
The problem though is that when things are tough, divorce always looks like a good option. No-fault divorce makes divorce less painful and it makes it easier. No longer does one HAVE to argue as to whose fault it was. Hence it can make divorce look like a very attractive option as an easy way out.
The ideal solution I think is found in waiting periods. The waiting period should be 1 year if the couple doesn't come to an agreement outside of court as to how the arrangement of the divorce should be handled. If they do come to such an agreement, the waiting period should be reduced to 4 months. This encourages the couple to talk, work out what they can about the divorce, and perhaps even reconcile.
Not to mention this entire estimate is based on research done in the late 80s. Someone may have updated it, but I'm unaware and skeptical of their research methodology.
And, there are some identifiers that alter the rules a bit. For example, there's been research that says parents with daughters are more likely to divorce than parents with sons. Couples who regularly attend religious services are more likely to stay together than couples who don't. Couples under 25 are more likely to get divorced than older couples. Education level has been seen as an identifier. The marital status of one's parents have been found to be an identifier. It's not as simple as saying "fifty percent of all couples end in divorce". It's more complicated than that.
Vermont, like California, has civil unions with legal benefits that are virtually identical to marriage, so the demand for SSM in these states is indeed basically a struggle to extract recognition and esteem for same sex unions.
As I have stated numerous times, I regard procreation as the state's primary interest in marriage, not bourgeois romanticism (which seeks legal goodies and recognition for a love affair), so I have no objection to further restricting marriage eligibility. But if loving each other is sufficient, why shouldn't a group of friends who love each other be eligible for civil marriage and its attendant legal goodies (especially when they may very well love each other more than many current married couples)?
There's this crazy notion that gays who want to get married think it's about more than romance too.
But who cares about any of the above? Comment threads on VC are boring and uninformative. I say get rid of them.
You really out thought yourself on this one. You claim two beliefs: 1)Against judicial overreach, and 2)For SSM.
Having Prop 8 on the ballot automatically handles your first issue. This took the power from the courts and put it in your hands, just as you said you wanted. Had you realized your first concern was already satisfied, you could have voted against prop8 and satisfied your second concern: legalizing SSM.
One step forward (power in the hands of the people rather than the courts), but two steps back (removing a right from fellow citizens, even forcing divorce on your neigbors). You had the chance to kill two birds with one stone, but instead let the slingshot snap back and hit you in the eye.
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Heh. Well, the majority of commentators on the subject seem bent on defending a proscription against the validation and recognition of polygamous relationships. But the Iowa decision is just as convincing when one substitutes "polygamous relationship" for "homosexual relationship." The Iowa decision doesn't work as a "this far and no farther" device, against people being free to choose the form of family that they prefer to establish.
Then this completely separate matter can be debated on its own merits, rather than as an issue that is purportedly and erroneously intertwined with gay marriage, which valiantly extends the sacred right of marriage to all loving couples.
No it's not. Same sex couples are in a similar position relative to the benefits of marriage. Polygamous relationships pose a structural difference in how the legal benefits could work. They are hence not similarly situated relative to the legal benefits and status. For example, power of attorney would work the same way in SSM as it would in OSM. Once you add additional spouses, though, that benefit ends up a mess for reasons of legal structure. Under the threshold test, the Iowa Supreme Court would hopefully decline to consider the issue.
The threshold test is one key place where these these issues could be readily differentiated.
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I formed my opinion that the Iowa decision is just as convincing in the realm of polygamy by reading it, and making the mental substitution. The "structural difference" point you raise doesn't exist in the Iowa decision.
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In any event, I will always be entertained by court decisions that claim some rational basis for drawing an arbitrary line. At least the Iowa court admitted that the standard it uses is flexible, and that it should not be constrained against acting "when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time."
I am troubled by people who find struggles over constitutional rights entertaining. Maybe you should go to the movies more, or rent some pornography. These are gut-wreching decisions that people agonize over, deep issues that affect the lives of millions of Americans, not shows for your entertainment. I suppose there were some who thought it entertaining that a slave called Dred Scott thought he could get the Supreme Court of the United States to declare him a free man. Scott did not think it was, and I hope if I were alive then I wouldn't have either.
Because there is no difference in structure between an OSM couple and an SSM couple. However, the threshold test is a bigger issue.
BTW, I have argued elsewhere that criminal sanctions against bigamy should be outlawed, but that courts should not force state recognition of the marriages because courts can only decide issues in front of them at the time. Hence in trying to make the same decision with polygamy, one would be inviting truly endless litigation just in order to determine how exactly this matches up. For example, how does power of attorney work by default? What happens on the death of one of the spouses? etc.
For example, suppose the courts issue such an opinion which strikes down bigamy constraints on marriage. Now a man marries two women. He then dies. The two women might have to go to court just to find out whether or not they are still married! If the lawsuit draws on and there is federal recognition for such a marriage, can you imagine trying to ensure that the IRS gives you the needed delay to file your taxes so you can find out whether you are filing as married or single?
It is good to know you find me troubling, that I read cases like Hamdi and Boumedine for leasure.
I find Constitutional cases entertaining because:
1) They are generally pose hard questions. I like good puzzles.
2) They are generally significant to the country.
3) Most policy think tanks get more wrong than right about the cases. It is fun to make fun of The Heritage Foundation for misconstruing Padilla v. Hanft.
In short they give the brain a good workout and allow us to make fun of clueless bystanders.
Movies can't give you that. Porn certainly can't. And some of the entertainment value comes from the significance of the cases.
HOW will SSM exacerbate a drop in reproduction? (Obviously it is not responsible for the decline as we have not had it.)
A: When the legislature says so.
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Take legislative advice if you will, on your diet.
I'm fine, thanks.
More "chicken?"
You've hardly touched yours -- is there anything wrong?
Is it overcooked? Is the sauce not to your taste?
Please! Eat up!
We prepared plenty for everyone. Where did everybody go?
If anything the court was saying there was no rational basis for the existing arbitrary line.
That having been said the idea of a legal slippery slope is absurd. While legal marriage has symbolic benefits it has a huge role in granting various benefits and rights. So while in theory I don't see any problem with extending marriage to whatever (or equivalently making it a matter of private contract) pragmatically it's another matter.
The rational basis for not extending marriage to cover poly relationships or barnyard animals is that such relationships would not easily fit into the framework of laws that determine hospital visitations, adoptions, and benefits.
Surely everyone can appreciate the financial difficulty that would occur if each of my five wives could claim various governmental or legally mandated benefits. Or the problems of letting a horse visit someone in the hospital.
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