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Quick, Someone Call Tom DeLay:
Judge Joseph Bataillon, a Clinton appointee to the U.S. District Court for the District of Nebraska, today issued a 43-page opinion in Citizens for Equal Protection v. Bruning striking down a 2000 amendment to the Nebraska Constitution limiting marriage under Nebraska state law to opposite sex relationships. As far as I know, this is the first judicial opinion holding that a state ban on same-sex marriage violates the federal constitution. Prior opinions have focused on whether state statutes violated state constitutions.

  As best I can tell from a very quick scan of the opinion, Judge Bataillon's opinion holds that the Nebraska ban on same-sex marriage violated a slew of constitutional doctrines. Those doctrines include: 1) "the right to associational freedom protected by the First Amendment and the Due Process Clause of the Fourteenth Amendment to the Constitution, 2)"the right to petition the government for redress of grievances, which encompasses the right to participate in the political process," 3) equal protection the laws pursuant to Romer v. Evans, and 4) the prohibition against Bills of Attainder under Article I, Section 9. Notably, there is hardly any mention in the opinion of Lawrence v. Texas.

  I have enabled comments. As always, civil and respectful comments only. (Hat tip: How Appealing, of course.)

Related Posts (on one page):

  1. Federal Court Strikes Down Ban on Same-Sex Marriage:
  2. Quick, Someone Call Tom DeLay:
Steve:
This opinion seems to be chapter and verse from Romer v. Evans.

The court did NOT say that a state cannot define marriage as "between a man and a woman." The court also did not say that a state is required to provide any particular benefits to a same-sex couple, unless it chooses to pass such a law.

But what Romer said, and today's decision echoed, is that a state may not pass a constitutional amendment removing the INCIDENTS of marriage from the legislative purview forevermore, because it infringes upon First Amendment rights to associate and to petition the government. In other words, a state may not tell a class of its citizens, "Sorry, everyone else is free to petition the Legislature if they want a bill passed in their favor, but YOU will have to get a constitutional amendment passed if you want any kind of protection."

There are clearly arguments against the decision in Romer; see Justice Scalia's dissent for some typically well-articulated ones. But it's the law of the land, and I really don't see a way today's court could have reached any other result in light of Romer. The only thorny issue is that, because the court ruled the Nebraska amendment is not severable, the voters must go back to the drawing board and pass an amendment defining marriage as between a man and a woman, without the additional language that got it struck down.
5.12.2005 7:56pm
Joel B. (mail):
Ah yes, the whole participate in the political process and not have the decisions moved out to a more remote level of government. That didn't work with Prop. 209 out here despite the attempts to say it should. I suppose however, more and more, this right to participate is turning more into a right not to lose in the political process.

As to the others well, hey whatever Bataillon wants to say a bill of attainder is I mean, hey he's the judge, but I'm a skeptic.
5.12.2005 7:57pm
Challenge:
Really, is anybody suprised? I guess the FMA wasn't "unnecessary" after all.
5.12.2005 8:02pm
Steve:
I respectfully think Prof. Volokh's analysis, above, misses the point in that the decision (like Romer) does not say that same-sex couples are entitled to equal benefits; it merely says they have an equal right to PETITION for equal benefits, if they can convince the Legislature. I don't see anything at all in this decision that compels recognition of same-sex marriages.
5.12.2005 8:08pm
Joel B. (mail):
And they do have an equal right to petition, but now they have to go through the people to make such a change, that's a part of the political process. It should also be worth noting that the whole "more remote level of government" thing is generally thought to be associated with suspect classes, note also, that wasn't the issue relied on in Romer.
5.12.2005 8:13pm
Chris Lansdown (mail) (www):
Steve,

A small point, but Professor Volokh didn't write this post, or comment in this thread (so far).
5.12.2005 8:13pm
NickM (mail) (www):
Nothing in the opinion shows a rationale for how the outcome would have been any different if the state constitutional language covered only same-sex marriages. The Romer v. Evans "analysis" the court undertook give the identical result for state constitutional language that only references marriage, and not civil unions, domestic partnerships, or similar legal relations. At that point, Romer v. Evans would either mean one of two things: that it would be constitutional to pass a statute defining marriage as only including opposite-sex couples but not a constitutional amendment with the same definition; or that it would be unconstitutional for a state to limit marriages to opposite-sex couples (or perhaps even to couples altogether).

As to "bill of attainder" and "chilling effect", it appears the judge has no comprehension of what either term has meant in legal parlance for the last two centuries.

I believe Eugene Volokh's analysis is correct in all particulars.
5.12.2005 8:20pm
Captain Holly (mail) (www):
I'm not sufficiently well-versed in the law to comment on legal issues, but as far as politicall effect is concerned this is a disaster for gay-marriage advocates.

If you're trying to get a reluctant public to accept gay marriage and forestall a federal constitutional amendment banning gay marriage, the absolute worst way to do it is to have a federal judge strike down a state constitutional amendment that garnered the support of some 80% of the voting public.

Judge Bataillon just made a prophet of Tom DeLay.
5.12.2005 8:37pm
ohwilleke:
The key point is the civil union, domestic partnership, or "similar to" language. While it might not bar mere co-ownership of property, it does bar a lot of things.

For example, suppose that a gay couple who cohabit prepare a contract stipulating that their personal property will be divided equally regardless of source, in the event that they break up. This sure sounds like a domestic partnership to me, and hence would be void. Indeed, any Marvin-like contract would be void. Likewise, I suspect that an certification of a relationship for the purpose of obtaining health insurance benefits for a cohabiting partner would be void under this rule.

Suppose two people who cohabit designate each other as agents for each other under durable powers of attorney for property and for health care, name each other as primary beneficiaries under each others wills, provide in their wills that any child of either will receive an equal share as a residuary beneficiary, and name the other person as a primary beneficiary under retirement plan and life insurance policies. Is that similar to? If the couple breaks up, it is essentially identical in effect. What if the couple also mutually change their surname to a new common surname which they also endow upon each of their respective children? Would a judge violate the law by allowing such a name change?

How about an agreement between unmarried cohabitants to share domestic expenses equally? Isn't that a domestic partnership?

Suppose a state hospital allows couples who were same sex married in Massachussets or civil unioned in Vermont to visit each other without further documentation? Is the state hospital in violation of the law?

As the trial court finds, this provision is read broadly in the state, so these aren't idle hypotheticals.

Now, is this a Romer case? Probably not. Romer was about the political process, not substantive law.

Is it an equal protection case? As to the outright marriage portion I don't think that it is, but as to the union, partnership or similar to provision, there is a good argument that it is an equal protection case on a rational basis. After all, if there isn't a rational basis to distinguish between hetrosexual sex and homosexual sex, of consenting adults, per Lawrence, (or between married and unmarried person's access to birth control), then it is hard to see that there is a rational basis from contractually entering into an agreement with each other regarding property and other civil incidents of their relationship -- the greater would seem to imply the lesser.

What the people who passed the law undoubtedly meant to do with to prevent people from having a special "legal status" towards each other with the impromptur of a government sanctification. But, it went farther in its language to include private consentual agreements in the nature of partnerships, and that has the potential to be a constitutional breach.
5.12.2005 10:03pm
Evan (mail) (www):
Ok, as a liberal, law school dropout, and supporter of gay marriage I was shocked at the haphazard reasoning displayed in this opinion. There may be an equal protection argument to be made but decision certainly doesn't even begin to explore it rationally.
5.12.2005 10:08pm
SMGalbraith (mail):
The judge's argument that the state amendment limiting marriage to opposite sex couples violates the First Amendment rights of gay marriage advocates is quite a stunner to me. Under this rationale, all states must recognize same-sex marriages. Correct?

Indeed, wouldn't laws banning incest likewise violate the First Amendment? Or laws against allowing convicted felons to own guns, or vote also violate free expression. Et cetera, et cetera.

Bentham's felicitous phrase comes to mind: "Nonsense on stilts."

SMG
5.12.2005 10:15pm
ss:
Yes, the "chilling effect" argument especially is mind-numbingly ludicrous. The whole of every state constitution would be invalid under this logic. The placement of anything in a constitution would unconstitutionally inhibit or chill advocacy of its not being there. Stupid stupid stupid.
5.12.2005 10:43pm
harmon (mail):
Just thinking ahead a little, it seems to me that we will have three possible outcomes on appeal:

1. the 8th circuit sustains the opinion, on any grounds you chose, and the Supremes reverse;
2. the 8th circuit sustains the opinion, & the Supremes uphold; or
3. the 8th circuit reverses, and we get either 1 or 2 above, or the Supremes don't grant cert.

If the outcome is 2., the chances of the federal amendment passing will increase greatly, to the point of likelihood, or so it seems to me. But in any event, we will have another Roe v. Wade on our hands - and I'll bet the Supremes will be thinking just that. Plus, the Republicans will reap great political benefits.

If the outcome is 1. or 3., i.e., non-cert., the Supremes have in actuality or in effect said that they will not decree gay marriage - in which case the federal amendment loses steam. The likely outcome is that the question reverts to the states, which IMHO is the right venue for this question - and should have been for abortion as well.

So it seems to me that just maybe, the worst possible outcome for gay marriage advocates is, paradoxically, that they win all the way up to the Supremes.

In the meanwhile, the Republicans have just picked up more ammo for the nuclear option...
5.12.2005 11:57pm
Fred (mail):
If Freedom of Association allows requires gay marriage then it also allows requires polygamous(sp?) marriage as well, correct?
5.13.2005 12:19am
The Jaded JD (mail) (www):
The court did not use the Bill of Attainder ban in art. 1, sec. 9, which is the Congressional grocery list of no-nos. The court did use the Bill of Attainder ban in art. 1, sec. 10, which is the state grocery list of no-nos.
5.13.2005 12:45am
Iron Teakettle (mail) (www):
Professor Volokh said it better than I ever could. The Court bent over backwards to construe the law in a manner that would render it unconstitutional.

I believe Professor Kerr had similar thoughts about the Third Circuit's opinion in FAIR v. Rumsfeld.
5.13.2005 1:05am
SMGalbraith (mail):
Employing the First Amendment (right to petition) argument here to strike down laws banning same sex marriages, wouldn't this mean, in effect, that both the Nebraska and US constitutions themselves are unconstitutional? Because any and every change in those documents requires a higher barrier to overcome than simply legislative changes?

Neat trick that. I rule the US Constitution as being un-constitutional.

Platonic guardians indeed, Judge Hand.

SMG
5.13.2005 1:07am
Bemac (mail):
I'm not a lawyer and would appreciate some enlightenment. I think this is an equal protection issue, but I may be wrong.

Opposite-sex marriage laws define a universe of potential spouses for Mr. Straight. The same laws define a universe of potential spouses for Mr. Gay. Other than a possible small number of cases due to consanguinity, the universes are absolutely identical. How can that be unconstitutional?
5.13.2005 1:50am
Iron Teakettle (mail) (www):
To Bermac:

I advocate marriage. No one should live alone. No one should be forced to live alone. But I aked no one's permission to live with my wife, not even my father or her father. The incidental legal benefits that our marriage license provide are neither a sufficient nor necessary condition for our marriage. If we could not be "married", we would still find a way to live together. That is what makes me believe that same-sex marriage is, at best, only a colorable legal issue. It is really a social issue, about acceptance. Marriage is a social institution which exists because it works. Because it has proved that it works. Courts and legislatures should consider very carefully whether they are putting the cart before the horse, but so should advocates of same-sex marriage.
5.13.2005 2:16am
Challenge:
Does any one REALLY think this decision is persuasive? HONESTLY?

I loves this sophistry (which contrary to Eugene's excellent comments is similar to Romer's rationale): The state cannot ban gay marriage, but it doesn't have to allow it either. It must let--contrary to all logic and law--cities and counties decide for themselves.

I really don't get this logic. Sure, while technically correct, it's just a sophistry. Nobody really means it, do they? The state cannot ban rape, but cites and counties don't have to make it legal. The state cannot criminalize marijuana, but cities and counties don't have to allow marijuana use. Yes, REALLY persuasive. It's just bizarre logic that somehow, inexplicably, at the level of the state, as opposed to a city or county, there is some denial of a right to "petition" the government. The right to "petition" is still there and it would require the same process that banning gay marriage involved.

This argument amounts to some strange sort of mini, intrastate federalism. The state has no right to tell cities and counties what to do. Like I said, really persuasive. Whatever one's thoughts on gay marriage, or if the Constitution requires it, this is pure drivel.
5.13.2005 4:36am
Donna (mail):
No, it isn't pure drivel. If I'm in a family in Nebraska consisting of two adults of the same gender, I'm totally out of the legislative process in Nebraska. Even if I could get 51% of the voters to grant wrongful death benefits to my partner upon death, I still couldn't get the benefits. I could beg the governor, the Unicameral, and the judiciary to help me protect my family, but not one benefit or protection could be given to my family through the normal democratic process. Thus, while the man who wants to marry his dog, has the potential to convince the Senators of Nebraska to grant him that right, I don't have the same ability. The rules have been changed only for same gender couples and no others. That's what makes the "marriage protection" aspect of the decision so correct. If Nebraska wanted to protect marriage, why is it that the Nebraska amendment didn't prevent opposite sex couples from having domestic partnerships, civil unions and similar relationships? Doesn't it undermine marriage more when those people who can already get married, are allowed to form other, alternative relationships? Finally, the language was drafted so poorly that it may very well make domestic partnership (intra-state partnerships as defined in Nebraska law) businesses illegal when they involve people of the same gender. Prior to Section 28, Nebraska only contained the phrase "domestic partnership" in one set of laws and those laws all deal with business relationships. Simply, the law takes one group of people out of the political process (Evans v. Romer), is not tailored to protect marriage, and is so poorly written no one in Nebraska knows what it even means.
5.13.2005 10:15am
Susan:
From the Romer case: Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. "The guaranty of `equal protection of the laws is a pledge of the protection of equal laws.' " Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)).

. . .

In any event, even if, as we doubt, homosexuals could find some safe harbor in laws of general application, we cannot accept the view that Amendment 2's prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the state constitution or perhaps, on the State's view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.
5.13.2005 10:21am
Paul Deignan (mail) (www):
The logic of the decision seems to be that no conduct is legal unless the government has provided for it by law (in other words--you have no freedom by natural right).

In order to have intimate relations, this judge believes the state must sanction those relations. I thought we wanted to get the government out of the bedrooms!?
5.13.2005 10:57am
Mahan Atma (mail):
I haven't heard a single defender of any ban on gay marriages or civil unions convincingly explain the "rational basis" for it.

Volokh says its the legitimate "government interest in promoting opposite-sex relationships". Come on... What a transparent bit of lawyering that is. This isn't promoting heterosexual marriage, it's banning gay relationships.

Can anyone here honestly tell me that ban isn't coming from pure animus against gays, and nothing else? That's a violation of Equal Protection, in my book.
5.13.2005 11:07am
Some Random Guy (mail):
You're right to tell us to call Tom DeLay. This judge played right into our hands. I can't believe liberals would be so blind to the fact that they are walking into this trap. Oh well, guess we'll just capitalize on the stupidity and count our blessings.

Say, wonder how people are going to see Dems filibustering judges when they see this and realize EXACTLY what sort of judge Dems really want?
5.13.2005 11:19am
Paul Deignan (mail) (www):
Mahan,

Let me see if you will buy this argument:

Encouraging homosexuals to enter into monogomous relationships with perks and penalties is beneficial to the state as a public health measure. I would also add that private dependent relationships are the first line of defense in eventualities requiring social insurance.

Since individuals choose their orientation as a private matter (not as this judge seems to think), the state is simply promoting coupling. By this logic we can exclude recognition of polygamy.
5.13.2005 11:23am
Kevin Bowman (mail):
I have never understood this "special disability" analysis applied to state constitutions. All states have worker's comp laws, most as part of a constitutional provision. These provisions constitutionally prevent employers from pursuing legislatively the reinstatement of common-law tort defenses available to everyone else. Does that mean they have unconstitutionally placed a "special disability" on employers? I have trouble taking such an argument seriously.

What really bothers me about these decisions is that they take away the citizen's referendum power on important issues. The decisions, much more than the laws they strike down, are fundamentally undemocratic in their effect and, I think, in their intention.
5.13.2005 11:25am
Paul Deignan (mail) (www):
Mahan,

My bad--you were looking for a reason for not recognizing homosexual unions as a matter of state interest. That is different from banning homosexual relations (which is not done).

Your use of the word "ban" is confusing--apparently also for you.
5.13.2005 11:30am
Paul Deignan (mail) (www):
Mahan,

BTW, the stongest argument for heterosexual marriage over homosexual unions as a matter of state interest is in the sustainability and diversity of the institution in relation to the nuturing of future generations and society. Simple.
5.13.2005 11:38am
Anderson (mail) (www):
A poorly reasoned decision, but I think Donna's hit the nail on the head:

The rules have been changed only for same gender couples and no others. That's what makes the "marriage protection" aspect of the decision so correct. If Nebraska wanted to protect marriage, why is it that the Nebraska amendment didn't prevent opposite sex couples from having domestic partnerships, civil unions and similar relationships? Doesn't it undermine marriage more when those people who can already get married, are allowed to form other, alternative relationships?

If Nebraska doesn't forbid cohabitation et al. for all couples, then does it have any genuine interest in protecting or promoting marriage? Or is that just a mask for gay-baiting?
5.13.2005 12:02pm
Bemac (mail):
Thanks for

From Susan's citation of Romer:


To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.


What is the constraint that prevents homosexuals from enjoying the safeguards of marriage? I see none. Nothing in the Nebraska amendment prevents homosexuals from taking part in marriage. The state does not query applicants for marriage licenses on their sexual preference.

Homosexuals in Nebraska are eligible to gain all the rights and privileges of marriage the same way everyone else does: by marrying a person of the opposite sex. If there is a constraint, it is the dissatisfaction of homosexuals with the range of potential partners the amendment gives them. Does this dissastisfaction rise to a violation of equal protection?

I am drawing closer to a conclusion: There are reasons for states to choose to sanction same-sex marriage, but they are questions of policy preference (requiring affirmative acts of legislators) rather than constitutional rights (resolvable in litigation). How wrong am I?
5.13.2005 12:13pm
Paul Deignan (mail) (www):
Anderson,

The "rules" are not being changed by the Nebraska amendment--that is the point of the amendment. Nor does the amendment provide for new arrangements for heterosexual couples.

Marriage and cohabitation are two different things. Cohabitation is not prohibited by the amendment--for any gender arrangement.
5.13.2005 12:18pm
Australian Con Law (mail):
I guess blogging makes strange bedfellows. I am a non-American liberal academic, and I believe allowing same-sex marriage (and certainly civil unions) would be a good thing from the perspectives of morality, politics and equal protection. But I find myself agreeing with most of the criticisms of the First Amendment/freedom of association arguments that have been posted. The reasoning simply doesn't hold water.

1. Section 29 does not erect a discriminatory barrier to advocacy of gay rights. It erects no barrier of any kind. Nothing in s 29 prohibits or burdens advocacy of gay rights. The section makes it very unlikely that such advocacy will succeed, certainly. Indeed it makes it impossible unless the advocacy is so successful that a constitutional amendment would result. But that is a very different thing from burdening advocacy. If merely making success unlikely amounts to an illegitimate "chill" on speech, then there is little government action that wouldn't amount to "chilling" someone's speech.

2. In particular, any constitutional prohibition would be a violation of free speech. Advocacy in favour of that prohibited act would be rendered ineffective and therefore (according to the judge's reasoning) unconstitutionally chilling. A constitutional prohibition on racial discrimination would violate the free speech and association rights of those who would advocate racial discrimination. To take an intentionlly trivial example, a constitutional prohibition on driving on the left side of the road would violate the free speech rights of naturalised Antipodeans. (Absent a constitutional amendment, we would be locked out of the political process; the reasoning is completely analogous). And that's about as absurd a reductio as you can get, surely?

3. Nothing in s 29 burdens the formation of associations advocating gay rights. The existence of the plaintiff organisations themselves demonstrate that: they are associations that advocate gay rights. These organisations haven't been banned, nor have they been burdened. And the state is under no obligation to ensure their fund-raising drives go smoothly.

4. The intimate association arguments fare no better. The section does not ban same sex relationships, nor does it unduly burden them. The judge is at pains to point out that the intimate associations protected by the First Amendment extend beyond married couples to a broad range of personal relationships, including cohabitation with relatives and relationships that involve non-family members. But this point undercuts the judge's argument. Why? Because many of these intimate associations are not accorded the same legal status as marriage. Are the rights of brothers, sisters, cousins, grandparents, to live together violated because they do not get the same taxation benefits etc as married couples? That strikes me as simply implausible.

5. Quick question: What would this judge say about a federal version of section 29? Would he interpret the prohibition as an amendment/limitation on the right of free association?

I honestly believe that same-sex couples should be allowed to form civil unions at the very least, and preferably get married. So this judgment disappoints me. I am afraid that putting forward arguments like this only lessen the credibility of those with whom I agree. Ironically, this judge may have just done more himself to hinder/chill/render ineffective gay rights advocacy than s29 ever would have.
5.13.2005 12:26pm
Paul Deignan (mail) (www):
Perhaps the disability is due to the existence of adultery laws. Do these exist anymore?
5.13.2005 12:27pm
Split Lip Rayfield (mail):
The opinion is factually incorrect when it says, in that one beastly long footnote, that NE is unique in that no other state passed a defense of marriage amendment as broad as NE. Kansas just passed one which is a lot broader than the Nebraska amendment. The Kansas amendment goes bye-bye if this opinion is followed.

Query: if the ACLU is a named plaintiff, and it did come before the supreme court, how could Ginsburg hear the case b/c didn't she used to be the chief counsel or something for the ACLU?

I also find it amusing when, like in Goodridge, our robed overlords explain to us that marriage as it has existed for the last 5,000 years (i.e., the union of one man and one woman for life to the exclusion of all others) is "irrational."

Banning marriage between a man and two women, or three men, or a man and two women, or two men and two women, is motivated only by animus against polygamists, right? Can you identify a rational basis for the ban against group marriages, if there is no rational basis for making marriage only between a man and a woman? (the canard about birth defects doesn't count, especially if we're talking about three people of the same sex getting married).

Lastly: This and Goodridge are proof positive that without a federal marriage amendment, gay marriage will be a reality in the United States in ten years. I don't want to have to amend the US constitution, but I have to play defense against the well-organized, well-funded forces using the courts to ram gay marriage down the throats of Americans, even if it means stealing the votes of 70% of the Nebraska citizens. Cultural conservatives didn't start this fight.

That is all.
5.13.2005 12:56pm
ralphph (mail):
As Volokh argues in the other linked post, while the Romer/overbroadness arguments are at least plausible, the 1st amendment & bill of attainder arguments are totally illogical, and if applied consistently would eliminate state constitutions entirely.

As a non-lawyer, I have a question. How bizarre, novel and full of sophistries does a decision have to be before you go beyond reversing it to considering whether the judge who issued it should be impeached for incompetence?
5.13.2005 1:11pm
Zorba (mail):
The Neb initiative doesn't ban, inhibit or chill gay sexual associations in any fashion. You can boff who you want any way you want without penalty, and live in a group of any size with people of any gender you want, again without penalty.

What it DOES is prohibit the state from extending unique protections, privileges and benefits to certain (but not all) associations based on mutual homosexual attraction, on the perhaps unproven (but also not disproven) proposition that those protections etc. are designed to further the state's legitimate interest in encouraging associations that are best for the raising of the next generation.

How could this court square affirmative action by the state with the Constitution? After all, AA does not punish non-minority applicants for state contracts, slots in public law schools, etc. It merely gives an advantage to minority applicants based on the arguable proposition that the state has a legitimate interest in encouraging diversity. Whether or not AA is desirable or nice is not the point; the Courts have held if it is the citizen's choice (via the legislature) to implement it, then it is legal.

Obviously similar arguments hold with respect to the right of the citizens, if they choose, to withhold voting privileges indefinitely from felons, to withhold drivers licenses from people with x DUI convictions, or send people with 3 "strikes" up the river for life. These things may not strike a given judge as reasonable, effective or wise, but they are legal because the Constitution does not prohibit them.

With this, and the other logical inconsistencies pointed out above, it becomes very clear that the essential basis for this Court's decision -- and for the support of its supporters, vide supra -- is not legal but moral. This decision is indeed simply imposing morality de novo and ex cathedra from the bench. And that is exceedingly unconstitutional, not to mention alarming. It is not given to the judicial branch to originate moral choices in this nation. That function was explicitly reserved to the people by the Founders. And very wisely: any other choice boils down to Caesarism.

This is what happens when you sit above the people all day and are called Your Honor. You get a big head and forget we are a nation of laws, not men, or one man. You start to think the essential battle to establish the liberty and dignity of the black man was fought in the courtroom and not on the fields around Gettysburg. You sow the whirlwind and forget what wisdom says you shall reap.
5.13.2005 1:34pm
Robert S. (mail):
Forgive me because I'm just a law student and haven't taken a class yet on individual rights and liberties. But the legislature doesn't own the country (or the states), and it never has. The courts have always on occasion assumed an anti-majoritarian role; it is one of their functions. Just because a (large) majority of Nebraskans think the amendment is good does not give that majority the right to impose the costs of its decision on a minority (gays who would like to marry, or at least receive the same benefits). Prof. Volokh I disagree with you--I think it is not a legitimate government interest to select one type of union (whether it is civil, marriage, etc), when the effect is to shift substantial costs and burdens to a minority whose interests are not represented by that legislative process.
5.13.2005 2:29pm
Kaz (mail):
I think this decision clearly illustrates a circumstance where a Federal Judge should be impeached because of a decision. Bad decisions are what appeals courts are for. But this decision is so far out of bounds and the reasoning so tortured that it clearly disqualifies the judge from continuing on the bench.

My own state Washington, like many states, has a expanded version of the second amendment. Should it be struck down because it makes hit harder for gun control proponents to advocate for stricter gun control? Does Utah's constitutional ban on polygamy amount to a bill of attainder because it punishes polygamists because it is "intended to prohibit their political ability to effectuate changes opposed by the majority."?

The Judge should be impeached, and if it has a "chilling effect", then its about time. I've never seldom seen an opinion that so blatantly states "It's unconstitutional because I'm against it."
5.13.2005 3:06pm
Mahan Atma (mail):
"Encouraging homosexuals to enter into monogomous relationships with perks and penalties is beneficial to the state as a public health measure."

I cannot take seriously the argument that Nebraska's Amendment is going to encourage gay people to enter into heterosexual marriages. Gay people are gay. They are not going to decide to become heteros (as if it was ever a choice) simply because of this asinine law.
5.13.2005 3:21pm
Craig:

Mahan,

BTW, the stongest argument for heterosexual marriage over homosexual unions as a matter of state interest is in the sustainability and diversity of the institution in relation to the nuturing of future generations and society. Simple.


Based upon this argument, it is of vital interest to the state in the diversity of the institution of marriage in relation to the nuturing of future generations and society that marriage between persons of the same political affiliation, religion, race, ethnicity or social class be prohibited in addition to the current ban on marriage between persons of the same sex.

Next attempt at a "rational" basis?
5.13.2005 3:32pm
Burt Likko (mail):
I'm with Craig and Mahan on this one; much as it pains me to disagree with one of my intellectual heroes, there just isn't a legitimate state interest in denying marriage benefits to same-sex couples.

If, as suggestion the state's legitimate interest is promoting "the sustainability and diversity of the institution in relation to the nuturing of future generations and society," then a law prohibiting certain kinds of marriages works the exact opposite result since it decreases diversity within the institution. That cannot survive the rational basis test.

Consider: the state has legitimate interest in seeing to it that children receive an education. But a law abolishing public schools does not survive "rational basis" scrutiny based on a claim that the state is trying to ensure universal education. Yes, it's a law within the "ballpark" of education, but the law irrationally legislates in the opposite direction of its intended result.

The best attempt I've ever heard or read at defining a legitimate state interest in marriage particular to opposite-sex couples was in the case of Morrison v. Sadler from Indiana. That court reasoned that same-sex couples cannot "unintentionally" conceive through recreational sex, while opposite-sex couples can. So, extending the "benefits of marriage" to an opposite-sex couple will encourage that couple to "stay together" and jointly raise their child, to the child's and society's advantage. That's all well and good, and that probably is sufficient to justify having the legal institution of marriage in the first place.

But the question is not why have marriage at all, the question is why should it be denied to a particular class of people? Denying the benefits of marriage to same-sex couples is not logically related to advancing the state's claimed purpose of encouraging same-sex couples to jointly raise their unplanned children.
5.13.2005 5:22pm
Burt Likko (mail):
Oops! I wrote just a bit too quickly -- I should have concluded by saying that "Denying the benefits of marriage to same-sex couples is not logically related to advancing the state's claimed purpose of encouraging same-sex opposite-sex couples to jointly raise their unplanned children."
5.13.2005 5:23pm
Sydney Carton (mail):
Playing the "rational basis" game is a losing hope for defenders of marriage, because the Court, by asking a question, is really engaging in political games and the demeaning of its cultural enemies. Any extremist will always label his opponents as irrational. So too with the opponents of marriage. They label any defense of marriage as irrational, fuelled by animus, or outside the bounds of decency. But that is not the act of judging laws and texts and rules, but of a cultural authoritarian. The Black Robed Imperial Masters, however, have gotten to the point where they don't give a damn if they're seen that way.

So expect the "rational basis" defenses to fail, not because they're faulty on the substance, but because the outcome of the question is preordained. Like all the analyses in substantive due process, the entire process is a sham all designed to cover the political rulings of an Elitist Oligarchy. This is the Court system in America today.

The response by the public should be twofold: to destroy the institutional power of the judges either by amending the rules under which they operate or destroying the basis of their authority (various amendments removing lifetime tenure, or impeachment, or subponea of judges to explain themselves, etc, are possible), and further, to increasingly operate outside a corrupt court system by engaging in paticipatory democracy to solidify values and systems under constant assault from the bench (by enacting, say, a Marriage amendment to the constitution, etc.).

Judges are idiots if they think they can win this battle on the whim of their perceived ice-thin authority. I'm sure Louis XVI thought his royalty would go unquestioned forever too. But people don't take kindly to continued elitist abuse the intentionally and proudly flaunts the will of the people.
5.13.2005 5:57pm
Anderson (mail) (www):
Has any federal judge *ever* been impeached for issuing a bad opinion?

If not, why begin now? Particularly with district judges, whose ops are written to be reversed?
5.13.2005 6:05pm
Kaz (mail):
Burt, Craig, Mahon, you are standing the issue on its head. There is a compelling state interest in encouraging hetero-sexual unions. They are the bedrock of our social structure, with multitudes of concrete benefits to the state and society as a whole. So the state has created benefits, and special standing. There is no compelling state interest in encouraging same-sex unions so the state merely decides not to act. And certainly the rational basis is there for deciding that same-sex union are worthy of this special status, while there I am not aware of any studies showing advantages to the state or society from same sex unions.
5.13.2005 6:12pm
Mahan Atma (mail):
"Playing the "rational basis" game is a losing hope for defenders of marriage."

Please explain: How is a ban on gay marriages a "defense" of heterosexual marriages? If the gay couple next door gets married, does yours fall apart?

If you were really that intent on defending marriage, shouldn't you be banning divorce, criminalizing adultery, and the like?
5.13.2005 6:30pm
Mahan Atma (mail):
"The response by the public should be twofold: to destroy the institutional power of the judges either by amending the rules under which they operate or destroying the basis of their authority..."

I hope all the rest of you take a good look at the likes of your bedfellows.
5.13.2005 6:31pm
Challenge:
"The rules have been changed only for same gender couples and no others."

Yawns....

So, I guess, the part of Utah's constitution which bans polygamy--and only polygamy--must go too. The constitution states, "polygamous or plural marriages are forever prohibited." I guess this needs to be struck down for the same reason....

I think I have had my take of sophistry.
5.13.2005 6:46pm
The Sophist (mail):
I still would love to see an answer to Fred's question -- echoed by another commenter. Nothing in the opinion that I scanned seemed to apply only to homosexual marriage; it seemed to apply with equal force to any disfavored sexual relationship arrangement: polygamy, incest, children, etc.

If the Freedom of Intimate Association and the Right to Advocate combine to strike down State Constitutional Amendments (nevermind mere statutes), why exactly is this limited only to gay couples?

Even as a proponent of gay marriage in principle, seems to me that those who are supporting this particular judicial opinion are caught in a trap. Either, (a) they would have to declare that all sexual relationships are beyond the purview of the government, or (b) they would need to engage in some really dicey linedrawing exercises. If the State has no legitimate interest in promoting opposite-sex marriage under these grounds, you'd have to show some basis under which it has a legitimate interest in promoting one-to-one marriages, or non-consanguineous marriages between consenting relatives (particularly homosexual incestuous marriages which could result in no biological children), or only age of consent marriages.

Also, to Robert S., who wrote:

But the legislature doesn't own the country (or the states), and it never has.

Supposedly, under our majoritarian representative democratic system, it is the people who own the country (or the states) and their will as expressed through the legislature or through the Constitutional Amendment process. When courts "fill their anti-majoritarian roles", this is a really, really bad thing. It's only justified because the courts are acting (supposedly) to effectuate a larger, more primary majoritarian political will -- namely the Federal Constitution. That you see the role of the courts as "counterbalancing" the legislature, as if their job is to disagree with legislatures, is in itself a symptom of the larger problem we have with the judiciary.

Just because a (large) majority of Nebraskans think the amendment is good does not give that majority the right to impose the costs of its decision on a minority (gays who would like to marry, or at least receive the same benefits).

Actually, this is exactly what the majority has the right to do: impose costs of its decision on a minority. Ask any street pharmacist, tobacco company executive, or gun dealer.

...when the effect is to shift substantial costs and burdens to a minority whose interests are not represented by that legislative process.

I think there is a distinction to be made between "represented by legislative process" and "victorious in legislative process". Otherwise, every single law on the books needs to be overturned, including laws prohibiting murder, since the legislative process by which that activity was outlawed did not fully represent the murderers' political preferences.

-TS
5.13.2005 6:49pm
SydneyCarton (mail):
Mr. Atma,

I am in favor of ending no-fault divorce, and making adultery grounds for civil damages. Did I give the impression I was against those reforms? In any event, the answer to your first question is obvious: a ban on gay "marriage" defends traditional marriage because it recognizes what peoples across cultures and history have always known: that marriage is the union of a man and a woman. Gay "marriage" is a sham, however monogomous the gay couple may be, because marriage as an institution is broader than the mere act of fidelity to a person in sexual relations, or for certain legal benefits. It is an institution designed (not by government, but by society) for the channeling of male sexual agression and female need of a provider during pregnancy, and is the gateway to the institution of the family - which involves the proper raising of and role-models for children, and a default institution (though not the only one) for providing rights and legal instruments to hiers and sires, among other things. You need to read up on Locke, and forget about Rawls. The natural human social model is the family, and has been under all governments and across history. Family exists, whether you dictate other social compacts by government decree or not. And government therefore should have a role in supporting family for the betterment of society.

Finally, I'm not the first one to suggest a term limit on federal judges, a marriage amendment, or other institutional reforms of the bench. If you think that such ideas are wacky, then perhaps you're too wedded to the power of the Robed Elite.
5.13.2005 6:52pm
Craig:
Kaz,

You have the argument backwards. To deny a fundamental right, like the right to marry, whether it be to a person of a different race, a person that owes back child support, a person in prison, a person of the same sex, etc, there must be a compelling interest to deny the right not a compelling reason to recognize the right. In so far as strict scrutiny under the fundamental rights doctrine is concerned, same sex couples are not required to give reasons why they should be able to marry. The state and other proponents of denying the right must make the case of a compelling state interest against allowing same sex couples to marry. And once they have such a compelling interest, it must be shown that it is narrowly tailor to effectuate that interest.

As has been pointed out above, no one has so far presented so much as a rational basis, much less a compelling state interest, to deny the right to marry to same sex couples.

As for benefits, the Fundamentalist Christian Right wing incessantly complains about homosexual promiscuity and claims AIDS to be a gay disease spread by that promiscuity. Tell me, what's the incentive for same sex couples to form lasting bonds in monogamous relationships is the states are going to show overt hostility to them.

Let's look at a situation where we have two people of the same sex that have lived together for years in a house that they own together. They have an agreement whereas each has power of attorney for the other in case of emergency, both have wills and insurance policies where the other is the beneficiary, and have both provided that the other can make the arrangements in the event of death.

As Senario 1, if the two people of the same sex are heterosexual roommates, the state would likely not challenge the above described documents, and would face little if any difficulties in executing those documents in the event of the death or incapacitation of one of them. OTOH, in Senario 2, if the two people are a homosexual same sex couple, many states are stepping in and saying the documents are void as they are an approximation of marriage rights. The one partner could find him/herself completely blocked from visiting the other in the hospital, much less making the medical descisions. The state, by voiding the will as an invalid approximation of marriage can claim intestate succession to the person and force the sale of the home that the partner is entitled to under the will.

Ofcourse this is one of the reasons the judge struck down this poorly written Nebraska hate amendment. The people of Nebraska almost certainly did not intend for the amendment to apply to the couple in Senario 1 but did in Senario 2, in which case the amendment is invalid along the lines of the Supreme Court's emerging malicious intent doctrine of Romer v Evans and Cleburne v Cleburne Living Center as stated in O'Connor's Lawrence partial concurrence ("When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause"). If the amendment is read to apply to both Senarios above, you have Contract Clause and other issues. In Ohio, some judges, to salavage their hate amendment, have gone so far as to rule that the domestic abuse laws no longer apply to unmarried heterosexual couples because it recognizes a legal status "that intends to approximate the design, qualities, significance or effect of marriage." So if you beat up your live-in girlfriend the case is no longer a felony domestic violence charge, but just a misdemeanor assault.
5.13.2005 7:11pm
ReaderX:
I'm not sure I understand how the Civil Rights laws can be constitutional under the court's judgement. Legislatures (and perhaps judges) may believe that people are supposed to work for money, not for love, but it's not clear to me that people who believe otherwise should be punished merely for having different views of what types of associations they regard as intimate and important to their lives.

Saint Francis of Assissi and the poet Khalil Gibran believed that "work is our love made manifest." If this is so, obviously there is as much a right to sex-based choice of partners in vocational as in any other intimate setting. Why should the constitution discriminate against Saint Francis of Assissi and Khalil Gibran's view of the meaning of love and intimacy? Where in the constitution say that those who are called to regard their vocations rather than their bedrooms as the place they choose to express the meaning and mysteries of their life, and who seek vocational partners in accordance with a sexual preference we acknowledge to be appropriate in intimate and important-to-life settings, should be punished merely because their idea of what is intimate, important, and meaningful in life isn't a judicially approved idea?
5.13.2005 7:15pm
Mahan Atma (mail):
"a ban on gay "marriage" defends traditional marriage because it recognizes what peoples across cultures and history have always known: that marriage is the union of a man and a woman.


Not so long ago, people were arguing that marriage has always been known as "the union of a white man and a white woman."


"It is an institution designed (not by government, but by society) for the channeling of male sexual agression and female need of a provider during pregnancy, and is the gateway to the institution of the family - which involves the proper raising of and role-models for children, and a default institution (though not the only one) for providing rights and legal instruments to hiers and sires, among other things."

First of all, gay couples can raise children.

Second, many hetersexual couples don't. My wife and I have no intention of having kids, and we've made it impossible to do so via surgery. I'm also pretty sure it has nothing to do with my male aggression or her need for a "protector", because we have niether in our marriage.

So shouldn't such intentionally childless marriages be banned, by your logic?
5.13.2005 7:16pm
Mahan Atma (mail):
"There is no compelling state interest in encouraging same-sex unions so the state merely decides not to act."

But to point out the obvious, this isn't a case where the state "decides not to act"! Quite the opposite: The state affirmatively acted to ban or recognize gay marriages, even those from other states that recognized the legitimate state interest in supporting them.

The silliness of these arguments shows how transparent the motives are of those who support these laws. It's nothing more than a desire to impose one's own Judeo-Christian and/or bigoted values on others.

That people who call themselves "libertarians" would support such laws (and from a policy viewpoint, not just by constitutional logic) demonstrates what a meaningless label that has become for many who deploy it.
5.13.2005 7:25pm
Mahan Atma (mail):
"I still would love to see an answer to Fred's question — echoed by another commenter. Nothing in the opinion that I scanned seemed to apply only to homosexual marriage; it seemed to apply with equal force to any disfavored sexual relationship arrangement: polygamy, incest, children, etc."

Personally, I have no problem with other people practicing polygamy, especially where it's their religious practice.

As far as incest, children, etc:

1) There are real, identifiable harms that result to third parties, e.g. the offspring of incestual relationships; no such harms exist in the case of a consensual homosexual marriage.

2) With children, there is the very obvious element of lack of consent.
5.13.2005 7:28pm
katherine:
This doesn't follow from Romer. It might follow from Boy Scouts v. Dale, however.

If there's a First Amendment right of expressive association not to hire gay scoutmasters, and the First Amendment applies to non-political as well as political expression, isn't there a right not to have one's contract voided because you're gay?
5.13.2005 7:36pm
katherine:
Caveat: as far as discrimination against gay people because they're gay not being a rational basis, it follows Romer.

But the First Amendment argument right that this denies the right to petition is so, so, so dumb.
5.13.2005 7:38pm
Craig:
Sophist, how about the compelling state interests that have been recognized in the areas you mention.

As to children, you've got two 1982 cases, Globe Newspaper Co. v Superior Court and New York v. Ferber, that clearly recognize that "safeguarding the physical and psychological well-being of a minor is a compelling [state interest]" even when the restricts "operate[] in the sensitive area of constitutionally protected rights." It is a temporary restriction of a fundamental right to that is narrowly tailored to the interest and is removable by parental and/or judicial consent to marry depending upon the age and jurisdication.

As to consanguinity restrictions you have the interest in maintaining the already extant family structure. This goes well beyond just issues of potentiality of birth defects in children, which isn't an issue at all if one or both persons are beyond child bearing years. If a person can supplant his siblings in preeminence in the family order by marrying his widowed mother, it can cause problems. There are also issues around the potential to concentrate wealth in the family by not marrying outside the family. Also note its not necessary for the relationship to be by blood. Most states bar marriage to a person of close relation even if the relation is by adoption. The states, while alomst completely uniform in provisions of marrying an ancestor, descendant, aunt/uncle and nephew/neice, are quite diverse in their handling of cousins. In roughly half the states, marriage to a first cousins is permited. The other half prohibit it, but there are exceptions such as Arizona and Illinois allowing cousins incapable of procreating to marry. North Carolina allows cousins to marry, but only if they are not double first cousins (i.e. have only two sets of grandparents). A few states go so far as to bar marriage to a first cousin once removed. These issues have been litigated at the state level and are well established, but I know of no case that has reached the US Supreme Court specifically on these issues.

As for polygamy, there is U.S. v Reynolds. Though that case was before the emergence of the strict scrutiny doctrine, there is little doubt that were the case to be revisted, the rational of the Court would likely be upheld as compelling. Its also worth noting that polygamy doesn't impinge the fundamental right to marry in the same manner as same-sex marriage bans. A person is forever prohibited from marrying a person of the same sex but a polygamist is only prohibited from marrying a person while already married to another person, a disability that can be removed. Its similiar to the fact that while the right to vote is fundamental, you can't vote more than once in the same election. A same sex marriage bans is akin to being able to vote, but only if you choose to vote for the candidates of the political party you oppose.
5.13.2005 7:40pm
Craig:
katherine, I agree the First Amendment argument is a bit tenuous. On principle, I think the judge was making more of an open government argument that the government must always be open to those that seek its assistance. Even if the assistance isn't granted, all persons must be able to utilize the political process, and that process is limited by the amendment. I would classifly that as more of a Due Process principle myself though I see how he can lump it into the First Amendment. As to whether the amendment rises to that level of denying open government as Romer did, its plausible. No other type of relationship, save those between same sex couples, are required to get a constitutional amendment to address their relationship concerns.
5.13.2005 7:48pm
Paul Zrimsek (mail):
If a state amendment that prevents advocates of policy X from getting their way unless they pass a constitutional amendment is an infringement of their right to access the political process, what are we to say of a court decision that prevents opponents of policy X from getting their way even if they pass a constitutional amendment?
5.13.2005 8:23pm
Bemac (mail):
Who has the right to get married? Two individuals or a couple?
5.13.2005 8:39pm
Mahan Atma (mail):
"Who has the right to get married? Two individuals or a couple?"

Under Loving v. Virginia, it's both individuals.
5.13.2005 8:56pm
ralphph (mail):
Anderson asks

"Has any federal judge *ever* been impeached for issuing a bad opinion? "

An interesting factual question that I hope someone on this board can address.

"If not, why begin now?"

Because they just keep getting worse, and eventually you have to say "enough."
5.13.2005 9:29pm
ralphph (mail):
Anderson asks

"Has any federal judge *ever* been impeached for issuing a bad opinion? "

An interesting factual question that I hope someone on this board can address.

"If not, why begin now?"

Because they just keep getting worse, and eventually you have to say "enough."
5.13.2005 9:30pm
Craig:
Paul, fundamental rights are not dependent upon majoritarian consent. To quote Justice Jackson in West Virginia Board of Education v Barnette:
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

If a majority of the people of the state of Nebraska opposed a policy of allowing Democrats to live and voted to pass a constitutional amendment making being a Democrat a capital offense, with the death sentence to be carried out post-haste with no opputunity to appeal, would you claim a federal judge striking down that law would be denying a majority of Nebraskans their will through the political process? Or would you find that Democrats like all other people have a 14th Amendment liberty interest in their life via the Due Process Clause, that the amendment is violative of the Equal Protection Clause and is an unconstitutional Bill of Attainder? Just because a majority favors something doesn't make it constitutional. Hell, it wasn't until 1991 that a plurality (48%) of Americans approved of interrcial marriage, a full TWENTY-FOUR years after the Supreme Court excised miscegenation bans from American law.
5.13.2005 9:36pm
ralphph (mail):
Anderson asks

"Has any federal judge *ever* been impeached for issuing a bad opinion? "

An interesting factual question that I hope someone on this board can address.

"If not, why begin now?"

Because they just keep getting worse, and eventually you have to say "enough."
5.13.2005 9:50pm
ralphph (mail):
Anderson asks

"Has any federal judge *ever* been impeached for issuing a bad opinion? "

An interesting factual question that I hope someone on this board can address.

"If not, why begin now?"

Because they just keep getting worse, and eventually you have to say "enough."
5.13.2005 9:51pm
ralphph (mail):
Anderson asks

"Has any federal judge *ever* been impeached for issuing a bad opinion? "

An interesting factual question that I hope someone on this board can address.

"If not, why begin now?"

Because they just keep getting worse, and eventually you have to say "enough."
5.13.2005 9:52pm
Paul Deignan (mail) (www):
Mahan et al.

You state that gay people are gay yet offer no proof. Please let me emphasize this point as it is uniquely important to all the confusion on this issue.

There is no proof that sexual orientation is anything other than a learned behavior. In fact, there is proof to support the contention that sexual orientation is simply a state of mind. That's good for us!

Now think of that. We cannot go to court and "prove" that we are one thing or the other and therefore entitled to some special legal provision when that provision is contingent on a state of mind that we can change by will. There is no requirement being discussed that people actually demonstrate a behavior to prove their status nor is there some distinquishing facet of the individual that we can use to discriminate. Would we want to discriminate on a private choice?

Note that a choice made by the individual that is used by the state as a basis for legal action infers that the state is now involved/empowered in that individual choice. Do we want the state to dictate/penalize/favor our private choices of this sort? Isn't our state of mind intrinsic to our individuality and fundamental to our sovereignty? You must admit that one can chose a certain sexual proclivity--to want or not want and to what degree at any time. If we cannot, than our thoughts and desires are dictated by our environment and we are no longer different from animals and will be treated as such by any being with a greater degree of self-direction/autonomy.

Such discrimination is anti-democratic. What some wish for here in allowing a special provision for homosexual unions is actually anti-democratic. Remember, sex and marriage are two different things. I am not aware that one implies the other in our legal system. Would we want it any differently?
5.13.2005 10:29pm
Bob Van Burkleo (mail) (www):
Most of these responses seem to be confusing the state issued license with the actual state of marriage. Marriage comes from beyond government, they merely acknowledge its existence.

Gay people already can marry, they do it all the time. I've attended a number of religious ceremonies. Same with polygamy - I know the 3rd wife of an Islamic man right here in Washington state. No the current discussion is only about a civil contract licensed by the state, to bring in talk of 'protecting the institution of marriage' is a bunch of bull.

So since this is a civil contract issue, what the state has to do is justify their making it licenseable to only some citizens based solely on the gender of their prospective cosignee. It is the state's inability to justify this class difference in licensing that has made so many courts rule in favor of same-gender marriage.

While constitutional based discrimination of this nature on licensing the contract can be created this amendment goes far beyond that - it limits a subgroup of citizens ONLY from "civil union, domestic partnership or similar unions." Those citizens who are in 'other than marriage' unions with opposite sex are not excluded from recognition carte blanche. Further the judge is correct in that this could be construed to mean that even mutual contracts that crudely emulate the legal benefits bestowed by the licensing of the civil contract that were previously legal now are potentially not. So this isn't the mere limiting of some citizens access to a particular legal contract but the blanket limiting the rights of citizens to a broad range of contractual tools.

So much for everyone being 'created equal' - but then the originalists look at the Declaration of Independence as more a historical curiosity, don't they?
5.13.2005 10:32pm
Paul Deignan (mail) (www):
Craig,

Your criticism does not pass muster. Gender is fundamental. Our DNA cannot be changed by the individual through willful action. Gender is not a state of mind or a choice--it is a condition of birth.

In fact, it is the most fundamental distinction of any intrinsic distinction. Think of that. Your slippery slope implications are nonsense.
5.13.2005 10:34pm
Paul Deignan (mail) (www):
Burt,

For the state to adopt an institution, there should be a state interest. Marriage (legal) is a creation of the state--not a natural right (we are only talking about legal marriage here, not some blessing of druids).

You are caught in a double negative. You need to show a state interest in creating a new institution of same-sex marriage. This is generically different from the state recognized institution of alternate sex marriage. As a matter of policy, the state can do what it wants here. There is no natural right for the state to adopt this institution. In fact, there is nothing to force the state to recognize alternate sex unions--the state does it in its own interest.
5.13.2005 10:40pm
Paul Deignan (mail) (www):
Bob --just saw your post. Kudoos.
5.13.2005 10:41pm
Paul Deignan (mail) (www):
BTW Bob, the amendment applies to all--not just a subgroup.
5.13.2005 10:42pm
Paul Deignan (mail) (www):
So to carify to all:

State of mind is a fundamental right.

Recognition of marriage is a state policy.

(Most who are confused here seem to be confused based on a desire to adopt a policy and to convince others that it should be adopted based on a false rationale. For those who want to advocate this policy change, it would be better to point to some social benefit of same sex unions.)
5.13.2005 10:51pm
Craig:
Paul, religion and political affiliation are choosen "behaviors." Can the state of Nebraska mandate that no person may marry a person of the same political party or of the same religion or sect of religion? Whether sexuality is chosen or not is of NO consequence to this matter.

As for your assertion that there is no proof that sexual orientation is anything other than learned, that is only true if one discounts all science on the subject since the 1940s.
5.13.2005 10:52pm
Bemac (mail):
Mahan,

Thanks for your response. Knowing that individuals, rather than couples, have marriage rights raises the following question:

Can you, or anyone else, tell me how the amendment affects individuals differently in a way that is constitutionally unfair to homosexuals?

Every individual, regardless of sexual orientation, is subject to the same requirements for marriage, and is entitled to the same benefits of marriage.

The amendment prevents homosexuals from marrying persons of the same sex, but it also prevents heterosexuals from marrying persons of the same sex. Objectively, the impacts of the amendment are the same on heterosexuals and homosexuals.

How can a law that affects all individuals the same way be an unconstitutional infringement on the rights of some?
5.13.2005 11:01pm
Paul Deignan (mail) (www):
Craig,

Note that I said "gender" not sexuality. Sexuality is a choosen state of mind. Gender is a condition of birth.
5.13.2005 11:11pm
Paul Deignan (mail) (www):
Craig,

BTW, if you have proof, you would be the first. Please share. Even our best science cannot discern a genetic distinction.
5.13.2005 11:14pm
Paul Deignan (mail) (www):
Bemac,

Anyone can "marry", its just that the state will not recoginize all but a certain type of union for its purposes.

I'm married to my computer. Alas, no state recognition.
5.13.2005 11:21pm
Mahan Atma (mail):
"How can a law that affects all individuals the same way be an unconstitutional infringement on the rights of some?"

So, in your view, if the law says an individual can only marry other individuals of the same race, that's constitutional, as long as it applies to everybody?
5.13.2005 11:24pm
Craig:
How can a law that affects all individuals the same way be an unconstitutional infringement on the rights of some?

Because equal application of the law is not the same thing as equal protection of the law. The miscegenation laws of Virginia and the atleast 39 other states that have had them at some point in their history had equal application. In essence, they limited all people to marrying a person of the same race. The Supreme Court has rejected the argument that equal application of a law immunizes it from Equal Protection scrutiny. See McLaughlin v Florida ("Judicial inquiry under the Equal Protection Clause, therefore, does not end with a showing of equal application among the members of the class defined by the legislation. The courts must reach and determine the question whether the classifications drawn in a statute are reasonable in light of its purpose.") and Loving v Virginia ("[T]he Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination.").

Moreover, the court has found the right to marry itself to be so fundamental a right that
Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. ...Our precedents have respected the private realm of family life which the state cannot enter. These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
Planned Parenthood of SE Pennsylvania v Casey (internal quotations, citations omitted)
5.13.2005 11:27pm
Paul Deignan (mail) (www):
Mahan,

Supposedly, we do not recognize race as a legal factr although it is a condition of birth (not genetically significant and actually quite questionable).

However, the law does recognize male-female as a psysiologically distinction. So your analogy is not appropriate.
5.13.2005 11:29pm
Paul Deignan (mail) (www):
Craig,

Are you aware that your citation of Casey actually supports my contention, but does not support the notion that the state can create a "right" to marry, i.e. the right is a natural right choice. Again. Casey says nothing about the state policy of marriage, only makes mention of the intrinsicness of "choice". Too bad they did not consider when and where that ability to choose arises. (A half-baked decision if ever there was one).
5.13.2005 11:36pm
Paul Deignan (mail) (www):
BTW Craig,

You also need to be able to define these classes that the equal protection/application is relevant to--they don't exist.

How do you define these classes? Ha, there's the rub.
5.13.2005 11:43pm
Mahan Atma (mail):
"Supposedly, we do not recognize race as a legal factr although it is a condition of birth (not genetically significant and actually quite questionable).

However, the law does recognize male-female as a psysiologically distinction. So your analogy is not appropriate.
"

Huh? I don't know if you're a lawyer, but the last time I checked, the law recognizes both race and gender.

And as far as homosexuality versus heterosexuality, Equal Protection requires that the government provide a rational basis for any law that treats these two classes differently.
5.13.2005 11:52pm
Paul Deignan (mail) (www):
Mahan,

The Constitution provides that all are equal irregardless of race. The court has not directly challenged this fact although it is not in agreement with it either. However, gender is recognized as a legitimate distinction for policy making.

Define what a homosexual or heterosexual is please. How is this a condition of birth and not an artificial label that one applies to themself? How can a court distinguish between such individuals? What is measurable?
5.13.2005 11:59pm
Craig:
Paul, sexual orientation is not chosen. Can you honestly tell us that you could (presuming you to be straight) choose to be gay and would find being gay to be fulfilling? I seriously doubt you could and would challenge you to do so. Bruce Villanch said it best:
No one chooses to be gay, But gays do, often, choose to be straight. They can be comfortable enough in their lives if not in their skins. They choose not to jeopardize their lives and careers, their positions in their communities.

Eventually the gnawing within becomes too painful, and they can't stand it. They no longer have a choice. And that, the right wing will tell us, is when we choose to be gay. But, we know different. It's when we choose to be free.


You have twin and sibling studies looking at identical and fraternal twins raised together and apart, studies of siblings (related and adopted) and compared to twins. You have the study linking male homosexuality to increased female fertility in their mother and higher than average incidence of homosexuality in the maternal lines of homosexuals. You have the study of the hypothamlus of straights and gays. You have the study of finger lengths of lesbians compared to straight women. The body of scientific evidence overwhelmingly supports a conclusion that sexuality is largely based in genetics and heredity.
5.14.2005 12:03am
Mahan Atma (mail):
"The Constitution provides that all are equal irregardless of race."

It does? Please show me what part of the Constitution says this.

"However, gender is recognized as a legitimate distinction for policy making."

Actually, laws that differentiate on the basis of gender have to pass intermediate scrutiny.

Like I said, you're not a lawyer, are you?
5.14.2005 12:04am
Mahan Atma (mail):
Craig is right. How many straight people here would enter into a gay marriage if the law only allowed for them, and not hetero marriages?

Right. None.
5.14.2005 12:06am
Mahan Atma (mail):
PS - This is like shooting fish in a barrel.
5.14.2005 12:07am
Paul Deignan (mail) (www):
Craig,

I am already aware of your position. Can you support it?

In answer to your question. Yes. Of course.

Just because we chose one behavior and grow accustomed to it does not mean that we cannot learn. You don't need to take my word for it. There are plenty of examples you might have referenced.

Now, what is the basis for your position besides a desire to believe?
5.14.2005 12:12am
Paul Deignan (mail) (www):
Mahan,

Can you prove yur position? This is your chance. BTW, there are plenty of formerly married (hetero) people (with kids also that are now looking to be married to same gender individuals. I know of one case myself (not me).

You are punting with the "ick" factor. Pleae support your point.
5.14.2005 12:15am
Paul Deignan (mail) (www):
MAhan,

Here you go:

Amendment XV

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.


Section 2. The Congress shall have power to enforce this article by appropriate legislation
5.14.2005 12:18am
Mahan Atma (mail):
"Section 1. The right of citizens of the United States to vote..."

That's obviously limited to voting. Please show me what part of the Constitution says "all are equal irregardless of race", as you assert, and which is obviously a much broader rule.

And to go back to Bemac's assertion, I ask you: If a law says you can't marry somebody of a different race, and the law applies to everybody regardless of race, is that constitutional?
5.14.2005 12:23am
Paul Deignan (mail) (www):
And from the 14th:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Note that the ERA was never ratified.
5.14.2005 12:23am
Mahan Atma (mail):
"Can you prove yur position?"

What position is it, exactly, that you wish me to prove?

"there are plenty of formerly married (hetero) people (with kids also that are now looking to be married to same gender individuals."

Well I don't know what "plenty" means, but hey, I've no doubt there are people who previously denied their homosexuality. The question is, were they ever heterosexual, or were they simply denying their true nature in order not to be persecuted?

Didn't you ever read "Black Like Me"?
5.14.2005 12:26am
Paul Deignan (mail) (www):
Mahan,

The law does not say that you cannot marry--only that only certain arrangements will be recognized as a marriage.

As I had said (and you have yet to refute) while race is considered to be immaterial--gender is not (which is why the ERA only specified sex).
5.14.2005 12:27am
Mahan Atma (mail):
Paul - Your quote from the 14th Amendment makes no mention of race whatsoever.
5.14.2005 12:27am
Mahan Atma (mail):
"The law does not say that you cannot marry—only that only certain arrangements will be recognized as a marriage."

Whatever. We're talking about the legal recognition of marriage.

"As I had said (and you have yet to refute) while race is considered to be immaterial—gender is not (which is why the ERA only specified sex)."

You obviously don't know anything about constitutional law. I keep asking you: You're not a lawyer, are you?
5.14.2005 12:29am
Paul Deignan (mail) (www):
MAhan,

You need to be able to distinguish hetero from homosexual to show that someone is being discriminated against by the existing laws (to prove your case--its up to you to make a showing). You have not provided any basis to show that sexual orientation is a fundamental right.
5.14.2005 12:30am
Mahan Atma (mail):
"You need to be able to distinguish hetero from homosexual to show that someone is being discriminated against by the existing laws"

I guess I thought it was completely obvious that there's a big difference between heterosexuals and homosexuals. If you wish, I will dig up the vast amount of research on the subject.

"You have not provided any basis to show that sexual orientation is a fundamental right."

I'll simply quote the 14th Amendement, as you did. After all, the number of times if mentions race is equal to the number of times it mentions sexual orientation. Right?
5.14.2005 12:34am
Craig:
Paul, my Casey cite doesn't support your contention. It supports that fact that the state can't deny marriage for an damn reason it pleases because, like the other rights mentioned, it is fundamental. See Loving, Zablocki v Redhail and Turner.

As for defining the classes Equal Protection Clause applies to, the Clause applies to any and all classes that it is possible to create. All classes, regardless, must at a minimum statisfy rational basis. See Romer v Evans. There the Court found what some have dubbed second order rational basis sufficient to strike down Colorado's law classifying people based on sexual orientation, though left the door open to the possibility of classifications based on sexual orientation to be quasi-suspect or suspect.

And to be more precise, race is heritable, not genetic. Your question to define heterosexual and homosexual is rather disingenuous and not very productive. Defining race and sex can be just as problematic as defining sexual orientation (and indeed the inability to definitively define sex inherently leads to a inability to have such definitively sound definition of sexual orientation. While most people think sex is a pretty, pardon the pun, black and white, it really isn't so. Is femaleness defined by the presence of female genitalia? The abscence of male genitalia? The lack of a Y chromosome? The ability to bear a child? All of the above? None of the above?

The fact is that states do classify people for various purposes. Most of us understand that and have no problem with it so long as there is a legitimate or compelling interest.
5.14.2005 12:35am
Paul Deignan (mail) (www):
Mahan,

I'll listen to any argument you have. Last I checked, lawyers are functionaries, not sources of authority. Whether you have been admitted to the bar or not, you are still in the postition of attempting to refute what is established law i.e. that the Supreme Court recognizes gender distinctions as a basis for policy makingleading to disparities but does not regard race equivalently (by the 14th and 15th).

As you make mention voting is not the entirety of equal rights (19th Amendment) for sex or race--it is the interpretation of the 14th that provides racial but not gender equality in theory. Do you disagree with this?
5.14.2005 12:38am
Paul Deignan (mail) (www):
Craig,

Here is your quote from Casey:


Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. ...Our precedents have respected the private realm of family life which the state cannot enter. These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
Planned Parenthood of SE Pennsylvania v Casey (internal quotations, citations omitted)


Yes, it directly supports my case.
5.14.2005 12:41am
Craig:
The law does not say that you cannot marry--only that only certain arrangements will be recognized as a marriage.


So if gays were to move enmass to one or more states in sufficient numbers that they constituted a majority in those states, can we define marriage as a union between two people of the same sex and that be valid. We'll let breeders marry, they just have to marry a person of the same sex. if you are lucky, we might let you form breeding unions that have the same rights as marriage, but you will the de facto second class citizens of the state(s) we control.


Mahan, its obvious that Paul isn't a lawyer as he can't even grasp concepts that are taught is high school civics class.
5.14.2005 12:42am
Challenge:
"Craig is right. How many straight people here would enter into a gay marriage if the law only allowed for them, and not hetero marriages?"

Not sure of the relevance. But you seem to be ignoring the existence of bisexuals.
5.14.2005 12:43am
Paul Deignan (mail) (www):
Craig,

My challenge to you to define who is a member of a heterosexual or homosexual group IS the questio that I initially posed.

If you cannot define group membership, you have no case.
5.14.2005 12:43am
Mahan Atma (mail):
"it is the interpretation of the 14th that provides racial but not gender equality in theory. Do you disagree with this?"

NO. I keep trying to tell you, discrimination based on GENDER is not permissible under the Equal Protection Clause of the 14th Amendment, unless it passes intermediate scrutiny. (Race-based discrimination has to pass so-called "strict" scrutiny, which is a somewhat higher level of review.)

For any law that discriminates on the basis of either RACE or GENDER, the burden is on the government to satisfy the appropriate level of scrutiny.

Similarly, any law which discriminates on the basis of sexual orientation has to pass so-called "rational basis" review, which is a somewhat lower level of review.

Anybody who is a laywer understands these basic distinctions. You, not being a lawyer (right?) do NOT understand these distinction. Which is why it is a waste of time for me to debate you.

So, until you quote to me the section of the Constitution that says "The Constitution provides that all are equal irregardless of race," as you previously asserted (and that assertion obviously goes way beyond voting), I'll say goodnite to you, sir.

And since no such provision exists, that's goodnite forever. Now, GOODNITE.
5.14.2005 12:48am
Mahan Atma (mail):
"Not sure of the relevance. But you seem to be ignoring the existence of bisexuals."

I don't believe so. I think a bisexual could probably enter a marriage with either a male or female. But every homesexual I've ever met would NOT enter into marriage with someone of the opposite sex. Likewise, I've never met a heterosexual who would enter into a marriage with someone of the same sex.

Tell me, are you hetero? If so, would you enter in a marriage with someone of your sex?
5.14.2005 12:50am
Paul Deignan (mail) (www):
Again, this is Casey:


At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
Planned Parenthood of SE Pennsylvania v Casey (internal quotations, citations omitted)


I'm highlighting the flaw in the Casey argument. Inconsistency with the conclusion--a nonsequitor if ever there was one. (But the premise is valid--that is what we are discussing here).
5.14.2005 12:51am
Paul Deignan (mail) (www):
Mahan,

I'm not going to cite the case (you can look it up), but you are wrong on the Gender equality idea (ask one of your Con Law profs and remember that the government does not allow women into infantry units). What do you think the ERA was about?

I am not aware of any situation whee the government can intentionally strive for racial inequality (the court's affirmative action stance was based on implicit equality--diversity i.e. they did not say that racial inequality was a legitimat policy objective.



Now, again, challenge to all:

Please define the group membership for "homosexuals" and "heterosexuals" that will stand up in court. I myself can only discern a distinction based on transient individual choice--that will not cut it. It would be like saying "I deserve a legal right because I want it!"
5.14.2005 12:58am
Craig:
Paul, you cannot be that dense. The right to marry is explicitly a fundamental right THE STATE cannot deny except by a compelling state interest. The decision to marry and the choice of spouse in marriage are part of that right and the state cannot impose restrictions upon those rights without compelling cause.

Now you can make the argument that marriage has a basis in natural or anterior law and you would likely not find a huge amount of disagreement with me on such a propostion; however, marriage as that term is being used in the Nebraska amendment and elsewhere in this discussion is dealing only with the state sanctioned or recognition of marriage. That is what the state is regulating. Recognition of the right to marry is being denied to same sex couples. Because the right to this state sanctioned and recognized marriage is deemed to deal with the "realm of family life which the state cannot enter" and involves "the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy" the state must have overwhelming cause to deny the right to marry.
5.14.2005 1:03am
Craig:
The Supreme Court was able to make a case without defining the terms heterosexual or homosexual. But once again you are missing the mark on this issue. To paraphrase slight one of the justices on the vermont Supreme Court, a man is denied the right to marry a man because his would be partner is a man, not because one or both are homosexuals. A woman is denied the right to marry a woman because her would be partner is a woman, not because one or both are lesbians.
5.14.2005 1:06am
Paul Deignan (mail) (www):
Mahan,


Similarly, any law which discriminates on the basis of sexual orientation has to pass so-called "rational basis" review, which is a somewhat lower level of review.


Where do you get this?

Also, you need to take a look at just how racial inequality is considered. It is always some temporary means to the end of racial equality (equivalently diversity). In and of itself, it is not allowed.

However, gender inequality is allowed as an explicit policy objective in cetain cases.


Levels of scutiny are relevant to review—not to the nature of the objective right.
5.14.2005 1:06am
Paul Deignan (mail) (www):
Craig,

Group membership is fundamental--it must be defined. Unless it is defined, there is no case in regards to asserting funadmental rights of groups.


There is no fundamental right for anyone to have the state recognize a marriage. State recognition of marriage is a policy. You seem to be confused with the ideas from Casey as to the fundamental right to decide to marry. Policies are created by the state for state purposes.
5.14.2005 1:11am
Craig:
Please define the group membership for "homosexuals" and "heterosexuals" that will stand up in court. I myself can only discern a distinction based on transient individual choice--that will not cut it. It would be like saying "I deserve a legal right because I want it!"


IT IS MEANINGLESS to this discussion. It matters not whether sexuality is a choice or not (and it is not). One can make the transient choice to be a Christian, Jew, Muslim, Buddhist, Shinto, athiest, Hindu, etc. It has no bearing on one's fundamental rights to marriage, free speech, privacy, worship, etc. One can make the transient choice to be a Democrat, Republican, Libertarian, Reformer, Conservative, Liberal, Socialist, Communist, etc and it has no bearing on one's fundamental rights to marriage, free speech, privacy, worship, etc.
5.14.2005 1:12am
Paul Deignan (mail) (www):
Craig,

And as you know, marriage as an institution predates the state and is different in different communities.

There is "marriage" and then there is what the state recognizes as "marriage". One does not infer the other (for example common law "marriages" in one direction and Kouresh's "marriages" in the other).
5.14.2005 1:16am
Craig:
Paul, I'm making more of a Due Process claim. I believe the question of same sex marriage should be decided on those grounds and not Equal Protection because the Due Process grounds are already well founded, but Equal Protection classifications of classifciations as non-suspect, quasi-suspect and suspect is very much in flux. As a principle of Constitutional law, we generally do not reach a decision unless it is necessary to consider the question. See Romer. The Court could have said definitively, sexual orientation is a [non/quasi/-]suspect classification but they didn't because they didn't need to. The classification on sexual orientation in Romer, even when the Court applied the lowest test, the highly deferential rational basis test (though a more rigorous one for the reasons O'Connor stated in her Lawrence concurrence), the law was unconstitutional. As rational basis was sufficient, the Court left it to a future to determine where sexual orientation fits on the scale should it become necessary to a decision.
5.14.2005 1:21am
Paul Deignan (mail) (www):
Craig,

A person may decide on a religion just as they choose their sexual proclivities. However, we do not give carte blanch protection of all religious practices. Also, not all religions are protected. What some call religion are not considered by the wider community as a protected religion and so are taxed or even prohibited outright.

We accomodate some religious preferences, however we do not consider religion to be an intrinsic individual property as a condition of birth--only the ability to chose that religion.
5.14.2005 1:23am
Paul Deignan (mail) (www):
Craig,

Instead, what we say is that we will not discriminate against the individual based on his/her choice of religion or creed.

See the distinction?
5.14.2005 1:25am
Paul Deignan (mail) (www):
Craig,

A same sex marriage is a distinctly different union/institution than an opposite sex marriage. How is it necessary under some due process claim to create this new institution just because the opposite sex institution exists?
5.14.2005 1:29am
Paul Deignan (mail) (www):
Craig,

So in short, I don't see this sexual gratification-marriage linkage. One can marry without or with sex. The only hiccup I see is adultery laws--do they even exist anymore?

On the other hand, the state should not be in the business of guaranteeing sexual gratification, so maybe this is not a hiccup at all.
5.14.2005 1:32am
Craig:
However, we do not give carte blanch protection of all religious practices.


We do not discriminate in the right to marry, the right to assemble, the right to free speech, etc on the basis of a person's religious affiliation.

A same sex marriage is a distinctly different union/institution than an opposite sex marriage. How is it necessary under some due process claim to create this new institution just because the opposite sex institution exists?


Because its not a new institution anymore than interracial marriage was a new institution of marriage despite being distinctly different than marriage as it was since America's inception. Few things in Anglo-American law were more prevalent than miscegenation bans. I've even read somewhere that several colonies had miscegenation bans codified before murder was codified in law (being barred at the common law beforehand). In Zablocki, we didn't create a new institution of dead-beat dad marriage. In Turner, we didn't create a new institution of penal marriage. The only ones that are trying to create a new institution are the advocates of civil unions, of which I am not. Due Process demands that the right of any person to marry, and that person's choice of spouse in marriage be respected by the state except for the most compelling of reasons. If you want to argue that it changes the defintion of marriage, so be it, but you also must therefore acknowledge that the definition of marriage in American law has changed over time be it the repeal of coverture laws, the repeal or striking down of miscegenation laws or the inclusion of dead-beat dads and prison inmates in Zablocki and Turner.
5.14.2005 1:47am
Bob Van Burkleo (mail) (www):
Paul, sexual orientation is not a choice, or not in any way that leaves the word 'choice' with any useful function. Sexual behavior can be a choice but not sexual orientation. Unless you are saying gay men 'choose' to have their limbic system react to male pheromones and similar biological reactions?

Also your contention that somehow same gender marriage is different from opposite gender marriage seems unsupportable. The right to marry is a fundamental right of each citzen, irrespective of the person's gender who they want to marry. So what is the excuse to limit the licensing of the contract to only those citizens that want to 'build a life' with someone of the opposite gender?

Not procreation - the state allow irreversibly sterile couples license to the contract as long as they are opposite gender. Shoot, in a number of states that allow first cousin marriages they can only get license to the contract if they show proof they can not procreate.

Not raising children - 20% of gay households and 33% of lesbian ones are raising minor children at any given moment, while according to the last census 24% of licensed married couples have minor children at home.

Not the couples themselves - studies show that couples seek each other out for the same reasons, want the same things from relationships regardless of their gender combinations.

Not the state - the benefits of having adults couples are identical for all gender combinations: increased economic stability, increased health of the participants, less risk of becoming dependents of the state, better environment for raising children.

Not their biology - all citizens have the same basic needs and desires, fundamental rights if you will, irrespective of the gender of who they want to express them with.

No, there is only marriage - each citizen has a fundamental right to it, each citizen similarly has a right to reasonable access to licensing the contract if the state deems to issue one in its support. Telling a citizens that they can only license the contract with someone they would NOT want to 'build a life with' is NOT reasonable access.

There has been much talk about the Constitution of late and those that want to limit its to very specific parameters at its creation. They are wrong. If you accept the Declaration of Independence as a formative factor the Constitution was flawed. It couldn't explicitly state that everyone is created equal because in those times they honestly weren't. Some people were slaves, half of the population wasn't allowed to vote. The Constitution as written didn't reflect its formative ideals, the ideals that I as an American expect.

But now with the amendments it does. Scalia complained recently that with the way the court rules now women wouldn't have needed an amendment to be able to vote, they would have just used the equal access clause. Hello, that's a good thing! The Constitution should have stated this simple truth but didn't, now it does. Every citizen has a right to equal access to government - why is that even a point of contention? Government may have a need to regulate our basic fundamental rights but it does not have a right to just preclude them, and like it or not our sexuality, our need to pair-bond, our need for autonomy are basic parts of what make us human.

If the state issues a contract touching on a basic human right it should be reasonably available to all citizens. No state has yet been able to show why some citzens should have access and some should not. And constitutional amendments that permanently limit access to government to just some of its citizens are about as far away from the ideals of The Declaration of Independence as you can get.
5.14.2005 2:48am
Bemac (mail):
Craig, Mahan,

Anti-miscigenation laws do note have the same effect on people of different races; the universe of eligible spouses varies from individual to individual. Equal application results in unequal impact. (One of Mahan's references to an earlier post might be misread by a careless reader to suggest I would support anti-miscigenation laws. I would not.)

Equal enforcement of opposite-sex laws leads to equal impact. The universe of eligible spouses is the same for all individuals of the same sex, regardless of sexual orientation.

Let me rephrase my query: Under the amendment, what is impermissible to a gay who would like to marry that is permissible for anyone else who would like to marry?
5.14.2005 2:56am
Paul Deignan (mail) (www):
Craig,

In order to give you the best handle on the my obstacles to seeing things your way, please let me spell out the issues that I would need you to address:

1. The state policy of marriage exists for the benefit of the state. It is defined by tradition in the US since its inception as the pairing of one man-one woman (with certain other limitations by state). Any other gender/correspondence arrangement is a different institution (this is the least common multiple relation). State policies are not necessarily expressions of rights but must be consistent with established rights.

2. Marriage and sex are not legally dependent.

3. There is no objective discriminant that differentiates a "homosexual" from a "heterosexual" other than choice and practice--both of which are sovereign to the individual and therefore not a matter of state concern. Sex is a practice. Sexuality is a state of mind. The aforementioned labels are self-identifications and not intrinsic properties of the individual that are either permanent or a condition of birth as far as we are currently able to discern. Therefore, we cannot create institutions that have as a basis for differentiation sexual orientation as it is a matter of equal rights to choose a sovereign state. (Civil unions must be open to all as well as whatever marriage institution exists--not simply to self described homosexuals/heterosexuals etc.)
5.14.2005 3:11am
Paul Deignan (mail) (www):
... they are neither ...
5.14.2005 3:13am
Paul Deignan (mail) (www):
Bob,

It is not news to me that many people, yourself included, do not consider sexuality a choice. However, opinion is not proof and I have plenty of counterexamples to your assertion.

Can you prove or otherwise substantiate your assertion?


Note that it is absolutely important to us that we be able to chose our attitudes and behaviors in order to act automomously. We control and regulate external stiumuli--they do not dictate our mental state or actions.

Otherwise, you could go on to categorize all people by what they like--cheesburgers or pizza, blue or yellow, etc.

The state CANNOT dictate to us how we choose to orient ourselves internally. Your assertion would open the door to have the state dictate everything as nothing would be sovereign to the individual.
5.14.2005 3:21am
Paul Deignan (mail) (www):
Bemac,

I would take a different tack on misogenation--race is not a categorical intrinsic condition--it is a social construct based on a loose correspondence with genetic expressions of no determinative character.

In other words, these laws were phony from the start.
5.14.2005 3:28am
Paul Deignan (mail) (www):
On the other hand, having a Y or X chromosome is a categorical discriminant.
5.14.2005 3:30am
Paul Deignan (mail) (www):
Bob,

As per a fundamental right to marriage, you are mistaken. Please refer to my pot to Craig. State recognition of "marriage" is a state policy. That is all.
5.14.2005 3:33am
Bob Van Burkleo (mail) (www):
It is not news to me that many people, yourself included, do not consider sexuality a choice. However, opinion is not proof and I have plenty of counterexamples to your assertion.

Can you prove or otherwise substantiate your assertion?


Actually I never mentioned sexuality unless you are using that to mean sexual orientation. But yes I could reasonably 'prove' it just by parading a million or so people and asking them if they did choose their sexual orientation. Couple that with data that shows biological and generally considered 'unchoosable' factors such as the limbic reaction to pheromones and I don't see how it could be contested. So unless you are using the term 'choice' in a way I don't it really is pretty much a given.

And as to your Apollian assertion that we dictate our mental state that's quite obviously wrong I would think. Many parts of our mental state are due to our neurophysiology and chemistry over which we have no 'choice'. Or are you of the school that the guy on the window ledge can 'just cheer up'? No the person who's smile makes our stomach get butterflies, who makes us flush just by engaging us in conversation, who can decide the whole temperment of our day with a smile or frown, that person is not up to our 'choice'. We can control our behavior, but not necessarily our mental state.

As to 'catagorizing people by what they like' we do that all the time - religion, creed and other 'likes' and yet acknowledge that these 'likes' are their fundamental right to have. I would thing that sex and its related pairbonding are an even more fundamental right than these far less biologically mandated 'likes' - how can we acknowledge and catagorize them while skipping over the 'likes' powered by our most powerful drive beyond mere physical survival?

I would think that to try and say that everyone could pair-bond with someone of the opposite gender because they could choose to do so flies in the face of common sense. If we acknowledge people have a right to choose their religion, we pretty much have to acknowledge their right to choose a spouse. These fundamental rights can be regulated but they can not be simply proscribed by removing all reasonable choices from a citizen.

All citizens have the right to marry. That right can be regulated, it can be delayed, but it can not reasonably be totally denied.
5.14.2005 4:20am
Toxic Avenger:
I disagree with Paul that we know nothing of whether sexuality is genetically determined.

There is data which suggests, at least for male homosexuals, a great deal is genetically determined.

The use of the term "choice" becomes a little trickier, because that's not something which we can objectively verify.

It doesn't matter to me whether one's sexuality is caused by experience or genetics--it is a preference, which one cannot switch on or off as they wish, even though it is certainly not immutable. An analogy can be made to party affiliation. Most on here are Republicans or Democrats. Though we describe this affiliation as a "choice," I am not sure if that is an adequate way to describe it. Can a Democrat "choose" to become a Republican, or does that only occur after core beliefs change, which may or may not be wholly internal in nature? Our experiences alter our perceptions, we gather new information, are exposed to new ideas, and these in turn cause us to change our affiliations and our values. Are these matters of choice or are these matters of preference? I'd say the latter is a more apt description, though we certainly make choices based on our preferences, we don't necessarily choose our preferences. This is, I think, fairly analagous to sexuality.

I don't think Paul would posit that he could "choose" to like boys more than girls tomorrow. I don't think that's what is at issue here. I think we can all agree--at least I hope we can--that sexuality is a preference which is resistant to change. If someone prefers vanilla ice cream, I don't think they can "choose" to prefer chocolate. Though, over time, and exposure to the best of the chocolate world, they may become chocolate fans.

I think the term of "choice" is really a stand in for genetic or physiological determinance, to which there is mixed evidence. Genetics cannot be said to be wholly determinative, for identical twins do not always share the sexuality of their twin. Though there seems to be a strong coorelation for identical male twins, the studies for females seems to suggest no genetic correlation at all. Like I said, the evidence here is mixed.

Other physiological conditions (which may or may not be genetic) have been implicated, such as brain structure or something I have not read about mentioned above, "limbic reaction to pheromones."

All of this is interesting (I guess), but let's cut to the heart of it--does it matter if being gay is genetic, or environmentally influenced, or both? I think I have to agree with Craig, and say that it does not. But this means the genetic thesis cannot be used to bolster claims of the wrongness of discrimination. Would arguing murderers have a "mean gene" make us rethink punishing them or outlawing murder? Of course not. What is at the core of this issue is whether there is a rational basis for discrimination between heterosexual and homosexual couples. Are they equivalents? Do we want to promote one, and not the other? These are different questions, I think, than the question of morality of homosexuality. I, for one, do not think homosexuality is immoral, yet I have reservations about whether the state should allow gay marriage.

On my own reflection of the subject I have come to two plausible reasons to justify the distinction:

1) Though there is a dual nature of marriage (companionship and the having and rearing of children), I think there is, on average, much less interest in the latter among homosexuals. Marriage and its legal incidents have been designed with the family in mind, even if they are not exclusive to marriages with children. It doesn't make sense, then, to extend the institution to a group which will, on average, only partake in one of the two primary purposes of marriage. This leads one to the conclusion that civil unions may be the appropriate remedy for the gay companionate marriage.

2) Society has a rational, even compelling, interest in the raising of its children. It is absolutely rational for society to promote the traditional, time-tested, and believed to be optimal family structure. There is simply insufficient social science evidence to make any conclusiosn about the efficacy of homosexual households in the rearing of children. An excellent discussion of this rationale can be found in Judge Sosman's dissent in Goodridge (Sosman is the only gay or lesbian on the Mass Supreme Court, and she dissented).

I am in no way convinced that gay marriage would be bad for society or the institution of marriage, but I think it's rational to withhold altering the institution until research and reflection is given some time to sort out the many complex questions.

There are real difference between heterosexual and homosexual marriages, just as there are real differences between monogamous and polygamous marriages. The state, and society, have a right to promote which family structures best serve society's goals and aspirations. Society has a right (perhaps even a responsibility) to take changes to the institution of marriage seriously, and exercise due caution amidst uncertainty. That is, precisely, what citizens of Nebraska are doing.
5.14.2005 6:02am
Mahan Atma (mail):
Bemac says: "Anti-miscigenation laws do note have the same effect on people of different races..."

Ah. Now you've changed your test, of course, from one of applicability to impact. That's good, but now your argument falls apart.

First, I'll point out that discriminatory impact, by itself, does not make a law unconstitutional under Equal Protection (Washington v. Davis), unless the impact is completely and utterly one-sided (Yick Wo).

That aside, the impact of a ban on gay marriage falls entirely on gay people. Are heterosexual people harmed by a ban on gay marriage? Of course not, they never wanted to marry anyone of the same sex anyway. The ban only prevents gay people from getting married. The impact is entirely discriminatory.

And please, telling me that a gay person is free to marry someone of the opposite sex is just silly. Tell me, if the law banned heterosexual marriages but allowed gay marriage, would you simply "choose" to marry someone of the same sex? Come on...

Telling a gay person they're free to marry someone of the opposite sex is a bit like telling someone with a peanut allergy that we're banning all non-peanut butter sandwiches, but they're free to eat peanut butter sandwiches along with the rest of us.

BTW, I'll point out that the impact of the gay marriage ban does NOT fall equally on persons of both sexes. That's because there are more adult women than men, so it reduces the universe of partners for women more than for men. The impact is even greater at older ages because there are substantially more women than men once you get over 50.

Of course, since in your theory marriage exists for procreation, maybe you don't care if women over 50 have a harder time getting married. In fact, wouldn't your logic require such marriages to be banned?
5.14.2005 11:04am
Mahan Atma (mail):
BTW, there is actually a great deal of solid research that strongly suggests homosexuality is genetically influenced. For example, there are certain physiological characteristics that correlate strongly with sexual orientation. (There are studies out there, just do a search for them; I don't have the time to chase them down at the moment.)
5.14.2005 11:09am
Mahan Atma (mail):
"It doesn't make sense, then, to extend the institution to a group which will, on average, only partake in one of the two primary purposes of marriage."

Well I'll put this question to you then, because nobody else seems to want to answer it:

Suppose a heterosexual couple is infertile or has no intention whatsoever of having children (like my wife and myself, or maybe the woman is over 50). By your logic, shouldn't society "have the right" to ban such marriages?

By the way, states and societies don't really have "rights". They have "powers". There are limits on those powers, and they cannot exercise those powers in a way that violates the rights of the citizens.

I'm arguing that the gay marriage ban is unconstitutional because there is no "rational basis" for it, and it therefore violates Equal Protection. I have yet to hear anyone here even suggest an even remotely rational basis for a gay marriage ban.

I'm simply pointing out the blatantly obvious: People in Nebraska (and elsewhere) simply don't like gay people, and/or they want to force their Christian values on them. That's not a constitutional basis for this law.
5.14.2005 11:16am
Mahan Atma (mail):
Alright, here's an article that cites to some of the research that suggests homosexuality is genetically influenced:

HERE

Now, I wonder: If/when researchers have indisputably isolated a "gay gene", how many of you all are actually going to change your positions on this issue?
5.14.2005 11:23am
Bemac (mail):
Mahan,

Give me a moment to get to the silly part:

1. My goal is to explore whether the question of same-sex marriage belongs in the courts (due to a constitutional violation) or in the legislature (as a policy issue). I believe the latter is true.

2. As I read it, the problem with Yick Wo was discriminatory enforcement. Inspectors could easily determine which laundry owners were Chinese and enforced the law more strictly against them.

Is it a precedent for the case we are discussing? Nebraska doesn't ask if applicants are homosexual. Sure, same-sex couples are almost certainly gay, but opposite sex couples may include one, two or no gay individuals. The state treats all opposite-sex applicants the same, regardless of sexual orientation.

3. You and others have fruitfully discussed the various motivations for persons to seek to marry: People marry for companionship, love, money, procreation, sex, career, whatever. I have stayed away from such discussion. From the constituional perspective, such concerns are irrelevant. The state doesn't ask.

If I were gay, I don't know if I'd seek to marry. Some gays do marry members of the opposite sex. Former NJ Gov. McGreevey, who is gay, chose to enter and remain in a marriage. Why? Constitutionally, who cares? Neither New Jersey nor Nebraska asks why applicants for marriage want to marry; they ask only about eligiblity.

4. You are correct to state that the amendement does not affect women as it does men. But its impact does affect all men the same and all women the same. That's not saying that it affects gays who wish to marry differently from the way it affects others, which is at the crux of our discussion.

(By the way, your statement about women over 50 having fewer potential marriage partners isn't true. There may be fewer old men to marry, but that is true for women of any age. The universe of potential partners for the old woman and the 18-year-old girl is the same. The difficult of elderly women to attract younger marriage partners is not due to any legal or constitutional issue.)

5. The problem with the constitutional case is that gays who wish to marry members of the same sex are seeking a right that no one has ever had under English common law up to the revolution or American practice since: the right to marry a member of the same sex. (Civil rights laws, for example, were enacted to enforce the claim of disfavored minorities to the same rights enjoyed by the rest of the population, nothing else.) Seeking a broader right than others already have cannot be a constitutional issue.

6. Of course there are gays who believe the current state of the law is unfair, and I am sensitive to that unhappiness. But their unhappiness and my sensitivity don't mean the court gets to set policy in this area.

Unfairness is not always unconstitutional and not always subject to a court-imposed remedy. Are gays and others equal before the law on marriage?

You have pointed out that many gays have no desire to exercise their right to enter an opposite sex-marriage. The unwillingness to exercise a right under law is not the same as not having that right.

7. Because of my argument in 6 above, it is the responsiblity of legislatures (or the general population, where popular initiative is an option) rather than courts to determine whether to recognize same-sex marriages. Setting policy belongs in the politicly accountable branches of government.

I don't think the environment in many states is conducive to success by advocates of same-sex marriage. But, despite the judge's claim in this case, the right to petition is not the same as a guarantee of winning the argument.

The likelihood of loosing in the legislature is not a legitimate reason for the courts to arrogate this issue.

If I were advising advocates of same-sex marriage, I would say stop going to court. The decisions inspire a reaction that frequently includes the enactment of constitutional amendments against recognition of same-sex marriage and even other arrangements.

In time, there may be majority support for same-sex marriage in some states -- but those states may have constituional prohibitions that require a supermajority to remove!

I look forward to your reply, but now my likely marriage partner wants me to go sofa shopping.
5.14.2005 1:36pm
Bob Van Burkleo (mail) (www):
There are real difference between heterosexual and homosexual marriages, just as there are real differences between monogamous and polygamous marriages. The state, and society, have a right to promote which family structures best serve society's goals and aspirations. Society has a right (perhaps even a responsibility) to take changes to the institution of marriage seriously, and exercise due caution amidst uncertainty. That is, precisely, what citizens of Nebraska are doing.

Toxic Avenger, the 'institution of marriage' isn't under discussion. Same gender couples can marry just fine - this is about the licensing of a civil contract of the same name. Marriage comes from beyond government, its not bestowed by it.

Please deliniate for me these differences that citizen married to a spouse of the same gender doesn't have that those currently allowed license to the civil contract of marriage do? I don't know any that are required of those currently allowed to license the contract and absent from those that are not.

As far as polygamy polygamists already have access to the existing civil contract. Joe Polygamist can join hands with the opposite gender spouse of his choice and they can license the current contract just fine - once. (oh and most 'polygamy' practiced in the US today is actually bigamy which opens up a whole other can of worms...)

This is an equal access issue. No one is asking the state to create a new contract, no one is asking for the kind of radical change in how the contract functions that supporting true polygamy would involve. This is merely asking for the licensing requirements for an existing civil contract to be changed so that all citizens can have access just as the monogamous and polygamous citizens who have opposite gender spouses already have.

The biggest mistake of the Nebraska citizens attempting to encode unequal rights into their constitution was disallowing ONLY a subgroup of their population from engaging in civil unions, domestic partnerships, and any similar arrangments. This blanket proscription that doesn't reasonably effect all citizens most definitely runs afowl of federal equal access and protection issues. If they had just defined marriage as a particular thing they would have been fine - wrong down to the depths of their soul, but fine from a legal standpoint.
5.14.2005 1:45pm
Mahan Atma (mail):
Bemac,

You're back to your "application" argument now (substituting the word "treats", but it's the same thing), and so I go back to my miscegenation analogy again.

You say it's a right "that no one has ever had under English common law up to the revolution or American practice since". Well, the same was true of the right to marry persons of a different race, at one time in history. So I take it that if you were a Supreme Court justice in the earlier part of the 20th century, you'd have upheld the miscegenation laws?

Similarly, you say: "But its impact does affect all men the same and all women the same."

Substitute "white" for "male", and "nonwhite" for "female", and the exact same logic applies.

You say "People marry for companionship, love, money, procreation, sex, career, whatever. I have stayed away from such discussion. From the constituional perspective, such concerns are irrelevant. The state doesn't ask."

No, the point again is that a law that is discriminatory on its face has to survive rational basis review. That's why all these bogus arguments about the purpose of marriage came into play.

You say the law doesn't dscriminate on the basis of sexual orientation, but come on... Only gay people want gay marriages. You've given an example of a gay person who entered into a sham hetero marriage for political purposes, but 99.99% of gay people who want to marry want to marry someone of the same sex.

To pretend this law doesn't discriminate against gay people is to defy reality.

(Just like pretending that your average 50-year old women can marry an 18-year old man. Maybe if she's a billionaire or something... )

Come on, we live in the real world here. You're not presenting a convincing argument by invoking alternate realities.
5.14.2005 2:46pm
Bob Van Burkleo (mail) (www):
Bemac, enjoyable reply, my thoughts:

5) of course is largely irrelevant - the innate need of the human animal to pairbond, usually largely motivated by affection, has been rightly acknowledged as a fundamental right and it would be hard to respect a government that denied its existence. As such if the state is going to license a contract in support of this fundamental right and this right is individually based the gender of their spouse is irrelevant. You look at same gender marriage as being different somehow from opposite gender ones - its not. There is only marriage. No broader rights is being asked, merely unwarranted restrictions historically applied be removed.

6) Your last statement makes me chuckle. Using that line of reasoning the state could impose any restriction on the licensing of the contract they choose. The state could assign you a co-signee and make the same assertion that your lack of access to the contract is limited only by your unwillingness to marry the person they want you to.

Wandering off into ivory towers just gets people lost. Marriage is not conferred by government, it is merely acknowledged. For all practical purposes by every possible parameter citizens who marry someone of the same gender are functionally equivalent to those who marry the opposite - any difference between the two groups is dwarfed by the differences within each group. If we hold that the government exists to serve the citizens, if we hold that citizens have innate qualities, rights if you were, that government should accomodate if its doing its job, then all these citizens deserve equal access to government.

So the courts have done what they had to do - if it walks like a duck then its a marriage and their question becomes 'why is the government only allowing the license of this totally secular civil contract to just a subset of marriages?' And the answer they reach is 'no good reason at all.'

7) that's why this isn't a legislature issue. Government doesn't decide who is and isn't married, they merely license a civil contract in support of marriage. And if they choose to do so it must be licensed keeping in mind marriage's fundamental overriding nature, it's acknowledgement all citizens have this right, and that government's most important purpose is to protect these individual rights. This is why the state must administer any contract that they do license fairly for all citizens, not merely equitably. Offering a choice that is effectively no choice isn't a choice at all and to present it as such seems hollow and deceptive.

So I disagree with your conclusions - the courts are reaching the only decisions they can based on the real world. The reason people are adding artificial constraints in their state constitutions defining how their government will view 'marriage' is because they can't justify their view through logical processes. By the qualities we demand to acknowledge heterosexual marriages there is no reasonable legal justification for not also acknowledging homosexual marriages. So if they can't win by logic, they resort to mob rule. Oh well.
5.14.2005 3:30pm
SydneyCarton (mail):
Someone said earlier that fundamental rights do not depend on the majority. That is an asisine proposition. They explicitly do. Majorities ratify their constitutions, from which fundamental rights derive. If judges assert their own particular policy views as fundamental, you will find the people striking back against such flaws by enacting explicit into their state constitutions their explicit desire and purpose as regards to marriage.

If this happens on a national scale, you will find the US Constitution will soon have a marriage amendment.

You people are discussing the law of this policy in a vacuum outside of the politics, but to do so is naive. The fact is, the 14th Amendment was explicitly written to address racial discrimination, and to make the civil rights act of 1867 constitutional. The 14th Amendment has never applied to concepts such as the right to engage in beastiality, incest, homosexuality, or other perversions. The 14th Amendment has been used by judges to promote a quasi-constitutional concept known as "intermediate scrutiny" with regards to different state treatment of males and females, but as the proponents of the Equal Rights Amendment knew full well - it never explicitly spoke to such differing treatment.

The politics of this issue arise in connection with theories of judicial interpretation. Put simply: if the 14th Amendment's equal rights provisions swallow the whole of distinctions in private behavior, then not only would the state be forced to recognize and protect homosexual relations, but also incest, pologomy, polamory, bigamy, beastiality, and anything else that comes from the wreches human sewers of secular America. Oh, and I guess it'd mean the whole effort to enact the ERA was a waste of time, since it was already swallowed up by the current words of the 14th amendment. Those idiot feminists, if they only knew...

The fact is, judges are re-writing the meaning of the 14th amendment to explicitly enacy a policy of homosexual marriage. It has never been the case in the history of the Republic that such a policy was recognized, and thus is is entirly correct to say that for the entire history of the Republic a state would be constitutionally correct in refusing to recognize such a relationship. No amout of crying or wailing can change that.

By the way - it is irrelevant if homosexuality is a genetic disorder or if it is learned. That really has no bearing on this topic.

The politics of this will rule in the end, because it is peoples who write constitutions and vote on amendments, not judges. Despite the left's hope to legislate from the bench on this issue, they will lose. They are already losing. States have already encated constitutional provisions that define traditional marriage. If forced on the issue, a federal amendment will also be enacted. And it will probably be enacted along with another one that changes the terms of the Judiciary's ability to engage in bench-legislation to begin with (either through term limits or something else), so that they don't do it again.

Rant and rave all you want about how you desire a judge to interpret the 14th amendment or whatever. Ultimately, it is the people who will decide. This is, after all, a democracy. And fundamental rights, no matter how important, are only fundamental (and given such a classification) because they are WRITTEN in constitutions that people understand.

As a lawyer, I resent the idiotic assumption that other lawyers can and should tell the people how to live. And I also reject the notion that you have to be trained in the law to understand a constitition that the people have adopted. This is not rocket science. And if the people find that their written words have been twisted into nothingness, then they'll get out a pencil and make damn well sure you know what they mean. Just dare them to.
5.14.2005 3:42pm
Paul Deignan (mail) (www):
Mahan,

As great as the undergraduate program might be at Boston University, as undergraduate thesis is not going to be accepted by me as proof that there is some genetically deterministic propensity for sexual orientation.

You will have to do better--but it was worth a laugh.
5.14.2005 3:55pm
Paul Deignan (mail) (www):
Bob,

You have no proof of anything other than want. Even a billion people would be insufficient if there is but one counterexample--I have more than one counterexample.

You need a constructive proof. Right now, you are building luftschlosse as an argument for radical societal change.
5.14.2005 3:59pm
Paul Deignan (mail) (www):
Toxic,

Facts are not a matter of consensus, either they exist or they don't. If you have a source to prove your contention then show it. It will need to explain away somehow the many counterexamples that already show that such a proof is impossible--but you should try nonetheless as long as you cling to the notion that your sexuality is genetically determined.

If you cannot prove group membership as a objective external factor (not a choice), you have no case.


Anyone?
5.14.2005 4:06pm
Paul Deignan (mail) (www):
What is necessary is a categorical genetic discriminant that is determinitive to a degree on par with the X-Y chromosome distinction between males and females.

If there is such a gene, then we ought to closely consider its implications. If not, then there is no intrinsic/fundamental condition of birth that allows us to discriminate between people based on their sexual orientation. Hence, there would be no intrinsic right for a same-sex marriage arrangement to be recognized by the state.

Just to be clear--those asserting a fundamental right are asking for discrimination based on sexual orientation.
5.14.2005 4:15pm
Paul Deignan (mail) (www):
Mahan,

You are aware I hope that the undergraduate study that you cited acknowledged that a gay gene has not been found and that there is no proof of its existence.

In other words, the report supports my contention, but not yours.
5.14.2005 4:21pm
Mahan Atma (mail):
"As great as the undergraduate program might be at Boston University, as undergraduate thesis is not going to be accepted by me as proof that there is some genetically deterministic propensity for sexual orientation."

Don't be flippant. I said already that I pointed to it because it cites to a lot of the research. Here's the references it cites:

Allen, L. S. and R. A. Gorski (1992). "Sexual Orientation and the Size of the Anterior Commissure in the Human Brain." Proceedings of the National Academy of Sciences of the United States of America 89: 7199-7202.

Bailey, J. M. and A. P. Bell (1993). "Familiality of Female and Male Homosexuality." Behavior Genetics 23(4): 313-322.

Bailey, J. M. and D. S. Benishay (1993). "Familial Aggregation of Female Sexual Orientation." American Journal of Psychiatry 150(2): 272-277.

Bailey, J. M. and R. C. Pillard (1991). "A Genetic Study of Male Sexual Orientation." Archives of General Psychiatry 48(12): 1089-1096.

Cherry, J. A. and M. J. Baum (1990). "Effects of lesions of a sexually dimorphic nucleus in the preoptic/anterior hypothalamic area on the expression of androgen- and estrogen-dependent sexual behaviors in male ferrets." Brain Research 522: 191-203.

Hamer, D. H., S. Hu, et al. (1993). "A Linkage Between DNA Markers on the X Chromosome and Male Sexual Orientation." Science 261(5119): 321-327.

King, M. and E. McDonald (1992). "Homosexuals who are Twins: A Study of 46 Probands." British Journal of Psychiatry 160: 407-409.

LeVay, S. (1991). "A Difference in Hypothalamic Structure Between Heterosexual and Homosexual Men." Science 253: 1034-1037.

Macke, J. P., N. Hu, et al. (1993). "Sequence Variation in the Androgen Receptor Gene is Not a Common Determinant of Male Sexual Orientation." American Journal of Human Genetics 53: 844-852.

Tuttle, G. E. and R. C. Pillard (1991). "Sexual Orientation and Cognitive Abilities." Archives of Sexual Behaviour 20(3): 307-318.

Whitman, F. L., M. Diamond, et al. (1993). "Homosexual Orientation in Twins: A Report on 61 Pairs and Three Triplet Sets." Archives of Sexual Behaviour 22(3): 187-206.
5.14.2005 5:10pm
Mahan Atma (mail):
"You are aware I hope that the undergraduate study that you cited acknowledged that a gay gene has not been found and that there is no proof of its existence."

But that's not the only research the article discusses. There's the twin studies, and other physiological differences that have been discovered. Most of the research out there suggests there's a biological connection.

But hey, for the genes it's just a matter of time. So I ask again, if at some point scientists discover a "gay gene", are you going to change your mind on this issue?
5.14.2005 5:16pm
Paul Deignan (mail) (www):
Mahan,

Read the conclusions of the study--please. You are grasping at straws. Even if there were a combination of genes that lead to a propensity, that gene combination would have to be distinct and the propensity would have to be determinative.

No such thing exists. All we are seeing is the datadredging that we would expect to see--and you are pinning all your hopes on this?!

Again, the best case to make is the one I have outlined. You should stay clear of biological deterministic theories. They will lead invariably to the eradication of undesireables under faulty science while undermining the liberty and democracy that you seem to want to maintain.
5.14.2005 5:44pm
Toxic Avenger:
As far as polygamy polygamists already have access to the existing civil contract. Joe Polygamist can join hands with the opposite gender spouse of his choice and they can license the current contract just fine - once. (oh and most 'polygamy' practiced in the US today is actually bigamy which opens up a whole other can of worms...)

This sounds a bit like this argument: Gays can marry just as straights can, they are just forced to choose someone of the opposite sex. I'm sure you think that is pretty persuasive, right?

This is an equal access issue. No one is asking the state to create a new contract, no one is asking for the kind of radical change in how the contract functions that supporting true polygamy would involve. This is merely asking for the licensing requirements for an existing civil contract to be changed so that all citizens can have access just as the monogamous and polygamous citizens who have opposite gender spouses already have.

I am not convincced that polygamy would be a "radical" departure. As simply a matter of history, and precedent, both in this country and the world, allowing polygamy would be less radical than allowing gay marriage. I fail to see why gender is a trivial distinction but number of spouses is so "radical" of a change. That's bogus.

The biggest mistake of the Nebraska citizens attempting to encode unequal rights into their constitution was disallowing ONLY a subgroup of their population from engaging in civil unions, domestic partnerships, and any similar arrangments.

This argument has been destroyed on this thread repeatedly. It's a bad argument. If you think it's really so great, are you willing to concede the part of Utah's constitution which explicitly bans polygamy--but not gay marriage--is similarly unconstitutional? Also, could you quote the amendment verbatim for me. Are you sure it only bans gay marriage? Doesn't it just define marriage as all of these amendments seem to do?
5.14.2005 5:55pm
Susan:
Bemac, you are correct, the question may very well belong in the state legislature. That's why the judge struck down Nebraska's law. Not only is Nebraska's legislature forbidden to give any same sex couple any benefit whatsoever, a majority of voters are prohibited by the amendment from granting any such benefit. In other words, same sex couples can't use the normal political process to even seek (even though they may not win)benefits to protect their families.
5.14.2005 10:05pm
Challenge:
"In other words, same sex couples can't use the normal political process to even seek (even though they may not win)benefits to protect their families."

How is amending the Constitution not part of the "normal political process"?
5.15.2005 1:09am
Bob Van Burkleo (mail) (www):
As far as polygamy polygamists already have access to the existing civil contract. Joe Polygamist can join hands with the opposite gender spouse of his choice and they can license the current contract just fine - once. (oh and most 'polygamy' practiced in the US today is actually bigamy which opens up a whole other can of worms...)

This sounds a bit like this argument: Gays can marry just as straights can, they are just forced to choose someone of the opposite sex. I'm sure you think that is pretty persuasive, right?


No doesn't sound like it at all actually:

The government need not license a contract of marriage at all - marriages would continue apace regardless. Never confuse marriage with the civil contract of the same name. But if the state is going to offer a contract then all citizens should have reasonable access. Any citizen who wants to license the contract to help build a life with someone of the opposite gender already has access, those that want to do so with someone of the same gender don't. Equal access issue.

This is an equal access issue. No one is asking the state to create a new contract, no one is asking for the kind of radical change in how the contract functions that supporting true polygamy would involve. This is merely asking for the licensing requirements for an existing civil contract to be changed so that all citizens can have access just as the monogamous and polygamous citizens who have opposite gender spouses already have.


I am not convincced that polygamy would be a "radical" departure.

I didn't say 'radical departure', I said 'radical change' to the existing contract. Current statutes are written assuming that there are 2 cosignees in an exclusive contract. Adding more partners to the mix would require an entire rewrite of the statutes. Example, here in Washington state a spouse can take over their deceased spouse's crabbing license - when there is more than one surviving spouse how exactly would that work? Not simply I assure you.

I fail to see why gender is a trivial distinction but number of spouses is so "radical" of a change. That's bogus.


Only because you are thinking of the contract of marriage as marriage itself. The genders of the cosignees are merely licensing conditions for a contract that functions perfectly regardless of the gender combination of the 2 cosignees. The contract itself would have to be radically changed to accomodate true polygamy or bigamy as multiple spouses are usually handled. Too many statutes assume there is only one spouse and in fact could only easily function with one spouse. As such there is no contract of polygamous marriage to ask for equal access to - all citizens already have equal access to that, which is to say none.
The biggest mistake of the Nebraska citizens attempting to encode unequal rights into their constitution was disallowing ONLY a subgroup of their population from engaging in civil unions, domestic partnerships, and any similar arrangments.

This argument has been destroyed on this thread repeatedly. It's a bad argument. If you think it's really so great, are you willing to concede the part of Utah's constitution which explicitly bans polygamy--but not gay marriage--is similarly unconstitutional?

not at all - I have always said that government has a right to regulate even fundamental rights, what they don't have is the right to permanently proscribe them.

So the question is "in Utah can every citizen license the contract of marriage with someone that they would actually like to marry?" The answer is 'yes' if their spouse is of the opposite gender - polygamist or not, 'no' if their spouse is of the same gender. Again, equal access to an existing contract.

Also they are different situations - Nebraska didn't merely proscribe specific couple types, they proscribed them only for the subset of citizens who enter them with someone of the same gender. Again, if they had proscribed them in a way that reasonably included all citizens I don't think this would be an issue.

Also, could you quote the amendment verbatim for me. Are you sure it only bans gay marriage? Doesn't it just define marriage as all of these amendments seem to do?

Link is in the note that started this thread but here it is from there:

CI-29 Marriage; same-sex relationships not valid or recognized.

Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.
5.15.2005 1:33am
Bob Van Burkleo (mail) (www):
You have no proof of anything other than want. Even a billion people would be insufficient if there is but one counterexample--I have more than one counterexample.

Of course a billion would out vote one. It would be ridiculous to assume that any quality is 100% due to any etiology not to mention you have it backwards - we are talking about citizen's rights so it would be up to you to prove that all the people could choose, not the other way around. One person choosing does NOT make it a choice for the other billion especially in something as variable as biology. There are people who are known to be bisexual - of course they can choose to favor one sex over another, but that doesn't mean they choose to be bisexual. There are ambisexuals who can ape sexual attraction to either gender but that doesn't mean they choose to be ambisexual. The exceptions do NOT prove the rule.

(as an aside i would love to see some people who 'choose' take that pheromone test done by the swedish researchers to find out how much if they really did choose their orientation or merely their outward behavior.)
You need a constructive proof. Right now, you are building luftschlosse as an argument for radical societal change.

No you are the one who has to prove each citizen claiming they didn't choose a liar. Until you can their personal testimony trumps your accusation that they're lying.

And what radical social change? Gay people already marry, they are only asking for license to the civil contract. If other nations are any indication the number of contracts so licensed will account for less than 1 out of 250. When has change of such small proportion 'radically changed' anything? That sounds more like 'tempest in a teapot' hysteria to me.
5.15.2005 1:51am
Challenge:
"Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska."

How is this different from Utah's constitution, which forever bans polygamy, and only polygamy?

The reason Nebraskans felt compelled to specifically address gay marriage is the same reason Utah had to specfically address polygamy--both were not far, fantastic possibilities, but valid concerns, unlike the ridiculous individual on this thread which complained that someone is more free to lobby for bestiality marriage than gay. Yes, but do we really think a Court, even in Massachusetts, is prepared to require such a thing?

Please, people, is this the best you've got? It's almost laughable.

To the question that polygamy would complicate our legal stucture, baloney! You cite the example of crab licenses. They could sell it and divide the proceeds. Not rocket science. And since when is a "fundamental" right subject to prohibition because implementing that right may have a few bumps along the way?

It's a completely bankrupt argument to say that gender is immaterial but number of spouses is all important. Whatever one's thought on homosexuality, can you really seriously posit there is no substantive difference between the homosexual and heterosexual marriage? Of course not! Don't waste anybody's time suggesting otherwise.
5.15.2005 2:54am
Challenge:
"But if the state is going to offer a contract then all citizens should have reasonable access."

OK, should two brothers or sisters be allowed to marry? And if they cannot, then for what reason are they denied their "equal access"?
5.15.2005 3:04am
Challenge:
Let me elaborate: Society denies "marriage equality" to gays, to polygamists, to polygamorists, to close (and even sometimes extended) family members, all for pretty much the same reason--society, collectively, doesn't think those are healthy and/or moral behaviors. Society may be wrong in one case (gay marriage) and right in others (incestuous marriage), but I just don't get what sort of moral-slash-disgust compass the Court is supposed to refer in striking down morals and taboo based restrictions.

Let me be plain spoken: It's pretty clear to any halfway intelligent person what's being done here--and I hope to even those advocating in this forum. The culture of the judiciary is a different culture than the rest of the country. They have, in large part, decided that disapprobation against homosexuality is wrong--even bigoted--and they're prepared to strike down legislation which offends these sensibilities. I have a great deal of sympathy for that point of view. But let's not pretend what is really going on here is a faithful adherence to the Constitution, its history and intent, or the principles which animate it.

Unfortunately (or fortunately), the courts are not particularly adept in concealing the lack of logical and constitutional support in this particular case. You can give up the charade.
5.15.2005 3:18am
Paul Deignan (mail) (www):
Bob,

The question was if same-sex marriage could be demanded as a fundamental right under some equal protection/access theory. For that, you would need to show that there is a group distinction between "hetero" and "homosexuals" that is an intrinsic condition of birth. If you cannot show this, there is no foundation for the claim.

Do you understand this?
5.15.2005 3:24am
Challenge:
Paul,

What are you talking about? No intrinsic nature of birth is needed to make an equal protection claim.
5.15.2005 3:28am
Bob Van Burkleo (mail) (www):
"Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska."

How is this different from Utah's constitution, which forever bans polygamy, and only polygamy?

Seriously? Well obviously even those driven to polygamy are still allowed to license the existing contract with someone that they would actually want to marry as long as that person is of the opposite gender. Their fundamental right to marry has been regulated, not proscribed and they have equal access to the existing civil contract of marriage.
The reason Nebraskans felt compelled to specifically address gay marriage is the same reason Utah had to specfically address polygamy--both were not far, fantastic possibilities, but valid concerns, unlike the ridiculous individual on this thread which complained that someone is more free to lobby for bestiality marriage than gay. Yes, but do we really think a Court, even in Massachusetts, is prepared to require such a thing?

There is no such thing as 'gay marriage' only marriage. The right to marry is a fundamental indiidual right of each citizen regardless of the gender of their spouse. As such the question is still why are some married citizens allowed reasonable license to the civil contract and some are not?
To the question that polygamy would complicate our legal stucture, baloney! You cite the example of crab licenses. They could sell it and divide the proceeds. Not rocket science.

And would require the massive restructuring of the civil marriage contract to make it happen just as I said. Who sells it? Who divides the proceeds? What if one spouse doesn't agree to sell it at one price and the other does? if you can't see this as 'complicating the legal structure' how do you use the word 'complicate'? And I haven't even touched on the reasonable arguments against multiple marriages that don't pertain to citizen's having a single same gendered spouse.
And since when is a "fundamental" right subject to prohibition because implementing that right may have a few bumps along the way?

No one is interfering with their fundamental right ot marry. Polygamists are allowed to license the existing contract - once, just like all other citizens. At most their right ot marry has been regulated, not proscribed.
It's a completely bankrupt argument to say that gender is immaterial but number of spouses is all important.

Easy to say, seemingly a lot harder to prove as evidenced by your lack of support for that statement.
Whatever one's thought on homosexuality, can you really seriously posit there is no substantive difference between the homosexual and heterosexual marriage? Of course not! Don't waste anybody's time suggesting otherwise.

Please deliniate these differences in marriage between couples of various gender combinations because they are not as obvious as you seem to think they are. The only difference I can see is the potential of mutual procreation but since opposite gender couples who don't have that potential are allowed to license the contract that can't be a viable reason of abrocating a citizen's right to equal access.
"But if the state is going to offer a contract then all citizens should have reasonable access."

OK, should two brothers or sisters be allowed to marry? And if they cannot, then for what reason are they denied their "equal access"?

Again, regulation vs proscription. The state can exclude a handful of prospective spouses from a much larger pool of potentials - that's merely regulation. Compare that with the situation where the state is proscribing the entire pool of potentials for citizens who want spouses of the same gender. Your situation would depend on citizens who could only want spouses that are siblings, an affectional orientation that I've yet heard of personally.

The courts have made the right decisions. They have made the obvious decision that marriage comes from beyond government (as even religious fundamentalists agree). As such they have noted that citzens marry same gendered people and have to ask the legal question - "Why are these citizens denied access to the civil contract in support of marriage while others are not solely based on the gender of their spouse'?

If there was some logical reason for this discrimination it would have been presented by now, the courts would have gone 'oh = that's why' and be done with it. No one has been able to present what this difference is: not the citizen's desires, not the benefits to the citizen, society. So the courts rule in the only way they logically can - all citizens should have reasonable equal access to this civil contract regardless of the gender of their spouse. That there is no reasonable argument against this is puncutated by the fact that the state can only limit the licensing of this contract by making itself artificially blind to the marriages of its citizens with spouses of the same gender. Is that not an obvious kludge or what?
5.15.2005 3:59am
Bob Van Burkleo (mail) (www):
The question was if same-sex marriage could be demanded as a fundamental right under some equal protection/access theory. For that, you would need to show that there is a group distinction between "hetero" and "homosexuals" that is an intrinsic condition of birth. If you cannot show this, there is no foundation for the claim.

Do you understand this?

I understand you are wrong. There is no requirement that sexual orientation be an 'intrinsic condition of birth' for it to be considered in regards to a fundamental right anymore than religion, creed, ethnicity or race. All that's required is that there be a reasonable probability that it is beyond the immediate control and 'choice' of the individual citizen which sexual orientation is for the very vast majority of people.

if your whole case revolves around the fiction that people can 'choose' their sexual orientation and as such can be required by the state to do so to have gain license to the civil contract of marriage I hate to break it to you, you have no case at all. :)
5.15.2005 4:05am
Challenge:


This means NOTHING. The appropriate question is: would marriage and its regulation by the state be the same if the having and rearing of children had nothing to do with the institution. The answer is, of course it would! The state would have little, if any, reason to regulate the institution.
"Please deliniate these differences in marriage between couples of various gender combinations because they are not as obvious as you seem to think they are. The only difference I can see is the potential of mutual procreation but since opposite gender couples who don't have that potential are allowed to license the contract that can't be a viable reason of abrocating a citizen's right to equal access."

The vast majority of marriages, if they last long enough, produce or raise children. The same will not be true of homosexual "marriages." Here we are confronted with the the great divergence between the two kinds of "marriages."

There are two primary reasons the state is involved in the institution of marriage. The first, is the state's interest in the rearing of its children. Second, and related to the first, is the protection of unequal gender spouses. The first interest is only applicable to a small minority of homosexual couples, and being that the efficacy of homosexual marriage in the rearing of children is in doubt, this interest may be undercut by allowing homosexual marriage. The second interest, that of protecting unequal gender spouses, is not applicable at all. The third, and least compelling reason, is the benefit of coupling which may exist (increasing stability, happiness, etc).

Why does extending an institution to a group which in many ways is the antithesis to the group it was designed for make any sense at all? This madness is not a result of the fit of homosexual couples with institution of marriage, but is instead the result of a crusade to remove the disapprobation of homosexuality.

"Their fundamental right to marry has been regulated, not proscribed and they have equal access to the existing civil contract of marriage."

I love this liberal propensity to play word games. Probiting incestuous, polygamous, and polygamorous marriages is now "regulation" whereas prohibiting homosexual marriage is the Great Evil of Our Time. This is a familiar tactic--e.g. racism is only racism when it's against a minority.

I see no reason that homosexuality--the preference for a sexual partner of the same sex--is any different than a polygamist's religious or sexual (maybe both) desire for multiple wives or perhaps husbands. A bisexual may want to fulfill his or her sexual desires by marrying both a male and a female. If bisexuals and polygamists are supposed to deal with their substitutes--marriage to one person--why can't homosexuals cope with their substitute, cohabitation? On what basis do we establish homosexuals are harmed more than polygamists? I think you're quessing. We simply do not know that.

And why does it matter how much a given group's desires are abrogated? May be this is useful for a policy discussion, but I fail to see why that matters to the question before the Court.

What parts of the judiciary are now doing on the question of homosexual marriage is creating a right to marriage on one's own terms. Read Goodridge, and then tell me that every one of their sophistries couldn't be applied to polygamy or polyamory as well.

It's beyond ridiculous that you can, in the same breath, argue that gay marriage is a "fundamental right," yet claim polygamists have no such right because of easily overcome questions of implementation.

You inexplicably relabel bans on incestuous, polygamous, and polyamorous marriages as "regulation" to avoid uncomforable conclusions that they, too, may lay claim to their "fundamental" rights. There is no avoiding this.

"There is no such thing as 'gay marriage' only marriage."

Oh, yes, when you're not busy redefining words, you're busy ignoring reality. I guess polygamists could claim there is no such thing as "polygamy," only marriage. But I'd doubt you'd be too persuaded. Again, is this the best you can produce? I suggest you go back to the drawing board.
5.15.2005 7:40am
Challenge:
A paragraph was misplaced in that last post... First part should read like this:

"Please deliniate these differences in marriage between couples of various gender combinations because they are not as obvious as you seem to think they are. The only difference I can see is the potential of mutual procreation but since opposite gender couples who don't have that potential are allowed to license the contract that can't be a viable reason of abrocating a citizen's right to equal access."

This means NOTHING. The appropriate question is: would marriage and its regulation by the state be the same if the having and rearing of children had nothing to do with the institution. The answer is, of course it would! The state would have little, if any, reason to regulate the institution.

The vast majority of marriages, if they last long enough, produce or raise children. The same will not be true of homosexual "marriages." Here we are confronted with the the great divergence between the two kinds of "marriages."

There are two primary reasons the state is involved in the institution of marriage. The first, is the state's interest in the rearing of its children. Second, and related to the first, is the protection of unequal gender spouses. The first interest is only applicable to a small minority of homosexual couples, and being that the efficacy of homosexual marriage in the rearing of children is in doubt, this interest may be undercut by allowing homosexual marriage. The second interest, that of protecting unequal gender spouses, is not applicable at all. The third, and least compelling reason, is the benefit of coupling which may exist (increasing stability, happiness, etc).

Why does extending an institution to a group which in many ways is the antithesis to the group it was designed for make any sense at all? This madness is not a result of the fit of homosexual couples with institution of marriage, but is instead the result of a crusade to remove the disapprobation of homosexuality.
5.15.2005 7:44am
ralphph (mail):
challenge sez:

"the ridiculous individual on this thread which complained that someone is more free to lobby for bestiality marriage than gay. Yes, but do we really think a Court, even in Massachusetts, is prepared to require such a thing? "

(1a) Not to many years ago, the idea of gay marriage would have been considered equally ridiculous.

(1b) The claim that this amendment violates the free-speech rights of the gay lobby by making it harder for them to win is pretty ridiculous, yet here it is in an official court ruliing.

As a non-lawyer, I have to say that the argument "No judge would ever do anything that crazy" no longer works for me. I don't care how crazy a proposition is, some judge, somewhere, will find in its favor.

(2) Challenge inadvertently indicates what's wrong with this discussion by going from lobbying to what courts are likely to do, apparently without noticing that he's switched branches of government. "Lobbying" used to refer to the attempt to persuade *elected* officials, back in the bad old days when they were the ones who made decisions, rather than judges.
5.15.2005 11:40am
Susan:
Challenge: Read the quote from Romer - the extradinory step of amending the Constitution was the only way homosexuals could get relief. The Supreme Court of the US said this wasn't sufficient access to the political process. You may not like Romer but it is the current law in the United States.
5.15.2005 12:11pm
Bob Van Burkleo (mail) (www):
"Please deliniate these differences in marriage between couples of various gender combinations because they are not as obvious as you seem to think they are. The only difference I can see is the potential of mutual procreation but since opposite gender couples who don't have that potential are allowed to license the contract that can't be a viable reason of abrocating a citizen's right to equal access."

This means NOTHING. The appropriate question is: The answer is, of course it would! The state would have little, if any, reason to regulate the institution.

Your ignoring the question that the court must answer is noted.
As to this question:
would marriage and its regulation by the state be the same if the having and rearing of children had nothing to do with the institution.

Irrelevant. 20% of gay households are raising minor children right now. 33% of lesbian households. On the first day of Massachusetts equal access to marriage, 40% of the lesbian licensees were raising children. To put this in perspective only 24% of opposite gendered licenesees were raising minor children at the last census.

And of course since 50% of opposite gender marriages end in divorce, many of those non-primary marriages do NOT result in procreation. 14% of married couples ultimately neither produce or raise children and that number is on the rise. No, 'the children' are a primary reason we should allow equal access to the civil contract.
There are two primary reasons the state is involved in the institution of marriage. The first, is the state's interest in the rearing of its children.

Which same gender parented families are doing in numbers similar to opposite gender ones. Again, a reason for allowing equal access.
Second, and related to the first, is the protection of unequal gender spouses.

And why is the state not also interested in the protection of equal gender spouses? Intimate Domestic Violence rates are similar regardless of the gender combinations of the couple. What exactly does a married couple with unequal gender combination bring to the mix that is of special interest to the state?
Why does extending an institution to a group which in many ways is the antithesis to the group it was designed for make any sense at all?

You have yet to show a way they are in any way significantly different. Further we aren't 'extending' we are merely no longer interfering with these citizen's innate fundamental right to marry and giving them equal ability to license the contract issued by the state in support of this fundamental right.
"Their fundamental right to marry has been regulated, not proscribed and they have equal access to the existing civil contract of marriage."

I love this liberal propensity to play word games. Probiting incestuous, polygamous, and polygamorous marriages is now "regulation" whereas prohibiting homosexual marriage is the Great Evil of Our Time. This is a familiar tactic--e.g. racism is only racism when it's against a minority.

Resorting to demagoguery - I take it no case left?
I see no reason that homosexuality--the preference for a sexual partner of the same sex--is any different than a polygamist's religious or sexual (maybe both) desire for multiple wives or perhaps husbands.

Then let me explain. Regardless of the polyamorous's ultimate desire, he is stil desirous of his initial single spouse. The idea that there are people out there that say "sorry, I'm only attracted to 2 wives not just 1" is really silly when said out loud, isn't it?

No, to make the license exclusive is not a prohibition of their right to marry, only a regulation. And of course people still marry multiple wives - whole towns in the square states and as I've said before I know a 3rd wife of an Islamic man right here in Washington state. This is, as has been shown before, an equal access issue to a particular civil contract, nothing more. All citizens should have reasonable access to this contract IF the state chooses to issue one. All flavors of those attracted to opposite sex spouses do, all that's missing is allowing those attracted to the same gender.
A bisexual may want to fulfill his or her sexual desires by marrying both a male and a female.

Again, not the issue. The state lets him license the contract with one other that he actually would want to be his spouse. The bisexual just has the largest pool of potentials to choose from.
On what basis do we establish homosexuals are harmed more than polygamists? I think you're quessing. We simply do not know that.

Lets see - pretty black and white actually:

Does the polygamist who has an opposite gender spouse have access to the civil contract issued by the state? Yes.
Does the citizen who has a same gender spouse have a access to the civil contract issued by the state? No.
And why does it matter how much a given group's desires are abrogated? May be this is useful for a policy discussion, but I fail to see why that matters to the question before the Court.

it doesn't - this is an equal access issue. You are correct that the question of whether the state must craft a contract that would support other forms of marriage than the 2 person exclusive contract it now has is entirely different. That isn't the question before the court now. That question is 'why are only some citizens allowed access to the currently existing contract?'
What parts of the judiciary are now doing on the question of homosexual marriage is creating a right to marriage on one's own terms. Read Goodridge, and then tell me that every one of their sophistries couldn't be applied to polygamy or polyamory as well.

Different case. These are equal access issues as deliniated in the Downing decision here in Washington state. The state is licensing a contract with licensing restrictions that excluded some law abiding citizens from access when these citizens have identical need for the contract and they and the state derives the same benefits from its issue. Reasonable access is being wrongfully denied.
It's beyond ridiculous that you can, in the same breath, argue that gay marriage is a "fundamental right," yet claim polygamists have no such right because of easily overcome questions of implementation.

What's ridiculous is that you have to pretend that a citizen having license to marry one instead of two is some how not allowing them to partake of this fundamental right to try and salvage some shred of your case.
You inexplicably relabel bans on incestuous, polygamous, and polyamorous marriages as "regulation" to avoid uncomforable conclusions that they, too, may lay claim to their "fundamental" rights. There is no avoiding this.

Nothing inexplicable about it - polygamous and polyamorous are easy - even those that ultimately want to have more than one spouse are still allowed to license the existing contract with someone they would want to marry - The are allowed to exercise their fundamental right, it is merely being restricted not proscribed.

Incest is easy too. There are no known people who can only be sexually attracted to their own family. So exclusion of these few candidates still leaves these citizens with a massive pool of potential candidates - restriction, not prohibition. Further, society can justify excluding immediate family as potential spouses because it doesn't want the nurturing environment to become a hunting ground for sexual partners. British law is even clearer on this where they will allow genetically unrelated immediate relatives to marry only if they were not raised together. People raised in a family unit should not be considered as potential sexual partners for their fellow members for a whole host of social and biological reasons that the reasonable mind can easily supply. This still allows them a massive pool of potential partners.
"There is no such thing as 'gay marriage' only marriage."

Oh, yes, when you're not busy redefining words, you're busy ignoring reality. I guess polygamists could claim there is no such thing as "polygamy," only marriage. But I'd doubt you'd be too persuaded. Again, is this the best you can produce? I suggest you go back to the drawing board.

The lady doth protest too much. Words aren't being redefined - they already mean what they mean. Your initial balking at defining the differentiating characteristics between same gender and opposite gender marriages told it all - you don't have a case.

The polygamist would be right - saying 'polygamy' is really short for 'polygamous marriage' but again you have yet to show there are any people who could only be able to marry more than one spouse going back to someone having to demonstrate that 'I'm only attracted to spouses in groups of 2 or more, never one'. Again, silly assertion that smacks of desperation as does your entire note.

Recap:

You did not give a reason why some citizens should be denied license to the civil contract merely because of the gender of their spouse.

Your supposedly differentiating characteristics where shown to be qualities that all married couples have regardless of their gender combinations.

Your only case is trying to bring up the scary slippery slope issues of polygamy and incest which have been demonstrated to be more hysteria than fact and easily demonstrated to be regulation and not proscription.

And you seem to think many things are 'ridiculous' yet you can't tell us a good solid reason why all citizens shouldn't have reasonable access to this existing civic contract?

Pretty much done here.
5.15.2005 3:24pm
Challenge:
You did not give a reason why some citizens should be denied license to the civil contract merely because of the gender of their spouse.

I did, and others have. They're the same reasons we don't grant marriage equality to polygamy, polyamory, or incestuous marriages--society views those all as inferior.

Your supposedly differentiating characteristics where shown to be qualities that all married couples have regardless of their gender combinations.

Your statistics are highly suspect and uncited. Moreover, the fact you think it is even debatable with you whether there are differences between a mother and a father is, yes, "ridiculous." Heterosexual marriage provides a child with a mother AND a father, homosexual marriage does not. There is insufficient evidence to come to any conclusions on the efficacy of homosexual marriage in the rearing of children. The state does not have to assume equality in something which is unequal on its face. That equality must be proven by you!

Your only case is trying to bring up the scary slippery slope issues of polygamy and incest which have been demonstrated to be more hysteria than fact and easily demonstrated to be regulation and not proscription.

Listen, I am sympathetic to normalizing homosexuality in society, of removing bigotry and prejudice, but the Court is creating a right to marriage on one's own terms. They are not, as you say, granting equal access to the "EXISTING" contract, they are REDEFINING that contract to include same-sex partners. There is no reason you have cited which justifies a legal distinction between polygamists and homosexual marriage. They are both currently prohibited for the same reasons, and the reasons proffered in favor of homosexual marriage are equally applicable to polygamy.

And you seem to think many things are 'ridiculous' yet you can't tell us a good solid reason why all citizens shouldn't have reasonable access to this existing civic contract?

I have, and you've ignored those reasons. Homosexual marriages are different, fundamentally. Only a liberal would try to make the case that there is no difference between a mother and a father. The American people don't believe that, nor does anybody who is honest with themselves. Once more, this is not granting equal access to an "EXISTING" contract, this is a fundamental REDEFINITION of that contract. It's nothing but petty word games to call prohibiting polygamy "regulation" and allowing homosexual marriage "equal access."

Further, you have offered no evidenced that the harm to those who wish to engage polygamy and polyamory is smaller than that of homosexuals. You have only offerred your uneducated guess. This false conjecturer is easily exposed from your own statistics--only 1/250 marriages are from gays in countries which have granted marriage quality. If the harm you cite is so great, then why are so few flocking to marriage?

Moreover, there is nothing in consitutional jurisprudene which elevates sexual preference above religion or cultural preference. You seem to just assume it does. Wrong. The amount of harm the individual suffers, the lack of substitutes--remember there are substitutes for both the homosexual and the polygamist--are questions which are irrelevant on the legal questions involved. And once more, your case that homosexuals are harmed more than polygamists is based on the demonstrably false assumption that they are both equally interested in marriage.
5.15.2005 7:37pm
Bob Van Burkleo (mail) (www):
You are not covering any new ground.

This is an equal access issue to an existing civil contract. Citizens that practice heterosexual polygamy already have equal access so all this fascination is irrelevant.

You have oddly tried to say that somehow denying citizens the right to license the contract with a same gendered spouse will make their children have a better life? How is that these children will be being raised by these same gender parents REGARDLESS as such the choices are:

Have the children raised by unlicensed parents, losing out on all the family and child protective parts of that license, or

Let the children be raised by licensed parents.

Again, the Judge Downing points out this oddity directly - how can it be better for the children to have their parents unlicensed?

This isn't about changing the existing two person contract - the statues here in Washington state all use the gender neutral term 'spouse' - the contract works just fine with any gender combination of cosignees. This is only changing an uneccessarily restrictive licensing requirement. Citizens who want to license their same gender spouse do so for the same reasons as other citizens and they and the state derive the same benefits from their being so licensed. You have yet to point out any difference other than the obvious - one has opposite gender cosignees.

Oh and since this is about an individual citizen's right to equal access under the law what percentage of people take advantage of it is immaterial - each individual still has the right to access.

If law was based on childish footstomping 'but society doesn't like it, wah!' then the miscegenation laws would still be in place. That isn't a good enough reason to deny equal access no matter how many times its said.

Again, do you have a single reason why the state should not allow all citizens reasonable equal access to this contract? Aren't the citizens better off licensed? Aren't their families better off with them licensed? Isn't society better off with them licensed?

Again, where is the down side to this other than not giving in to the childish foot stomping?

If you can't come up with a single rational reason why it is appropriate for these citizens to have unequal access to civic contracts, why it is better for these married couples to remain unlicensed why bother replying at all?
5.15.2005 8:59pm
Paul Deignan (mail) (www):
Bob, Challenge

So you are claiming a fundamental right based on the desire for a fundamental right.


I don't think that's very logical. People want all sorts of things.
5.16.2005 12:00am
Paul Deignan (mail) (www):
Bob, BTW,

A particular choice of religion is not what is fundamental about the fundamental right to be able to choose a religion. What is fundamental about religion is the ability to chse--not the choice. Some "religions" are effectively prohibited and not recognized at all. Certain religious practices are not protected.

Ethnicity is not a choice as it is constructed, but it is flimsy. (Ask Ward Churchill).

The protections we recognize as fundamental must be based on fundamental characteristics--such as free will. Other rights are recognized by the community as fundamental for the community to function, such as basic tolerance.


Here, the fundamental right is supposedly intrinsic to the individual--it is not.



All, no one has yet made a convincing case to disprove the foundational principle that people choose their sexual orientation. This fact is noteworthy. (The fact that people are arguing irrationally). This sort of zealotry is something we would generally call a religious conviction.
5.16.2005 12:11am
Challenge:
Comparisons to the Court striking down miscegenation laws are deeply flawed. The Equal Protection Clause addresses racial distinctions clearly and forcefully--that is precisely its purpose. There is no case that those who drafted and ratified the amendment believed they were enacting strict protection for sexual preferences. Word to the wise: If all you can do to prop up poor arguments is compare Goodridge et al with the the civil rights movement, you've already lost. Let the arguments stand on their own, if they can.
5.16.2005 2:15am
Challenge:
"You are not covering any new ground."

Cue refain: "This is an equal access issue to an existing civil contract."

Who isn't covering new ground? I refuse to debate with someone whose idea of debate is redefining words or pretending things don't exist. The radical redefinition of marriage may be just, it may be righteous, but is just that--a radical transformation. Pretending this is not that, but instead "equal access to an existing contract" is preposterous. It must feel really good to write, because you sure have repeated it over and over, but it's just not true.

"You have oddly tried to say that somehow denying citizens the right to license the contract with a same gendered spouse will make their children have a better life?"

I never said that, Bob. You have made the SAME error as Goodridge did.

It is not that the children in heterosexual households are raised better. Nobody ever profferred this as a rationale, it's the FALSE, strawman rationale the court providing in Goodridge.

In promoting the "optimal family structure," the state is conceivably promoting society's interest in the raising and rearing of children. If homosexual, polygamous, or polygamorous marriages are less productive, less fit to raise the kind of citizens our society desires, then it is completely rational to withhold the official state recognition, sanction, and incentives that the institution of marriage provides. If you want more of one behavior (heterosexuals raising children) then you incentivize and support that behavior. If you want less of something, then you punish or penalize behavior. This is no different than a state providing incentives and support for those who purchase hybrid cars (we want to encourage that behavior), but not doing so for traditional or diesel engines. This isn't rocket science.
5.16.2005 2:25am
Captain Holly (mail) (www):
Bob van Burkleo said:

Irrelevant. 20% of gay households are raising minor children right now. 33% of lesbian households. On the first day of Massachusetts equal access to marriage, 40% of the lesbian licensees were raising children. To put this in perspective only 24% of opposite gendered licenesees were raising minor children at the last census.

That passage is indeed irrelevant, and a perfect example of an invalid comparison of statistics.

Gay couples with children are a small subset of a small percentage of Americans. Comparing them to heterosexual couples at large simply doesn't work. The demographics and economic characteristics of the two groups are quite dissimilar.

For example, many of those gay couples who are raising children are doing so because of divorce (including my former neighbor, who "discovered" his sexuality after several years of hetero marriage) not because of adoption. The children are the product of their former hetero life, not a sign of a new commitment to traditional family values.

And it's not surprising that 40% of lesbian couples in Massachusetts who showed up the first day for marriage licenses had children. This would be entirely expected; lesbians with children are the precisely the ones you would expect to want to legalize their progeny's murky parental status. It's a highly motivated group, and not representative of population as a whole or even most lesbians.

Despite your efforts to demonstrate a baby boom among gays, in reality gay couples with children are a tiny subset of the overall population. Because of the small sample size and self-selecting nature of the participants, it's not possible to make statistically valid comparisons between straight parents and gay ones.

And that goes for research "showing" the superiority of gay parents. Almost all such research that I've seen is based on carefully-selected samples that are heavily skewed to support a pre-determined conclusion. Keep in mind that 35 years ago, most research on divorce concluded that family breakup and fatherless homes were actually good for kids. We know alot better now.
5.16.2005 2:26am
Challenge:
"So you are claiming a fundamental right based on the desire for a fundamental right.

I don't think that's very logical. People want all sorts of things."

Have you written ANYTHING I have posted? No, I don't think that.

I only stated that an "intrinsic" quality is not necessary for equal protection to apply. I do not think sexual preference should be elevated with race, and treated as a "suspect class," because that is absolutely not what the Fourteenth Amendment intended. Under equal protection jurisprudence, however, any classification must meet the "rational basis" test, which is highly deferrential. This is the test the Court pretended to apply in Goodridge, but didn't. An excellent evisceration of those arguments was written by the Court's only gay or lesbian, Judge Sosman.
5.16.2005 2:32am
Challenge:
Have you written read ANYTHING I have posted? =)
5.16.2005 2:34am
Mahan Atma (mail):
"The Equal Protection Clause addresses racial distinctions clearly and forcefully--that is precisely its purpose. There is no case that those who drafted and ratified the amendment believed they were enacting strict protection for sexual preferences."

This is just ludicrous. First of all, the Equal Protection clause says NOTHING about race. The word just isn't there in any form.

And if you're going to rely on the Framers' intent, there's simply no question whatsoever that the Fourteenth Amendment was NOT meant to make interracial marriages unconstitutional. The Framers of the 14th couldn't stand the idea of interracial marriage.

The Framers of the 14th distinguished between civil rights, political rights, and social rights. The Equal Protection Clause was only meant to apply to civil rights (e.g. the right to own property, contract, etc.) That's why a later amendment was required to give equal voting rights (a political right).

Marriage would have been thought of as a social right, and nobody, at the time, thought there was anything wrong with denying the right of interracial marriage.

Read Jack Balkin's related post on this:

http://balkin.blogspot.com/2005/05/bad-originalism.html
5.16.2005 9:27am
Mahan Atma (mail):
" the Fourteenth Amendment was NOT meant to make interracial marriages unconstitutional. "

Sorry, this should say "the Fourteenth Amendment was NOT meant to make bans on interracial marriages unconstitutional."
5.16.2005 9:28am
Burt Likko (mail):
Challenge, and others concerned with children:

Marriage and procreation are not the same thing.

One may marry without procreating; one may procreate without marrying. No law requires married people to have children. No law requires people who conceive children to marry.

Marriage is a fundamental right, per <i>Loving v. Virginia</i>. The ability to conceive, or not, as one chooses is also a fundamental right, per <i>Griswold v. Connecticut</i>. But one right is not contingent upon another.
5.16.2005 11:14am
The Sophist (mail):
Sorry I missed so much of the interesting discussion; no computer access until now... darn ISP.

In any event, I see that the discussion has moved somewhat into more of a policy debate about all sorts of things: regulation vs. prohibition, whether homosexuality is a choice or not, etc.

I do think, however, that the learned commentators on this thread are not addressing the specific problems of this ruling by this judge in Nebraska. Although there are many, I found his section on First Amendment issues to be really quite novel. By that particular logic, I frankly do not see how Utah's constitutional amendment against polygamy survives.

Unless I significantly misread that section of the opinion, the judge didn't spend a lot of time on talking about compelling state interests. His logic appears to be that any state constitutional amendment outlawing anything to do with the First Amendment rights of free association and intimate association chills political participation, and therefore must be struck down. How else to interpret the below?

As applied to the undisputed facts of this case, the court finds that Section 29, as written and as applied, imposes significant burdens on both the expressive and intimate associational rights of plaintiffs' members and creates a significant barrier to the plaintiffs' right to petition or to participate in the political process. Although not central to disposition of this case, the court finds Section 29 burdens rights of intimate association. (p. 20 of opinion)


So if intimate association issues are not even central to the disposition of the case, then it's a straight First Amendment 'chilling of political participation' argument that is grounds for striking down a state constitutional amendment.

On this basis, how exactly does Utah's amendment survive? For that matter, if Massachusetts passes a constitutional amendment ALLOWING gay marriage, how does that survive the First Amendment challenge? For that matter, since "intimate association" isn't central to the disposition, how does any state constitutional amendment survive this challenge?

If compelling state interest is not an issue under First Amendment grounds, I think this opens up a can o' worms, no matter where you fall on the policy question of gay marriage. To me, this decision is like San Francisco's mayor deciding to marry gay couples despite state law bans; it might be the right thing to do, but clearly the wrong way to go about doing it.

Even in the Equal Protection section of the opinion, the judge writes:

The State's focus on the political nature of this case misses the mark. This case is about a fundamental right of access to the political process, not about the end result of that process. It matters not that the group is gay and lesbian. Members of all groups, which include those that are controversial, have a fundamental right to ask for the benefits and protections from the government. As discussed herein, Section 29 goes beyond a mere definition of marriage. Plaintiffs are denied access to the legislative process that is afforded to all citizens of the State of Nebraska. (p. 33)


On these bases, I'm not sure that the compelling state interests that Craig mentioned in his response matter that much. If it chills political participation to try and persuade the legislature that child pornography, polygamy, or what-have-you, then such an amendment is no good.

Perhaps the answer is that the logic of this particular case extends only to state constitutional amendments -- the judge focused overwhelmingly on the 'access to political process' after all. If Nebraska simply passed a plain vanilla law, perhaps that would pass muster as there is no 'chilling effect'. That just doesn't make a lot of sense to me, though. A statute has plenty of a chilling effect on political participation in precisely the way that this opinion outlined. Would that distinction really hold up?

My longwinded point, I suppose, is that this opinion breaks new ground in constitutional jurisprudence (from what I can recall from law school oh so many years ago) in elevating this 'political participation' requirement in the way that it does. If I'm wrong about this, I'd love to be edumacated; but if I'm right about it, then I'd love to see this case overturned on appeal.

-TS
5.16.2005 1:59pm
Steve2:
There are a couple of issues I'd like to hear your thoughts on:

(1) Judge Bataillon indicated, but did not emphasize, that the Amendment may not be limited to the government. If a private employer wants to extend medical benefits to the partners of its employees, based on their registration in another state as domestic partners, does this Amendment prohibit the employer from doing so? Would that be constitutional?

(2) The opinion pointed out that Nebraska law already defines the phrase "domestic partnership" as a partnership formed in the state. Does the Amendment prohibit two people of the same gender from forming a business partnership? Does it matter whether or not the two people are romantically involved with each other?
5.16.2005 2:25pm
Paul Deignan (mail) (www):
A note to those that believe that homosexuality is genetic:

Genetic transmission of traits requires sexual reproduction.


So, how can a genetic discriminant exist if it is by nature self-eradicating? Perhaps it is a mutation, but then how do you screen for this? The mutation would be as common as any other genetic factor.

Then what if we found a person with this same gene that was not homosexual? It would be on to the search for another magic gene since no one has yet been able to prove that any genetic trait is deterministic of human behavior. ANY.

So, the search for the magic gene lies firmly in the realm of pseudo-science and political ideology. Its proponents rely mainly on circular arguments, appeals to authority, and fanciful wishery. Meanwhile, even greater fools are attempting to make constitutional law on this basis.


My suggestion: stop making fools of yourselves. The only justification for a same-sex union being recognized by the state is as a policy benefit to the state. This is the very same reason that the state recognizes opposite gender marriages in the first place.


Note also that the implications of the wrong-headed fundamentalist approach include involving the state in sex, the deevolution of the individual, and the supremacy of the state over individual choice. To the "liberals" here you might note that if the state is compelled to recognize some right based on some genetic predisposition that trumps choice, it can certainly construct a similar argument to dictate prohibitions (note the inherent contradictions of the Casey reasoning cited earlier).


Who has the truly liberal position here?
5.16.2005 2:33pm
Paul Deignan (mail) (www):
Sophist,

Earlier in the thread it was noted that the reasoning of the decision cannot be applied generally--that it was nonsense on its face.

Since the criticism was so solid (along your lines) it seemed to have destroyed all support for the reasoning. So we are off to other things.

In short, it seems to be widely agreed that the judge is a nut mistaken.
5.16.2005 2:40pm
Paul Deignan (mail) (www):
Burt,

I think you are reading the Loving decision a little too broadly. Here is what it says:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.



In other words, there is a basic right to marry, but not necessaily to have that marriage recognized by the state (we do not recognize many types of marriages--brother-sister, etc.) The state cannot prohibit marriage based on race. That is the upshot of the whole decision. This is different from your overly simple statement.
5.16.2005 2:48pm
Paul Deignan (mail) (www):
Burt,

In short, the state celebrates but does not recognize my marriage to my computer.
5.16.2005 2:49pm
Challenge:
"This is just ludicrous. First of all, the Equal Protection clause says NOTHING about race. The word just isn't there in any form."

So I guess we should just treat race like age, or maybe gender? Or, implausibly, we could just treat everything like race, in which case the state could never discriminate. Get a clue.
5.16.2005 5:15pm
Challenge:
"Marriage and procreation are not the same thing."

And according to gay marriage zealots, they're not related at all. Just because, in an exceptional case, children are not involved does not mean they are not inextricable as general concepts. Certainly the state's involvement has been primarily because of the institution's role in the having and rearing of children. What else could explain the level of involvement? Though coupling may be beneficial in itself, it does not explain the institution and the state's intimate involvement in that institution.
5.16.2005 5:23pm
Mahan Atma (mail):
"So I guess we should just treat race like age, or maybe gender? Or, implausibly, we could just treat everything like race, in which case the state could never discriminate. Get a clue."

But I never said any such thing. I was simply refuting your argument that miscegenation is distinguishable from gay marriage because, in your words:

"The Equal Protection Clause addresses racial distinctions clearly and forcefully--that is precisely its purpose."

I ask you, on what basis do you claim the Equal Protection Clause prohibits anti-miscegenation laws, but doesn't apply to non-racial classifications? It can't be textualism, because the text says nothing about race, right? And it can't be originalism, because the Framers of the Fourteenth had no intention of prohibiting anti-miscegenation laws, right?

So why does the Equal Protection Clause prohibit anti-miscegenation laws, but not bans on gay marriage? You've provided no logical distinction whatsoever.

As to whether we'd have to treat race, gender, age and sexual orientation equivalently, the Supreme Court has already provided a solution to that problem: We don't treat them all identically. Racial classifications get strict scrutiny, gender classifications get intermediate scrutiny, and classes like age or sexual orientation get rational basis review.

But that doesn't mean Equal Protection is irrelevant for gender, age and sexual orientation.

If, as you posit, Equal Protection was only meant to apply to race, does that mean you think the government should be able to discriminate on the basis of gender without any justification whatsoever?
5.16.2005 5:39pm
Mahan Atma (mail):
"What else could explain the level of involvement?"

That's easy: Peoples' desires to impose their religious/moral systems on others. There was a time when it was simply thought to be immoral to cohabitate and have sex without the primatur of state- and church-sanctioned marriage.

Thankfully, we've moved beyond that somewhat. Unfortunately, there are still plenty of people who want to impose their morality on others in the area of gay marriage.

Do you deny that a substantial number (probably a strong majority) of those who oppose gay marriage do so simply because they believe gay marriage is immoral?
5.16.2005 5:43pm
Challenge:
"So, how can a genetic discriminant exist if it is by nature self-eradicating? Perhaps it is a mutation, but then how do you screen for this? The mutation would be as common as any other genetic factor."

Are you suggesting that all detrimental traits eliminate themselves? What about the many genetic diseases?

Moreover, if you're familiar with the "Kinsey scale,", you'd be aware that some believe there are strong homosexuals and weak ones, weak ones could definitely have chance to impregnant women (think of as heterozygous).

Richard Posner in his book Sex and Reason posits an evolutionary explaination: perhaps they helped in the raising the family unit, thus, their genes were carried forward by their relatives with their help. This is similar, if I am not mistaken, to the idea of a "empathy/sympathy gene" and how it could evolve.

Further, to the principal question of whether homosexuality is at least in part determined from genetics, Posner writes (on page 101 of Sex and Reason): "the strongest evidence for the genetic basis of homosexuality comes from studies of human twins at least one of whom is homosexual. Of the fifty seven pairs of male identical twins that have been studies in which one which twin was homosexual, fifty pairs (88%) were concordant for homosexuality; that is, both twins were homosexual. The significance of this figure depends, of course, on the incidence of homosexuality in the male population as a whole. But it is unlikely, as we shall see in chapter 11, that it exceeds 4 percent, and may well be less."

I think, as a general rule, one can conclude that though not always determinative, genetics play a large, probably primary, role. Again, this is at least true for male homosexuals. I am not convinced the same genetic basis exists for lesbianism, though as I have expressed previously, I don't think it particularly matters if sexuality is genetic, it is not something easily changed by one's will, and therefore not accurately described as "choice."
5.16.2005 5:51pm
Challenge:
"Do you deny that a substantial number (probably a strong majority) of those who oppose gay marriage do so simply because they believe gay marriage is immoral?"

No, I think the fact they're different is a fact not indispute. Given this difference, it doesn't make sense to treat them equally until their equality is established. It's not inconceivable that two males would, on average, raise children differently than a male and a female? Is it not conceivable that one is better than the other?
5.16.2005 5:54pm
Paul Deignan (mail) (www):
Challenge,

Ha ha ha.

Do all detrimental traits eliminate themselves? No, but the ones that prevent sexual reproduction do.

---Oh! That's a good one.


Remember, the trait must be determinative of behavior. None are. So there is no genetic basis for discrimination. (I'm just trying to indulge the absurd hypothesis that sexual orientation is due determinitively to genetics--just enough to have a good laugh).
5.16.2005 6:00pm
Challenge:
You have some caricature of textualism, Mahan. Textualism does not ONLY rely on text, it relies on what that text was INTENDED to mean and enact. Otherwise something as ambiguous as the Equal Protection Clause would be impossible to animate in any way which was consistent with its intent.

I don't have time to engage in a protracted debate about intrepretive philosophy, however.
5.16.2005 6:02pm
Challenge:
There may indeed be a "gay gene" or a combination of genes which exist in a great majority of gays. I don't think there will ever be an explanation for 100% of the population. Indeed some gays may be genetic heterosexuals, who for whatever environmental reason, have decided homosexuality is better.

Paul, I think you're asking the impossible, and I don't think it's particularly relevant to the discussion at hand?
5.16.2005 6:06pm
Paul Deignan (mail) (www):
Maybe while we are on to creating rights due to magic genes, we can create on for alcoholism--the right not to be discriminated against by DUIs due to a propensity for the bottle. I could make a better case for that than sexual orientation.


How about this one. We have a constitutional right to eat certain foods due to our genes. That right must be provided for by the government by making shellfish only as expensive as broccoli (and in equal supply and availability).

I demand my lobster rights! Stop veggie bigotry!

Hell no, we won't grow, hey hey ho ho broccoli is not for me, hey hey ho ho, vegatables have got to go!
5.16.2005 6:07pm
Challenge:
"Do all detrimental traits eliminate themselves? No, but the ones that prevent sexual reproduction do."

Is it your position that homosexuals CANNOT reproduce? Many, many homosexual have had heterosexual sex, Paul.
5.16.2005 6:08pm
Paul Deignan (mail) (www):
Challenge,

Unless there is an intrinsic (necessarily genetic) determinative discriminant--one that causes homosexual or heterosexual behavior, there is no basis for a "fundamental right" for the state to recognize a dual version of heterosexual marriage.
5.16.2005 6:09pm
Paul Deignan (mail) (www):
Challenge,

So, ha, you are agreeing with me that homosexuals can reproduce through heterosexual sex.
5.16.2005 6:10pm
Paul Deignan (mail) (www):
..... doesn't that make them ......"heterosexuals"!
5.16.2005 6:11pm
Challenge:
Paul, you're just mistaken. What are case are or principle are you relying on for that bizarre conclusion?

Second, though many believe gay marriage is a "fundamental right," Goodridge and this recent case did not treat it as such.
5.16.2005 6:11pm
Challenge:
..... doesn't that make them ......"heterosexuals"!

======

No. If you had homosexual sex once or twice, would you be a homosexual for life?
5.16.2005 6:12pm
Paul Deignan (mail) (www):
So what makes a homosexual a homosexual and a heterosexual a heterosexual? What determines their behavior?
5.16.2005 6:15pm
Challenge:
Paul, I am not sure what you're getting at. But I'd like you to answer the question as to where you're getting this genetic requirement for fundamental rights....
5.16.2005 6:17pm
Paul Deignan (mail) (www):
What is the basis for this "fundamental right"? Why must the state provide by right a dual institution for the purpose of ???? aligning sexual orientation/proclivity with ?????
5.16.2005 6:19pm
Challenge:
I don't think they have to. Again, have you read anything I have posted?
5.16.2005 6:31pm
Paul Deignan (mail) (www):
OK, so are we, at least agreed, that there is no fundamental right for a homosexual dual to heterosexual marriage?

My reasoning is this:

1. The state recognition of marriage is a policy of the state as opposed to the natural right to marry (I am married to my computer).

2. The state decides to recognize a heterosexual union (under certain conditions).

3. #2 does not imply that the state must recognize a homosexual union as a fundamental right under the equal protection clause of the 14th amendment since sexuality is a choice and not a condition of birth. Moreover, marriage does not require sex (since we now have no fault divorce--perhaps some states differ, I don't know).
5.16.2005 6:39pm
Mahan Atma (mail):
" Textualism does not ONLY rely on text, it relies on what that text was INTENDED to mean and enact. Otherwise something as ambiguous as the Equal Protection Clause would be impossible to animate in any way which was consistent with its intent. "

But I already pointed out twice now that the Fourteenth Amendment was never intended to prohibit anti-miscegenation laws!

"I don't have time to engage in a protracted debate about intrepretive philosophy, however."

Whatever, it was your argument; you can abandon it as you wish.
5.16.2005 6:40pm
Paul Deignan (mail) (www):
BTW Mahan et al.,

On the twin study, where these twins seperated at birth? Were they randomly selected? Fifty is not a large number. How many of those had one homosexual member? (of that even smaller number, how can this possibly be significant when homosexuals are somewhere around 2% of the general population?)
5.16.2005 6:45pm
Paul Deignan (mail) (www):
Here is a link that blows away the twin studies:

http://www.narth.com/docs/whitehead2.html

In fact, the twin studies tend to prove that sexual orientation is a choice and not determined by genetics.
5.16.2005 6:49pm
Challenge:
"But I already pointed out twice now that the Fourteenth Amendment was never intended to prohibit anti-miscegenation laws!"

You've stated your opinion, hardly presented anything which even begins to answer that question.
5.17.2005 2:21am
Challenge:
I still do not understand where you are getting this requirement for sexuality to be genetically determined. It seems to come from you and you only. I don't think anybody is arguing that genetics is central to their case, whether is is for or against a constitutional right to homosexual marriage.

The link you provided which "destroys" the twin studies does no such thing, and is from a very suspect site. Maybe the paricular study cited by Posner is flawed, but I haven't seen any reason why it would be. Again, few would argue that genes are always and absolutely determinative. They clearly are not. Though they may be, perhaps, for some individuals. Those can both be true, you know. If you wish to pursue this further, be my guest. But I am spent on this subject. Adios.
5.17.2005 2:42am
Mahan Atma (mail):
"You've stated your opinion, hardly presented anything which even begins to answer that question."

Actually, I did. I pointed to Jack Balkin's post on originalist interpretations of the Fourteenth Amendment:

http://balkin.blogspot.com/2005/05/bad-originalism.html

Balkin explains the history and cites a lot of the relevant case law. I encourage you (and any other proponents of originalism) to read it.

Now, you're the one who's arguing that the Equal Protection clause was intended to prohibit anti-miscegenation laws. Do you have any evidence in support of that?
5.17.2005 10:57am
Paul Deignan (mail) (www):
Challenge,

Hardly. It follows from logic.

For instance, I asked, "What is the basis for this fundamental right (more than once)?"

The responses I get are avoidance and denile. Well, that is itself indicative of a flaw in your reasoning.

The link provided destroys the presumption that sexuality is genetic as it cited cases of identical twins were one was hetero and the other was homosexual. Identical twins share common DNA. Thus, sexual orientation is not genetic.

So, it is concluded that genetics are not determinative of sexual choice. Therefore sexual orientation is ultimately a choice irregardless the genetic propensity for the desire. As I had said before, any combination of genes will yield different propensities. There is a genetic propensity for certain diseases and for alcoholism. Nonetheless, we do not discriminate between individuals based on these factors. Why should we discriminate between individuals based on any (as yet unfounded) genetic propensity for sexual behavior?

What is so special about sex among all human behaviors? Want and desire. The entire reason for wanting to bend logic here is to satisfy a want. People want to do such and such so corrupted thinkers are now toiling away at a rationale to justify this allowance. The whole exercise is intellectually dishonest.

I am not the first to point this out.
5.17.2005 11:29am
Paul Deignan (mail) (www):

So, it is concluded that genetics are not determinative of sexual choice ... in all know instances.
5.17.2005 11:31am
Bob Van Burkleo (mail) (www):
So you are claiming a fundamental right based on the desire for a fundamental right.


No the right to marry *IS* an acknowledged fundamental right!
5.17.2005 11:43am
Burt Likko (mail):
Paul, whether you read the section of Loving that you quoted narrowly or broadly, it still says that the right to marry is fundamental, thus meriting strict scrutiny analysis with respect to legislation that purports to restrict or regulate that right. Most of the cases resulting from challenges to opposite-sex only marriage laws analyzed the right to enter into a same-sex marriage using a rational basis analysis; some found the laws wanting, and others found the laws satisfactory, under that level of analysis.

Splitting hairs between the act of marriage and state recognition of that marriage is a false dichotomy. Marriage -- legally speaking -- is a creation of statutory law. What happens in a church is of no legal significance; what happens at the county clerk's office is what counts. Marriage does not legally exist without the state's recognition and involvement. So state recognition of marriage is the same thing as marriage itself.

And with all respect, it is not turning the argument on its head to analyze statutes that restrict the ability of a group of people to exercise a right that is enjoyed by others.

So the right to marry is either fundamental or it is not, which determines what level of analysis we should apply to restrictions on that right such as recent laws which purport to restrict marriages to opposite-sex couples. Although Romer may not be the best-written opinion in the history of the USSC, it does tell us that the majority's moral disapproval of same-sex unions (and it's a pretty wan disapproval, IMHO) is insufficient to justify a restriction of rights under even a rational-basis standard. There must be some objective distinction between same-sex and opposite-sex couples; the only objective difference I can identify is the ability to naturally procreate.

Marriage does not imply procreation; many hetero couples marry late in life after they are biologically incapable of having children, for instance. Other couples choose to not have children for a variety of reasons. Whether you call these "exceptional" examples or not, they are common enough that it the distinction between marriage and procreation should be clear.

We also know that procreation is different from raising children. Many couples that do not procreate -- or individuals who do not procreate -- nevertheless raise children. They adopt or "inherit" children from other family members; they conceive artificially or through surrogates, or a variety of other means. Gay people, gay couples, are doing this right now, all over America.
5.17.2005 12:05pm
Bob Van Burkleo (mail) (www):
A particular choice of religion is not what is fundamental about the fundamental right to be able to choose a religion. What is fundamental about religion is the ability to chse--not the choice. Some "religions" are effectively prohibited and not recognized at all.


Love to hear of one. Justice Scalia demonstrated his ignorance in a recent case when he made a sarcastic remark about Satanist being a minority religion. Of course they are - the Army has guidelines on Satanist soldier religious support, The Hight Priest of the Church of Satan presided as a chaplin for a Navy member's funeral in 1972. Please exactly what religion is 'effectively prohibited' in the United States?
Certain religious practices are not protected.

Of course - that is a behavior - regulation vs proscription. only a behavior is proscribed, not a religion. Unless you are saying religion is behavior.
Ethnicity is not a choice as it is constructed, but it is flimsy.

Sure it is. Neighbor across the street is 12.5% aboriginal north american. He chooses to be considered as such even though he is 87.5% northern european descent. That's a choosable race, ditto for his ethnicity. "Wait you say, he is an exceptional case, most people can't choose?" Of course a statement like that can be used about sexual orientation too ;)

The protections we recognize as fundamental must be based on fundamental characteristics--such as free will.

I have no idea what 'free will' is actually - our ability to choose is only within parameters set by our biological constraints. I can't 'choose' many things that are expressed only as behaviors, handedness being one of them, how my limbic system responds to pheromones another. Our will is not 'free' but operates within limits many of which we have no control.

Other rights are recognized by the community as fundamental for the community to function, such as basic tolerance.

Of which acknowledging our fellow citizens basic right of equal access to government features would be one primary one, correct?
Here, the fundamental right is supposedly intrinsic to the individual--it is not.

Relgion is not. Ethnicity is not. Race is not. Creed is not. I think you are trying to craft a situation where your response is 'correct' but you're having to warp a whole lot of reality to do so.
All, no one has yet made a convincing case to disprove the foundational principle that people choose their sexual orientation.
Actually they have but you are discounting all the evidence to that supports this. Most importantly the people tell you they don't choose. Their word then puts the ball in your court to prove these law abiding citizens are lying. Further, people don't 'choose' to activate their limbic systems in the presence of sex pheromones fo their same gender. Monozygotic twins don't 'choose' to be 50% more likely to be of the same sexual orientation than dizygotic twins.
This fact is noteworthy. (The fact that people are arguing irrationally). This sort of zealotry is something we would generally call a religious conviction.
The humor being that it is you that is irrationally discounting the stated opinions of millions of people, dozens of studies, and everything else to say it really could still be only a 'choice'. Your comfortable calling millions of people liars to hold on to your theory and don't consider that the equivalent of religious zeal?
5.17.2005 12:12pm
Bob Van Burkleo (mail) (www):
A note to those that believe that homosexuality is genetic:

Genetic transmission of traits requires sexual reproduction.

So, how can a genetic discriminant exist if it is by nature self-eradicating?

Really? Well first let me state there are many qualities we don't 'choose' that are not genetic. That being said I think you are looking at the genetic issue a bit simply.

There probably is NOT a single gene that directly determines your sexual orientation. But that doesn't mean sexual orientation isn't genetic or doesn't have a genetic component.

Scenerio: After Hamer did his research on finding if a particular gene was a gay gene and it didn't pan out, other researchers looked at his data. They noted that those with the gene were 'very' whatever sexual orientation they did have: Kinsey 1's or Kinsey 6's, not many in between. What if this gene really coded for more 'sexual orientation' rigidity, so that the males with it locked into their specific sexual orientation? Though this leads to males that are life-long homosexuals, it also leads to an even bigger population of randy bastards that more than make up for any gene passing forgone by their gay brothers.

Just one possibility. There are many scenerios where the reason some people are one sexual orientation or another could have a genetic component and still have the gene passed along quite nicely.
5.17.2005 12:25pm
Bob Van Burkleo (mail) (www):
Captain Holly,

Relative comparision renders population size comparison irrelevant.

It doesn't matter where they have the children from, they are still raising children. With 50% of US marriages ending in divorce many of the heterosexual children are being raised from previous marriage also.

It doesn't matter why lesbian married couples with children are getting licensed, they are. With 33% of lesbian households raising children, the 40% spot point data was just illustration that if the licensed contract is 'for children' that is an argument for equal access to it.

And you don't know the source of the studies. These are meta studies of US Census data with additional questioning, so yes, they are statistically valid even though the sizes of the different populations is great.

Oh and another factoid: gay households raising children have the same relative percentage of ones with a 'stay at home parent' as licensed heterosexual households with kids.
5.17.2005 12:34pm
Paul Deignan (mail) (www):
Burt,

You must realize that not all rights derive from the state. The right to marry is a natural right that existed long before the US Constitution and was not ceded by the People in forming the state. On the other hand, the right to have that marriage recognized by the state is a state constructed right--a matter of state policy. So, you have to be very careful about which right you are talking about. The two are not the same.

As for levels of judicial review, they are just that. Whether a policy is reviewed strictly or rationally tells us nothing about the property of the arrangement under review. We are concerned here in whether or not there is a fundamental right for the state to recognize this new institution of same-sex unions. In Loving, there was implicit agreement among the justices that they were talking about the natural right of marriage (the law was a prohibition that was sweeping into the private sphere as the marriage was of the same type that was otherwise recognized by the state--not like my private marriage to my computer). So the justices spent no great time getting into the details of what and what could not be prohibited by the state. Obviously, they said nothing about sister-brother marriage, child marriage, or same sex unions. They were simply considering the expression of the natural right marriage through state policy which by the 14th Amendment must be equally drawn regardless of race. The whole case turned on the justices common understanding of the term "marriage".

Words mean certain things. "Marriage" is not a term that is the same as "coupling". What does this term mean? It has limits. If you fail to see those limits, your understanding of the logic of the Loving decision will be confused.

At the time Loving was decided, marriage meant (at least) the union of an adult man to an adult woman. This was the common understanding in all 48 states. Virginia wanted to impose an extra condition that was not imposed by other states. However, that did not change the domain of consideration. The institution was still marriage.

On the other hand, same-sex unions are entirely different and fall outside any known marriage arrangement that has ever before been recognized by any of the states. This is not a situation that can be ameliorated by applying a greatest common denominator meaning of the word equally to all states via the 14th--it simply doesn't exist in any of the states regardless of the reckless interpretation of SCOMA. State policies must be established by the People through legislative action. Otherwise no one can claim that a policy is the product of the People and recognized by the People.
5.17.2005 12:48pm
Bob Van Burkleo (mail) (www):
Maybe while we are on to creating rights due to magic genes, we can create on for alcoholism--the right not to be discriminated against by DUIs due to a propensity for the bottle.

I could make a better case for that than sexual orientation.

Really? So you are saying:

Giving people a pass for doing illegal activities because of a possibly genetically-influenced trait, is easier to justify than

giving all citizens equal access to a civil contract supporting a fundamental right regardless of their possibly genetically-influenced trait?

See the big difference? One you are giving special rights, the other you are giving equal rights.
How about this one. We have a constitutional right to eat certain foods due to our genes.

Actually if there were people that required certain foods to survive they would have a fundamental right to access to it that the government would have no power to proscribe. Government exists to serve or at least not unwarrantly interfere with the fundamental rights of citzens, not the other way around.
5.17.2005 12:56pm
Paul Deignan (mail) (www):
Bob,

I am defining now a religion of materialism whereby I earn money and buy material. The state taxes my religion, ergo it is not recognized by the state. Do you think it ever will be?

I have another religion that is expressed soley by the destruction of material things that belong to other people--anti-materialism. This is the dual (as a Zen like relationship) of the celebration of materialism. Check it out--its as old as history itself. I cannot practice this religion legally in the US.


Some more conventional religions dance around with snakes and drink poison. Is this protected? What about David Kouresh's practice of marrying children?



Ethnicity is not a choice as it is constructed, but it is flimsy.


Sure it is. Neighbor across the street is 12.5% aboriginal north american. He chooses to be considered as such even though he is 87.5% northern european descent. That's a choosable race, ditto for his ethnicity. "Wait you say, he is an exceptional case, most people can't choose?" Of course a statement like that can be used about sexual orientation too ;)


Above, you are actually agreeing with my point (as constructed, i.e. as the state defines ethnicity which places requirements on parentage) You are not disputing parentage here.




Free will: Don't read the following-----

WARNING WARNING Bob, don't read any further.


___________________________________________


Bob are you reading this? What forced you to read it or not?

BTW, if you are a determinist, this whole discussion was for my amusement and has otherwise been a waste of your time as you will not be able to do anything truly productive with the information I have provided (by the data processing inequality).

We can take up these other points once we reach an agreement on whether or not you have free will.

(Otherwise it would not be as useful to you as it might be).

___________________________________________
5.17.2005 1:07pm
Paul Deignan (mail) (www):
Bob,

Please see my reply to Burt on marriage in reference to equal access to a civil contract.
5.17.2005 1:09pm
Bob Van Burkleo (mail) (www):
OK, so are we, at least agreed, that there is no fundamental right for a homosexual dual to heterosexual marriage?

The fundamental right to marry is an individual one regardless of the gender of the 'other person', i.e. there is no such thing as 'hetero or homosexual marriage', there is only 'marriage'.
My reasoning is this:

1. The state recognition of marriage is a policy of the state as opposed to the natural right to marry (I am married to my computer).

No the state licenses a two person exclusive contract called marriage. Since marriage is a fundamental right it isn't the government's place to 'recognize' it - marriage comes from beyond government. It merely licenses a contract to help support marriages of certain configurations. It of course need not have a contract available at all and it need not have a contract for every possible type of marriage. But if it does have one, it must be reasonable accessible to all citizens or have very good reasons why not.
2. The state decides to recognize a heterosexual union (under certain conditions).

No, the state doesn't have the right to acknowledge something (or not) that is a fundamental right of the individual. Individuals are real, government is not. Real trumps imaginary. It would be like saying Superman can recognize your marriage.
3. #2 does not imply that the state must recognize a homosexual union as a fundamental right under the equal protection clause of the 14th amendment since sexuality is a choice and not a condition of birth.

Compounding errors.
Sexual orientation is no more a choice than race, ethnicity, creed, religion, etc, not if the word 'choice' is going to be left with much useful meaning.

The state is not 'recognizing' marriage, it is offering a contract for citizens to license in support of certain configurations of marriage. As such it must be made available to all citizens unless some very strong and compelling argument can be made restrict its access. Just as the state would have to justify running a chain of food stores where only people who signed with their right hands could purchase, the state would have to justify any exclusions of citizen access to license this civil contract in support of their fundamental right to marry.

You could prohibit access because:
* They aren't two contractable entities (you and your computer, your dog, the dead, minors, etc)
* The usage is not supported by the contract e.g. true polygamy, those that want non-exclusive multiple licenses as in the bigamy of Mormon type polygamy.
* licensing would have negative effects on the individuals and society e.g. close relatives due to genetics, cause sexual predation in family environments
* Or finally the individuals and or state receive insignificant benefit from licensing the contract.

Beyond these exceptions license to the existing civil contract license in the support of exclusive 2 person marriages should be reasonably available to all citizens irrespective of the gender/age/religion/whatever of their cosignee.
5.17.2005 1:31pm
Bob Van Burkleo (mail) (www):
I am defining now a religion of materialism whereby I earn money and buy material. The state taxes my religion, ergo it is not recognized by the state. Do you think it ever will be?

If you were a bit more cunning it would - sounds like the basic Church of Satan tenets to me. Get enough followers, flesh it out with doctrines and dogmas and you would have a winner.
I have another religion that is expressed soley by the destruction of material things that belong to other people--anti-materialism.

Ahhh so you are saying religion is a behavior. Thank you - that will come back to haunt you. :)
This is the dual (as a Zen like relationship) of the celebration of materialism. Check it out--its as old as history itself. I cannot practice this religion legally in the US.

But you can still hold it as your religion.


Some more conventional religions dance around with snakes and drink poison. Is this protected?
Actually you are talking about Christians and yes their religions are even if some of their practices are not.
What about David Kouresh's practice of marrying children?
Again, a behavior. The bible married children its a basic Christian tenet yet there are lots of Christians, yes? Though it is pretty much confirmed that you think religion is a behavior I've always thought of it as a belief system and as such all of your examples of proscribed behaviors don't work for me. Sorry.
Sure it is. Neighbor across the street is 12.5% aboriginal north american. He chooses to be considered as such even though he is 87.5% northern european descent. That's a choosable race, ditto for his ethnicity. "Wait you say, he is an exceptional case, most people can't choose?" Of course a statement like that can be used about sexual orientation too ;)
Above, you are actually agreeing with my point (as constructed, i.e. as the state defines ethnicity which places requirements on parentage) You are not disputing parentage here.

Only if you think the government 'chooses' anything ;). He chooses his ethnicity and race - he decides how he identifies himself to the government, they don't choose for him, ditto with sexual orientation.

We can take up these other points once we reach an agreement on whether or not you have free will.

You didn't present your definition. There are things I have choices on and things I don't. If I don't have control over all of them is that less that 'free will'? You have a tendency to use 'black and white' terms in a 'shades of grey' world that's why I want to know what YOU think 'free will' is.
5.17.2005 1:52pm
Bob Van Burkleo (mail) (www):
Please see my reply to Burt on marriage in reference to equal access to a civil contract.

Yes you have tried to transform a citizen's fundamental right into basically a special right for those sexually attracted to the opposite sex only.

Not that we haven't seen the underpinnings of this 'special rights for heterosexuals' justification in the anti side all along its refreshing to have it finally come out in the open.

Sorry acknowledging gay people's 'fundamental right' to marry an opposite sex person is like saying a fish has a right to a bicycle and would be humorous if I didn't know you were serious. Gay citizens have all the same needs, desires and fundamental rights as straight ones. If citizens have a fundamental right to marriage then they all do and they have a right to marry someone they would reasonably be able to 'build a life' with.

Deal with the real world here - if a citizen's drive to marry an opposite sex person is fundamental than in the land of reason the totally equal drive of another law-abiding citizen to marry someone of the same sex one is too.
5.17.2005 2:04pm
Burt Likko (mail):
So, Paul, is the ability to enter into a same-sex union a "natural right?" Is that one of the rights inherent in humanity, a right that the state simply cannot take away? Seems to me that's the direct you are going, and to that extent you must agree with the Lawrence v. Texas opinion. So be it; I realize that Lawrence is about the right to participate in sex acts (which is what I assume you mean by the phrase "coupling,") and that Lawrence does not directly implicate the right to marry one way or another.

But with respect to marriage, we are necessarily talking about a legal arrangement, and a special kind of legal arrangement which requires the blessing and participation of the state. If you want to call this "state recognition of marriage," so be it. It is the state's involvement and recognition of the arrangement that concerns me.

Your argument seems to be based largely on the concept that until the Goodridge case from Massachusetts, no one in the U.S. had ever attempted to define marriage as other than between one man and one woman. (Polygamists from nineteenth-century Utah excepted, I assume.) So marriage should be in the future what it always has been in the past since it works and if it ain't broke, don't fix it -- a seemingly sound, if conservative, social view.

But even though not all states had racial restrictions to marriage on its books like Virginia did before Loving, mixed-race marriages were widely condemned around the country; this practice was unpopular and even as late as the mid-1980's, a great many people who called themselves racially tolerant disapproved of mixed-race couples having children. Had the social institutions remained static, there might be no Tiger Woods today. Had the majority's will prevailed, it is likely that mixed-race marriages would still be illegal in Virginia. Sometimes, in our system, the majority loses.

Social disapproval of a marriage relationship was not good enough in 1964, and it is not good enough now, to justify treating one class of people differently than the majority. Same-sex couples are not asking for a "new" legal institution at all. They are asking for the same institution that opposite-sex couples have been enjoying for centuries.
5.17.2005 2:11pm
Paul Deignan (mail) (www):

I have another religion that is expressed soley by the destruction of material things that belong to other people--anti-materialism.


Ahhh so you are saying religion is a behavior. Thank you - that will come back to haunt you. :)


Bob,

I am bolding a qualifier that you will need to review. Note that the first amendment guarantees our right to free exercise of religion--not just a thought exercise. So effectively this religion of mine is prohibited.


After that I went on to discuss religious practices.



On ethnicity, it is partially defined by the state through parentage. I might like to claim that I am a native american, but if I fill out an application for a government contract that way I would be guilty of fraud (do I know this is not true? No. Can I verify that my great-great-......-great grandparents didn't all sail/walk/swim from NA to Europe? No.)



A definition of free will: The unmitigated ability to choose a mental orientation in finite time.

Mental orientation: A considered attitude in relation to a conception

Attitude: Vertical distance above ground level. Mental state within the domain of understanding.

Understanding: Conception of truth

Truth: Still working on this one, check back with me in 80 years.
5.17.2005 2:16pm
Paul Deignan (mail) (www):
Burt,

You have the natural right to associate. However, your personal associations may or may not be granted recognition by the state.


Not all sex acts are permitted by the state. Also, there is no natural right to act on others (association is not necessarily an act. Sex is an act of association).



On time, it proceeds in one direction (past to present). The people of the US may decide one day to redefine marriage. As of yet they have not. Decisions must be causal (otherwise we call them predictions/projections, or ........ desires).
5.17.2005 2:25pm
Paul Deignan (mail) (www):
I should qualify that last remark. The natural rights to act on others are subject to mitigation by agreement. Many of these acts fall under the realm of those arbitrated by the state.

I can't think of a social interaction that is not within the realm of regulation of the state, but there may be some. So I simply stated that there are no natural rights to act (not exactly right, since self-defense is a natural right, but regulated).
5.17.2005 3:16pm
Bob Van Burkleo (mail) (www):
I am bolding a qualifier that you will need to review. Note that the first amendment guarantees our right to free exercise of religion--not just a thought exercise. So effectively this religion of mine is prohibited.

OK your made up 'religion only exercised through behavior' is regulated away. OK. Now can you give a real world example?

As to ethnicity, that was part of the point - for some people it is a choice, for some it is not - yet we acknowledge all of them, nonchoosable and choosable, as the same as far as rights go.

free will: The unmitigated ability to choose a mental orientation in finite time.

Unmitigated? Nope, the human animal doesn't have it on an individual basis. I know I could never put myself in same mental orientation of a man blind for life as an example - it would be impossible because I have seen. There have to be qualifiers as to what mental orientations are 'free will' able. We have a very broad range of possible mental orientations but they are limited by our biology especially those dependent on non-prefrontal lobe input.
5.17.2005 3:26pm
Paul Deignan (mail) (www):
Bob,

The religion of anti-materialism is not simply in the expression of destruction of property--you really have to be one with the destruction. Its a whole philosophy of life. Dig it?


Unmitigated as in not lessened, i.e. physical considerations do not lessen or moderate the form of free will exercised. I understand that this is difficult for compfort-lovers to conceptualize. Nonetheless, as free will is extradimensional it is influenced but unconstrained by physics. Consider that carefully. It is an all or nothing proposition. Either you have it or you don't.
5.17.2005 5:43pm
Jaderebel (www):
The tenth amendment has not been repealed.Marriage is defined by society (the people), not the state or the courts. The state merely recognizes those unions which promote the interest of soceity.
5.18.2005 7:35pm
Bob Van Burkleo (mail) (www):
"The religion of anti-materialism is not simply in the expression of destruction of property--you really have to be one with the destruction. Its a whole philosophy of life. Dig it? "

So no real world example? I thought as not.

"Unmitigated as in not lessened, i.e. physical considerations do not lessen or moderate the form of free will exercised."

Ahhh I was using the "absolute: unqualified" definition which would have meant that everyone could reach the a existing 'mental orientation'. Obviously impossible.

Now 'physical considerations' does that include biology? I mean we are limited by what we can conceive by biology (neuroanatomy and such) so that would mean it also influences our ability to reach 'a mental orientation'. So if physical considerations does include biology then no we don't have free will by that definition either.

Not sure how it applies to the topic but interesting none the less.
5.19.2005 4:11am
Paul Deignan (mail) (www):
Bob,

You need to put some intellectual effort into this exchange. I am not interested in a silly debate of the type that you seem to want to pursue.

This is a thought exercise for me. It is foolish to use a forum such as this to push an agenda. I will have none of it.
5.20.2005 2:28pm
Bob Van Burkleo (mail) (www):
You need to put some intellectual effort into this exchange. I am not interested in a silly debate of the type that you seem to want to pursue.

This is a thought exercise for me. It is foolish to use a forum such as this to push an agenda. I will have none of it.


Ha! YOU are the one who drew the line in the sand about discussing 'free will' before you would continue discussing and then complain when it is being discussed! Lets talk foolish here...

Fine, drop the subject. I wasn't entirely sure why you thought it relevant to the topic at hand anyway.
5.20.2005 7:07pm