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Cathy Young on Same-Sex Marriage and Maggie Gallagher's Posts Is

here.

Goober (mail):
From Ms. Young:


This was not exactly what I would call a successful venture: Gallagher meandered a lot, made some rather disjointed arguments and scattered points, and never really coherently explained her view that allowing same-sex marriage would undermine the traditional heterosexual kind....
....
As for Gallagher's argument, which some of the commenters managed to summarize better than she did....


That's putting it politely. I think what upset a lot of readers / commenters here (and I can speak only for myself, but I suspect I'm of a similar position as many others) is not that Ms. Gallagher offered a position against gay marriage, but that her arguments were so woefully underpowered, but culturally salient to those already inclined against gay marriage, that they provided a lot of heat without light. There were a lot of comments on both sides to her debate, but I don't think Ms. Gallagher either added to the debate nor helpfully summarized its terms. Yet there was a real reluctance by some to admit as much, and those who criticized Ms. Gallagher for failing to present a coherent case were dismissed as gay-marriage fanatics who don't think any argument against gay marriage could be valid.
10.25.2005 2:02pm
SP (www):
Thanks for the link Prof. V. I found Cathy's post very stimulating.
10.25.2005 3:12pm
Appellate Junkie (mail):
Following up where Goober left off, I offer a plea: Prof. Volokh, the next time you have a guest blogger, try to find someone skilled at the task.

I must say, that Ms. Young managed to divine something meaningful out of all of Gallagher's rambling. That alone was an impressive feat.

Moreover, Young also made a generally balanced and credible analysis, even if the necessary result was something less than "the sky is falling."

Apparently offered as an afterthought, Ms. Young did opine:

One more point to ponder: if the primary purpose of marriage is the romantic happiness and satisfaction of adults, then staying together for the sake of the children even if romantic passion and intimacy have one out of the marriage -- an ideal many people who are neither reactionary nor bigoted would like to reclaim -- becomes a far less tenable proposition.

and this I just can't credit. To the degree that spouses put their personal satisfaction above their children's well being in making decisions about divorce, it is the destigmitization of divorce that brought that about. That the symbolic import of Jane and Mary getting married has any impact on the day-to-day misery in unhappy heterosexual homes is just too far fetched.

And, of course, Young took her cues from Gallagher, whose understanding of ConLaw is nowhere to be found. I'm not suggesting that a discussion of the societal impact of SSM is irrelevant (quite the contrary actually). I do insist, however, that we cabin these musings within the greater framework of how we govern ourselves.

Without that persepctive, this "debate" is little more than a popularity contest.
10.25.2005 3:13pm
Anderson (mail) (www):
Doubtless this came up somewhere in Gallagher's voluminous comment threads (I tried keeping up with the posts, but the comments were beyond me):

Given the religious allegiance of so many (not all) of the "marriage is based on procreation" set, it's rather odd that the ur-text on which you'd think they'd rely, says NOTHING about procreation per se.


18: Then the LORD God said, "It is not good that the man should be alone; I will make him a helper fit for him."
19: So out of the ground the LORD God formed every beast of the field and every bird of the air, and brought them to the man to see what he would call them; and whatever the man called every living creature, that was its name.
20: The man gave names to all cattle, and to the birds of the air, and to every beast of the field; but for the man there was not found a helper fit for him.
21: So the LORD God caused a deep sleep to fall upon the man, and while he slept took one of his ribs and closed up its place with flesh;
22: and the rib which the LORD God had taken from the man he made into a woman and brought her to the man.
23: Then the man said, "This at last is bone of my bones and flesh of my flesh; she shall be called Woman, because she was taken out of Man."
24: Therefore a man leaves his father and his mother and cleaves to his wife, and they become one flesh.
25: And the man and his wife were both naked, and were not ashamed.

Positively Sixties-ish in its emphasis on being a "helper" and on "cleaving" without reproduction. Me, I blame the sexual revolution of 4000 B.C.

(Of course, I'm cheating; this is the 2d version of the creation story in Genesis. Here's the first:
26: Then God said, "Let us make man in our image, after our likeness; and let them have dominion over the fish of the sea, and over the birds of the air, and over the cattle, and over all the earth, and over every creeping thing that creeps upon the earth."
27: So God created man in his own image, in the image of God he created him; male and female he created them.
28: And God blessed them, and God said to them, "Be fruitful and multiply, and fill the earth and subdue it; and have dominion over the fish of the sea and over the birds of the air and over every living thing that moves upon the earth."
29: And God said, "Behold, I have given you every plant yielding seed which is upon the face of all the earth, and every tree with seed in its fruit; you shall have them for food.
Any fundamentalist who uses this as an argument for banning gay marriage, without also embracing vegetarianism, should be disregarded as hopelessly inconsistent ....)
10.25.2005 3:43pm
jrose:
One of the things I got out of Young's comments was:

I think that we need an honest discussion of these possible outcomes, and of how we as a society can manage the recognition of same-sex unions (which I think is a matter of basic justice and dignity) in such a way as to minimize potential negative repercussions.

How are SSM opponents - and Gallagher in particular - proposing society recognize same-sex unions?
10.25.2005 3:48pm
jrose:
Appellate Junkie,

Do you think Young's analysis is sufficient for DOMAs to survive a Romer-style animus challenge?
10.25.2005 3:52pm
Justin (mail):
The problem with Young's argument (which I disagree is Gallegher's argument, but also understand is not actually what Young believes in, its a 3rd argument that Young proposes as Devil's advocate) is that it, like Galleger's argument, believes way too strongly that these types of government actions can have a major impact on social mores. All the major "moral" revolutions in America came due to nongovernment actions that ultimately prodded government along...usually technological advancements (either economic or communicative) but sometimes based on breakthroughs in "elitist" philosophies. The government, almost by definition, cannot win the battle, and the idea of looking at gay couples as the moral equivalent of straight couples is now an inevitability absent another "revolution", one that banning gay marriage will not prevent and only hurt people with no tangential "benefit".
10.25.2005 3:53pm
Justin (mail):
"Appellate Junkie,

Do you think Young's analysis is sufficient for DOMAs to survive a Romer-style animus challenge?"

No. The failure is that even if one can make the argument under substantive due process grounds that there is a valid governmental interest, the decision to draw the line at gays is so removed as to be arbitrary and capricious given the lack of any real chance of Young's devil's advocate accomplishing her goals.
10.25.2005 3:56pm
Justin (mail):
PS, I'm under no illusion that the above statement is how the Supreme Court *would* rule on the issue, only that this is how it *should* rule. It obviously *would* find DOMA constitutional, given that its basically meaningless under the current reading of the "full faith and credit" clause.
10.25.2005 3:58pm
Cornellian (mail):
Do you think Young's analysis is sufficient for DOMAs to survive a Romer-style animus challenge?

Today? Probably. In twenty years? Doubtful. In fifty years? Not a chance.
10.25.2005 4:32pm
Daniel Chapman (mail):
I think you're begging the question if you think a law defining "marriage" as a union between a man and a woman is "arbitrary" because it excludes same-sex couples.
10.25.2005 4:33pm
Appellate Junkie (mail):
Jrose wonders:

Do you think Young's analysis is sufficient for DOMAs to survive a Romer-style animus challenge?

The obvious answer: depends on the court, and the state law under challenge.

(I'll set aside the federal DOMA statute for the time being; the Full Faith and Credit provisions are irrelevant, and the federal marriage definition is very suspect, but too political to make a meaningful call.)

If you consider the appellate proceedings under way in California and Washington, for example, I think you can see that a strong possibility of the states' highest courts striking the gender requirements based in part on Romeresque animus analysis. In these cases, there is an added temporal wrinkle, however, which might lead the court (majority) to choose a subtly different path. Something along the lines of: there might have been some rational underpinning to adding explicit gender requirements in the 1970s (in the wake of constitutional reforms regarding gender discrimination and the declassification of homosexuality as a mental disorder), but they have since lost any rational basis. All that remains today is animus.

If you consider other states, such as New York, I don't see much likelihood of literal Romer analysis.

In all of those cases, however, I think it is at least as likely that we will see something quite different from Romer. At the end of the day, these musings about the symbolic import of marriage are unlikely to outweigh existing jurisprudence on the nature of marriage (it is a fundamental liberty conferred to the individual as against the state; in reading the reasons why marriage is a fundamental right, gay folks have the exact same interests). Absent state constitutional amendments to the contrary, I think an awful lot of state courts just won't buy Young's musings as being sufficient.

For some courts, however, this presents some other largely political problems as to the standard of review. Some courts may be (too) tempted to adopt the unfortunate Lawrence analysis, which I find very unsatisfying. In other states, such as New Jersey, that won't be a problem.

BTW, I largely agree with Justin. I read Young's restatement of the case as that of devil's advocate.
10.25.2005 4:35pm
Appellate Junkie (mail):
Arg. Next time I'll bother to edit the comments before posting such a mess.

Apologies.
10.25.2005 4:41pm
jrose:
Justin: the decision to draw the line at gays is so removed as to be arbitrary and capricious given the lack of any real chance of Young's devil's advocate accomplishing her goals.

I am not following why drawing the line at gays results in no real chance of Young's devil advocate accomplishing her goals.

Appellate Junkie,

Although I agree Young's musings aren't sufficient for DOMAs to survive a challenge of heightened scrutiny, why don't you think they provide a sufficient rational basis under Romer?

You say that a state constitutional amendment might sway a court even if they view marriage as fundamental. Why should that make any difference given the Supremacy Clause.

Why did you find Lawrence unsatisfying? Why isn't that a problem in New Jersey?
10.25.2005 5:20pm
Justin (mail):
jrose: Young's straw argument is that the problem with marriage as a policy took is its failure to properly assert its "goal" as childrearing, that is, that we're still back to the "purpose" of marriage to be childrearing, even though it has now "intrinsic" benefits.

The problem with this is that not only does empirical evidence in Scandanavia show no connection between the two in the short run, in the long run (for reasons I've explained), the effect of legal incidents of marriage is not going to influence the social position of marriage one way or another, and the argument that it will borders on the ludicrous. Thus, to fail to provide benefits to gays because you want to fight an unrelated, ephermal fight that you're going to lose anyway and that such a decision provides you with no greater expectation of winning, falls exactly under the definition of arbitrary and capricious.

Daniel, at one point, the idea that "people" included "blacks" and "Indians" was as silly as the idea that "marriage" included both a male and a female. You can't allow the entymology to determine the legal principles. At some point, people will naturally understand that marriage is a binding relationship between lovers, and your argument will look just as silly as arguing today that Native Americans cannot be protected under the bill of rights because the bill of rights only protects "persons".
10.25.2005 6:08pm
Appellate Junkie (mail):
jrose,

I was simply trying to illustrate the point that—at the state level—the details matter very much. That said, I'll try to answer your questions, which appropriately go to the heart of the matter.

I happen to agree with the marriage-equality crowd, so I'll try to wear their/our hat. Obviously, the Central Committee of the Homosexual Agenda doesn't exist, let alone posses the power to control this litigation, so your mileage will vary.

Be Very Wary (of Federal Courts)

Now is a colossally bad time to attempt a substantive-due-process (my preference) or equal-protection challenge (more probable) in the federal courts. It's too early. We need another generation of progress (presumably progress via the hearse) to risk having SCOTUS do what SCOTUS does with regard to this hot-potato. That may not be fair, but that's life.

Why State Constitutional Amendments Matter (For Now)

Because it's best to avoid SCOTUS for a couple of decades (or more), attempting a Supremacy Clause assault on state constitutions that explicitly define opposite-gendered marriage is a bad idea. Even if SCOTUS chose not to take the first case that came up, a conflict among the state's interpretations of the federal Constitution is inevitable. Just don't go there.

Why State Statutes Won't Survive Rational-Basis Scrutiny (In 12 States)

Consider California. The legislature has already enunciated an extremely strong public policy with regard to treating gay folks equal in just everything that's under their control (including National Guard service). Do gay folks make good parents? The legislature said "You betcha." The courts have done likewise. Do gay folks have just as much claim to dignity with regard to their familial choices? Ditto.

So, the state has little left upon which to make its case. On the "positive" side, the state makes a classic separate-but-(not quite)-equal proposition: we've given them everything but "marriage," why do they need that? The state doesn't want to give them "marriage" because it offends tradition (literally, that's the argument before the appellate court).

Is tradition alone sufficient? Perhaps this will ring a bell:


It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.


As for the symbolic import of marriage (which the Calif. A.G. does not explicitly assert, but Young describes), the Griswald court explained that we protect marriage so dearly because it "is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects." (emphasis added.) Whatever the symbolic dimension of marriage may be, it is not some sort of social-engineering project.

And that some Californians may take offense, I would simply add that: "Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect."

Obviously, this is the very short form of the argument. So short, it borders on platitudes. But, I think you can see where I'm going.

The standard of review, however, merits a separate post.
10.25.2005 6:18pm
jrose:
Justin: in the long run (for reasons I've explained), the effect of legal incidents of marriage is not going to influence the social position of marriage one way or another, and the argument that it will borders on the ludicrous.

Which must mean you think this portion of Young's summary (and the detailed argument behind it) is ludicrous: I think it's possible that the legalization of same-sex marriage will lead to social changes that will result in the loss of the special status of marriage as we know it

I don't see why her argument is - even though I agree it is doubtful - ludicrous.
10.25.2005 6:25pm
Daniel Chapman (mail):
Justin: I *really* don't want to re-hash any substance of the SSM debate after last week. Can we just agree that if SCOTUS were to overturn all the DOMAs (good acronym, if a little ambiguous) as "arbitrary," that it would be extremely unsatisfying? I understand you see it as an Equal Protection issue, but you've got to understand that MANY other people disagree with you. This would simply be another example of SCOTUS "taking sides in the culture wars."

Yes... if we assume your point of view, it's arbitrary. If we assume mine, it's not. Either way, it's begging the ultimate question, isn't it?
10.25.2005 6:34pm
Appellate Junkie (mail):
And, jrose was kind enough to ask about one of my pet peeves:


Why did you find Lawrence unsatisfying? Why isn't that a problem in New Jersey?


I don't quibble with the result in Lawrence. The result is fine, but the law is bad. In fact, you see evidence of the same thing in Romer (not to mention O'Connor's concurrence in the Lawrence result).

A half century ago, there were fundamental rights (okay, I believe that they were there long before then, but let's save that debate for another day). I can understand that SCOTUS is most judicious in identifying what exactly these rights may be. That's just being prudent.

I would argue (and most American's who don't study ConLaw probably presume) that sexual intimacy between consenting adults conducted in the privacy of one's home falls well within—I mean it's not even a close call—the protected sphere of fundamental private rights. I would date that recognition back to Eisenstadt (okay, it takes a little explaining, but I'm convinced it's there).

Unfortunately, as soon as those uppity homosexuals start asserting their fundamental rights, the courts generally (and SCOTUS in particular) retreat to a sort of "fundamental lite" analysis. You can dress it up in bizarre legalisms like "a more searching form" of rational-basis scrutiny. I say that's crap.

Either all adults have a fundamental interest in where they want to put their mouth (or any other body part) or nobody does. If you don't like my choices, don't mimic them.

But before you use the power of the law to curtail (or in many situations completely deprive) a fundamental right, the state must come up with a compelling interest narrowly addressed. Don't give me this rational-plus contrivance. That's just another way of saying disfavored minorities are second-class citizens.

As for why none of this matters in New Jersey, it is an exception to the commonly applied two/three/maybe four-tier analysis that most states and federal courts use. At the moment, New Jersey eschews these rigid categories and (theoretically) always applies a balancing test. On one side of the scale, how strong/fundamental is the claim to a right (and how great is the intrusion into it) and on the other how important is the state's interest (and how carefully is that interest given effect)?

I've deliberately avoided applying this marriage equality. It wasn't part of the question, and I'm sure we'll have an opportunity to get into application of it next week.
10.25.2005 6:52pm
A Guest Who Enjoys This Site:
Anderson: Try reading just a skosh farther into Genesis...

Chapter 9: 1-7 states:

1.) And God blessed Noah and his sons, and said unto them, Be fruitful, and multiply, and replenish the earth.
2.) And the fear of you and the dread of you shall be upon every beast of the earth, and upon every fowl of the air, upon all that moveth upon the earth, and upon all the fishes of the sea; into your hand are they delivered.
3.) Every moving thing that liveth shall be meat for you; even as the green herb have I given you all things.
4.) But flesh with the life thereof, which is the blood thereof, shall ye not eat.
5.) And surely your blood of your lives will I require; at the hand of every beast will I require it, and at the hand of man; at the hand of every man's brother will I require the life of man.
6.) Whoso sheddeth man's blood, by man shall his blood be shed, for in the image of God made he man.
7.) And you, be ye fruitful, and multiply; bring forth abundantly in the earth, and multiply therein.

Thus, a fundamentalist reading clearly shows that vegetarianism is NOT required (supported also in the New Testament); but that specific care in the preparation of the meat(s) was required (more specifics are listed later in the text on that score). Further, it is indicated that there is a price to be paid for this eating of meat (warnings which are echoed for both physical and philosophical reasons in the New Testament). However, the people are still encouraged to be fruitful and multiply.

NO such exemption or permission is given, ANYWHERE, in the Bible for homosexuality or homosexual marriage; in fact, quite the opposite. So, be careful in attempting to use a reference you either are not wholly familiar with or wish to use only as you see fit; i.e., attempting to take specific phrases out of context or infer something that is simply NOT there. In the end, you risk intellectual inconsistency accusations you assert and the embarrassment you attempt to impart from those better versed than I in the Biblical text.

Just a friendly piece of advice.
10.25.2005 10:19pm
Appellate Junkie (mail):
A Guest Who Enjoys This Site,

Just a friendly piece of advice.

If your point was that Anderson's interjection of biblical interpretation was imprudent, I heartily second that emotion.

I suspect, however, that I'm misreading your post because you chose to offer this:

NO such exemption or permission is given, ANYWHERE, in the Bible for homosexuality or homosexual marriage; in fact, quite the opposite.

Were this an appropriate forum for such a debate, I'd be happy to challenge this assertion. In a concession to the "originalists" here, I'm even willing to conduct that debate in ancient Hebrew or Koine Greek (I might even make fewer grammatical errors in the process).

Feel free to suggest a more suitable venue. Otherwise, why don't we all stick to something closer to the scope of this blog?
10.25.2005 10:43pm
Noah Snyder (mail):
Thanks Prof. Volokh, that was a very interesting post that I would not have ran accross otherwise.
10.25.2005 11:06pm
Zephyr:
Marriage By What Definition?

Same sex couples will never be equal to heterosexual couples on purely biological grounds with respect to "exclusive" sexual reproduction. We need to address the advances in technology that are "contrary" to nature. Allowing any couple, heterosexual or same sex, access to reproduction techniques involving the use of human reproductive matter other than that of the two persons involved should be illegal. By definition, "donor" eggs/sperm introduce an "intruder" no matter how sterile, inside the sanctity of marriage. But, couples agreeing to such procedures accept that risk. And the state does not involve itself in human reproductive choices.

Marriage is a "private" matter between the individuals involved. The state has no business entering into the relationships of individuals. Once we allow the state into our interpersonal affairs, the individual becomes "property" of the state, and all aspects of their life are dictated by the state. We do not need "big brother" in our bedrooms. Nor do we need the same controlling our sexual behavior, who we have sex with, when and how much sex we have.

If the state is going to continue to "recognize" marriage, then it should recognize all forms of marriage regardless of religious origin, i.e. separate church and state. We have American citizens practicing religions that sanction multiple marriages. We also have childless couples. Should we have those marriages "dissolved" because children were neither produced, nor sought via adoption? America should not be reduced to government intervention in human affairs for the sake of maintaining "society". The propagation of humans is a "human" issue and the world is not short on human beings.

The state does not imprison unwed parents, demand babies from married couples, or dissolve childless marriages. Nor does it force men and women with children to remarry after the death of a spouse. By this definition, marriage is not predicated on progeny. Therefore, same sex marriage from a state economic perspective is basically the same. The state demands a "taxable economy" which to date, caters to individual desires, i.e. maxim profits. This leaves us with raising offspring in the lifestyle we can afford according to our needs and desires.

The fact that children would or should be better off with both parents is a condition of the socio economic condition of the parents. Should either parent remain in the household if that person is a negative role model? I think not. The fact that some women marry for money is not new. Marrying and then divorcing to receive child support is slightly worse than marrying for money. But, a court order of joint physical custody and joint financial responsibility would fix that issue.

If we are going to advocate that laws be established to make a divorce harder to obtain, then we should, make marriage harder also. Prior to "state sanctioned marriages", and a first date, the couple involved should: be 25 years old; have completed an equal level of formal education; submit financial statements; submit medical history; attend parenting and budgeting classes; and have had a psychological review. Which century of America do you really think this will happen in?

The state, thankfully, leaves it up to the couple involved to address the issues of marriage and make the best choice they can regardless of the outcome. It also leaves us the dignity to dissolve those unions should they become unbearable for either partner. Therefore, it remains the joint responsibility of the parents to remain positive involved role models in the lives of their children.
10.25.2005 11:30pm
Penta:
Appellate Junkie: This blog is about the law, ain't it?

And, in the Common Law tradition, the Bible certainly falls into the discussion, if only due to its foundational role in the creation of and understanding of the law.
10.25.2005 11:55pm
A Guest Who Enjoys This Site:
Appellate Junkie: Your first assumption was the correct one. Your 'suspicion' is a case of begging the question or attempting to do what it was that you suggest I might be implying; alluding to facts not in existence or, more accurately, assertions based on beliefs which may not be reconcilable with others'.

I do not intend nor will I engage in a religious debate over the text or an individual's interpretation thereof in this, predominantly a secular or legal, forum. If we had such an appropriate place to do so, I would likewise be happy to indulge; but, only to a point in that individual beliefs regarding morality tend to be predicated on assumptions that have nothing to do with plain text, originalist, or original intent arguments and more to do with 'understanding' garnered outside a 'scientific' discourse.

As for requesting something closer to the topic of this blog, I think this is precisely the problem and is related specifically to this blog. The Supreme Court itself has pointed to the fact that the resolution of homosexual marriage is not, or should not be, strictly a judicial matter; involving more than straight, legal reasoning or tests of scrutiny. They have warned that were it to be placed in their laps, that SCOTUS is an inadequate venue to deal with these broader issues and in being forced to rule, may be compelled to formulate a decision which conflicts with non-legal beliefs held by both sides of the argument.

This was the underlying problem with Gallagher's posts on this site. She was offering discourse premised on assumptions that had less to do with logic and more to do with personal beliefs or perspective; this to a group used to dealing with logical discourse. Thus, if the premises upon which you base your personal belief structure are different that those held by Gallagher, there can be no resolution of the differences held through LOGICAL discourse. One may present a valid argument based upon fallacious premises. The problem is, how do you prove a premise is fallacious if the premises are personal beliefs?

It is exactly the same as first day logic class. Query: Does God exist? If you answer "yes," then all further arguments, no matter how valid, are premised upon this answer. If you answer "no," then all further arguments, no matter how valid, are premised upon this answer. Whether you answer "yes" or "no," your answer, and therefore your premise, is a personal belief; for there is no way to logically support either answer based on provable fact and, thereby, the two answers are irreconcilable without creation of a logical conundrum, false premise, or straw man.

This is what Cathy Young was alluding to when she stated:


This was not exactly what I would call a successful venture: Gallagher meandered a lot, made some rather disjointed arguments and scattered points, and never really coherently explained her view that allowing same-sex marriage would undermine the traditional heterosexual kind.


This seems to be precisely what Goober was saying when he states:


...Ms. Gallagher offered a position against gay marriage, but that her arguments were so woefully underpowered, but culturally salient to those already inclined against gay marriage, that they provided a lot of heat without light.


This is why your first assumption is correct. My point (glad you caught it) was that someone like Anderson - not to mention a host of others - need to keep their animus toward the 'opposing side' in check lest they put themselves in a position of publicly displaying their intellectual inconsistencies and embarrassing themselves by feeding the other side. This friendly advice, as I termed it, also applies to challenges regarding Biblical texts, whether in KJV English, Hebrew, Latin, Greek, etc. For, although I am not the person to do it, I have read many of the experts on the topic and frankly my friend, the weight of their opinion, while making for an interesting and similarly irresolvable discourse in the proper venue, would not favor a rational disagreement with the statement I stand by regarding homosexuality and homosexual marriage in the Biblical text; at least not without reliance upon assumptions, predicated by agenda and/or personal beliefs, disparate from common understanding.

So, shall we table discussions of literary criticism or revisionist interpretation of the Biblical texts so that others may proceed with their comments on Gallagher and Young?
10.26.2005 12:24am
Justin (mail):
I don't see why her argument is - even though I agree it is doubtful - ludicrous.

It's ludicrous for the reasons set forth above....the political reality follows the social reality and not vice versa. Furthermore, saying that something will destroy something whose destruction appears inevitable does not appear to be a useful argument in the first place. If you had more faith in your doubts, you'd see yourself proven correct.

As to Daniel: To those who think Lawrence was a bad decision, then yea, I guess......to those of us who think homophobia is basically the last refuge of the intellectual cultural-xenophobic, the modern equivalent of racism backed by "racial darwinism", then arbitrary is precisely the correct term.
10.26.2005 12:53am
Public_Defender:
Young asks, "how many people weigh their spouse's insurance policy as a factor in deciding to marry?"

More and more, especially since cohabitation so frequently precedes marriage. Health insurance can become a big issue for an unmarried couple when one partner has a good plan and the other has no insurance or bad insurance.

The lack of SSM encourages some employers to extend benefits to all unmarried partners of employees. If there were SSM, it would be easier for these employersa to restrict benefits to married people only.

Extending marriage benefits to unmarried heterosexuals is more of a threat to marriage than SSM could be because it encourages unmarried heterosexuals to stay unmarried.

Because of the trend to provide partner benefits to all unmarried partners, the lack of SSM may actually undermine marriage.
10.26.2005 5:40am
jrose:
Appellate,

Why can't the statutes survive rational basis in 12 states (and presumably can survive in the rest)? What do these 12 states have in common? Are they the ones that have anti-discrimination statutes covering gays?

Assuming I am correct in that last guess, why do those anti-discrimination statutes make any difference to Young's proposed rational basis (it is possible that the legalization of same-sex marriage will lead to social changes that will result in the loss of the special status of marriage as we know it)?
10.26.2005 10:02am
Justin (mail):
BTW, for lawyers here, has anybody thought of the effect LRAP has AGAINST marriage? Something I've had to think about.
10.26.2005 11:36am
Shawn (mail):
Some states have an ERA in their state constitution. In those states, would not a claim of gender discrimination (much like race in Loving v. Virginia) be sufficient?

[disclaimer: non-lawyer here.]
10.26.2005 12:12pm
Appellate Junkie (mail):
A Guest Who Enjoys This Site:

Your 'suspicion' is a case of begging the question or attempting to do what it was that you suggest I might be implying;

The second part of my post was indeed a deliberate attempt to do exactly what I supposed you were doing. I was simply trying to illustrate the point.

My invitation to dissect the text further was, however, genuine. I don't mind debating a/the bible's contents because I'm not terribly concerned with whose interpretation is "right" (and rather doubt the existence of a "right" answer in many of the details). To me, it is a genuinely academic exercise.

To note that there conflicting interpretations of the bible with regard to this or that is perfectly appropriate to a discussion of the law. I can't take someone seriously who posits that the bible has no bearing on the social traditions and mores of this country. Regardless, the bible is not the last word—even less so where diametrically opposing views are so devoutly held by the faithful.

As to whether the weight of scholarly opinion on the bible so clearly condemns homosexuality as it is understood today, I obviously disagree. Your invitation to table further discussion, however, is prudent, welcome, and in my case accepted.

They have warned that were it to be placed in their laps, that SCOTUS is an inadequate venue to deal with these broader issues and in being forced to rule, may be compelled to formulate a decision which conflicts with non-legal beliefs held by both sides of the argument.

I agree. The court has telegraphed that quite clearly. I'm not convinced that will always be the case, but I'm not sure I'll live to see the day when it's no longer true.
10.26.2005 1:08pm
Appellate Junkie (mail):
Jrose: There are probably a dozen states where the gender-requirements of the licensing scheme could conceivably run afoul of rational-basis scrutiny. That's a just a rough figure, but it's close enough.

First and foremost, what distinguishes these states from the majority is the local politics surrounding homosexuality. All too often, people assume that judges really are in ivory towers, but I don't think history (or human nature) sustains that idea.

Even if the legal landscape in California were identical to Kansas (which surely isn't the case), it is politics—pure and simple, or perhaps even base—that makes California probable and Kansas impossible.

Having crossed that threshold matter, it is largely a question of how the court's majority chooses to frame (a) the nature of the claim to marriage and its understanding of what why marriage exists and (b) what the state's own public policy is with regard to gay people as it relates to the purpose of marriage.

As I mentioned above, California, for example, has a well developed public policy in this regard (same-sex couples are deserving of the same protections as other families for the same reason as opposite-sex couples are; moreover, gay folks make perfectly fine parents, and it's not the state's prerogative to interfere in family life based on abstractions). So, if marriage is largely about protecting children (one of many views that the court may entertain), is it rational to deny those protections to children of same-sex couples in the hopes that it will influence the behavior of opposite-sex couples through some remote and ill-defined mechanism? Some courts will likely say that isn't rational. It's as simple as that.

Of course, some of the states may indeed demand more than a mere rationality to sustain this particular form of discrimination. California, for example, has on occasion applied an extended "but for" analysis with regard to gay couples (but for the gender of her putative spouse, the benefit would issue). I don't think that's the most likely outcome in California, but it is possible. Likewise, it's possible that some courts may finally embrace what seems pretty obvious to some and absurd to others: homosexuals constitute a suspect class.

At argument before the Washington Supreme Court last spring, the court was clearly engaged on both the gender-discrimination question (I doubt that more three of the nine bought that argument) and suspect-class status (might get five justices on that one). Even if neither of those analyses apply, there are probably at least four justices who struggled to understand the rationality of the ban. (Bear in mind that reading oral-argument tea leaves is a very risky business.)

Here's a PDF of one of the two trial-court opinions from Washington (directly appealed to the state's Supreme Court). Given existing precedent in Washington the judge felt obliged to limit his analysis to rational-basis scrutiny. Whether or not one is persuaded by holding, the opinion was a lovely read. Obviously, in 25 pages, the judge did the topic more justice than I can on a blog thread.
10.26.2005 1:51pm
A Guest Who Enjoys This Site:
appellette junkie:


My invitation to dissect the text further was, however, genuine. I don't mind debating a/the bible's contents because I'm not terribly concerned with whose interpretation is "right" (and rather doubt the existence of a "right" answer in many of the details). To me, it is a genuinely academic exercise.


I do so wish I could find more people with this attitude amongst lawyers, academics, and scientists. I've known a few. Unfortunately, there just haven't been enough. It is nice to know that there are some 'hidden' out there.
10.26.2005 6:25pm
Appellate Junkie (mail):
Enjoyable Guest:

It is nice to know that there are some 'hidden' out there.

I was content to let you get the last word in (particularly such a flattering one). Given that this thread has petered out, I did want you know that I read and appreciated your last post.

Separately, jrose, you might also want to consider another irrational defect that I don't think was in the opinion I linked to: a law that is at once grossly over- and under-inclusive may fail even on a rational-basis. You see that discussed in some of the other opinions on the topic. It's a less common defect absent heightened scrutiny, but is hardly unprecedented in the more extreme cases.
10.27.2005 12:20am
jrose:
I don't agree with either of Justin's points (political reality cannot precede/influence social reality, marriage's destruction is inevitable without SSM), and hence don't agree with his conclusion that Young's reasoning does not provide a rational basis. Ditto for the arguments made by the Washington Court.

As far as Appellate's over- and underinclusive argument (used in Romer), that would depend on what's considered "gross". I'm persuaded that argument holds for the recent invalidation of the Nebraska constitutional amendment which (can reasonably be read to have) barred judicial enforcement of private contracts made between same-sex lovers. But, where is the gross violation with laws that prohibit same-sex civil marriage or civil unions.
10.27.2005 12:57pm
Appellate Junkie (mail):
jrose:

As far as Appellate's over- and underinclusive argument (used in Romer), that would depend on what's considered "gross".

I didn't mean to suggest that "gross" was the standard. I certainly did not read Romer that way. One could plausibly read the Romer court's sweeping condemnation of Amendment 2 as a finding that there was a gross defect.

Obviously, under the lax standard, the court will usually tolerate a fair amount of imprecision. Just how far any given court will stretch "rationally related" has less to do with the facts than with judges' dispositions.

At least, I've had trouble divining any objective consistency in that regard.
10.27.2005 6:38pm