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New Jersey Gay Marriage Case:
Over at Concurring Opinions, Mike Dimino has an interesting post on a gay marriage case pending before the New Jersey Supreme Court.
Perseus (mail):
I'd be eager to see how the NJSC might derive a right to SSM from the Lockean claim that "all persons are by nature free and independent," particularly when most supporters of SSM would reject the Lockean notion of Nature. (Compare Locke, Second Treatise, Par. 95: "Men being, as has been said, by Nature, all free, equal, and independent, no one can be put out of this Estate, and subjected to the Political Power of another, without his own Consent."
2.16.2006 2:44am
Hans Bader (mail) (www):
The New Jersey Constitution, unlike the federal Constitution, doesn't even have an equal-protection clause.

That's what makes it ironic that the New Jersey Supreme Court is likely to base its anticipated ruling in favor of gay marriage on the state, rather than the federal, Constitution. It has granted review solely on the question of whether the New Jersey Constitution confers a right to gay marriage.

One might think the court would reluctantly hold that it is powerless to recognize such a right, however socially valuable it might be, because the state constitution lacks an equal-protection clause.

But it won't. In the past, the New Jersey Supreme Court has already read into the New Jersey state constitution an equal-protection component, even though the state constitution lacks an equal-protection clause in its text. The court has also read a no-establishment-of-religion component into the New Jersey constitution, even though it, unlike the federal Constitution, lacks an establishment clause in its text.

It is ironic that a decision in favor of gay marriage will likely come next from a state whose constitution lacks an equal-protection clause, rather than one that has a broad equal-protection clause (many states have broader equal-protection clauses than the federal Constitution, but New Jersey is not among them).
2.16.2006 8:14am
jrose:
If New Jersey does not have an equal protection clause, what is the argument that the plaintiffs are basing their case on?
2.16.2006 8:50am
charles (mail) (www):
Well, I agree with you and would like to say that whatever decision NJSC may take, it could be well justified taken into account the past judgements also.
2.16.2006 8:57am
farmer56 (mail):
Gay marriage is nothing but a canard, a straw man, to divert attention from the legal issue. Any two people can get married.

The issue is? How does the Government (read people) dole out the perks?

This is not a legal issue.

It is legislative.

Please quote a constitutional or a statute that contridicts me.
2.16.2006 9:25am
AK (mail):
It doesn't matter whether the New Jersey Supreme Court can come up with a logically consistent, persuasive justification for same-sex marriage. It's going to do it because it's the most liberal state supreme court, and it has no shame. State-level government in New Jersey was, is, and probably will be appallingly corrupt, irrespective of who gets into office. Seats on the NJSC are patronage positions. All that is required is bar admission (and New Jersey has nothing on its bar exam that isn't on the multistate) and friendship with the governor.
2.16.2006 9:40am
Taimyoboi:
I think the post could more accurately be described as:

Mr. Dimino expresses a rather low opinion of the New Jersey Supreme Court, whom just so happen to be deciding a case about gay marriage.
2.16.2006 9:47am
The NJ Annuitant (mail):
NJ is , I am afraid, one of the bluest of the blue states. What is especially bad is that the state legislature has created a domestic partnership relationship that covers gay couples. There really is no need to call that relationship marriage. It will confer no additional rights at NJ law, and it will not be reognized as marriage by the Federal government.
And yes, the NJ Supreme Court is about as activist as you can get.
2.16.2006 9:52am
Dave Hardy (mail) (www):
I'd be eager to see how the NJSC might derive a right to SSM from the Lockean claim that "all persons are by nature free and independent,"

Esp. since the entire concept of marriage is to make deprive two people of freedom and independence!

I should think a compelling counterargument would be that SSM violates the 13th Amendment. Or at least its penumbra, which can be seen as a faint glow if the room is sufficiently dark. OSM (other sex marriage) would, too, but its burdens are sustained by a compelling state interest in child upbringing.
2.16.2006 10:04am
JB:
Farmer has it right. "Marriage" is brought into the debate by wachy anti-gay activists who want to rally the masses (far easier to talk about Threats To The Institution Of Marriage than to talk about civil unions), and by extreme gay activists who want to shove their equality down everyone's throats, whether they're justified in doing so or not.
2.16.2006 10:58am
JosephSlater (mail):
So "denouncing opinions in cases that haven't been decided yet" joins "denouncing movies I haven't actually seen" on this blog. Hey, I'm pretty sure Scalia will say something I thing is wrong sometime in the next few years; can I pre-emptively denounce it here now?
2.16.2006 11:32am
Mr Diablo:
Let's not suppose to tell gay people what is best for them, various bigots of the board. Regardless of domestic partnership law that might exist, a lot of us have no patience for a seperate but equal system of marriage.

And also, let's see what the NJ Court says before we lambaste its reasoning.

Oh, and whoever tried to tie NJ's liberal supreme court with any political corruption is out of his mind: No matter how much you people hate both unions and gay people, you are going to be very hard pressed to find a real world connection between the two.
2.16.2006 11:44am
JJV (mail):
I tire of saying it but gays can marry in every state in the union, as can non-gays. What they can't do is join together with members fo the same sex and call that new thing "marriage." Since, it is demonstrably true that gays can marry opposite sex people and beget children with them, aren't they in effect asking for more rights than heterosexuals? In addition, they are undercutting the protected status of marriage by making it ridiculous in the eyes of normal people. Two men or two women, not wives and husbands but somehow "spouses" is an assault on meaning, biology, language, history, psycology and truth. Where do Justices of New Jersey get their power? From the people through the Constitution of that state. Have the people ever voted for same-sex marriage. No. Was any constitutional change every proposed to them and consent requested. No. I see a lot of talk of "bigots" and "liberty" from those who would impose their unvoted on decrees upon us. The sheer fact of what is about to occurr in New Jersey is a perfect example of the fact that Social Liberalism requires tyranny. A tiny minority changing the nature and meaning of every marriage by judicial fiat, without notice or comment or chance to oppose the change before it goes into effect can be called nothing but tyranny. And as for the link between corruption and the New Jersey Supreme Court Mr. Diablo, the whole excercise is a corruption of democracy, self-government and language itself.
2.16.2006 12:28pm
farmer56 (mail):
Joseph and Diablo;

Address the issue. Any two people can , and do, get married. Period. end of sentence. Period. Thats it.

You want some tax breaks? Talk to the people that give tax breaks. That would be the legislative branch of the state you live in. Want federal tax relief? talk to your elected representative and both of your senators. Please! Someone! Anyone! Explain how the judiciary has a dog in this hunt. It is All legislative. stop hding behind the robes of judges, that quite frankly are not to smart.

Again not a single thing is being denied by any one.

Marriage, in the eyes of the government is 'defined' by the legislative branch. you want a change? talk to them, not judges.
2.16.2006 12:38pm
David Berke:
It is most unfortunate that this thread is dead, because one could quite simply ask farmer56 the difference between this argument, and the equivalent arguments, as applied to the following:

Interracial marriage.
Interfaith marriage.
Marriage between people from different states or countries.
The ability for some public official to decide, as a completely discretionary matter, which "married" couples will be entitled to marital benefits.
2.16.2006 12:49pm
Mr Diablo:
JJV,

I tire of you saying that about marraige as well, because it is such a disingenuous statement. When conservatives state the lie of "every has equal marriage rights" they are pretending that marriage is just some kind of legal contract, and ignoring all of the other stuff they claim to stand for about love and family and so on.

Ideally the state would be out of the marriage business altogether, maybe creating civil union benefits for consenting pairs of adults as a means to promote family units. But as long as one group is allowed to marry whom they love and another is not, we do not have equality by any meaning of the word. Besides, when you make your argument, you open the back-door to the "gender discrimination" argument: A woman can marry a man, but a man cannot marry a man, therefore their rights are not equal, that comes with any bestowing of particular rights to one gender or orientation.

And, I'm sorry if it irks you to be called a bigot who does not want to grant equal liberty to particular groups against which you hold a bias (redundancy intentional).

I don't care really all that much that marriage has historically been defined as X or that "normal people" might find a gay marriage ridiculous. I'm normal; I'm completely in favor of it. So we change the definition of marriage. When you show me how this hurts you or anyone else on the planet, I'll reconsider.

And to pretend that modern marriage has anything to do with historical marriages (arranged for wealth, done against the will of women, etc., in many societies), or truth, or psychology, is also a completely irrelevant point. Old infertile couples can get married, so clearly biology has nothing to do with it. And we stopped forcing castration of the mentally ill, and forcing cruel eugenics upon those deemed unfit, a long time ago. Marriage in this country is only treated as a sacred bond when people want to deny it to same-sex partners.

For a long time, Asians and blacks were deemed to not be equal people by whites, deemed biologically inferior. Catholics once were deemed to deserve fewer rights and put to death over their faith. Jews were thought to be subhuman creatures. The list goes on of things that were once socially acceptable forms of discrimination that we now shudder at, even though we once thought to be biological, natural, truthful and appropriate forms of separation of rights for the masses.

And no, the corruption point I was making has nothing to do with the mumbo-jumbo you are spouting. Again, why don't we wait to see what the NJ court says before criticizing the basis of its decision.
2.16.2006 12:52pm
Mr Diablo:
Farmer, that's a lie. Period. Plain and Simple. Save your talking points for the radio audience.

And while you are at it, answer D.Berke's Q's.
2.16.2006 12:54pm
e:
Anyone can marry without the paternal blessing of government, but I definitely see the rights argument. If it is about rights, then the claim of no role for the courts is just ridiculous. How can legislature protect the oppressed minority?

Mr. Diablo:

pretending that marriage is just some kind of legal contract, and ignoring all of the other stuff they claim to stand for about love and family and so on.

We agree that marriage is more than a mere legal contract for most people. Religious faith is a big part of it. I might even guess that social and religious views of bastards probably have more to do with its foundsation than legal protections.

Mr. Diablo and I seem to agree that civil unions for all would be the best course, so for everyone else, I'll ask for comment again on this:

If supporters of gay marriage would oppose civil union for any couple (combined with excision of marriage from law) then I think it is clear that they care more about attacking private religious beliefs than equal public treatment under the law.
2.16.2006 1:18pm
LY (mail):
In addition, they are undercutting the protected status of marriage by making it ridiculous in the eyes of normal people.

I wonder if JJV can explain how the protected status of marriage is undercut by making it available to gay couples. I have simply never understood the logic of this kind of claim about gay marriage. How can someone else's marriage possibly undercut yours? Doesn't the eagerness of gay couples to marry add to, rather than detract from, the exalted status of marriage? Why would marriage be diminished by more marriages? It makes just as much sense to argue that the existence of long-term, stable, happy, gay families in which the couple is umarried is detrimental to the institution of marriage. Why get legally married if you can accomplish the goal of forming an enduring, mutually supportive and mutually obligated familial relationship without getting married? This is what gay people do all the time. Shouldn't JJV be worried that heterosexual people are tempted to follow the gay example?
2.16.2006 1:51pm
Kendall:
If supporters of gay marriage would oppose civil union for any couple (combined with excision of marriage from law) then I think it is clear that they care more about attacking private religious beliefs than equal public treatment under the law.

I certainly think that would be wrong. I support gay marriage because there IS no equal system that is or can be under DOMA set up to marriage aside from marriage itself. If men are allowed to marry women them women should be allowed to marry women and if women are allowed to marry men then men should be allowed to marry men. I'm against creating a PARALLEL system where same sex couples would be required to have civil unions or a similarly different named union and opposite sex couples would be required to have a marriage.

If civil unions were totally abolished and marriage was rendered open to people regardless of gender that would be acceptable. Similarly, if marriage was no longer legally recognized (as has been pointed out marriage ceremonies can of course and always have been able to in the country be held privately) in favor of civil unions or something similar for BOTH same AND opposite sex couples then of course that's acceptable.

Other positions it seems to me are trying to uphold a religious standard in the law that flys in the face of legal precedent and Constitutional law.
2.16.2006 2:06pm
Preferred Customer:
JJV said:


I tire of saying it but gays can marry in every state in the union, as can non-gays. What they can't do is join together with members fo the same sex and call that new thing "marriage." Since, it is demonstrably true that gays can marry opposite sex people and beget children with them, aren't they in effect asking for more rights than heterosexuals?



There is a logical tension in your claim. On the one hand, you are saying that gay individuals receive equal treatment, because they (like heteros) can marry members of the opposite sex. On the other, you argue that recognizing gay marriage would give gay individuals "more rights" than hetero individuals. In fact, under the logic of your first statement, since both gays and heteros would be free to marry members of the same sex, there would be no "more rights" given to gays (vz. heteros) if gay marriages were recognized.
2.16.2006 2:11pm
George Gregg (mail):
LY: I think it's because of the country club approach to marriage many conservatives have. They reason that if the rules were loosened to allow all those riff-raff (i.e., gays) into the club, then the prestige of membership would be tarnished. Maybe it would in their eyes. And maybe that might cause some conservatives to think less of the institution, somehow. It's conceivable, I guess, that some people will feel that way.

But it's hard to see that a social institution that has a nearly 50% rejection rate by folks who willingly enter into it really has any claim to untarnished prestige in the first place. And that the fact that such rejection is legally supported seems also to completely undermine the argument that laws must be maintained to "preserve" the institution from some perceived social threat. The institution of Legal Divorce drives a truck right through that crusty thesis.


On a tangent note, on the topic of the religious definition of marriage, an increasing number of denominations and religious leaders are embracing gay marriage to the point that it can hardly be called a fringe theological element, nowadays.

And there appears to be a demographic rapidly approaching 50% of the US public that believes civil unions should be legal, so that position can hardly be dismissed as being "unrepresentative of the norm" anymore, either.

Even the very conservative folks I talk to recognize this is a social juggernaut they can't hope seriously to hold back. They may disagree that it's "progress", but they know it's where we're heading. Whether tomorrow or in 20 years, It's only a matter of time.
2.16.2006 2:21pm
LY (mail):
George Gregg wrote: Even the very conservative folks I talk to recognize this is a social juggernaut they can't hope seriously to hold back. They may disagree that it's "progress", but they know it's where we're heading. Whether tomorrow or in 20 years, It's only a matter of time.

Reminiscent of the Southern bloc in the Senate in the late 1950s (I'm reading Master of the Senate).
2.16.2006 2:41pm
Lis Riba (www):
the state legislature has created a domestic partnership relationship that covers gay couples. There really is no need to call that relationship marriage. It will confer no additional rights

I think that the Laurel Hester case clearly demonstrates that domestic partners in NJ lack certain basic rights that all married couples are entitled to.

Thank goodness that public outcry shamed public officials into permitting Ms. Hester's partner to be a beneficiary of Ms. Hester's pension.
2.16.2006 2:45pm
Mr Diablo:
e, when is Entourage coming back? Miss your character.

Also,

I have trouble following your statement about religious discrimination and attacking religion. Also, I don't know any gay person anywhere who opposes civil unions/marriages for everyone, nor do I know anyone who thinks that the drive to get equal rights for same-sex couples is really about attacking the religious.

Religion is a red herring in this argument. You need not be religious to get married, and you need not even be able to pick a church or temple out of a line-up in order to get a marriage license. Churches do not have to perform ceremonies for anyone or any coupling they do not want. Modern American legal marriage has nothing to do with religion.

Thank God.
2.16.2006 2:55pm
e:
"when is Entourage coming back? Miss your character."
That's completely over my head. Perhaps you are calling me a bigot, perhaps not.

"Modern American legal marriage has nothing to do with religion."
Minus the "legal" distinction, I just happen to disagree. I think religion and ceremony is infused in our conception of marriage, thus the number of bridal magazines and complexes they help perpetuate. I think that most people think less about legal documents than tradition when marriage is mentioned.

While I do not believe in god, I do believe in toleration, and there is an easy solution here to keep government from trampling on beliefs and vice versa. Any governmental definition of marriage will offend someone (even if many religions do become enlightened). If there is a way to avoid that offense, it seems like an easy choice. I once agreed that this is simply not a practical solution, but I've changed my mind. Chop marriage from law. Civil union can accomplish the same legal purposes, and individuals can attach whatever private &institutional meaning to marriage that they choose.
2.16.2006 3:24pm
farmer56 (mail):
Mr. Diabloe

Or is just Blow?

I have not uttered a single lie. Prove me wrong, that ought to keep you busy for the next decade. Mr. Diablo


But this is fun. So.

David Burke

How is interracial marriage harmed? I see nothing in any city; state or federal statute that denies tax perks for an interracial couple. Is this supposed to be a point?

Interfaith marriage? Ah well I guess where you got some example of the GOVERNMENT is denying this. Or in the absence of ,,,Oh I don't know, The cops dragging a Catholic and a Muslim out of a judges office. trying to get married. Grow up

International marriages. I see nothing in law that denies it..

And finally we get to the crux of the issue. It took you a while.
YES! Why does some public official get to decide marriage? That is the question I asked. But, Its just me, I want those that are elected to define it. Not the judiciary.

Typing slowly now.


This is a tax issue . Legislature does taxes Not JUDGES
2.16.2006 3:28pm
JJV (mail):
Marriage's main purpose is to ensure that children have a mother and a father, and that women are not left alone ot raise children. The "infertile couple" argument has been dealt with for hundreds if not thousands of years by the "fertile octonagerian" rule known from property law, and has been further exploded by such as Maggie Gallagher and Stanley Kurtz. Moreover, men and woman are different. Whether fertile or not the complementary natures make marriage both necessary and good. The lie at the heart of the radical argument is that there is no personal or societal difference between men and women, nor reasonable interest that children have both a mother and a father. There are arrangements other than this for raising children that in a more truthful age we called broken homes. Same Sex unions require the state to create a broken home ab initio. If you think the differences between the sexes are as biologically, psycologically and socialogically as trivial as that between the races, then good luck to you, rationality does not come into the argument. Moreover, you are also making the liberal mistake of assuming Jim Crow was the norm in this or any other country by saying that the races could not marry. Pocahantas married John Rolfe in colonial Virginia. The insistance of liberals in comparing the odd racial prohibitions that grew up in the South between 1750 and 1950 as some sort of immutable law comparable to that of marriage being between men and women is risibile. I note that the races can have children together naturally and two people of the same sex can not. I also note that we fought a big war in this country to make sure the races could not enslave one another and to pass the 13th and 14th amendments. The ERA, upon warnings that same sex marriage would be the result, failed. Same sex marriage, when not the status quo by judicial fiat, has failed everywhere. I do not hate brothers and sisters but they can not marry. Nor do I hate homosexuals but they can not marry people of their own sex. The law may recognize a same sex "union" of some sort (a corporation owned entirely by men is one) but it will not be a marriage. If some useful purpose is served a "union" need not be related at all to sex and procreation. Marriage has benefits because it is seen by all societies at all time as uniquiqly good for the individual and the society. It is not simply a benefit dispensing institution. Monogamy, the differing needs of men and women and of children also create burdens and so society has to support marriage to overcome these. These are either absent or far less prevalent in same sex arrangements. Finally,it seems to me homosexuals and radicals want this precisely because it is a statement that sex doesn't matter and whatever activities along these lines they engage in are just as good as anything else. Both of these assertions are false. The American people do not believe them. That is why a tiny minority has to call everybody a bigot for noting that men are not women and impose their views by unelected, illigitamate judicial fiat.

That said, what do you name callers of everyone who believes about marriage what all people at all times have believed about it since the dawn of time, have to say about the Colorado proposal that same sex "couples" could have an arrangement like "marriage" but divorced from sexual activity. It seems to me that the old widowed ladies who greatly outnumber marriageable men will make far more use of this than homosexuals will make use of marriage after they have debased it (see Canadia figures) once the stigma of a homosexual presumption is removed from the proposed "union." If all the rights are the same but there is no presumption of homosexual activity sanctioned by the state does it serve your "equality purposes?"
2.16.2006 3:34pm
George Gregg (mail):
farmer, you're simply not listening. No one is arguing that judges are responsible for legislating tax code.

Judges ARE, however, responsible for determining (among other things) whether a given piece of legislation is up to Constitutional scratch. It is in that role that they have quite explicit authority to be reviewing the legality of same sex marriage.

Typing slowly now. (Now, does that sound nice?)

The point about interracial marriage is that it once WAS illegal, until JUDGES (not legislatures) decided it was unconstitutional. The same argument used in favor of allowing judges to make that call is applicable to the current issue.

One can appreciate that you may disagree with the conclusions of drawing such a parallel, but if you still don't even get at least the pragmatic purpose of drawing attention to the parallel in the first place then, well, that's really not everyone else's problem.
2.16.2006 3:43pm
George Gregg (mail):
JJV, I'd love to read all that, but the lack of paragraph breaks makes it a little hard on these aging eyes.
2.16.2006 3:49pm
The NJ Annuitant (mail):
Lis Reba -- It would seem the solution is for the legislature to strengthen the domestic partnership statute, rather than have the state supreme court legislate from the bench. The NJ legislature is quite sympathetic to your cause.
2.16.2006 3:56pm
Steve:
I find it just a little disingenous to premise an argument on the claim that "tax perks" are the primary legal incident of marriage, particularly considering that tax perks are mutable anyway. The right to make health care decisions, the right to be jointly recognized as parents of your children, the right to inherit as a spouse would, these are all far more important legal incidents, and there are many more.

Not everyone agrees that their right to visit their loved one in the hospital, etc. should be subject to the whim of a legislative majority.
2.16.2006 4:03pm
Kendall:
The insistance of liberals in comparing the odd racial prohibitions that grew up in the South between 1750 and 1950 as some sort of immutable law comparable to that of marriage being between men and women is risibile.

I'm not particularly liberal but this strikes me as factually inaccurate. In fact In 1664 Maryland banned interracial marriage due to questions over whether the offspring of a black slave and a white person would be considered a free person or property. In following years, Massachusetts, Pennsylvania, North Carolina, and South Carolina instituted antimiscegenation laws which banned interracial marriage. In 1691 Virginia outlawed interracial couples and labeled their children as "that abominable mixture and spurious issue."
2.16.2006 4:06pm
Kendall:
Steve - Not everyone agrees that their right to visit their loved one in the hospital, etc. should be subject to the whim of a legislative majority.

Unfortunately, you're completely correct.
2.16.2006 4:10pm
David Berke:
Farmer,

What the heck are you talking about? In no way did you address my comments.

Simply, I said, why shouldn't your reasoning apply to any other restrictions the government might have on marriage? There was a time when interracial marriage was forbidden by the states; under your theory, such a law should not have been overturned. The same is equally true to any laws against interfaith marriage, or any other restriction the government wishes to impose. Your theory, that because they can get "married" but not receive any of the benefits would equally apply.

The mere fact that such laws do not exist now (Loving v. Virginia may have had something to do with that) is completely irrelevant. The point is that your reasoning would permit numerous other restrictions on government benefits for marriage which have previously been held unconstitutional.

The truth is, you don't want the benefits extended to gay people. Fine, that's your right. But this dishonest attempt to portray the playing field as even is sheer nonsense. If you want to explicitly argue that NO couples should receive ANY benefits, fine, do so. You will find a lot of support on this blog for that. But, to say that SOME should, and OTHERS shouldn't, while simultaneously arguing that despite the current truth of such an assertion, that there really is no difference between the two groups, is indefensible.
2.16.2006 4:15pm
Steve:
Interesting link, Kendall. It goes to show you the hypocrisy of those who claim "it's fine if equality is legislated, just don't force it on us through the courts!"
2.16.2006 4:19pm
George Gregg (mail):

The right to make health care decisions, the right to be jointly recognized as parents of your children, the right to inherit as a spouse would, these are all far more important legal incidents, and there are many more.

Not everyone agrees that their right to visit their loved one in the hospital, etc. should be subject to the whim of a legislative majority.


Excellent, Steve.
2.16.2006 4:20pm
JJV (mail):
Kendall, very good post. I should have said 1650, because I meant the vast and counterintuitive legal structure that had to be built to accomodate "white supremacy." George-sorry not to good at figuring out the technology.

Also, I note that when Loving was decided most legislatures had already acted (1968-69)and the civil rights laws of the 1960's had already been made. I actually think the civil rights laws of the 1870's should have sufficed. The Supreme Court merely delivered the coup de grace to a dying meme. It did not instigate the change.

Also, as you all may have detected, I do not think civil unions or the like are necessary but if created by the legislature w/o this nonsense that some "equality" argument mandates them I'm perfectly willing to acquiesce in citizen's decisions. I only wish the "you're a bigot" crowd was willing to do the same. As Lincoln said what is conservative, is it not preferring the old and tried to the new and untried. Much individual and societal damage is going to come from the failure to recognize the difference between men and women, and changing institutions to accomodate first one sort of outlying sexual proclivity and then another. If I attempt to forestall such damage and get called names for it, so be it.
2.16.2006 4:21pm
farmer56 (mail):
George Gregg

And the Supremes said slavery was OK. So where now. No, you miss my point. There is only ONE 1 Just one issue here. Taxes. Really quiet now, its a secret, shhhh, only the legislature gets to play in this sand pile. I keep asking the same question were is the law or constitution?

See really quiet huh?

How about my brother? He farms he gets to write off if a four wheeler and trips to Colorado. I cant. why? Because Congress controls the tax code. People of the same gender have a problem with the tax code. Talk the the people that writes the tax code. Not a single person is being denied anything but tax considerations. While your at it you may want to ask the supremes if you can deny admission to the law school at the University of Michigan because you are white. Or, maybe if its ok to jerk your full ride scholorship to a public university because you do not have the proper genitals. Get started on the legal parsing. I do find this fun!
2.16.2006 4:29pm
Kendall:
Much individual and societal damage is going to come from the failure to recognize the difference between men and women, and changing institutions to accomodate first one sort of outlying sexual proclivity and then another. If I attempt to forestall such damage and get called names for it, so be it.

I'm not sure how this follows from the quite reasonable points you were making. opening LEGAL marriage to same sex couples isn't failure to recognize differences between men and women. We've always had the option to have gay marriage in this country, as long as it was a private ceremony and went unrecognized by the federal government. Furthermore I think everyone will freely acknowledge there ARE signifigant differences between men and women, it does not follow however that individuals are willing to spend their lives in government sponsored romantic relationships with someone because they are different from them.

What you are referring to however suggests on its face that the "failure to recognize differences..." is that if you give the legal benefits of marriage to homosexual couples rather than just permitting them in our free society to hold private ceremonies as they are entitled to do something DIFFERENT will somehow occurr. I frankly find that position fascinating and would enquire how you came to that conclusion?
2.16.2006 4:33pm
farmer56 (mail):
Steve.

No you pay attention. One thing about gay marriages taxes. Address that. Taxes are under the pervue of the legislative branch. Got a Bitch? Talk to them. This is a legislative disspute. How about you apply the constitution to denying white girs access to a puplic law school? OR? Maybe jerking scholorships from kids that dont have the proper genitiles? Your the law expert, 'splain it to me.

Back to gay marriage there is only 1, one, just one thing that is at question. TAX CODE. Kids? try a will. Hospital visits? It is a hospital rule, NOT government, Power of attourney. Give it a try seems to work ok, lawyers invented it. Inherit property? Gee? Who writes those laws? Or did a judge just come up with those like they did Miranda?

Come on Steve you can do better. (if you had either the facts, or the law, on your side.
2.16.2006 5:16pm
Steve:
My cousin was in a long-term lesbian relationship. They had a child through artificial insemination, they raised him together for several years. Sadly, the relationship did not work out, they split up.

Of course, in the eyes of the law, their relationship is a nonentity. The biological mother is the only one with any parental rights whatsoever. Visitation, joint custody, child support, all the things our courts adjudicate with respect to married couples, they have no applicability here.

On one side we have a woman who just wants the right to see the child she raised. On the other we have a spluttering fool who insists that gay marriage is about wanting tax breaks and nothing more. Choose sides as you will.
2.16.2006 5:28pm
JJV (mail):
Ok, I don't know what the obsession with taxes is on this debate but I think everyone can agree that marriage provides privileges other than joint filing. For instance, the children of a marriage are presumed to be the man's, not so single people. Inheritance and dower are automatic. Not so single people. A host of non-tax statutes reference marriage. Even housing laws that prohibit double occupancy exclude married people. So lets put that weird argument aside.

To answer Kendall, why do some groups marry more and raise children more succesfully in this country or even world wide? A concept of marriage and a commitment to it would be my answer. Whenever that concept and commitment is undermined we see an injury to family, and the transmission of values and prosperity to the young. I can remember when liberals said cohabitation was just as good as marriage because "it was just a piece of paper." That argument fell apart with every study on the effects of cohabitation on children and the happiness of the participants. Similiarly, the various utopian communities of the 19th century and the 1960's that attempted to alter traditional marriage fell apart. Why would this brave new experiment be different?

What would alter even further is the idea of marriage as the joining of a man and a woman and societies' reinforcing of an acceptable place for sexual activity and child rearing. The arguments about divorce and out of wedlocks birth that I have seen are a two edged sword. I see those as part of the devolution of marriage and this would be yet another blow. I think the final result is a scandanavia or belgium. A place that can not transmit culture to its young, have enough young to continue, or defend itself against the more powerful and fecund cultures in its midst.

You look at the marriage debate as a snapshot but I see it as a long play movie or stream which changes over time in better or worse ways. Changing the fundamental idea of what marriage is will, I believe make it harder to have young men enter it, or young women seek it. I also think that the injection of homosexual possibility into all male heterosexual groups and relationships has weakened bonds amongst those who I will continue to call "normal men" and I think introducing the possibility of "marriage" between members of the same sex, especially at a young age, will poison a host of relationships we take for granted. This will occurr even if the move to polyamory and the like is somehow halted. (and I don't think it will be b/c for the great majority having two wives seems a lot less odd than marrying a man if your a man).
2.16.2006 5:37pm
Montpellier (Guest):

Mr. Diablo and I seem to agree that civil unions for all would be the best course, so for everyone else, I'll ask for comment again on this:


If supporters of gay marriage would oppose civil union for any couple (combined with excision of marriage from law) then I think it is clear that they care more about attacking private religious beliefs than equal public treatment under the law.


So, I would also agree that 'marriage' is a problematic word - it's overloaded with multiple meanings that different folks assert depending on what they want to arrive at. It seems to me that the social and religious understandings or meanings are best addressed by the institutions that dictate them: faith communities. It's an establishment clause no-brainer (at least until Justice Alito's new anti-Lockean understanding of 'religious freedom' becomes controlling doctrine): the state has no business whatsoever endorsing religious institutions. I dunno about other married straights on this board, but when I got married, we posted baans, and, since it was interfaith, the Catholic Priest insisted we issue a blanket invite of my bride's parish to the wedding to bear witness to our religious commitment.

So, there is a Metropolitan Church that operates as a religion in our country and sanctions and performs same-sex marriages.

Now, where is there a compelling state interest in conferring preferred status on couples? I don't have an argument here - I certainly like my tax and other legal preferences (inheritance, joint property, survivorship, power of attorney, privileged communication, etc., YMMV by state) - but I'll just play along and say that yes, it's better to encourage two-adult family units. If there is one, why may the state recognize only pairs identified by particular religions, and not others? Is there any reason, other than as a matter of convenience, for empowering religious leaders to perform the civic marriage function?

So, yes, if we agree (via the political process) that there is a compelling state interest in preferring people operating as pairs (over individuals, or larger groups), then the state may to establish nothing more than civil unions. They may not create "marriage" and "civil unions" or "domestic partnerships" or you're back to Plessy. They may create only one kind of marriage - equally available to all citizens.

The rest is a matter of religion and religious freedom - we cannot compell the Catholic Church to accept our definition of civil union - they do not have to recognize it. This is no more an assault on Catholics than the thousands of Southern Baptist non-sacramental weddings that take place each year. The Catholics are not particularly aware of the Baptist weddings.

What those who argue against Civil Unions really seek to do? Create a special preferred class availble only to members of their community of faith - others who subscribe to a common definition of 'marriage' - in this case, heterosexual couples. They seek to establish a preferred status for some religions (mainline Christian) against others (eg, Metropolitan Church).

OK?

I am really interested in how you get to the separate but equal without the clause there - seems like you have to have that . A purely libertarian (Lockean) take would seem to me to arrive at a 'strike down all civil marriage' result. I will be interested to read what they say, since a Lockean approach gets to the heart of the 'compelling state interest ' question. The rest of it seems pretty clear cut to me, but I'm a lay person.

So, to answer the original question: no, it's not an attack on religion, at all. For starters, it's freedom of conscience that we recognize, not of denomination (the latter requires adoption of some credo). You are employing the logically inconsistent 'Freedom of Religion implies freedom to impose religion' doctrine that rabble-rousers of the religious right are advocating: this is the equivalent of saying that it's ok to impose a proselytizing religion onto a passive one or on the non-religious, because in the process of protecting the whole existence of the non-proselytizing, we restrict a part of the creed of the proselytizer. That is not really freedom of religion for the folks whose religion or lack of belief is subjugated. Since I'm an old line Episcopal who just loves the way my mainline faith has evolved (seriously), if we're going to follow this type of majority domination thinking, I wish we'd done so before about 1920 when we could've stamped out the 20th century reactionary movement called 'old timey' religion before it really came into being.
2.16.2006 5:49pm
farmer56 (mail):
Steve and JJV

Sorry that your cousin got screwed by the judge. But in this day and age a legally executed document protects the parties of that document. So? Now what? I Got a cousin that bought a car and did not walk off with the title. Hum? they lost the money and the car. sounds like a person did not do due diligence in following the transaction thru. Your cousin should have had a lawyer to assure her legal standing. It can be done. If you dont care enough to get it in writing.. Than you dont mush care for the kid.

JJV;

Not obsessed about taxes. Just after a power of attourney and a will, and Steves problem with his cousin that just needs a simple leagal document. What is all the wailing about 'gay marriage'? See no one is being denied a single thing, other than tax consideration. Got something other than that?
2.16.2006 5:53pm
e:
Sad that both sides have name callers, demonizers and fools.

On one side we have a woman who just wants the right to see the child she raised. On the other we have a spluttering fool who insists that gay marriage is about wanting tax breaks and nothing more. Choose sides as you will.

Not a great summary of the strengths and weaknesses on each side, but thanks for implying that I must support Farmer's nonsense that sees no need for courts to protect oppressed minorities.

JJV - Thanks for the posts, I wish more people on that side were as clear. Would you object to excising marriage from the law, if a legal union could serve the same legal functions? And why not?
2.16.2006 5:57pm
e:
Farmer - maybe I'm just too dense, but how is your argument different from separate but equal? If the negroes have a usable bathroom, there's no problem.
2.16.2006 6:00pm
Steve:
Your cousin should have had a lawyer to assure her legal standing. It can be done. If you dont care enough to get it in writing.. Than you dont mush care for the kid.

You seem to be under the misapprehension that gay adoption is universally recognized as legal. Would that it were.

Not a great summary of the strengths and weaknesses on each side, but thanks for implying that I must support Farmer's nonsense that sees no need for courts to protect oppressed minorities.

I don't see where I implied any such thing. My only point is that either you recognize that advocates of gay marriage seek more than just tax breaks, or you don't. I'm not trying to make any sweeping generalization about the opponents of gay marriage.
2.16.2006 6:03pm
JJV (mail):
I will chime in again. I don't think its an attack on religion. I think its an attack on the idea that men and women are different. That unions of opposites sex are better than same sex in replicating culture and raising children. And an assertion that the needs or desires of a sexual minority trump self government. I certainly think those in favor of it are estranged from orthodox religious belief but I do think they believe the "equality" arguments made here. I don't believe them for the very reason that I think equality means equating like things and a couple of men or a couple of women is in most important respects not like a man and woman couple. The assertion that they are the same seems to me butting head with reality. You may wish that we treat them as if they were alike but they are different in how they act, how others respond to them, and how they transmit values and in the consequences of sex between them. A mother is not a father and a father is not a mother. Same-sexing/spouse/partner/parent language is meant to obscure this fact. That is why they are eliminating the words husband and wife on marriage forms in Canada for spouse 1 and spouse 2. When the language is messed with to this extent I believe there is a falsehood at the bottom of it.
2.16.2006 6:04pm
e:
Montpelier - you lost me and I'm not sure what your question for me is. But in case I was unclear, I'll say that I do not think that ridding the law of marriage is imposing the views of the proselytizers. It allows society to continue to shape its view of marriage without legal meddling. JJV's view of marriage seems stronger to me than the strength of companionship argument, but I think we can accept both in legal union terms without regard to the numerous social meanings of marriage.

And if we're talking about companionship and care I'm even more tempted to see the logical progress to, dare I write it, polygamous trusts. Of course civil union as a legal tool will likely be used in non-romantic relationships, such as widow neighbors, so why should we exclude the odd girl out, who could also benefit from such a bond. Strike that last line, I'm arguing For civil unions...
2.16.2006 6:26pm
Kendall:
JJV - I definitely understand and DO fully respect a traditional view of marriage as you espouse. However, I would ask how your point about children has relevance to the current debate? You state:

To answer Kendall, why do some groups marry more and raise children more succesfully in this country or even world wide? A concept of marriage and a commitment to it would be my answer. Whenever that concept and commitment is undermined we see an injury to family, and the transmission of values and prosperity to the young.

But this fails to address the current legislative reality. Currently in all but one state (florida) there is no specific ban on gay adoption through legislative action and in a majority of the 49 other states in fact both single individuals and unmarried homosexual couples as well as married heterosexual couples (as well as presumabely though I admit I have no direct data for this married homosexual couple in massachusetts) have already adopted children and began raising a family. it is clearly therefore legislative intent then not to prohibit homosexual couples from raising children which you say is integral to your understanding of marriage.

As far as the concept of committment to marriage goes, which would you rather hold up to your children as a symbol of commitment and a belief in such a critical institution? Britney Spears quickie marriage and divorce 52 hours later? Hopefully not, the very concept of divorce which legislatures have put forth as their intent as to the importance of marriage undermines everything in MY value system regarding committment certainly.

What I would suggest however is that the gay couples who got married in San Francisco a year (or was it 2? time's gone by so rapidly...) ago should be held up as a symbol of commitment. Certainly they were breaking the law, they knew that, and I'm sure many of them felt like blacks did when they violated laws against segregated lunch counters and bus seats whether or not such a comparison is justifiable. You can call them law breakers, morally degenerate, or whatever you wish, I'm pretty sure they won't care. Howver, one thing you cannot call them, unlike Mrs. Federline, is uncomitted to marriage and making marriage work and a belief in that institution so strong they were willing to break a law they felt (rightly or wrongly, and I'd tend to say wrongly) was illegal on its face.

I can remember when liberals said cohabitation was just as good as marriage because "it was just a piece of paper." That argument fell apart with every study on the effects of cohabitation on children and the happiness of the participants. Similiarly, the various utopian communities of the 19th century and the 1960's that attempted to alter traditional marriage fell apart. Why would this brave new experiment be different?

I agree with you, "liberals" often have little respect for marriage and for other institutions, they seem often to push the envelope without thinking of the consequences. Similarly conservatives I might say are so afraid of pushing an issue or changing anything they fail to acknowledge the benefits change can sometimes bring. But I am neither a liberal or a conservative.

I think an expansion of the legal definition of marriage works precisely because many gay people view marriage as NOT just possessing a piece of paper. For many homosexuals marriage rights are the ultimate symbol of love and committment. Evelyn Hooker's study in 1957 of a normal gay population (by that I mean not in prison or a mental health facility) indicates that homosexuals are basically similar to their heterosexual counterparts, with dreams, hopes, beliefs, values, and everything else. I suggest then that there is no solid reason to suggest that homosexuals would be any LESS commmitted to marriage than heterosexuals, certainly not those who choose to take advantage of the institution, and of course the fact that marriage is an institution that has been long denied them has developed as demonstrated in places like San Francisco and Massachusetts a desire for marriage that remains strong.
2.16.2006 6:32pm
Mr Diablo:
Wow, farmer, a "blow" joke aimed toward someone gay. I'd be hurt and surprised at the gutter talk from someone on here, except anytime volokh.com mentions something gay, all the bigots come streaming out.

Farmer, most of us speak a language known as ENGLISH on here. There are some loose rules that are associated with it.

e, the reference was to the character on entourage known as Eric or e, it had nothing to do with anything, except that I watched a marathon of episodes of it last night and couldn't help myself.

I don't think you are a bigot e, but I do think you just aren't getting it. I said legal marriage -- that's what a marriage is in this country. A state-sanctioned binding legal agreement. Anyone who wants to attach religion to it or even absolute secularism can do so to his heart's content. It doesn't change what marriage IS: A state-sanctioned binding legal agreement between two adults in order to obtain certain benefits and tell everyone else in society that they are married.

So, to be fair, the law and I don't care if you think that marriage in this country secretly means X. X isn't any part of the equality I deserve.

JJV, marriage has had all kinds of meanings in the past. And if you don't think that a same-sex marriage can be called a marriage, that's great for you take it to the bank, cash it in, play with it, I don't care. Marriage used to mean that a black man couldn't marry a white woman; that abhorrent violation of individual liberty and discriminatory part of marriage is gone. So will the ban on same-sex marriage some day. You might be pissed off when that happens and tell every gay couple you know that they are not married. I'm certain some Klan members say the same thing about all the interracial couples they don't know.

To repeat: I don't care what bigots in the past thought, and I won't care what bigots of today and tomorrow think. In the past we nearly killed an astronomer for saying the earth went around the sun. That definition changed. So will the definition of marriage.

Is that it? Language? "Spouse 1" and "Spouse 2" on a form is undermining the roles of men and women? My God. That is truly the most assinine argument I have heard.

JJV, you think that gay marriages are going to undo the separation between the sexes? If that's an argument to deny equality that I have to respect and accord as legitimate counterargument (despite a sum total of zero evidence, and instead 'just a feeling' to defend it), then this really is hopeless when it comes to changing hearts and minds. Also, again, for the billionth time -- the same undermining society arguments polluted the discourse about slavery and civil rights. And they were WRONG.

I don't care about your hang-ups about language and wholly irrational fears of change that in the end are the product of simple and simple-minded bigotry. And that is certainly the right word for someone who has the balls to say who is and who isn't "normal." Or maybe it isn't. Pompous bigot might be more apt.

Show me a real harm. Something tangible, not philosophical that comes from letting two gay people marry.

Or at least offer me a stupid compromise coming from the same illogical universe: How about gays can marry, but they have to keep it secret, as not to destabilize those sociological forces? Or maybe, lesbians can marry, but only when they are over 95 years old, as to make sure neither of them can have kids.

Stop telling me that history is what deems my rights. I don't live in history.
2.16.2006 6:40pm
Montpellier (Guest):
e:

My apologies - I was trying to address your question - I tried to provide my full theory and explain my thinking. Clearly my written exposition was pretty lousy :-)

I am very much for civil unions - I think there is a compelling interest argument in having coupled parents raising children. I think they ought to be available to all pairs, unless a compelling state interest can be shown that over-rides the innate Lockean freedom of some individuals.

Of course, we don't really have a good body of materialist (ie, not faith-based) evidence to make such a determination. In the absence of clear evidence of harm, the government should do nothing - that is, the government should not ban marriage between any grouping - including polyamory.

I think civil unions should be religion neutral - that includes the null option (no religious faith) - to pass establishment clause muster.

On the question of polyamory (or zoophilia for that matter), the favorite extrapolate to absurdum arguments of gay marriage opponents, there are examples of clear harm on hand: animal abuse (animals can hardly be competent to consent as the law understands it, right?), and coerced arranged marriages (ala Mormons). The government has an interest in protecting both animals and citizens from abuse. Of course, there are folks in polyamorous relationships who appear to be there with full consent and successfully.

I was just trying to lay out a clear argument for where our different undertandings of marriage come from, and which ones are properly part of our government. Religions ought to decide what the sacrament (if indeed they consider it one) of marriage means - and that ought to be left up to religious authorities. Government should be neutral altogether (neither endorse nor prohibit) absent state interest. I cannot for the life of me see how two members of the same sex marrying is threatening to anyone, including the government. Opponents of gay marriage offer little other than proof by assertion.
2.16.2006 7:01pm
JosephSlater (mail):
I'll chime in to agree with Mr. Diablo on pretty much everything. And if it helps with the "undermines straight marriage" stuff, I say the following in all sincerity. I attended my sister's wedding to her partner in Boston last summer, along with my wife, my mother (my surviving parent), my son, my mother in law and my father in law. It was a wonderful event that underscored to me the importance of marriage and family, and thus at the margins strenghened mine.

Just curious if anybody felt, around early June last summer, that their heterosexual marriage was weakened because of my sister gettin' hitched.
2.16.2006 7:04pm
Bob Van Burkleo (mail):
True, marriage comes from beyond government - the state can no more marry you than it can make you tall or smart. What the state does issue is a civil contract in support of marriage.

So the question is, why are some citizens allowed reasonable access to the civil contract and some not?

As to the tired canard about 'they can already marry' as in license the contract with someone of the opposite gender that is disingenuous at best. Marriage is for two people who want to build a life together. To say that gay citizens only have a right to license the contract with the group they wouldn't want to build a life with is like saying fish have a right to bicycles.
2.16.2006 7:44pm
Cornellian (mail):
tire of saying it but gays can marry in every state in the union, as can non-gays. What they can't do is join together with members fo the same sex and call that new thing "marriage." Since, it is demonstrably true that gays can marry opposite sex people and beget children with them, aren't they in effect asking for more rights than heterosexuals?

Let's rewind that argument back to 1950. Blacks can marry in every state in the union, as can whites. What they can't do is join together with members of another race and call that new thing "marriage." Since it is demonstrably true that blacks can marry other blacks and beget children with them, aren't they in effect asking for more rights than whites?
2.16.2006 9:47pm
Cornellian (mail):
In addition, they are undercutting the protected status of marriage by making it ridiculous in the eyes of normal people.

Being blond isn't "normal", being left handed isn't "normal." Both of those traits are characteristic of only a small minority of the population.

"Normal" is highly overrated.

And I see nothing ridiculous about allowing gay people to marry, despite my lack of any desire to marry someone of the same sex.
2.16.2006 9:49pm
Cornellian (mail):
Have the people ever voted for same-sex marriage.

No they didn't, no more than the people of Virginia voted for interracial marriage before Loving v. Virginia.
2.16.2006 9:51pm
Cornellian (mail):
And as for the link between corruption and the New Jersey Supreme Court Mr. Diablo, the whole excercise is a corruption of democracy, self-government and language itself.

I'm guessing you've never actually read the NJ Constitution, have you? And I'm guessing that you don't consider that a pre-requisite to berating them for what you assume will be their decision.
2.16.2006 9:54pm
Cornellian (mail):
Even the very conservative folks I talk to recognize this is a social juggernaut they can't hope seriously to hold back. They may disagree that it's "progress", but they know it's where we're heading. Whether tomorrow or in 20 years, It's only a matter of time.


Hence the campaign to place bans on same sex marriage in state constitutions before the march of time kills off the older generations where opposition to SSM is concentrated. Once some state legislature enacts SSM (as California has already done, though the governor vetoed it) they'll have to resort to complaining about activist legislatures. No doubt if it were ever approved in a referendum, they'd start complaining about activist voters.
2.16.2006 10:01pm
Cornellian (mail):
"when is Entourage coming back? Miss your character."
That's completely over my head. Perhaps you are calling me a bigot, perhaps not.


Nah, he's referring to a TV series called "Entourage" on HBO. One of the characters is nicknamed "e."

It's a great series, by the way. I highly recommend it.
2.16.2006 10:02pm
e:

So, to be fair, the law and I don't care if you think that marriage in this country secretly means X. X isn't any part of the equality I deserve.
. . .
To repeat: I don't care what bigots in the past thought, and I won't care what bigots of today and tomorrow think. In the past we nearly killed an astronomer for saying the earth went around the sun. That definition changed. So will the definition of marriage.

Thus we are at an impass. But I appreciate reading the different points of view. I think you have blinders on if you think that marriage is not more than the law, that the certificate means more to people than the vows. I understand that you don't want to look to the past, but the Galileo analogy fails precisely because marriage is a human construct (predating legislation), whereas the observations of astrophysics are not.
2.16.2006 11:29pm
Kendall:
e - Thus we are at an impass. But I appreciate reading the different points of view. I think you have blinders on if you think that marriage is not more than the law, that the certificate means more to people than the vows.

marriage may be more than the law, as might be love between a parent and child, as might be religious opposition to abortion as might be a sense of justice, as might be many concepts. But how can anyone ignore the law and the legal implications of current laws and hope to have a civil society?
2.16.2006 11:44pm
Mr Diablo:
e,

You and many millions of religious people might want to think that marriage means something religious. But, and I'll use bold: IT DOESN'T.

If it does, show me the one state marriage law that requires a religious ceremony or religious component.

Marriage can mean anything to you that you want it to, but in the end, it's a legal construct. And it just so happens that we've got this legal system that is able to evolve past any old religious tradition or custom in the name of fairness and equality for discreet, insular minorities (or majorities). If you want to ignore law in the name of religious attributes of something like marriage, move to Iran.
2.17.2006 12:16am
Mr Diablo:
And I made the Galileo reference because another poster on this board was essentially equating the "historical definition of marriage" with astrophysics, suggesting that even if same sex partners were allowed to marry, it could not be called a marriage.

He was treating the definition of marriage as some kind of absolute. Wrong-headed opinions of absolutes based in bigotry rather than any kind of ethical or fair analysis have gone on for centuries....

...And changed.
2.17.2006 12:20am
farmer56 (mail):
This is all very much fun. Just My question has not been broached. Other than tax benifit. What is the bitch?

Diablo is correct. Marriage in this context is defined by the government. Hey Diablo, get the government to change the definition. That would be the government that we go to polls for the first Tuesday after the first Monday in November on even numbered years.

Get one of your elected to at the very least, offer up a bill. Stupid judges dont get to play in this sand box.

To sum up.

Taxes....Something else that is being denied? NO! Taxes come under the descretion of CONGRESS.

Discrimmination is now codified in law. Because of your skin color you can be denied access to the law school at the University if Michigan. You can have your college scholorship removed because of gender. So stop the discrimination babble.

Oh Hey! Diablo

I have no Idea want you do for sex. Get over yourself. I care more about dust bunnies under my bed that what you do in your bed. I had now Idea. Dont care. I wish you only the best in your life. My reference was Blow, as in Blowhard loudmouth. Like the person in the bar with a few to many expounding on somethin they nothing of.
2.17.2006 11:00am
JJV (mail):
The fact that in some states marriage between different races was not recognized says nothing about the same sex union issue. In many states such marriages were recognized. There was nothing radical about different races marrying, outside the southern context. Also, I sense in Diablo a view that reality is whatever the law says it is. I do not hold that view. It also seems from the favorable post to Loving that some here do feel that Courts should make this decision on existing Constitutional language even though there is not a scintilla of support for the view that "WE the People" made this a constitutional issue.

The 13th and 14th amendments to the Constitution and the civil war amendments and the civil rights laws of the 1960's all dealt explicitly with race and mandated the result in Loving. The weapon of the White South was the filibuster. For 100 years they stopped legislation on Civil Rights that a majority of the Country wanted. It is not the filibuster being used by proponants of real rather than faux marriage.

Cornellian and Diablo apparently feel that people should be prevented by some sort of extra constitutional tyranical means from making laws that respect marriage. I don't. Moreover, the burden of proof for change is not on my side but on yours. Can you guaranty that the harms my side lists will not occurr, and indeed are not already ocurring? You want the change, the burden is on radical proposals not on sensible conservative resistance.

The idea that you do not live in history and your rights and duties are not at least in part historically based is sheer folderol.

Finally, there are always personal stories that can be used to "prove" one thing or another. Broken homes and broken families are going to occur. We are discussing an institution that is interwoven throughout society as marriage it is the mass not the outlier that has to be taken into account. Can we have a legal institution in a free society open only to men and women? The answer of the Left is that we can not even if the majority wants one and it has endured for ages.

By what authority is the very word marriage to be emptied of meaning? By judicial fiat. I have read the New Jersey Constitution as I began my legal career there but even had I not I would know that no polity of N.Jersey ever voted to eradicate Marriage by allowing any amalgam of people to be termed one. If people vote it in, as changing mores and the "niceness" factor of American's who don't want to stigamatize anyone, I will think it a bad policy but not tyrannical. There are many countries now where "marriage" is as Diablo and the rest want it. They are all dying societies (Spain/Sweden etc..). Whether that is a symptom or a cause I can't state with certainty. But the mindset that propels such developments is very conducive to decline. Even the ancient greeks who were no strangers to same sex attraction did not do this to marriage. Because they hated gays(or whatever those with that proclivity were called then)? Because Christianity or Judaism had given them "hang-ups?" No, because of a rational view of the differences between men and women and what was needed to continue the civilization as a civilization.

What these posts reinforce (even the California action violated the popularly enacted referendum on marriage) is a resort to will and judicial fiat rather than argument and republican action. All the comparisons to race the Left likes to make ignore that the civil rights laws were opposed by minorities using undemocratic methods. The ruination of marriage is being imposed by minorities with resort to undemocratic methods. I end as I began Social Liberalism requires tyranny.
2.17.2006 11:53am
Kendall:
Can we have a legal institution in a free society open only to men and women? The answer of the Left is that we can not even if the majority wants one and it has endured for ages.

Why do you demonize anyone who wants equality under the law as "leftist"? Since when is committment to an institution for another group, encouraging monogamy within that group and a hopefullness that an institution with currently a 50% dissolution rate will bounce back liberal or representative of ANY liberal viewpoint whatsoever?

With that said, the majority has at various times wished various restrictions and represssions into the law. It is the role of courts in our society to see if these restrictions meet a "rational basis" test. Some things it seems you and other pro-family advocates would probably like on the test: Current adoption laws (which mostly allow gay adoption) # of gays raising children (growing by leaps and bounds) current laws against homosexual sex (none enforceable of course since Lawrence and on the books in less than 20 states) the affect of children raised by gay couples (though studies are limmitted in this area there seems to be no appreciably negative effect on children raised by gay couples compared to straight couples) and perhaps other factors I'm not considering. I think under the law and under a quite reasonable interpretation of the law the current sex discrimination existing in the law would fail most reasonable rational basis tests.
2.17.2006 12:06pm
Mr Diablo:
JJV, your hang up on language and stereotypes is so incredibly disappointing.

You make so many comments that cannot be proven or disproven but instead are naked statements opinion:

(1) Spain and Sweden are "dying societies." (Umm, really?Says you. This is as arrogant as your statements about "normal people.")

(2) The word marriage will be emptied of meaning. (Your definition of marraige might be, but let's not kid ourselves that marriage can mean anything we want it to; and it isn't a red herring to say that I don't care about discriminatory and bigoted practices of the past. We're supposed to evolve.)

(3) Allowing a gay marriage will eliminate the differences between the sexes. (You repeat this ad nauseum, but have bupkus to back it up aside from a 'bad feeling' -- if you want to ad homenim discriminate against same sex people and their relationships, then you need to give us something better than your bad feeling about once my partner and I get married it will make Susie and Joe down the street confused about their gender identity. If that were even partially true, why would same-sex marriage be the proverbial straw? Would just open and committed same-sex relationships also work to undo the amorphous gender identity fear you possess? Maybe if we banned gays altogether, we could alleviate your concerns. Yes, and ghettoize them even further. Your argument is so absurd I'd laugh if it also wasn't so offensive.)

And your attempted pithy comment at the end is anything but -- for you it is tyranny to give out to protect minority groups and to ensure them basic equity and fairness.

That's a pretty ass backwards definition of tyranny.
2.17.2006 12:19pm
JJV (mail):
I note an important piece of the article you link to:

Most of these children are the products of previous heterosexual relationships.

So this big increase is coming from people so confused in who they are they can have sex with one sex and then switch midstream? I'm sure that is not going to cause any problems with the kids. Moreover, the rational basis test allows anyting to pass (or did until Lawrence) and any of the reasons I have listed would pass it as traditionally administered.

It also points to the "bisexual problem." What if someone is attracted to both sexes? Why should marriage be denied him or her with two people he/she loves. Certainly this sexual impulse should be respected and encouraged by the community? Seems all the rage lately, better change marriage to accomodate it.

Also, although some states do not prohibit homosexual adoption by statute many disfavor it in practice. Are they all to be prohibited from doing so? Moreover, the fact that a kid with no parents might be better off with some (mostly lesbian) homosexual adoptive parents than in an orphanage, says nothing about the optimal institution the state is entitled to encourage.

As I said, equality only applies to equal things and at bottom I do not think same-sex couples are the same or equal to opposite sex couples. Homosexual sex is not equal to heterosexual sex in most important respects, primarily but not only biologically. Doesn't mean criminalization but it does mean that distinctions can be made in the law that are quite rational.

Another thing marriage exists prior to the State. People are married long before America or any other state existed. The state passed laws to encourage and support it. Same sex marriage never existed. It is a whole new creation, and the whole new creations of the State in the area of family do not encourage me on this one.
2.17.2006 12:22pm
Bob Van Burkleo (mail):
JJV, your rhetoric is long and involved but it ignores these issues:

Our rights derive from our biology, our natures. Gay citizens exist, they have EXACTLY the same need to pair-bond and create home environments. In a legal system where all citizens are created equal and should be looked upon as equal by the law a reason must given why some people can't have access to this civil contract must be given, not the other way around.

The idea that the state doles out 'marriage' is ridiculous, we as human beings marry as part of our nature and we do so because we want to, not the because the state gives us permission. Oxyoctin-mediated mammalian pair bonding that can occur between adults of either gender combination - its just a fact. Any legal system that doesn't deal with this reality is a fraud - the legal system is a mental legal construct that is LESS important than real people, not more. Its purpose is to serve the real people's needs and the way they really are and if it can't even recognize that all of its citizens have a natural need and right to marry it has lost all moral authority.

A contract is licensed by the state in support of its citizen's marriages. Its done so because having its citizens married is a better condition for the individuals AND the group than having them not and this is just as true for citizens who marry someone of the same gender as those who marry the opposite. Married citizens are as a rule happier, both mentally and physically healthier, take less from society and give more back - it behooves society to make sure that marriage is the desirable state for the most of its citizens as possible. From a purely practical point of view there are few reasons NOT to give all citizens reasonable access to this civil contract.

Of course there are those with a superstitious ritual of the same name that take exception that someone who doesn't fit their cult's definition of a marriage should be licensed the same civil contract. Get over it - what American of any worth thinks they should be able to force other people to act as if they practiced their religion too?

The desire to prevent fellow married citizens and their spouses from licensing this purely secular civil contract is based in animus - all the excuses brought up against doing so are just that, excuses and self-serving rationalizations.
The question is do we as American's believe that all citizens are created equal and have equal basic rights or not? I applaud the Canadians for being true to their ideals and always feel the need to correct people who repeat the canard that 'America is the freest nation on earth' - it can't be and refuse to acknowledge this basic human right belongs to all its citizens.
2.17.2006 12:29pm
Kendall:
Most of these children are the products of previous heterosexual relationships.


typically children DO come from heterosexual sex,yes.

So this big increase is coming from people so confused in who they are they can have sex with one sex and then switch midstream? I'm sure that is not going to cause any problems with the kids.

Well, so far most of the studies haven't noticed a greater likelihood of growing up gay if you're raised by a gay couple. I'd also like to point out that what we're talking about is a policy that has ALREADY been enacted in every state except florida. We're not talking about something that COULD happen, we're talking about what IS. You claim to believe in a legilature's right to pass legislation, this is what they allowed. Gay couples TO adopt, not to preferentially adopt.

It also points to the "bisexual problem." What if someone is attracted to both sexes? Why should marriage be denied him or her with two people he/she loves. Certainly this sexual impulse should be respected and encouraged by the community? Seems all the rage lately, better change marriage to accomodate it.

Now you're reaching. Let me ask you, lets say gay marriage is banned under a constitutional ammendment. Does that stop polyamorists from requesting marriage rights under the law? Of course not. its a totally separate debate with totally separate concerns.

I'm not saying polyamory won't become the law of the land and I'm not even saying it shouldn't be. I'm saying that's a debate that we're going to have to have regardless of what happens with gay marriage, so its a red herring to say that gays requesting equal marriage will lead to polyamorous marriage.

Also, although some states do not prohibit homosexual adoption by statute many disfavor it in practice. Are they all to be prohibited from doing so? Moreover, the fact that a kid with no parents might be better off with some (mostly lesbian) homosexual adoptive parents than in an orphanage, says nothing about the optimal institution the state is entitled to encourage.

True again, but that doesn't mean the state or at least many states (as I already stated above, although Florida is the only state with a specific homoexual ban, only more than half, not all the other 49 states have allowed homosexual adoptions to occur) consider orientation as a relevant factor in determining placement over say, homelife, income, and various other more relevant factors. The state doesn't typically say that one relationship is superior to the other, the state determines which home would be best for the child to live in. And they're choosing homosexual homes in many cases. and no, of course it would be irrational to say a state can't ban or prohibit or limit the ability of homosexual couples to adopt in many cases. Such a prohibition would also seem on its face to be largely unenforceable, how would the court determine that the sole reason to deny adoption would be based on the orientation and gender of the prospective couple?

As I said, equality only applies to equal things and at bottom I do not think same-sex couples are the same or equal to opposite sex couples. Homosexual sex is not equal to heterosexual sex in most important respects, primarily but not only biologically. Doesn't mean criminalization but it does mean that distinctions can be made in the law that are quite rational.

Under the law all homosexuals are treated as citizens equal to heterosexuals. Any other interpretation of the 14th ammendment is not only insulting but theocratic. As long as homosexual sex and heterosexual sex are not criminal there is no basis for saying persons of either orientation are not equal to each other under the law. To say otherwise is irrational.
2.17.2006 12:43pm
Mr Diablo:
Well put Bob.

JJV, do you know a lot of bisexuals? Any really? I did, in college, and their all pretty gay now. And the burden to answer the idiotic slippery slope argument of polygamy, bisexual-multiple-partner-marriages and any other "the sky is falling" scenarious is not on proponents of gay-marriage. It's on the people who cannot tell the obvious difference between them.

Again, you showed what really drives your crazy theories and fears over gay marriage: your own animus and bigotry. You don't think same-sex relationships are "equal" to straight ones. And that same-sex sexual intercourse is "equal" with opposite sex intercourse. Thanks for calling a spade a spade there. Let me guess, you also think that JJV is a good guy and that your alma mater is better than your arch-rival school. Fascinating stuff, really.
2.17.2006 12:45pm
Bob Van Burkleo (mail):
"So this big increase is coming from people so confused in who they are they can have sex with one sex and then switch midstream?"

No, they are carried by youthful lust (biologically different from romantic love), denial of personal feelings, and cultural inertia. Sexual orientation isn't just about who you have sex with - a young male toxic on testostrogen can have sex with a squash and be satisfied. He can have sex with a woman who is actually more a friend and be satisfied. Testostrogen levels drop and he wakes up one morning realizing she is just a friend. Then he falls in love with some guy and the difference between the attraction he felt for his wife is like comparing a veggie burger with a sirloin steak. There is a reason so many of these guys coming out do such ridiculous things - they are basically going through 'first romantic love' at 30 instead of 13.

"What if someone is attracted to both sexes? Why should marriage be denied him or her with two people he/she loves."

They already can license the civil contract with someone they would want to marry. No one is saying that every citizens should have every possible arrangement licensed by the state, only that all citizens should have reasonable access to the contract that is licensed by the state. Can the bisexual license a copy with someone they would actually like to 'build a life with?' Yes the can. Can a polygamist? Yes they can - or at least as long as the co-signee is of the opposite gender. Only those who need to do so with someone of the same gender are proscribed from any reasonable access to the civil contract. There is the inequality.

"says nothing about the optimal institution the state is entitled to encourage."

Are they? You mean a state should be able to say that placing children in a home of mixed racial parentage should be deniable? I mean it is a given that children in such households are being raised in less than optimal conditions considering the derision that children will take from some of their peers. Or maybe we should proscribe the fat from adopting - they certainly can't be raising children in a good environment. Or maybe the ones with funny laughs - we know how traumatic that is to a child.

Excuses - that's all this sudden interest in 'optimum institution' is. Thinly veiled animus that doesn't fool anyone.

And finally, there is no 'same sex marriage' there is just marriage. Marriage is an individual right, an individual biological drive and who the citizen is exercising this right with doesn't change this.

Again, what is your reasoning why some citizens should have their marriages supported by the state and some not? How is it better for the state to ignore its gay citizens and not encourage their identical need to pair-bond? You aren't honestly saying that society is better off if all of its gay members are single, are you?
2.17.2006 12:52pm
jrose:
JJV,

Loving was decided only in part based on racial discrimination. It was also based on the substantive component of due process (the fundamental right to civil marriage), as was Zablocki.
2.17.2006 1:44pm
farmer56 (mail):
JJV and Mr Diablo;

I not sure, but each of you have said the same thing at some point in this thread. I paraphrase, 'let the people decide the meaning of marriage'. Wow! what a concept! GEE! a revelation! Thats all I said. Thats all I talked about. My Point? I consider the 'people' to be congress. Not judge(S) So. Mr. Diablo and JJV, and, etal. Get the people to change the deffinition. (read congress) No discrimination here. No denying anyone anything. Just some tax stuff. The judiciary cant do taxes. Except that ugly dust up in Kansas City were a judge raised taxes to have the extra money to have forced bussing.

Taxes.

Prove me wrong.

Seems that everyone can write volumes about this. Just, no one has proved me wrong.

This is about taxes.
2.17.2006 2:19pm
Kendall:
Farmer - is that why we have a tax court? because the Judiciary can't do them? Is that why they deemed a "poll tax" unconstitutional? because the Judiciary "can't" do them?
2.17.2006 2:29pm
jrose:
farmer,

Even if civil marriage is just about taxes, why isn't it discrimination when a straight man's estate does not owe taxes after he dies while a gay man's does (both men having a surviving spouse or would-be spouse)?
2.17.2006 2:41pm
Mr Diablo:
This is about equality and liberty and respect.

Prove me wrong.

Marriage could have no tax breaks at all, and I'd still want to marry my partner here in my home state. Hell, there could be a tax on marriages, and I'd still want to get married.

There, we've got idiotic competing anecdotes now.
2.17.2006 2:44pm
farmer56 (mail):
Please.

Kendall: Tax court Deccides if you broke the tax LAWS? See? Did you break the tax law. If you want to change the tax law. Talk to the people that write the tax law. Gee. Ah. Congress makes special breaks for some people. for some reasons. But... Congress does that. By definition my neighbor gets a break that I do not. Discrimination. You bet. A freind does not pay taxes on income after a certain age. Why? Because congress set it up that way. Inheriting property? Got a bitch? Talk to Congress they wrote the law. Why does the govt get a single penny of my property when I die. Because they can. If I leave $100 million to my neighbor when I die, why does the govt get a cut? Because they wrote the law. I guess it is discrimination against neighbors.

jrose; just nailed the estate thingy . just above. See CONGRESS makes estate law. Not judges. Judges are banned from playing.

Mr Diablo: You can get married in any state in the nation. There is only ONE thing you want Perks from Congress. So? Talk to congress. You said it yourself. The deffinition of marriage should be left to the people. I agree 100% Left to the people. Just... I got thru JH civics. and know that we (the people) are under a form of govt known as a representative democracy. Congress. Take your bitch to Congress. Not the court
2.17.2006 3:47pm
Bob Van Burkleo (mail):
"Mr Diablo: You can get married in any state in the nation. "

Specious, point of fact I can't yet license the civil contract of marriage with my spouse. And we are back to why are only some citizen's marriages recognized by the state and others not?
2.17.2006 4:00pm
Kendall:
Farmer - Thanks for ignoring my poll tax point. The fact of the matter is Congress makes laws (that's where your argument stops and you say "SEE???? talk to congress!") the executive branch ENFORCES laws, and the Judicial Branch INTERPRETS laws. Including marriage laws. Which can in fact be found to be unconstitutional. One ASPECT of marriage laws which you keep harping on is taxes and the ability to file separately or JOINTLY. This is not a product of nothing, this is a product of a MARRIAGE LICENSE. The issue is should a MARRIAGE LICENSE be gender descriminatory. This canard that its "all about taxes" borders on the absurd.
2.17.2006 4:04pm
jrose:
farmer,

Judges aren't banned from playing when Congressional laws discriminate.
2.17.2006 4:23pm
jrose:
farmer,

In your opinion, why do we have the institution of civil marriage?
2.17.2006 4:42pm
Mr Diablo:
farmer, are you sure you aren't in JH civics right now? Deciphering your posts definitely takes me back to the time when we traded papers in class and had to grade the chicken-scratches of someone whose English was marginally better than that of Ko-ko the gorilla.

Bob,

That is where we all started, with that deceitful lie about how my partner and I want special rights if we want to marry each other, because both of us could happily and legally Brokeback ourselves away marrying women and sneaking off to go fishing every day.

The Wheel has come full circle, and I'm pretty sure I've spent portions of billable hours the last couple days arguing with an eighth grader.

I think it's time to move on to a new thread about something gay, which, god-willing, will not devolve into a shouting match between bigots who think gays are not "normal", illogical rants about the tax code, and, everyone's favorite topic, sodomy! ..... will not devolve into that for at least the first 15 posts.
2.17.2006 4:57pm
farmer56 (mail):
Come on. at least make it ineresting.

jrose; dont know ask congress.
you 2cnd point. Tax laws discriminate. Read em and weep. I gave you more than several examples of court sactioned discrimination. White girl, Law school? sound like you heard that before? Discrimination? Wrong gender get your scholorship jerked? I got discrimination issues. Why do we have the institution of civil marriage???? Dah!!! Shhhh, congress created it and defined it.shhh its a secret. HEY. talk to congress.

Kendall; no. the supporters of the judges getting involved have, settled into estate taxes. Yes I do repeat myself. Estate taxes. Got a bitch? take it up with the people that write the estate taxes. Poll Tax? are you serious. Hey I guess I can go out and buy a slave.Wow.
Poll tax was deemed to violate the constitution. Got something that treating people different in estate taxes? Just give me what is wrong. then open up the flood gates. I welcome that.

And, I noticed all has fell by the wayside. Hospital visits. passing on children to someon upon your death, making health care decissions. I explained all of those not a single word in rebuttle. Why? Because yao gat a bitch wiht estate tax that congress wrote. Talk to the writers.
2.17.2006 5:13pm
farmer56 (mail):
Hey I am not a bigot

I guess calling people names is ok for you.

But you have not in a single instance supportted your premise.

And I am sure you are not losing billible hours. Now oune would hire you for you legal accumen.

Thanks for the name calling
2.17.2006 5:18pm
Mr Diablo:
You're right. Now oune would.
2.17.2006 5:27pm
BobN (mail):

Imagine farmer56 lying in a hospital bed, aware of his surroundings but utterly incapable of communicating. Imagine his great relief when the person closest to him comes into the room to help his physicians determine his fate. Imagine the consolation he will feel knowing that the wishes he has communicated over the years in the context of his most initimate relationship will prevail.

This commercial break has been brought to you by the folks at H&R Block, tax advisors YOU can trust!
2.17.2006 6:23pm
farmer56 (mail):
I see this has devolved into name calling and making fun of typoes? Imagine that.

BobN. Got a small piece of advice for you. Take care of yourself. See? Its simple. It is called a living will! You fill it out and leave lots of copies around with people you are close to. See?! NOT AN ISSUE of being gay or straight. It is an issue of minding to your own bussiness. I have explained this higher up in the thread. Ya got a short attention span, or just feel like a fight?

Medical decissions. I got mine covered.If you do not. I can not protect you from your own stupidity.

All the rest? Power of attourney. I have them, and I have them in the hands of, Oh wow! My wife! She has a power of attourney signed by me giving her the LEGAL power to make LEGAL decissions if I am unable.

H&R Block? I have siffted this gay marriage down to one and only one 1, 1, just one issue. Estate Taxes. If I want to give $100 million to Bill Gates when I die, why does the Govt get to tax it? Gee I dont know. Talk to the people that write the tax law. Not a judge.

And in the famous words of the great American Archie Bunker "Stiffle"
2.20.2006 9:18am