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Webcast of New York same-sex marriage oral argument:

Same-sex marriage has made it to New York's highest court. The argument in Hernandez v. Robles and three other cases starts at 2:00 p.m. eastern time today. You can listen to the oral argument live at the court's website. New York is one of a handful of states where gay-marriage litigants feel they have a decent prospect of winning.

logicnazi (mail) (www):
I've never understood how denying same sex marriages can be consistant with the line of cases recognizing marriage as a fundamental right. I'm perfectly okay with a narrow reading of the constitution that doesn't grant a fundamental right to marry to anyone but I'm at a loss as to how the supreme court managed to reach it's deciscions on gay marriage without overturning Turner v. Safely.

I mean Turner v. Safely very specifically held that the constitutional right to marriage existed independently of any considerations of reproduction or family. Thus given this deciscion it seems the supreme court must either overturn this deciscion or conclude that not letting gays get married is reasonable over and above the fact that they may be less likely to reproduce.

Now I'm not convinced that Turner v. Safely was a good deciscion but as I understand it is still valid precedent. However, I'm unsure if the NY supreme court can rely on it. Could someone who knows more about this fill me in. I know the state courts have extra authority to interpret the state constitution but would the US supreme court overturn them if they ruled that this result was required by Turner v. Safely or other federal grouds? (I suspect the answer is yes)
5.31.2006 2:14pm
KeithK (mail):
It's very simple to see how marriage could be a fundamental right (I'm not sure it is) and not apply to same-sex couples. Just define marriage specifically as the union of a man and woman. The American Heritage and Merriam Webster dictionaries (via dictionary.com) list this as the first meaning of the word and this has been the general understanding for most of history. The court doesn't have to take a broad reading of the definition of marriage (if the relevant statutes don't require it) that includes same sex couples.
5.31.2006 3:04pm
Elais:
Since when do we need to refer to a dictionary definition of marriage? The meaning of words change over time, why couldn't the definition of marriage be changed as well? Why does it have to be stated as a union between one man and one woman? Why couldn't marriage be definied as a union between two adults?

The court can certainly determine that 'marriage' also means same-sex couples.
5.31.2006 3:39pm
Closet Libertarian (www):
I will refrain making a lesbian joke hanging in the title of this post.

Marriage has meant one thing for thousands of years, so changing it to something else would be legislating from the bench. Lesgislatures on the other hand can change this.
5.31.2006 4:08pm
Medis:
KeithK,

More precisely, in most places for most of recorded history, a marriage has been defined by one man and some number of women, not necessarily just one woman.

Anyway, it seems to me if one were to seriously apply Turner to a gay marriage case, one would have to ask if the following reasoning applied equally well to gay couples seeking the right to marry:

"Many important attributes of marriage remain, however, after taking into account the limitations imposed by prison life. First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a precondition to the receipt of government benefits (e. g., Social Security benefits), property rights (e. g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e. g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate corrections goals."

It seems to me a good argument can be made that at least three of these four factors would apply to gay marriages, and even the third ("full consummation") might apply depending on what that actually meant. And I would suggest Lawrence probably supports the argument to this point.

The next step, however, would be to determine if the state had a sufficient reason to nonetheless restrict marriage to straight couples. I don't think Turner can answer that question, and Lawrence seemed to explicitly leave it open. So, I'd suggest that would be where the dispositive issues arose--again, assuming one took the idea of applying Turner to a gay marriage case seriously.
5.31.2006 4:11pm
Ian Samuel (mail) (www):
How are opposite-sex marriage laws not a plain example of gender discrimination? They make the person I am allowed to enter into a marriage with determinate on my gender. They're obviously deserving of intermediate scrutiny.

Bans on same-sex marriage are identical to bans on interracial marriage, substituting sex for race; the analysis should thus be the same. This is not an issue of sexual orientation, it's an issue of gender equity.
5.31.2006 4:28pm
Pendulum (mail):
I'm watching it now, but the stream is stopping. I think this may be on my side.

Anyway, from the parts I can pick up, the attorney opposing gay marriage seems to be struggling a bit at the beginning of his argument.
5.31.2006 4:46pm
Clayton E. Cramer (mail) (www):

Since when do we need to refer to a dictionary definition of marriage? The meaning of words change over time, why couldn't the definition of marriage be changed as well? Why does it have to be stated as a union between one man and one woman? Why couldn't marriage be definied as a union between two adults?
They could. The state legislature in most states can do that. Oh, but the problem is that they won't. Hence the need to have judges become superlegislators.
5.31.2006 4:47pm
Closet Libertarian (www):
Ian,

I'm not really a strong anti-gay marriage spokesman but I don't buy the discrimination argument. A person of any sex has the right to marry a person of the opposite sex so no discrimination.
5.31.2006 4:49pm
Clayton E. Cramer (mail) (www):

How are opposite-sex marriage laws not a plain example of gender discrimination? They make the person I am allowed to enter into a marriage with determinate on my gender. They're obviously deserving of intermediate scrutiny.
Draft laws discriminate based on gender. So do laws that segregate restrooms by sex. Work on this a bit; with a little care, you can upset the average American enough to get a Constitutional amendment allowing the states to criminalize sodomy again.

Bans on same-sex marriage are identical to bans on interracial marriage, substituting sex for race; the analysis should thus be the same.
Wrong. Bans on interracial marriage are of recent origin, first appearing in some of the American colonies in the late 17th century--another one of those dangerous liberal innovations contrary to many centuries of Christian tradition. Same-sex marriage, on the other hand, has never been recognized in Western civilization (even in those societies that were somewhat tolerant of homoseuxality). To my knowledge, no society until quite recently has recognized same-sex marriage.

Bans on interracial marriage were present in a bare majority of the states. Some states never had such bans. Same-sex marriage, on the other hand, has always been unrecognized.

You can make a case that the Loving decision overstepped the Supreme Court's authority (although I can't argue with the results). But where your analogy fails is that the statute challenged in Loving did not simply refuse to recognize same-sex marriage, it threatened the Lovings with prison if they did not leave Virginia for 25 years. If you and your buddy want to go get married in Massachusetts, or Canada, you are free to return here. Your marriage will simply not be recognized. You won't be sent to prison. You won't be threatened with prison. You will be allowed to do what you want.
5.31.2006 4:56pm
Medis:
Closet Libertarian,

But the same logic would have applied to the anti-miscegenation laws struck down in Loving (that a person of any race has the right to marry a person of the same race). To put the same point another way, why should only men have the right to marry women, and only women have the right to marry men?
5.31.2006 4:57pm
Medis:
Incidentally, to find that laws prohibiting gay couples from marrying amount to gender discrimination would not, of course, automatically imply that they are unconstitutional. It would simply require the state to provide more of a justification for this policy in order to survive a 14th Amendment challenge.
5.31.2006 5:01pm
The Human Fund (mail):
It's been awhile since I've had con law, but don't race classifications receive a different level of scrutiny than gender classifications? If so, I think the analogy to interracial marriage may not work very cleanly, at least in the constitutional context.
5.31.2006 5:06pm
Martin Grant (mail):
>A person of any sex has the right to marry a person of the opposite sex so no discrimination.

Closet Libertarian, that seems like a pretty good description of seperate yet equal. A female and I can each marry into seperate groups, not the same ones, but this isn't discrimination because these groups are equal?
5.31.2006 5:09pm
Medis:
The Human Fund,

That is correct--race and gender receive different levels of scrutiny. But since gender receives a higher level of scrutiny than unprotected classes, it would still be significant to hold that prohibiting gay marriages amounts to gender discrimination.
5.31.2006 5:10pm
Pendulum (mail):

Work on this a bit; with a little care, you can upset the average American enough to get a Constitutional amendment allowing the states to criminalize sodomy again.


You say that like you're excited about the prospect.
5.31.2006 5:11pm
EricK:
If marriage is not a fundamental constitutional right, then it can be limited. Just like the Hatch Act prevents people in certain positions from running for office.
5.31.2006 5:37pm
SLS 1L:
The Loving decision is distinguishable because the purpose and effect of the statute was to promote white supremacy and black inferiority. You could argue that bans on same-sex marriage are about promoting male supremacy, but in the unlikely event you can find a panel of judges who buy it, there's no way they'll say it in a judicial opinion. Turner definitely applies; consider taking the passage Medis quoted and substituting gays and lesbians for inmates:
Many important attributes of marriage remain, however, after taking into account the limitations imposed by [a gay lifestyle]. First, [same-sex] marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some [gays and lesbians] and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third . . . most [same-sex] marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a precondition to the receipt of government benefits (e. g., Social Security benefits), property rights (e. g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e. g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of a [gay lifestyle] or the pursuit of legitimate [state interests].
The only bits of this that is even seriously debatable are (a) whether the piece I excised affects anything and (b) whether gay marriages can be "fully consummated". The thing that distinguishes Turner can't possibly be the fact that gay marriages don't eventually become straight marriages (can't inmates confined for life without parole can still marry under Turner?) and "Turner doesn't apply because gays and lesbians can't have vaginal intercourse" is pretty weak on its own.

So if a court is to distinguish Turner, this passage is still going to apply to gay marriage mutatis mutandis.
5.31.2006 5:57pm
U.Va. 0L (mail):
Elais,

Since when do we need to refer to a dictionary definition of marriage? The meaning of words change over time, why couldn't the definition of marriage be changed as well? Why does it have to be stated as a union between one man and one woman? Why couldn't marriage be definied as a union between two adults?

The court can certainly determine that 'marriage' also means same-sex couples.

But for that matter, why should marriage be defined as a union between two adults? Why not between three adults or five adults? Also, are you implying that a father and daughter should be allowed to marry each other? You may object that it's unhealthy for close relatives to bear children. But, clearly you don't think bearing children has anything to do with marriage since two gay men aren't going to be making babies.

Marriage has a tremendous historical precedent behind it defining the institution one way. Why should the institution be changed to permit same-sex "marriages" and not to permit other variations on the traditional marriage? Why should so-called "sexual orientation" or "sex discrimination" be special in some way?

Do you support defining marriage as "any consentual relationship between two or more adults"? (Does it have to be a sexual relationship? Would you not allow two 80-year olds to marry?) If not, on what basis would you limit it?
5.31.2006 6:00pm
Medis:
UVA 0L,

I think the basic answer to your question is that you would have to look at each possibility and determine whether the same basic argument can be made for extending the legal incidents of marriage to the relationship in question.

By the way, I might note that in general, consenting adults are in fact allowed to enter into all sorts of legal relationships with each other through the mechanism of contract. Part of what is somewhat unique about marriage law, and part of what makes this not just an issue about withholding benefits, is that in the name of a public policy encouraging marriage, states have refused to enforce such contracts when they have come too close to being marriages. In that sense, the law does in fact withhold from gay couples contractual rights that they would have had if not for this public policy of limiting not just marriages, but also any private legal arrangements like marriages, to straight couples.
5.31.2006 6:15pm
Clayton E. Cramer (mail) (www):


Work on this a bit; with a little care, you can upset the average American enough to get a Constitutional amendment allowing the states to criminalize sodomy again.


You say that like you're excited about the prospect.
If I were, I would be egging you on to pursue your judicial tyranny strategy. I think that sodomy laws, while constitutional, are a bad idea. What consenting adults do in private shouldn't be the government's business.

Of course, I think that's true for employment and running a business, not just sodomy. Unfortunately, the gay activists who believe that the government has no right to tell two adults with whom they have sex also believe that the government has a right--even a duty--to tell a print shop that it must print same-sex wedding announcements.

If you want to be left alone, you need to be willing to leave other peaceable adults alone, too. But homosexual activists won't do that.
5.31.2006 6:21pm
Clayton E. Cramer (mail) (www):
SLS 1L writes:


The Loving decision is distinguishable because the purpose and effect of the statute was to promote white supremacy and black inferiority.
I agree that Loving is distinguishable, but I don't agree that your claim is clearly true. Yes, I know that this was the rationale for the Loving decision, but the interracial marriage bans, unlike the segregated schools are inherently inferior argument used in Brown, really didn't put one race in a superior position.

Whites had no advantage over blacks as a result of the interracial marriage ban--unlike the inferior schools that blacks attended. A white person's marriage was not treated any differently than a black person's marriage. There were no privileges granted to a white married couple because of being married that were not similarly available to a black married couple relative to a black unmarried couple.

If these laws had allowed white men to marry white or black women, but allowed black men to only marry black women, you would have a strong argument that these laws put blacks at a disadvantage. If these laws granted white marriages different tax treatment, survivorship rights, or divorce rules than black marriages, you would have a strong argument that these laws put blacks at a disadvantage.
5.31.2006 6:27pm
Medis:
On the Loving parallel:

Although I agree a court is unlikely to say this, I'm not sure how one could avoid the conclusion that prohibitions on gay marriages are based in part on discrimination against men, women, or both. Basically, the point would be to ask why there is a compelling need for both a man and a woman in a marriage. With the notable exception of the actual act of natural procreation--which is not a necessary component of marriage in the United States--I'm not sure that one could give an answer to that question that would not depend on some sort of negative stereotyping of women, men, or both.
5.31.2006 6:41pm
Medis:
Sorry, and to clarify:

I don't think the gender discrimination argument would actually work on its own merits. I just think it could clarify the issue. Specifically, I think it could force the state to explain that it is the gayness of gay couples, and not the lack of gender diversity of gay couples, that provides the state's rationale for prohibiting gay marriages.
5.31.2006 6:50pm
Clayton E. Cramer (mail) (www):
Medis writes:


Although I agree a court is unlikely to say this, I'm not sure how one could avoid the conclusion that prohibitions on gay marriages are based in part on discrimination against men, women, or both.
The ban on gay marriages doesn't discriminate against men or women. It discriminates against homogenity in marriage partners.

Basically, the point would be to ask why there is a compelling need for both a man and a woman in a marriage.
Why is there a compelling need for state recognition of a same-sex marriage? The traditional state recognition of marriage was built on the idea that the state has to settle disputes about who inherits the property (and if you look into the history of inheritance with respect to the dowager's third, and limitations on her use of that third, you see that it was more concerned with the children's inheritance than the widow's). To the extent that non-procreative marriages were within the state's purview, this was simply a side effect of what used to be the norm: procreative marriages. Some heterosexual marriages will have no children, but those are the exception.

A same-sex couple, on the other hand, is guaranteed to have no biological children. Any children that either partner brings to the relationship aren't the children of this same-sex couple, but of the biological father and mother of that child.

Almost every legitimate concern about property, inheritance, visitation rights, can be resolved with existing forms, procedures, and contracts--and some clever lawyer could make himself some money putting together 50 different versions of the "Same Sex Couples Guide To Almost Marriage," if the goal was to solve these problems.

The one area where I have some sympathy for the same-sex couple is with respect to taxes and Social Security survivor benefits. This could be fixed at the federal level by creating "domestic corporations" that would apply to any combination of man, woman, or multiple combinations thereof, and would be specific to taxes and Social Security.
5.31.2006 7:04pm
KeithK (mail):

Since when do we need to refer to a dictionary definition of marriage? The meaning of words change over time, why couldn't the definition of marriage be changed as well? Why does it have to be stated as a union between one man and one woman? Why couldn't marriage be definied as a union between two adults?

The court can certainly determine that 'marriage' also means same-sex couples.
My point was not that a court had to use the definition of marriage that I cited, but that a court could use it. With marriage defined as opposite-sex only, logicnazi's question about consistency with precedent is easily answered, IMO.

Definitions of words and institutions do change over time. Enshrining these changes in law should be done by legislative acts rather than the courts.
5.31.2006 7:08pm
BobN (mail):

some clever lawyer could make himself some money putting together 50 different versions of the "Same Sex Couples Guide To Almost Marriage"


Yes, and some clever suitcase maker could make himself a pretty penny manufacturing rolling carrycases that each person in the couple could drag with them everywhere they go for all those documents. Oh, and it could have a little side pocket where they could keep maps of all the places where these documetns wouldn't mean squat.
5.31.2006 7:11pm
Clayton E. Cramer (mail) (www):
BobN writes:


Yes, and some clever suitcase maker could make himself a pretty penny manufacturing rolling carrycases that each person in the couple could drag with them everywhere they go for all those documents.
You know, in all the 26 years that I have been married, I have never been asked for proof that I'm married. The only time that you need to start pulling out paperwork is if there is a dispute. You know full well (or at least, you should) that you are almost never going to have any occasion to show any contracts or paperwork.

Oh, and it could have a little side pocket where they could keep maps of all the places where these documetns wouldn't mean squat.
Until your side started forcing states to amend their state constitutions, there would have been no places in the U.S. where this was a problem. If you don't like what your friends at the Human Rights Campaign have done to complicate this matter, perhaps you should tell them to stop trying to force same-sex marriage on the majority--and concentrate on solving the real problems that you claim you want solved.
5.31.2006 7:15pm
BobN (mail):

You know, in all the 26 years that I have been married, I have never been asked for proof that I'm married.


Are you saying that in all those 26 years, it has never made a substantive difference that you and your wife are legally married? Of course not. Your point is that when YOU say you're married, people believe you. Lucky you. Sharing a last name does that. Whoop-dee-doo.

I can certainly say that lacking a marriage license has had an enormous effect over the last 26 years for me and my partner. Your little collection of contracts hasn't been able to addess the most important ones.


You know full well (or at least, you should) that you are almost never going to have any occasion to show any contracts or paperwork.


So why do you suggest that we draw them up? Why did you bother getting a legal marriage license? You know full well (or at least, you should since it's been pointed out to you oh so many times) that those "almost never" times are the times that are most important: in hospitals, in court, at the border, etc.
5.31.2006 7:35pm
Robert West (mail) (www):
Clayton -- my brother is in the army, and his wife had serious problems when he was overseas with people demanding that she prove that she was married to him before doing things like getting repairs on the apartment they rented which was in his name.

At one point, he had to call *from Afghanistan* to yell at them before they would listen to her.
5.31.2006 7:50pm
Broncos:
CC:

Wrong. Bans on interracial marriage are of recent origin, first appearing in some of the American colonies in the late 17th century--another one of those dangerous liberal innovations contrary to many centuries of Christian tradition.


You concede anti-miscegenation laws were established as early as 100 years prior to the Constitution? This isn't even originalism, it's something like "pre-originalism."

You distinguish Loving on several grounds, but this one seems particularly unpersuasive.
5.31.2006 8:07pm
A Berman (mail):
It's amazing how little understanding of marriage people have.

We encourage and support getting men and women together and staying together because it perpetuates the State--- you get tamer men and children who have mothers and fathers. The marriage license for men and women is right up there in criticality with national defense.

The proof is in the pudding. Countries that have legalized gay marriage, i.e. ripped apart the fundamental definition of marriage, wind up with much fewer marriages as time progresses, and of course, much fewer children.

Complaints about discrimination are a horrible abuse of the term.
5.31.2006 9:01pm
Medis:
Clayton,

You claim: "Almost every legitimate concern about property, inheritance, visitation rights, can be resolved with existing forms, procedures, and contracts."

Again, I don't think that is right, and precisely because states will refuse to enforce, as a matter of public policy, private contracts that too closely resemble marriage.
5.31.2006 9:08pm
Elais:
A Berman,

Are you suggestiing that the population of a country would nosedive if same-sex marriage were allowed? How quickly would the population decline significantly? How many same-sex marriages would it take to seriously threaten the population? 1? 10? 1,000 10,000? Give me statistics on the affect of 1,000 gay marriages on a population of 10 million.

U. Va.

Why are you bringing polygamy? I said TWO adults. I should have added unrelated adults.

Gay men can certainly have children through surrogates or adoption. Lesbians can certain bear children.

Clayton,

What did you have to do to get that marriage license? Did you have to take an intelligence test? Did you have to pass a background check? Did you have to be screened for drugs and/or alcohol? Were your forced to state the reasons you wanted to get married (for sex, for money, etc). It seems to me that the only reason that you got a marriage license would be that you have balls and the other person has ovaries.

If the government is so concerned about 'saving the institution of marriage', they would be a lot more interested in screening out those couples they deem as unsuitable for marriage.

Maybe the government should prevent blonds from marrying blonds. After all 'blonds have more fun' and the government certainly should not be encouranged anyone to have more fun, it would betray the abstinence-only code they love so much. Marriage would then be definied as 'one brunette man and brunette woman'. Screw the blonds, redheads and gray-haired.

This 'one man, one woman' business is stuff and nonsense. It clearly discriminates against gays.
5.31.2006 9:26pm
Medis:
A Berman,

You should look into the ongoing debate about that assertion (that allowing gay marriages causes lower marital and birth rates). In a nutshell, it turns out that when one controls for other factors, it is far from clear that gay marriage has any effect at all on overall marriage or birth rates.
5.31.2006 9:39pm
logicnazi (mail) (www):
SLS said,


The thing that distinguishes Turner can't possibly be the fact that gay marriages don't eventually become straight marriages (can't inmates confined for life without parole can still marry under Turner?) and "Turner doesn't apply because gays and lesbians can't have vaginal intercourse" is pretty weak on its own.


It's even worse than that. The mere fact that gay people can't eventually have vaginal intercourse can't possibly be the justification to distingush Turner unless the court is prepared to say that the result in Turner would have been different if the inmate had been shown to be impotent or would have never been released for jail. In fact the language in the deciscion specificially rejected the notion that the constitutional right to marry is defeated by inability to consumate the marriage.

Moreover, the point many of the other commentators on this post are missing is that the deciscion in Turner specifically repudiated many of the supposed rationals for extending a marriage right they are pushing. In particular Turner concluded that people have an individual right to marriage even in those situations where it does not provide family stability, or is necessery to keep men in check. The logic of this deciscion makes it pretty obvious that nothing in the deciscion would have been different if this man had been sentenced to death in which case there could never be any social order/stability benefits.

Go read the deciscion in Turner v. Safley. It makes it pretty clear that it is the personal, religious and social attitude (the way people treat you if they know you are married) attributes that make marriage a fundamental constitutional right. As these benefits are all obviously present for gay marriages the government must have reasonable (or was it rational basis?) grounds to deny this benefit to gays. This isn't the same as saying they have to come up with a reason why marriage would produce better or more important effects when applied to straights (the government had good reason to believe marriage produced more important benefits when applied to free people rather than prisoners). Rather they need to come up with a particular reason why it is necessery to deny it to gays and I don't see how they can possibly do this.

As far as allowing people to get married in threes or fives I have no problem with it but there are obvious reasons this would not be required under a similar ruling. Purely pragmatic difficulties (which one of several marriage partners gets the pension) that provide a justification for the government denying this sort of relationship the same protection as marriage.
5.31.2006 11:11pm
ReaderY:
I've always found it strange that as long as children are being raised privately, it is positively irrational to think that the gender distribution of their social environment could possibly be relevent to a state interest. But the minute they step foot in a public building, suddenly the state's interest in the gender make-up of their environment becomes positively compelling, compelling enough to override individual rights. How can the state have no interest in the makeup of a marriage, but a compelling interest in the makeup of a school?

I can see one position consistently. I can see the other position consistently. I can see courts taking no position and leaving things up to the legislature. I can see some intermediate position.

But the current situation seems positively schitzophrenic. If have no problem with legislative inconsistency, but the judiciary is another matter. If there's a reason for the state to have an interest in one environment, surely there at least a rational argument that that same reason applies in the other (and vice versa). There can be countermanding interests of course. But I can't see how there can it can be irrational in one context, compelling in the other. Both are simply ways of bringing up children, and surely the principle (whatever one believes it to be) could be thought consistent in both cases.

If one believes gender diversity is good for children in school, surely it can't be irrational to suggest that it might be good for children at home. And if one thinks it makes no difference at all at home, its at least reasonable to suspect that it may not be such a big deal at school either.
6.1.2006 12:32am
A Berman (mail):
Response to Elias and Medis:

Elias-- nobody cares if you and your same-sex partner wear a ring. What matters is publicizing the lie that it's the same thing as getting men and women together with the same value to the State. It isn't.

Medis--- Basically, the best counterargument is that all the populations may have declining marriage and childbirth rates for other reasons. Rather weak, especially when there is no thriving community that equates same-sex marriage with man-woman marriage.

Kinda like the tobacco companies in the 1950's saying that there's no proof smoking causes lung disease.
6.1.2006 12:37am
godfodder (mail):
Not being a lawyer, I am not burdened by the twisted legalese that prevents otherwise intelligent people from thinking clearly

Now that I've alienated you all, I would like to make the simple point that marriage is largely a social institution (as opposed to a legal one) that serves a variety of vital social/cultural functions. The primary historical purpose of marriage is to bind a man and a woman in a union, who's purpose is to raise and socialize children to be the next generation of citizens. Period. Marriage is not simply about love, or lust, or whose plumbing fits how against whose. Marriage, quite simply, is NOT about sex. It is about children!

Now some smart lawyerly thinker will no doubt point out that some married couples don't have children. To which I can only reply, "So what?" Again... marriage's primary social purpose is to create a social unit (ie, a "family") wherein children are raised and socialized. The fact that some marriages are childless is irrelevant to that fundamental task.

All societies cherish and promote traditional marriage because it is VITAL to their long term success that they do so. Otherwise-- who raises the children?! Raising children is hard, relentless work. Without social pressure, more people (primarily men) would walk away from that responsibility. Marriage-- the ceremony, the institution, the "til death do us part," the religious overtones-- are all meant to dissuade people from doing that. Period.

Gay marriage didn't persist in societies (if it ever in fact existed) because it served no vital function for those societies. Gay marriage is the social equivalent to a vestigial limb. It serves no social function. This, of course, is quite different from condemning gay relationships. Again, the topic of love,or of sex, or of whose plumbing is what, is immaterial to the topic of marriage.

Advocates of gay marriage are actually in pursuit of something unique in the history of marriage. They want "marriage" as a form of "endorsement" or "acceptance" of their actual relationship. This is a very different meaning than the traditional meaning of marriage. Gay marriage advocates want gay marriage as a method of saying to non-gay society "my relationships are just as good as yours." This is marriage as symbolism. BUT, marriage is not just a symbolic institution. Marriage (and the resultant family) are vital, functional social units that serve vital social roles. Roles that can't be performed by any other existing social entity that I am aware of.

There. I've shot my wad on this marriage thing. Flame away.
6.1.2006 1:39am
Medis:
A Berman,

I don't see any reason to rehash arguments that have been carried out in great detail in other places. I'll just note that when one controls for other factors, the correlation between smoking and lung cancer is extremely robust. The same simply cannot be said of gay marriage and overal marital and birth rates. And frankly, it strikes me as exceptionally odd to claim that the idea of controlling for other factors represents a "weak" counterargument to what amounts to nothing more than a post hoc ergo propter hoc argument (which is not a notably strong form of argument).

godfodder,

That marriage is partially, or even "primarily", about providing for children does not imply that it is only about providing for children. Professor Carpenter and others have discussed the other social functions marriage performs, and you might want to check out their work.
6.1.2006 1:58am
BobN (mail):

It is about children!


It's clearly not about the children in gay families. I guess the state has no interest in their rights.


Gay marriage is the social equivalent to a vestigial limb. It serves no social function.


No? How about delineating the rights and responsibilities of the two adults in the relationship? How about defining the rights of children born or adopted into the relationship? Does the state want to support me if I become disabled by an accident? Does the state not benefit from my and my partner's willingness to care for each other?
6.1.2006 2:02am
Cornellian (mail):
Elias-- nobody cares if you and your same-sex partner wear a ring. What matters is publicizing the lie that it's the same thing as getting men and women together with the same value to the State. It isn't.


So your ability to get married is contingent on your
proving that the marriage will be of value to the State?
Of equal value to all other marriages? Some other
marriages? The average of all other marriages?
6.1.2006 3:22am
Cornellian (mail):
Now some smart lawyerly thinker will no doubt point out that some married couples don't have children. To which I can only reply, "So what?" Again... marriage's primary social purpose is to create a social unit (ie, a "family") wherein children are raised and socialized. The fact that some marriages are childless is irrelevant to that fundamental task.


In other words, the inability to produce children argument
is a fundamental barrier to allowing same sex marriage,
but apparently completely irrelevant in permitting
opposite sex marriage, since an opposite sex couple is
not required to be able to produce children or even to
want to produce children. If an opposite sex couple
is unable to produce children (due to age or some other
reason) they're unable to carry about what you consider
this "fundamental task" of marriage so why should they
be permitted to get married?

Furthermore you refer to that task as being the creation
of a family unit where "children are raised and socialized" which is something quite distinct from
producing children in the first place. A same sex marriage is entirely capable of raising children.
6.1.2006 3:27am
Cornellian (mail):
Gay marriage didn't persist in societies (if it ever in fact existed) because it served no vital function for those societies.

I guess slavery must have served some vital function since
it survived for nearly all of history up until quite
recently (and still does in some places). Ditto re denying women the right to vote.
6.1.2006 3:30am
Serena Willcome (mail):
I think that society make us think that the only way to have the family and the white picket fence is to be involved in heterosexual marriages. I felt a spark of what I now realize was my true love- this was six years ago and the woman was a golf pro in Stamford. Had I heeded to the motion of my loins and given this true love a chance, I would not be alone now. I realize now I could have had the perfect life, wife and family if I would have allowed myself to accept my attraction to a loving woman.
6.1.2006 3:34am
SLS 1L:
Cornellian (quoting a hypothetical anti-marriage advocate):
If an opposite sex couple
is unable to produce children (due to age or some other
reason) they're unable to carry about what you consider
this "fundamental task" of marriage so why should they
be permitted to get married?
To anticipate a sincere response, the standard argument is that it would be too difficult or prohibitively injurious to personal privacy to test people for fertility when they get married. But even assuming we buy this, it doesn't explain (a) why we don't, or shouldn't, require people to sign a document attesting to their fertility and interest in having children when they marry and (b) why we don't, and shouldn't, void childless marriages and/or the marriages of the infertile when those facts are proven to a court.
6.1.2006 9:40am
Medis:
SLS 1L,

Incidentally, I recollect reading recently that opposition to gay marriage has declined particularly rapidly among elderly people. If my recollection is correct, it seems likely that is partially because they understand as well as anyone that marriage for the sake of the other Turner factors (emotional support, public commitment, spiritual significance, and various legal benefits and rights) remains valuable even in the absence of the possibility of children.

And I think our society does not just tolerate, but actually celebrates, marriages like this. So, the notion that the only we reason we don't stop these nonprocreative marriages is some practical difficulties with enforcement strikes me as silly.

But to briefly summarize a slightly more sophisticated argument, perhaps we see these marriages as reinforcing certain pro-marital norms which in turn benefit society when they are carried out by procreative couples. That may indeed be part of what underlies our celebration of these nonprocreative marriages (although personally, I think that is clearly not the exclusive reason we celebrate them), but it strikes me as unwarranted to then claim that marriages between gay couples could not also reinforce the same norms.

And that, I believe, is more or less where we left the issue when we last discussed it here in depth. Some seem to think that gay marriages would somehow undermine marital norms in general. Others seem to think that gay marriages would actually help to reinforce marital norms in general. And that may explain at least some of the disagreement.
6.1.2006 11:12am
Elais:
A Berman

I'm heterosexual and a woman. Should I choose to get married it would be to a man and I'm not interested in children. I don't see why I'm permitted to marry, but my next door neighbor is not.
6.1.2006 11:30am
godfodder (mail):
I am inclined to take a utilitarian view of social structures. This is not necessarily all that can be said on any given matter, but I think it helps clarify one's thinking. The social "function" of marriage is clear-- to create social units called "families" wherein children are raised and socialized.

Traditional marriage is also an institution in decline (I won't bore you with the obvious evidence of this). I think that I, and other non-homophobic opponents of gay marriage, are primarily concerned with the errosion of the meaning and function of marriage. I fear that one day soon "marriage" and "high school sweethearts" will become more or less synonymous. Does anyone but me find that prospect alarming? It is not about homophobia, but more about a fundamental social conservatism that leads me to shrink from screwing with an institution as important as marriage. I think we need to "fix" marriage, if at all possible. Gay marriage strikes me as not a "fix" so much as one more nail in its coffin.
6.1.2006 12:42pm
Medis:
godfodder,

Again, that providing for the next generation is one of the purposes of marriage does not show that it is the only purpose of marriage. Moreover, as many have pointed out, gay marriages can in fact play a role in providing for the next generation. Indeed, the things you highlight--actually raising and socializing children--are things gay couples can do notwithstanding their inability to produce children using the genetic material of both parents (which is really their only limitation, since they can nonetheless produce children).

And finally, it is far from obvious that gay marriage will erode marital norms. It may well have the opposite effect and strengthen marital norms. But the most likely possibility is that it will have almost no effect either way on marital norms, because gay marriages will never be more than a tiny fraction of total marriages.
6.1.2006 1:01pm
Clayton E. Cramer (mail) (www):
Cornellian writes:


I guess slavery must have served some vital function since it survived for nearly all of history up until quite recently (and still does in some places).
Indeed, slavery did serve several vital functions:

1. It was the humane alternative to killing POWs. (And the willingness to enslave POWs, instead of raping and killing them, as was the norm in many parts of the Middle East, made it easier to get enemies to surrender.)

2. It provided the labor required in the era before machinery.

3. It provided a mechanism for resolving tort claims in places like Africa.

I'm glad that slavery is gone, but don't pretend that it served no vital social function.
6.1.2006 2:53pm
Clayton E. Cramer (mail) (www):
BobN writes:


Are you saying that in all those 26 years, it has never made a substantive difference that you and your wife are legally married? Of course not. Your point is that when YOU say you're married, people believe you. Lucky you. Sharing a last name does that. Whoop-dee-doo.

I can certainly say that lacking a marriage license has had an enormous effect over the last 26 years for me and my partner. Your little collection of contracts hasn't been able to addess the most important ones.
The most important ones being?



You know full well (or at least, you should) that you are almost never going to have any occasion to show any contracts or paperwork.


So why do you suggest that we draw them up? Why did you bother getting a legal marriage license? You know full well (or at least, you should since it's been pointed out to you oh so many times) that those "almost never" times are the times that are most important: in hospitals, in court, at the border, etc.
Actually, none of those reasons. We married because the Bible calls us to marriage, as a commitment before God and the Christian community of our love for each other. At the time my wife and I married, if we could have done so without governmental stamp of approval, I would actually have preferred it. (I'm not as hostile to government as I was back then.)

In hospitals? At the border? What are you talking about? There are emergency situations where it might matter, but it never has for us. The times when you need to be married are relatively few (with the exception of joint filing and Social Security survivor benefits). I have this weird feeling that you are looking in from the outside, and imagining that the marriage certificate makes an enormous world of difference in how straight people live. It doesn't. (And when you look at divorce rates, it shows.)
6.1.2006 2:59pm
Clayton E. Cramer (mail) (www):

Clayton -- my brother is in the army, and his wife had serious problems when he was overseas with people demanding that she prove that she was married to him before doing things like getting repairs on the apartment they rented which was in his name.
Fascinating. Perhaps this is because just about anything my wife and I do is done jointly. We rented apartments jointly; we buy cars and houses jointly; we open accounts jointly. Of course, there's nothing special about being married; mortgage applications allow unmarried couples to buy houses.
6.1.2006 3:03pm
Clayton E. Cramer (mail) (www):

Clayton,

You claim: "Almost every legitimate concern about property, inheritance, visitation rights, can be resolved with existing forms, procedures, and contracts."

Again, I don't think that is right, and precisely because states will refuse to enforce, as a matter of public policy, private contracts that too closely resemble marriage.
Please provide some authoritative evidence for this. I can buy a house with someone to whom I am not married. It happens all the time. I can jointly own a car, or a bank account, with someone to whom I am not married. Because major corporations are largely run by flaming liberals, just about every job that I have had in the last 10 years allows me to set up life and health insurance benefits with someone that I am not married to--and the states haven't refused to enforce these contracts. These are relationships that "closely resemble marriage."

Some states that have adopted "one man, one woman" constitutional amendments have effectively precluded such private contracts I understand. But if you had not insisted on using your puppets in black to impose same-sex marriage, there would have been no such amendments. Keep pounding away on your need for self-esteem, and you might completely wipe out the alternatives that were available to gay couples.
6.1.2006 3:09pm
Clayton E. Cramer (mail) (www):
Cornellian writes:


So your ability to get married is contingent on your
proving that the marriage will be of value to the State?
Of equal value to all other marriages? Some other
marriages? The average of all other marriages?
Consider that liberals often take the position that there must be a compelling governmental interest in passing a law. This is their argument against sodomy laws--that there is no compelling governmental interest in such laws.

Now you are upset that someone is arguing that the state recognizes marriage only when there is a compelling governmental interest in doing so.

What do you want?
6.1.2006 3:15pm
Elais:
godfadder,

With the hundreds of thousands of weddings still happening in America, marriage is looking pretty good for a corpse.

Clayton,

Just because you say the state hasn't refused to acknowledge a 'quasi-maritial' relationship yet is hardly a winning arguement against same-sex marriage. They can can easily refuse to recognize such relationships and no one will be able to stop them. You have a legal relationship but it's not truly backed by the law or the state and they are not 'required' to recognize it. Perhaps they are being nice to you because you are bribing them.



I might put my hypothetical partner on my health insurance policy, but the insurance company could easily deny medical payments to my partner as well as grant them. And I would have no recourse under the law.

I don't want benefits or recognition of any legal relationship to be dependent on the whims of the state/local/federal government. I would want them backed by law or legislation.
6.1.2006 4:28pm
Medis:
Clayton,

States were refusing to enforce private marriage-like contracts long before any of the current fuss. You can probably google "cohabitation agreements" and "meretricious consideration" and get some instant information. Basically, with some variations state to state, you are right that you can enter into all sorts of contracts with someone who is not married to you. But if something like a romantic or sexual relationship is part of the contract, the state is likely to find the contract unenforceable. And I think it is obvious that the inability to include terms referring to romantic love or sexual relations makes any such contractual relationship not really like marriage.

By the way, you wrote: "But if you had not insisted on using your puppets in black to impose same-sex marriage, there would have been no such amendments. Keep pounding away on your need for self-esteem, and you might completely wipe out the alternatives that were available to gay couples."

I don't know who the "you" in this statement is. Not that it matters, but I am neither gay nor a member of any gay activist organization, and I haven't participated in any litigation involving gay marriage. And personally, I suspect that such lawsuits are indeed a counterproductive tactic from a strategic perspective.

But insofar as individual gay people who want to get married feel that justice is being denied to them, and insofar as they have legal arguments to make that might actually work, it becomes a matter for their own conscience whether or not they should seek an immediate legal remedy.
6.1.2006 5:17pm
Randy R. (mail):
People like Goddfadder seem to have a problem with the state of marriage today. Usually, the belief is that until recently, people got married for love, had children and loved each other 'til death did them part' and everything was great. Then sometime during the evil 60s (hippies and all that), people started getting the notion that marriage is SUPPOSED to be about happiness and love, and if you don't get it, then you get divorced. And the divorce rate has gone up, and marriage has gone to hell. Tinkering by allowing gays will, somehow, even if there is no evidence, make things worse.

Well, that's totally wrong. Historically, people almost never married for love. They married through arranged marriages, or for convenience. The propect of marrying for love didn't even arise until the late 18th century, and didn't really get hold in western society until the last part of the 19th century. If you had a love interest, you (likely the male) simply had a mistress. We call that adultery today.

True, people didn't get divorced so much, but that's because divorce simply was almost impossible to get. Even if you could get it, a divorced woman had almost no means of support.

In the 20th century, all this changed. The fundamental change really took place in the 20s, when people really started to believe that one should marry for love only. As a result, divorce skyrockted in the 1920s, because of the same logic -- one should get divorced if one no longer loves the spouse. Or their is abuse, neglect, and so on. Since then, divorce has risen as women have had the means to support themselves as divorced or single women.

If you really want to change the state of marriage, you have to go back to the olden times, and state that marriage is NOT about love, but about an economic state between two people to support each other and the resultant family, and that love should be reserved for the man's mistress on the side. In other words, change the definition of marriage back to itls original, and also accept the resultant adultery. Barring that, you simply have to accept high divorce rates along with romantic notion of marriage.
6.1.2006 5:44pm
logicnazi (mail) (www):
I know this thread is probably pretty old but most of the arguments against gay marriage in this thread would also justify overturning Turner. Or to put it less legally the court has held that in order to impinge upon straight marriage the government must meet a certain standard of reasonableness or rationality (I forget the exact standard the point is they need to show they have some good reason to do it but not necessarily a hugely compelling one). This holds true even for straight marriages that, without violating privacy, can be seen to lack the reproductive or social order benefits many people cite.

So can we at least agree that EITHER the government must show that it has a good reason to stop gay people from getting married OR straight people who obviously cannot procreate (say are in prison or have had everything below mid hip amputated) should not be granted constitutional protection if the law deprives them of the right to marry?
6.2.2006 9:52pm