pageok
pageok
pageok
The amendment is dead, long live the amendment:

The defeat of the federal marriage amendment in the Senate on Wednesday was welcome, if entirely expected. It was a nice surprise to see the amendment fall short of 50 votes even on a procedural motion (its total would have been lower had it come up for a substantive vote); to have seven Republicans vote against it; to hear even southern conservative Senator John Warner (R-VA) say he thought it went too far; and to realize that this probably set its high-water mark in the Senate.

The federal amendment, already on life-support, is dead for the foreseeable future, barring one of three very unlikely events: (1) a Supreme Court "victory" for gay marriage; (2) unprecedented and overwhelming gains for the anti-gay-marriage movement in the next few national election cycles; or (3) a proposal for a much narrower amendment that would, for example, simply strip courts of jurisdiction over the issue. Even a narrower amendment would probably fail, but things would get a lot more interesting.

We'll continue to see this amendment, of course. It will rise from its grave every two years like a ghoul in a late-night horror movie that one repeatedly kills, only to see it stumble blindly forward again (as Justice Scalia once memorably said about the Lemon test for religious establishment). It's the living dead.

All of this is cause for some celebration. But it is a muted celebration, the way one celebrates an essentially defensive victory. The debate in the Senate was a defeat for the amendment but it was not a win for gay marriage, which hardly any Senator even hinted at supporting. If we had an up-or-down vote on gay marriage in the Senate, it would lose 98-2, or thereabouts. And while many of the arguments directed at the amendment were quite good (emphasizing federalism, the overstated threat of judicial activism, and the overbreadth of the amendment), some of the arguments against the amendment were, shall we say, deflating. So, for example, we heard repeatedly that there were much more important issues we needed to address, like gas prices and our delicate relations with the Principality of Liechtenstein. I guess I have to agree with that in one sense. Any proposal is more important than one that should never have seen the light of day. Still, there was something baleful about cheering on people who were suggesting that anything related to the question of whether gays could marry was wasting our precious time. There was that not-those-people-again tone in much of the person-on-the-street interviews seen on TV, a sentiment some Senators against the amendment seemed to be exploiting. Even my beloved federalism argument can sound, in the wrong mouth, like "the states should be allowed to do this godawful thing if they want to." Forgive me for not finding much inspiration in that.

Then came the news, the same day, that Alabama had become the 19th state to ban gay marriage in its state constitution, which I suppose will stop dead in their tracks all those Alabama state court judges who've been seduced by pro-homosexual propaganda. Alabama and most of the other states that have passed constitutional gay-marriage bans (e.g., Texas, Oklahoma, and Mississippi) were unlikely to recognize gay marriage or anything else gay in the near future anyway, whether by legislative or judicial action, so not much is immediately lost. But I get the sense that long after the rational debate over whether gay marriage harms anything has been resoundingly answered "no," we're going to be stuck with these state amendments, adopted in a time when we didn't know any better. More precisely, "we" won't be stuck with these state constitutional amendments; gay families unfortunate enough to live in those places, with little means of escape, will be stuck with them.

With a federal amendment now effectively off the table, my guess is the anti-gay-marriage movement will redouble its efforts in the remaining dozen or so states that seem likeliest to pass such measures. The result, after a few more election cycles, will be a nation where about 35 of 50 states will be unable to give gay marriage (or civil unions or watered-down domestic partnerships) a try long after legislative and popular majorities in those states think it's a good idea. It's not exactly the same as having a federal amendment, but it's the next worst thing.

Oh my word (mail):
Overreaching on the last point--obviously a popular majority is perfectly free to remove the gay marriage ban by a simple majority referendum.

Also, there have been a fair number of courts that have sided with gay marriage, including in some conservative-leaning states. Witness also the surprise pro-abortion decision in conservative Tennessee by the state supreme court. The constitutional amendments also prevent a special interest capture of the majority party scenario, which happens all too often in American democracy.
6.9.2006 9:58am
Cornellian (mail):
The religious right can read polls and demographic trends like anyone else (well at least their leaders can). They know they have to slam the door shut with constitutional amendments now because they're losing the battle for public opinion. When support for same sex marriage goes from zero a few decades ago to a substantial minority now, and heavily skewed towards younger people, they know the writing's on the wall if they don't get their position locked into a constitutional amendment now. Another few decades and it will be too late.
6.9.2006 10:38am
Ramza:
Here is a map of the states that have ammendment bans on gay marriage, ammendment bans on civil unions and gay marriage, and the states that have statues banning the two.

Note the map is a little out of date only been updated to Nov 15 of 2005
http://www.thetaskforce.org/downloads/marriagemap.pdf
6.9.2006 10:39am
Cornellian (mail):
"Also, there have been a fair number of courts that have sided with gay marriage, including in some conservative-leaning states. "

Citations please, and what does "sided with gay marriage" mean?
6.9.2006 10:48am
UCLA Law Alum:
So, is the Thirteenth Amendment a terrible blow to constitutional federalism? I mean, the whole experimentation by the state legislatures thing worked so well before that one.
6.9.2006 10:51am
Joshua (www):
Of course, this also leaves open the very (remote) possibility that putatively motivated the amendment in the first place, namely that a future SCOTUS may someday effectively nationalize legal SSM.

SSM opponents could have proposed an alternative amendment, along the lines of "Nothing in this Constitution, or in any Amendment thereto except where explicitly provided, shall be interpreted to assert federal authority to define or govern either marriage, or any legal structure with the characteristics of marriage." Such a "disclaimer" amendment would have served the same putatively intended purpose, while leaving states free to set their own marriage laws as they see fit (and all without even explicitly referring to same-sex couples).

But nooooooooooooo, they had to get greedy and push for a constitutionally enshrined, nationwide outright ban on SSM, and it came back to bite them in the arse. Serves them right.
6.9.2006 10:53am
Medis:
Dale,

I actually think you are overlooking the substantive victory underlying the notion that this issue simply isn't very important. The chief argument (at least the chief argument people are willing to make in public) against gay marriage is that it would put the entire institution of marriage at risk, which is a serious matter. Insofar as people are starting to see gay marriage as a minor issue, I think it represents a growing sense that these fears are overblown, and that the entire institution of marriage really isn't being threatened.
6.9.2006 10:57am
johnt (mail):
Dale, No doubt about it, the Constitution and Federalism are both a bitch. Guess we're stuck with them both. If only we could do whatever we want to do whenever we want to do it, even though Mother told us we can't.
You're against a Fed Marriage Amend and also against State action, the nexus of federalism, so what's left, roll over, stop breathing and no options for dissenters?
You appear certain of the future on two counts; a] that people will most certainly change their minds on gay marriage. b] that the state amendments passed are irrevocable. A clashes with B, historical examples available on request.
History informs us that women occupied the country in 1776. It also informs us that the XIX amendment was passed in 1920, indicating that in the remnants of our system time is not necessarily of the essence or it's symbol Winged Mercury.
6.9.2006 10:59am
Ship Erect (mail) (www):
From Inhofe's declaration that no one in his family has ever had "a divorce or any kind of homosexual relationship" to Hatch's "good, clean, decent Americans" speech, debate over the amendment has been truly edifying. Wonderful job, Senators!
6.9.2006 11:01am
Houston Lawyer:
After telling my son to stop hitting his sister the other day, he exclaimed "I didn't do it, and she hit me back". This post has about the same level of thought behind it. Mainly, how dare opponents of SSM ever argue their position in any venue. The defense of marriage amendment and all similar state amendments are defensive measures. It is the proponents of SSM who are on the attack.
6.9.2006 11:08am
David Chesler (mail) (www):
Is it that much harder to re-amend a state constitution than to amend it?
6.9.2006 11:15am
David Chesler (mail) (www):
So, is the Thirteenth Amendment a terrible blow to constitutional federalism? I mean, the whole experimentation by the state legislatures thing worked so well before that one.

Yes it (and the entire Civil War) was, in fact that period marked the beginning of the end of federalism; and yes it was working well. Slavery was on its way out, and would have ended with or without the Thirteenth Amendment.
6.9.2006 11:18am
Medis:
Johnt,

I believe that Dale's worry is that in many states, there will be a long lag between popular acceptance of gay marriage and legal recognition of it. Which is a reasonable concern--the fact that women eventually got the vote doesn't do much for all the women who lived without the vote before that point.

That said, I also don't know how sticky these state measures in fact will be. So, there might not be a really long lag.
6.9.2006 11:21am
UCLA Law Alum:
"Slavery was on its way out, and would have ended with or without the Thirteenth Amendment."

That is simply not true, and is repeated only by the most fervent Southern apologists and the various libertarian factions that view Abe Lincoln as second only to Adolf Hitler in evil.

Slavery in decline in its expansion (see, e.g. Bleeding Kansas), but there is absolutely no evidence of any move toward abolition in the locations where it formed the bedrock of the economy- in fact, it remained largely undisturbed following the Civil War through the quasi-serfdom of sharecropping.
6.9.2006 11:23am
Thief (mail) (www):
I'm not so sure the FMA is dead. All it will take are justices Stevens, Ginsburg, Souter, Breyer and Kennedy playing Calvinball with the Full Faith &Credit and/or Equal Protection and Due Process clauses on a 5-4 vote, and we'll be right back on this debate.

But then again, I'm a pessimist about these kinds of things.
6.9.2006 11:24am
Paul S (mail):
Houston Lawyer, I simply do not see any contradiction in the post.

As I understand it, Dale's view is that SSM is something that ought to be decided at a state level (and he would like the states to support it). Other people think that SSM is something that ought to be decided at a state level (and they would like the states to make/keep it impossible). There is nothing inconsistent or self-contradictory about saying: "I am glad that the amendment has been defeated, although it now leaves proponents/opponents of SSM to argue at the state level where in some cases the going is very tough if you support SSM."

I don't see anything that says that the anti-SSM team is not entitled to argue their views. You can say you disagree with someone without denying their right to argue, can't you? As to who is "attacking" and who is "defending" ... who cares if the fight is fair?
6.9.2006 11:28am
Cornellian (mail):
From Inhofe's declaration that no one in his family has ever had "a divorce or any kind of homosexual relationship" to Hatch's "good, clean, decent Americans" speech, debate over the amendment has been truly edifying. Wonderful job, Senators!

Let's not forget Vitter's comment that that the FMA was the most important issue facing America at this time. And that guy's from Louisiana. Guess they got that Katrina cleanup all taken care of.
6.9.2006 11:32am
Russ Meyer (mail):
UCLA Law Alum,

That is a nice over-simplification and a great way to write off those you disagree with by not even looking at the facts, or history.

The fact that four slave states refused to secede, or that four others refused to secede until President Lincoln called for troops to supress the rebellion, speaks volumes about the shakiness of the institution to begin with.

I am from the South, and no one I know views President Lincoln as "second only to Adolph Hitler in evil." This ignornant statement makes me wonder if you know any southerners personally, or if you get all your inside information from TV.

You should visit the South. Atlanta has been quite beautifully rebuilt since it was burned down, and we have gotten our mullet epidemic under control.

Slavery would have eventually ended, although probably not for another 75 years or so. President Lincoln did us all a favor by ending this shameful blot on our history when he did.
6.9.2006 11:35am
Cornellian (mail):
The constitutional amendments also prevent a special interest capture of the majority party scenario, which happens all too often in American democracy.

Sounds more like an argument for a constitutional amendment banning earmarks.
6.9.2006 11:39am
Cornellian (mail):
Mainly, how dare opponents of SSM ever argue their position in any venue. The defense of marriage amendment and all similar state amendments are defensive measures. It is the proponents of SSM who are on the attack.

Yeah, how dare people attack the anti-SSM position, almost as if they had a right of free speech or something. Shocking.
6.9.2006 11:43am
Medis:
By the way, I also agree that the 13th Amendment represented a blow to federalism--it is hard to see how it could not be considered as such--but personally I think it was warranted because of the manifest injustice of slavery. And because slavery represented an ongoing violation of fundamental individual rights, it is not enough to argue that slavery would eventually pass away on its own. To paraphrase Dr. King, when justice of that sort if delayed, justice is denied.

Now, if someone wants to make a case for gay marriage being as unjust as slavery, and a violation of fundamental individual rights (the allowance of gay marriage, not the lack thereof), I'd be interested to hear it.
6.9.2006 11:44am
Cornellian (mail):
You should visit the South. Atlanta has been quite beautifully rebuilt since it was burned down, and we have gotten our mullet epidemic under control.

However, the voters of Alabama still elected Roy Moore chief justice. I wouldn't say the South is quite out of the woods yet.
6.9.2006 11:48am
Steve Lubet (mail):
Before 1860, African-Americans were better protected by (some) states than by the federal government. The federal Constitution protected slavery, and after the Dred Scott decision virtually enshrined it.

On the other hand, northern states enacted "personal liberty laws" that attempted to defend fugitive slaves. Those laws, however, were virtually preempted by the federal Fugitive Slave Act of 1850, whereby the federal government was committed to assist masters in recapturing their slaves.

During the period 1850-61, federal troops were repeatedly used to drag fugitives back to the south, over the objections of free state governments.
6.9.2006 11:50am
LN:
Wasting time? Well since a liberal estimate of the percentage of homosexuals in America is 10% (more likely between 3-7%) and studies in Sweden and the Netherlands suggests that only 10% of homosexuals take the opportunity to marry once offered to them, I can only ask, why is Congress even debating an issue that would only affect 1% of the population? Probably becuase the majority of the nation doesn't want 1% of the population to tell them how society should operate.
6.9.2006 11:51am
Cornellian (mail):
I can only ask, why is Congress even debating an issue that would only affect 1% of the population? Probably becuase the majority of the nation doesn't want 1% of the population to tell them how society should operate.

Since the proposed amendment doesn't have majority support, perhaps the majority of the country doesn't want Washington to dictate how marriage should operate in their state?
6.9.2006 11:55am
JunkYardLawDog (mail):
It seems to me that the essence of the amendment supporters ideas and conservatism/federalism ideas could all be served by changing the wording of the amendment to make it unconstitutional for a federal or state judge to overturn a legislative or people's referendum adoptation of a no-gay marriage policy preference.

That way any state who through their own legislatures or voting of its citizens wants to ban gay marriage, a federal judge or state court judge would be without authority and for the federal judge without jurisdiction even to make any ruling impugning the validity and enforceability of a state established no gay marriage statute or state constitution provision.

With such rewording it would be EASY to refocus the senate debate on the changes as NOT being a federal constitutional ban on gay marriage but a federal constitutional GUARANTEE of the rights of the people in each state either directly or through their ELECTED representatives to establish that's state's policies on gay marriage and be assured that such policy will NOT ever be overturned by an unelected judge.

It would be ideologically consistent with conservatives traditional thoughts on federalism, it would be the PROTECTION of citizens rights in each state to establish public policy in that state without interference from the largely unelected and always unrepresentative political branch of government (i.e. judges), and it would be far easier to sell as having nothing to do with gay rights but everything to do with citizens rights and federalism.

Says the "Dog"
6.9.2006 11:55am
plunge (mail):
What I cannot get over in this debate is the level of pure cowardice in discussing it. Even those that opposed the amendment could barely bring themselves to acknowledge the existence of gay people, to say what this debate was actually about. That was, of course, a calculated PR move, pioneered and popularized by the always rhetorically cowardly President. But it's just remarkable that this debate has simply gone out of its way to avoid considering who gay people are, what their lives are like, and why they might want to marry. We are left then with a debate full of so many logical holes that it's almost entirely irrational.

It seems to me that once you admit to yourself that gay people exist in our society, that they form families and have kids, and that they are not simply going to vanish and nothing short of a draconian crackdown can get rid of them, your attitude on this issue can't help but change. Because then you have to think "well, they're here. I may not like it, but I can't change it: how do we make the best of it?" And the answer is certainly not to strive to make there be LESS families in society, or to make certain families MORE dysfunctional.
6.9.2006 11:56am
Cornellian (mail):
Well since a liberal estimate of the percentage of homosexuals in America is 10% (more likely between 3-7%) and studies in Sweden and the Netherlands suggests that only 10% of homosexuals take the opportunity to marry once offered to them, I can only ask, why is Congress even debating an issue that would only affect 1% of the population?

What percentage of the population was affected by the Terry Schiavo law?
6.9.2006 11:58am
Medis:
LN,

Of course, gay marriage would not tell all of society how to operate--just the gay people who got married.
6.9.2006 12:01pm
Paul S (mail):

nothing short of a draconian crackdown can get rid of them


Be careful, or you will be giving people ideas! Surely even a draconian crackdown would not get rid of us/them.
6.9.2006 12:04pm
UCLA Law Alum:

That is a nice over-simplification and a great way to write off those you disagree with by not even looking at the facts, or history.

The fact that four slave states refused to secede, or that four others refused to secede until President Lincoln called for troops to supress the rebellion, speaks volumes about the shakiness of the institution to begin with.


This observation explicitly contradicts your claim that slavery "was on the way out." If it truly was in any sort of danger, why would several slave states be content to remain in the Union? Fears of the Confederacy aside, Abraham Lincoln had declared his desire to leave slavery intact- indeed, the Emancipation Proclamation only applied to slaves in CSA-controlled territories. Slaves in the border states, as well as slaves in Union occupied territory like New Orleans, were kept in bondage.

In any event, seeing as I happen to live in the South (Virginia, so not the Deep South, but still), I don't see what your point is, especially since I live in southern Virginia.

The comparison of Lincoln to Hitler is often made by the more wild-eyed members of the Libertarian Party. I assure you that these people exist in small, but obnoxiously vocal, numbers.

Medis latched on to the point I was attempting to make (albeit quite sarcastically) - federalism is not, and has never been, the only concern of the Constitution, despite the "oh no federalism!" attempt to argue against this particular Amendment.

This is a point often overlooked by the federalism ueber alles stereotyping of conservatism by people such as Dale, as well as that emphasized by the rabid libertarians I mentioned earlier. It would be no different than the equally snarky and hollow rejoinder "but I thought you conservatives wanted to CUT TAXES!" when the program being supported was viewed as vitally important, such as the military.
6.9.2006 12:07pm
Cornellian (mail):
It seems to me that once you admit to yourself that gay people exist in our society

That's the crux of the matter. In the view of the religious right, gay people don't exist. They're just straight people who've been abused or neglected as children, or have some moral weakness that hasn't been cured yet. Heck, Bush's pandering on the issue even extended to inviting one of those "ex-gay" freaks to his White House press conference supporting the FMA.
6.9.2006 12:11pm
Medis:
JYLD,

This is just an aside, since the anti-gay marriage folks themselves would kill any merely jurisdictional amendment, but I don't see how applying such an amendment to state court judges doesn't trigger the same federalism concerns. If states want to limit the jurisdiction of their own courts or provide constitutional rules limiting the interpretative power of their own courts, they can do so. So, resolving the issue of what state courts can do with respect to this issue at the federal level is still contrary to federalism.

Incidentally, if there is indeed a legitimate national concern about the power of state court judges (and I personally think that is a matter for each state to decide), why is this issue limited to gay marriage? As with so many other aspects of this debate, it seems oddly coincidental that these general principles in practice only justify action with respect to gay people.
6.9.2006 12:12pm
Cornellian (mail):
Incidentally, if there is indeed a legitimate national concern about the power of state court judges (and I personally think that is a matter for each state to decide), why is this issue limited to gay marriage? As with so many other aspects of this debate, it seems oddly coincidental that these general principles in practice only justify action with respect to gay people.

Contrast the rhetoric on abortion, namely that appointing judges who will overturn Roe v. Wade is the plan, so that the issue of abortion can be decided where it should be - in state legislatures. So why aren't state legislatures competent to decide what sort of marriage arrangements they want as well?

I seem to recall Sen. Hatch proposed something along the lines of a purely federalism amendment the first time around back in 2004, but was quickly shot down by the leading lights of the religious right. No, SSM must be banned, and banned in the federal constitution before a state legislature enacts it and a governor signs it. That's the plan.
6.9.2006 12:20pm
UCLA Law Alum:

Contrast the rhetoric on abortion, namely that appointing judges who will overturn Roe v. Wade is the plan, so that the issue of abortion can be decided where it should be - in state legislatures. So why aren't state legislatures competent to decide what sort of marriage arrangements they want as well?


Easy answer: state legislatures would need to vote to approve a proposed amendment.

More abstract answer: it is a preference for democratic processes, at either the state or the federal level (or both) to judicial invention.
6.9.2006 12:22pm
LN:

Of course, gay marriage would not tell all of society how to operate--just the gay people who got married.


If a court, state or federal, tells the people that they must accept SSM, then the people are not creating the society they want. Thus in this sense, a court would be telling society what it must allow. Since no reasonable reading of the constitution could validate SSM nor the does the history of the United States (or the world for that matter) justify its judicial enshrinement via SDP, a court ruling forcing the acceptance of SSM would violate popular sovereignty. Furthermore, it would probably do more damage to the proponents of SSM than merely "waiting it out." After all, if an individual state wants to allow SSM or civil unions, I'm all for it. Giving the people what they want as long as it's not unconstitutional is how our form of government works. Unfortunately for Dale, instant gratification (of a minority position) was not looked upon with much favor by the founders.
6.9.2006 12:25pm
Cornellian (mail):
After all, if an individual state wants to allow SSM or civil unions, I'm all for it. Giving the people what they want as long as it's not unconstitutional is how our form of government works. Unfortunately for Dale, instant gratification (of a minority position) was not looked upon with much favor by the founders.

I thought Dale had the same position you do. I don't think he's arguing that the federal constitution mandates SSM.
6.9.2006 12:31pm
Medis:
UCLA Law Alum,

As an aside, I don't think it is right to say that judicial review is not a democratic process. Judges are representatives of the people, regardless of whether they are appointed or elected (and many state judges are elected). When they exercise judicial review, they do so on the authority of laws approved by the people (typically in the form of a constitution). In that sense, although judicial review is not direct democracy, it is well within the scope of representative democracy and republican ideals.

But anyway, part of my point is that if we think state courts exercising judicial review should be a violation of the federal constitution, why not propose an amendment to that effect? Why limit the amendment to just this one issue?

LN,

You say: "If a court, state or federal, tells the people that they must accept SSM, then the people are not creating the society they want."

As an aside, no court can tell people to "accept" SSM. At most, they can tell a state government that it must allow gay couples access to the legal institution of marriage.

Anyway, based on your own analysis, even if gay couples gain access to the legal institution of marriage, the people opposed to gay marriage will still be creating at least 99% of the society they want.
6.9.2006 12:48pm
AppSocRes (mail):
I'm from Massachusetts where one woman (a naturalized South African who persuaded the State Supreme Court to side with her opinion 5 to 4) decided the issue of whether two homosexuals can marry. I along with a large majority of my fellow citizens in the Commonwealth believe her decision was wrong and would like to reverse this woman's fiat. Because of the way the Massachusett's constitution is written and because of certain political realities in the Commonwealth, the general will of the people is unlikely to become law soon if ever. Out of frustration with this usurpation of the democratic process in my State, I find myself favoring a national referendum on this issue, i.e., the Constitutional amendment process.

Unless polls lie, a large majority of the US population are united with me in favoring a democratic solution to this problem. As renegade courts in other States run roughshod over the democratic process, I suspect public frustration and support for an amendment will grow. This issue is NOT going to fade away anymore than abortion has. Judges can illegitimately make law, but without the support of the population at large their usurpations will ultimately not succeed. Those who think otherwise are deluding themselves.

Believing that there will be a longterm shift in public opinion about an issue as basic as this is foolhardy. Age data on public opinion about abortion have shown the same pattern for over four decades. It may appear that the aging of young people ( and the death of older ones ) will change the pattern of support for fundamental restructurings of society on issues like right to life and homosexual marriages, but as persons age and gain experience with the realities of life, they tend to become more conservative on fundamental issues. For a fraction of a percent of the population to believe that a fundamental institution of all human societies will eventually be changed to suit their ideological fancies is a form of wishful thinking that may eventually lead to political suicide.
6.9.2006 12:55pm
Allen Asch (mail) (www):
Jon Stewart destroyed right-wing ideologue Bill Bennett in an argument about gay marriage this week. Really! Even if you don't count the cheering, liberal audience in the background. You can watch the debate here: Jon Stewart interviews Bill Bennett on the Daily Show
6.9.2006 1:00pm
Cornellian (mail):
I'm from Massachusetts where one woman (a naturalized South African who persuaded the State Supreme Court to side with her opinion 5 to 4) decided the issue of whether two homosexuals can marry.

I'm sure the fact she is foreign born is critically relevant.
6.9.2006 1:01pm
Cornellian (mail):
I along with a large majority of my fellow citizens in the Commonwealth believe her decision was wrong and would like to reverse this woman's fiat. Because of the way the Massachusett's constitution is written and because of certain political realities in the Commonwealth, the general will of the people is unlikely to become law soon if ever.

I see. The "way the Massachusetts constitution is written" doesn't reflect the will of the people? I suspect by "political realities in the Commonwealth" you mean nothing more than that there is very little support in the legislature for a state constitutional amendment. If you don't like that fact, elect different legislators. If you can't do so, don't complain about the "will of the people" not getting implemented.
6.9.2006 1:04pm
Cornellian (mail):
Out of frustration with this usurpation of the democratic process in my State, I find myself favoring a national referendum on this issue, i.e., the Constitutional amendment process.

A federal constitutional amendment doesn't require a national referendum or any vote of the voters in any state. All it requires is the approval of Congress and state legislatures. So because you don't like a state court decision you can change, either by electing a governor who will appoint different judges, or electing different legislators who will amend the constitution, you're willing to accept a federal amendment that doesn't require the approval of a single person in your state but will bind every person in your state?
6.9.2006 1:07pm
Russ Meyer (mail):
The point that AppSocRes makes is a valid one. While I don't yet think we have reached the point where we need a constitutional amendment, it is the fact that the courts were put there to apply the law, not make it, that is at the crux of the matter.

In every single state that there has been a refendum, marriage has been defined as one man and one woman. As we live in a republic, the people, through either our elected representatives or through the referendum process, make the laws. Courts trying to re-write laws that go so overwhelmingly against the way the people want them to be strikes of judicial tyranny.

If proponents of SSM want it to be protected, then they should work to convince enough people that its the right thing to do. After all, slavery wasn't abolished by the courts, but by Congress and the states.

When courts overreach, elected representatives must step up. It's not as if our laws are handed down to the courts from on high - they are passed by legislatures. When courts like the one in Massachusettes step so far across the line like they did, it's only natural for the will of the people to be refocused.
6.9.2006 1:23pm
David Chesler (mail) (www):
I'm sure the fact she is foreign born is critically relevant.

I keep nominating her for a "My favorite African American" essay when my kids have to write one, but they keep telling me that the assignment is to judge people by neither the content of their character nor their continent of origin, but only by the color of their skin, and so she's not eligible.

Unlike AppSocRes I'm not from Massachusetts, but I've been living here some 25 years, and there is certainly a vocal group that is aghast at the turn of events, but I'm not so sure it's a "large majority" -- most of the folks I know, out in non-Cambridge-but-still-inside-128 suburbia, are more concerned with schools and property taxes and the Church and the Sox and the Pats and the rain, and don't actually worry that much about what other people do most of the time.
6.9.2006 1:24pm
Cornellian (mail):
If proponents of SSM want it to be protected, then they should work to convince enough people that its the right thing to do. After all, slavery wasn't abolished by the courts, but by Congress and the states.

If opponents of SSM are so confident that people will never be convinced of it, then they don't need a federal constitutional amendment that would prohibit state legislataures from adopting it.

And interracial marriages had even less public support at the time of Loving v. Virginia than same sex marriages do today.
6.9.2006 1:36pm
Dave Hardy (mail) (www):
So, is the Thirteenth Amendment a terrible blow to constitutional federalism? I mean, the whole experimentation by the state legislatures thing worked so well before that one.

The 13th Amendment argument against gay marriage has unfortunately been overlooked in scholarship. I personally consider it a compelling argument against marriage in any form.
6.9.2006 1:36pm
LN:

As an aside, no court can tell people to "accept" SSM. At most, they can tell a state government that it must allow gay couples access to the legal institution of marriage.


No, a court cannot force the people to privately accept a decision, but if they tell them that they cannot ban SSM, ipso facto the court is telling them that they must publicly allow it and state sanction it. And if it is state sanctioned, it has assummed "popular approval."



Anyway, based on your own analysis, even if gay couples gain access to the legal institution of marriage, the people opposed to gay marriage will still be creating at least 99% of the society they want.


You are not serious are you? Law is a zero sum game. The people do not have the society they want even if an occurence happens 1% of the time. Should we not outlaw polygamy because it only affects 1% of the population? Robbery? Murder?
6.9.2006 1:38pm
A.S.:
The federal amendment, already on life-support, is dead for the foreseeable future, barring one of three very unlikely events: (1) a Supreme Court "victory" for gay marriage

Why would it take a Supreme Court victory? Don't you think a Circuit Court victory, coupled with cert. denial, would do the trick? Let's say, for example, that the 9th Circuit legalized gay marriage? You don't think the FMA would come back?

Moreover, I don't think that it would even take a Circuit Court "legalizing" gay marriage to change the dynamic. What if the 9th Circuit merely held that the Full Faith and Credit clause required all the states in the 9th Circuit to recognize Massachusetts gay marriages? That, too, would change the dynamic, don't you think?
6.9.2006 1:50pm
therut:
I suspect that gay marriage will someday be legal. I also suspect those who disagree will push like the native people of Hawaii to have control of their legal process of Marriage. They will be considered a minority culture(by law they will be but not by numbers) and demand their ability to have their from of Marriage set up by their own laws. MIght as well have this country separated into more groups.
6.9.2006 1:50pm
A.S.:
Also, to add to my post above, a Full Faith and Credit-based decisions would ALSO have the effect of switching the entire "federalism" argument. Now, the proponents of federalism say that if MA wants to allow gay marriage, let 'em - all the other states can choose differently. But if there is a Full Faith and Credit based decision, then Massachusetts would be imposing their law on all the other states - the opposite of federalism. So what would the "federalists" say in that case?
6.9.2006 1:53pm
singin' it:
Well thank God that the House is going to take up the Amendment next week. I mean, someone has to keep all those gays in line, right? If not, we could really see the deterioration of the moral fabric of our country. If we can only get the victory on gay marriage, then maybe we can focus our attention on other important issues, like making the new HPV vaccine illegal. Promiscuous women should not be allowed access to potentially life saving medicine, because Jesus says so.
6.9.2006 1:54pm
Ship Erect (mail) (www):
While I don't yet think we have reached the point where we need a constitutional amendment, it is the fact that the courts were put there to apply the law, not make it, that is at the crux of the matter.

Yes, that is the crux of the matter. If all are considered equal under the law, why are women prevented from enjoying a right that all men have? How is applying the law fairly making law?

If proponents of SSM want it to be protected, then they should work to convince enough people that its the right thing to do. After all, slavery wasn't abolished by the courts, but by Congress and the states.

Sure, slavery was formally abolished by Congress and the states--costing hundreds of thousands of lives in the process, including the President's! And this didn't prevent slavery-by-other-names from continuing, either.

If every opponent of SSM dislikes court decisions thwarting the supposed will of the people, what about Brown v BOE? Should blacks in the South have worked with their state legislatures to end segregation? Somehow I don't think that would have worked.
6.9.2006 1:57pm
plunge (mail):
The problem, LN, is that it is not so clear cut. While I'm highly sympathetic to the idea that courts should be extremely limited and carefuly in declaring and finding rights, the fact remains that you cannot make a general case against courts ruling in an unpopular way. We are not an insta-democracy: we are a republic that often passes laws that purport to enshrine principles as law. Sometimes, those principles work out to produce results that the original drafters of the law never envisioned. When courts are confronted with such a case, I don't think you can be so glib in assuming that they should toss out the plain principle of the law in favor of what a current majority believes the law SHOULD do.
6.9.2006 1:57pm
LN:
plunge,
I said earlier:

After all, if an individual state wants to allow SSM or civil unions, I'm all for it. Giving the people what they want as long as it's not unconstitutional is how our form of government works. Unfortunately for Dale, instant gratification (of a minority position) was not looked upon with much favor by the founders.


Thus, I have not advocated for an insta-democracy nor have I been glib in assuming anything. However, I am surprised you did not notice the analytical error in the previous post.
6.9.2006 2:03pm
Medis:
Like Cornellian, I find this comment amusing:

"Because of the way the Massachusett's constitution is written and because of certain political realities in the Commonwealth, the general will of the people is unlikely to become law soon if ever."

So, now we are not just worried about judges in Masachusetts, but also the constitution of Massachusetts, as well as "political realities" in Massachusetts (which I take as a reference to the state legislature), thwarting the "general will of the people"? I'd say those are emphatically issues for the people in Massachusetts to deal with, and not the business of the other 49 states.

Indeed, it almost seems like this is now becoming an argument that the federal constitution should require that this issue be decided by state referendums. And again, I ask why just this issue? Why not mandate that every public policy issue be decided by direct democracy?

LN,

You say: "And if it is state sanctioned, it has assummed 'popular approval.'"

Of course not. The state "sanctions" all sorts of individual behavior which may not enjoy popular approval.

You also say: "The people do not have the society they want even if an occurence happens 1% of the time. Should we not outlaw polygamy because it only affects 1% of the population? Robbery? Murder?"

Robbery and murder, of course, directly harm the person who was robbed or murdered. We have such laws to protect all of us from being such unwilling victims. Who does gay marriage similarly harm?

Polygamy, of course, is a more interesting issue--and indeed, for the most part it is not "outlawed" like robbery or murder. For example, for the most part we do not outlaw group cohabitation, childraising, and so on. Indeed, we recognize and legally enforce a form of group childraising as a result of our joint custody laws.

Anyway, I would agree that we should not fail to recognize group marriages because of some "yuck factor". But I also think that unique structural problems arise once marriage is expanded beyond two people, and those may be a sufficient reason to limit the legal institution of marriage to couples (although I would support enforcing some private contracts that amount to group marriages).
6.9.2006 2:08pm
Russ Meyer (mail):
Cornellian - you really need to go back and re-read my post. I said explicitly that I don't think we've reached the point where a constitutional amendment was necessary. Please don't put someone else's words in my mouth.

Ship Erect - Brown v BOE was in 1954, yet the South didn't really desegregate until 1964, after passage of the Civil Rights act. Funny...that was the act of a LEGISLATURE, as it should have been.
6.9.2006 2:13pm
Medis:
A.S.,

I predict with a great deal of confidence that if a federal circuit court adopts either view (that the Constitution directly requires states to recognize gay marriages, or that the Constitution requires states to recognize gay marriages recognized in other states), the Supreme Court will in fact grant cert.
6.9.2006 2:16pm
Medis:
Russ Meyer,

Alternatively, those facts may support a good argument against the holding in Brown II.
6.9.2006 2:19pm
Archon (mail):
I don't know why people hold up Brown v. BOE as an example of good judicial intervention. I don't think I am the only poster that was alive during that time period, but historians and others quickly forget what those times were like. Integration, forced before its time, nearly brought this country to its second civil war.

I was alive during that time, and active in the anti-segregation movement, and progress was being made. It would have been another 10-15 years before the legislatures finally started throwing out their discriminatory policies, but it would have happened.

The Supreme Court ripped the issue out of the hands of the legislature and managed public schoools for decades. I think everyone can agree the founding fathers never envisioned federal judges managing public schools.

Furthermore, the decrees from the bench cut out Joe Citizen from the debate and kept the public at large from actually debating and deciding how schools should be desegregated.

It was certainly not a fun time to be young, politically active, and alive.
6.9.2006 2:25pm
Splunge (mail):
There was that not-those-people-again tone in much of the person-on-the-street interviews seen on TV...

I expect so. But Mr. Carpenter's mistake is in assuming "those" people are gay people per se, rather than people (gay or not) whose myopic misprioritizations have forced the nation out of its quiet live and let live accomodation between folks of very different persuasions, so that we can have a great big godawful destructive public melodrama over a tiny issue of no serious importance to the Republic at all.

I'm reminded of the overly-intellectual husband who ruins his marriage by insisting that every time his wife makes some minor error or other, or is momentarily rude or thoughtless, they sit down discuss it at length, in sado-masochistic detail, and that she apologize in exactly the right way for each and every unfortunate statement or implication she made.

Such persons made good monks in previous centuries, and wrote many meticulously-argued books that centuries later still anchor the shelves of philosophy department libraries.
6.9.2006 2:29pm
Medis:
Archon,

Even just 10-15 years adds up to a lot of kids being denied justice.
6.9.2006 2:34pm
Archon (mail):
Medis:

I would say the decision, before its time, caused more injustice. It brought around the rebirth of the Klan, race riots, lynchings, church burnings, armed conflicts, black reactionary groups, racially motivated murders, and pulled the very fabric of our country to the breaking point. At the time, I was actually surprised it didn't rip.

Courts are best at interpreting policy not making policy. Leave that up to the branch designed to make policy.
6.9.2006 2:38pm
plunge (mail):
"Thus, I have not advocated for an insta-democracy nor have I been glib in assuming anything."

Of course you do. You de facto assume that any case in which a court rules something that is unpopular its usurping the rightful power of the people and misinterpreting the law. It's just not that simple.
6.9.2006 2:42pm
Medis:
Archon,

But you are actually suggesting that the Court should have made a policy decision, not a legal decision. In particular, you are arguing that it would have been a better policy for the Court to tell those individual children whose rights under the 14th Amendment were being violated that they should sacrifice their rights in the name of social harmony.

As we discussed in another thread, there is a deep inconsistency here: if the Court should not be making policy decisions, then that principle should cut both ways, including with respect to whether a legally-correct decision might have disruptive effects on society.
6.9.2006 2:47pm
Timothy (mail) (www):
Is it that much harder to re-amend a state constitution than to amend it?

Depends on the state. Oregon, which I mention because I'm familiar with the process, has a state constitution that is extremely malleable via ballot initiative. An amendment outlawing SSM in Oregon passed by a slim majority a few years ago. But, on the whole, most ballot measures amend either the state constitution, the ORS, or both. So in some cases it's fairly easy to change a state constitution.

I'd say in all cases it's easier than changing the Federal constitution, which is appropriate.
6.9.2006 3:20pm
German-American:
Point of order, Mr. Chairman.

Slavery was not ended by the legislature and the states. Slavery was ended by the terrible swift sword of the Union army. The legislature, sans Southern states, merely ratified the result of the battlefield.
6.9.2006 3:22pm
byomtov (mail):
I was alive during that time, and active in the anti-segregation movement, and progress was being made. It would have been another 10-15 years before the legislatures finally started throwing out their discriminatory policies, but it would have happened.

I was alive then also, and lived in the South, and totally disagree with this statement. The history of southern resistance to integration simply does not support it.

Segregation was widely popular among whites, who were the overwhelming majority of voters prior to the Voting Rights Act. The South in 1954 was very much more than a decade away from electing anti-segregation legislatures.
6.9.2006 3:59pm
Christopher Cooke (mail):

"it is the fact that the courts were put there to apply the law, not make it, that is at the crux of the matter."


While this may be a popular slogan, it reflects a dubious understanding about what courts really do. In reality, courts make "mini-laws" all of the time, when they decide how a law applies to a new situation. They have been doing this for hundreds of years. Most of the time, no one, apart from the litigants, or a few affected segments of society, cares about the judge's "new" law because no great social policy issues are involved in the decision. Occasionally, somone's religious or moral values are implicated, and the judge's decision because much more controversial.

Archon: you blame Brown v. Board of Education for the Klan's rise? First, the Klan's campaign of terror really began in earnest during the 1920s, three decades before Brown, so I would quibble with you a little on that point. Second, aren't you really saying that Brown was premature because many Americans were too racist at the time to accept it, and therefore reacted violently to the federal government's efforts to carry out its terms? I don't find such racism to be a persuasive constitutional reason at all. And, I don't see how Americans would have become less racist without the demise of the Jim Crow laws, and I don't see how those laws would have disappeared unless a court struck them down. The Jim Crow segregation laws were enacted by a majority of Americans in the South, to deprive a minority of their rights. And, these laws were self-perpetuating: their enforcement fed the perception among whites and blacks that blacks were inferior to whites, and taught this lesson to each new generation. So, there would not have been any political correction to these laws that was likely to occur through the legislative process. That is why the Supreme Court struck them down when it did (also, the Army's then recent and successful experience with an integrated armed forces showed that integration would not be as bad as some had feared).
6.9.2006 4:04pm
Randy R. (mail):
Well, LN, then you opposed Loving v. Virginia? AFterall, at the time that SCOTUS ruled that banning interracial marriage was unconstitutional, a full 80% of the people of Amerca actually favored the ban. So, in other words, the court forced a society upon America that most Americans opposed.

Yet, somehow, our Republic survived. And not just survived, but you will hardly find anyone in American who wants those laws banning interracial marriage back.

I would argue that one of the reasons so few people oppose interracial marriage is precisely BECAUSE the court forced it upon America. We got used to it, and it no longer seems so yucky. The same thing I believe is what is happening in MA. Thee court ruled that gays can marry, and a majority if state residents opposed that. Now, a few years later, the situation is reversed -- a majority are in favor of gay marriage there. That's the 'political reality' that one poster has bemoaned. When people realize that really nothing has changed in their society, then they see that the hysteria is unfounded.

As you will too, I am sure...
6.9.2006 4:29pm
James of England:
I don't know how much help this is, but having talked to one Alabama judge from the state supreme court, I know that there is one Alabama judge from the state supreme court who supports gay marriage. Not to the point that it was felt that it should be judicially mandated on the basis of the federal or state constitutions as they stood last summer, but feeling that if someone could provide a plausible argument, they'd get at least one vote. Socially conservative, a keen supporter of, and friend to, Roy Moore, but not seeing the argument against gay marriage as holding water. My suspicion is that there's a lot more like that out there. Don't give up on those elected by the stump toothed! ;-)
6.9.2006 4:43pm
Hans Gruber (www):
"The result, after a few more election cycles, will be a nation where about 35 of 50 states will be unable to give gay marriage (or civil unions or watered-down domestic partnerships) a try long after legislative and popular majorities in those states think it's a good idea. It's not exactly the same as having a federal amendment, but it's the next worst thing."

I wish Dale would admit who is to blame for this. The judiciary and its elitism, along with pandering and myopic pols like Mayor Newsom.

Also, I think a lot of Dale's rhetoric is empty. Would he honestly oppose a constitutional amendment granting marriage equality to gays on federalist grounds? And where is his respect for federalism and constitutional order when it comes to Lawrence?
6.9.2006 5:08pm
duneclimb:
The proponents of a ban on gay marriage are essentially incoherent. If, as most people agree, marriage is a positive influence on society that fosters stable family relationships, then why exclude certain Americans from participating in it? One might as well say that left-handed people shouldn't be allowed to marry. And the argument such proponents make ad nauseum is that gay marriage threatens the "fundamental institution" of marriage between a man and a woman. Huh? In what way does it threaten the ability of a man and women to wed, or to be recognized legally for certain key purposes, to say that two men or two women can also wed and be equally recognized? The parallels between opponents of gay marriage and those who once defended laws against miscegenation are indeed striking.
6.9.2006 5:09pm
Hans Gruber (www):
"Well, LN, then you opposed Loving v. Virginia? AFterall, at the time that SCOTUS ruled that banning interracial marriage was unconstitutional, a full 80% of the people of Amerca actually favored the ban. So, in other words, the court forced a society upon America that most Americans opposed."

Except that there was a reasonable constitutional rationale for Loving. There is no such case for Goodridge or any of the other cases that judicially mandate gay marriage equality.
6.9.2006 5:10pm
David Chesler (mail) (www):
(1) Are you saying that there is nothing wrong with judges making laws when they are correct? (I agree with that, and now it's just a matter of setting the price ^h^h^h^h determining if the Goodridge court was right.)

(2) Goodridge makes strong analogies to Loving. I'd like to hear the non-circular argument for why the analogies fail. (And consequences don't count, except when they'd contradict some other constitutional requirement -- consequences are the domain of policy, of lawmaking, not of law-analyzing.)

duneclimb wrote: Huh? In what way does it threaten the ability of a man and women to wed

Indeed. The marriage consisting of me and my spouse is special because of [gooey romantic stuff goes here]. We happen to be a SRM (Same-Race Marriage.) The legal existence of DRMs (Different-Race Marriages) has no impact on our marriage, and neither does the existence of marriages with different gender mixes.
6.9.2006 5:24pm
Hans Gruber (www):
Duneclimb,

Reasonable people can disagree, of course. But your arguments reflect a fundamental misunderstanding of the debate.

duneblimb: "The proponents of a ban on gay marriage are essentially incoherent. If, as most people agree, marriage is a positive influence on society that fosters stable family relationships, then why exclude certain Americans from participating in it? One might as well say that left-handed people shouldn't be allowed to marry."

Do you agree that men and woman are different? Much more different than left-handed people are from right-handed? The gay marriage debate isn't just about sexual preference, it's about what family structure is best for raising children. It is entirely reasonable to conclude that children are best raised by both a father and a mother. Further, it is reasonable to promote this perceived advantage by favoring different-sex marriage over same-sex marriage.

"And the argument such proponents make ad nauseum is that gay marriage threatens the "fundamental institution" of marriage between a man and a woman. Huh? In what way does it threaten the ability of a man and women to wed, or to be recognized legally for certain key purposes, to say that two men or two women can also wed and be equally recognized?"

You're confused. The "fundamental institution" of marriage is distinct from the ability of any two heterosexuals to enter that instititution. The growth and recognition of gay marriage, polygamy, and polyamory all threaten the "fundamental institution" of marriage as a societal norm.

"The parallels between opponents of gay marriage and those who once defended laws against miscegenation are indeed striking."

The bigot card wears thin pretty fast. I suggest you stick to improving your case for gay marriage rather than relying on association with righteous causes of the past.
6.9.2006 5:26pm
RichC:
Cornellian and Medis might want to actually considering spending 30 seconds or so reading up on the constitutional amendment process in Massachusetts (both how it is theoretically supposed to happen and what actual practice has been) before treating us to uninformed snarkiness.

Here's the deal -- for a constitutional amendment proposed by initiative petition to be placed on the ballot, the following has to happen:
1) It has to get the requisite number of signatures.
2) The state House and Senate, sitting jointly, has to have at least 25% of the legislators vote for it.
3) In the next legislative session, the state House and Senate, sitting jointly, has to have at least 25% of the legislators vote for it.
4) Then it goes on the ballot.

However, what has actually happened is that since the Senate president (who presides over the joint session) knows that the proposed amendment would get over 25% of the vote, he simply does not ever bring it up for a vote. This is in violation of the MA constitution, which says that the joint session "shall" vote on it. And that's not merely my interpretation -- it's the interpretation of the MA SJC.

Back in the early 1990s, the then-president of the Senate, Billy Bulger, pulled the same stunt on some proposed amendment. The proponents sued, and it went all the way up the SJC which ruled that (a) the (lack of) action did indeed violate the state constitution, but (b) there was no remedy the court was willing to order, saying that if people didn't like it their remedy was to vote the offending legislators out.
6.9.2006 5:37pm
jrose:
Hans,

Why and how will same-sex marriage weaken the institution of marriage? Why isn't same-sex marriage a complimentary add-on to marriage as we now know it?
6.9.2006 5:40pm
Christopher Cooke (mail):

"The gay marriage debate isn't just about sexual preference, it's about what family structure is best for raising children. It is entirely reasonable to conclude that children are best raised by both a father and a mother. Further, it is reasonable to promote this perceived advantage by favoring different-sex marriage over same-sex marriage."


Hans, the problem with this argument is that it is a tad intellectually dishonest: most people who oppose same sex marriages, and want to make sure they never happen, feel threatened by gays and homosexuality being openly displayed in our society, because they are fearful of the effect that this will have on society. I would bet that they would oppose gay marriages, even if gays were not allowed to adopt or raise children, because they oppose having a state "sanction" such a relationship as a marriage. I think this is all about the symbolism of gay marriage and what it says about a society that allows it. For opponents, it says the society is sexually permissive, sinful, and one which has strayed from traditional judeo-christian values. For supporters of SSM, it says that such a society is tolerant of minorities and differing lifestyles.

If the concern were truly about "the children," banning divorce, or forbidding alcoholic people from raising children would be far more effective ways of ensuring that children were raised in a psychologically healthful environment.
6.9.2006 5:41pm
David Chesler (mail) (www):
what family structure is best for raising children

That's a meaningless measure, unless you're holding all else equal. It's good for children to have both a male role model SO and a female role model SO. But it is also good for children to grow up in a family (as opposed to in foster care or an orphanage); it's good for children to grow up in comfort (as opposed to poverty) and so forth.

The ideal structure for raising children (by some measure of goodness) might be two rich parents of different sex who are deeply in love, healthy, educated, etc., etc. Now what about folks who wish to be married (for any of a number of reasons, only some of which involve children) who are not going to form an ideal structure for raising children?

The growth and recognition of gay marriage, polygamy, and polyamory all threaten the "fundamental institution" of marriage as a societal norm.

How so? More or less than other influences like easy divorces, greater equality for women, birth control and the associated increase in pre-marital sex?

Two heterosexuals aren't likely to enter into SSMs (with other partners) even if SSM is a legal and acceptable alternative. And the other genie is out of the bottle: there is a lot less pressure for homosexuals to find different-sex partners in order to enter into a weak marriage (oh so good for the children that result from that union, right?) in order to fit into that norm, whether or not SSM is recognized.
6.9.2006 5:47pm
Archon (mail):
My take on those times must be different then those of byomtov. Perhaps, it was because I was involved in a movement and idealistic at the time. I saw progress and a change in climate before Brown and then saw that climate change drastically and become filled with hate, anger, and frustration after Brown.

The Court had many options when Brown reached its door, and I think it picked the worst one. It could have overruled Plessy, but left it to Congress to enforce its decision through the powers granted in the Fourteenth Amendment.
6.9.2006 5:49pm
Cornellian (mail):

However, what has actually happened is that since the Senate president (who presides over the joint session) knows that the proposed amendment would get over 25% of the vote, he simply does not ever bring it up for a vote. This is in violation of the MA constitution, which says that the joint session "shall" vote on it. And that's not merely my interpretation -- it's the interpretation of the MA SJC.


Well I would have suggested turning to the courts to deal with the legislature's intransigence, but I know you'd never turn to those darn activist judges to overturn the will of the elected legislature.

As the MA courts have said, if you don't like what the legislature is doing, elect different legislators.
6.9.2006 5:55pm
Cornellian (mail):
Do you agree that men and woman are different? Much more different than left-handed people are from right-handed? The gay marriage debate isn't just about sexual preference, it's about what family structure is best for raising children. It is entirely reasonable to conclude that children are best raised by both a father and a mother. Further, it is reasonable to promote this perceived advantage by favoring different-sex marriage over same-sex marriage.

In other words, gay people should not be able to get married regardless of their ability to raise children, whereas straight people should be able to get married, again regardless of their ability to raise children, or desire for children, or ability to produce children. Why the double standard?
6.9.2006 5:58pm
Cornellian (mail):
The growth and recognition of gay marriage, polygamy, and polyamory all threaten the "fundamental institution" of marriage as a societal norm.


Where are all these straight people who say they'll get divorced (or be more likely to get divorced) if gay people can marry? I've never met such a person. I don't get this notion of threatening marriage in the abstract in the absence of any effect on any actual married couple.
6.9.2006 6:01pm
Hans Gruber (www):
Christopher Cooke,

I don't think it's dishonest at all. The endlessly repeated phrase "every child deserves a mother and a father" underscores the point. The debate is largely about what kind of environment children are raised in.

You are correct that animus against homosexuality plays a large role in the debate as well. I'm not sure this is entirely irrational, either, given the perspective. Tolerance is one thing, subsidizing gays raising children is a different league altogether; absence of criminalization/persecution versus government subsidiziation. That's a big leap. A lot of people don't hate gays, even if they refuse to believe in the equality of the lifestyle. Is that really bigoted? I don't think obesity should be outlawed, but it's not something the government should be actively encouraging either.
6.9.2006 6:16pm
Medis:
RichC,

Again, I'm not passing on the propriety of what has happened in Massachusetts. I'm saying that is a matter for the people of Massachusetts to deal with.

And again, if the principle is that the federal constitution should prevent state legislators from using parliamentary devices to thwart the requirements of state law, then why not a general constitutional amendment to that effect? Why only with respect to this one issue?

Hans,

To paraphrase what is often said about dog breeds, I think there is a lot more variation within each gender than there is between the genders. And as Cornellian points out, a preference for gender diversity is only one of many preferences we might have (and indeed do have, in many other contexts) for the "ideal" parents. And yet, once again, "coincidentally" the only one of these many parenting ideals that we are willing to strictly enforce by a total ban on marriage happens to be the one that keeps gay people from marrying.

Hmm. It is funny indeed how all these seemingly broad principles just happen to keep extending to, but only to, keeping gay people from marrying.
6.9.2006 6:24pm
Medis:
Hans,

An addendum in light of your most recent post:

So I assume, for the sake of the children, you would support a ban on fat people marrying too, right?
6.9.2006 6:26pm
Hans Gruber (www):
Medis,

I predicted that response. Being fat may be unhealthy (and therefore somethign the government should seek to avoid encouraging), but the impact the rearing of children is the issue. Fat people can raise children just fine.
6.9.2006 6:32pm
Jon Rowe (mail) (www):

The gay marriage debate isn't just about sexual preference, it's about what family structure is best for raising children. It is entirely reasonable to conclude that children are best raised by both a father and a mother. Further, it is reasonable to promote this perceived advantage by favoring different-sex marriage over same-sex marriage.


I think this puts the cart before the horse. Gay people already are raising children and will continue to do so regardless of whether marriage is available. Marriage would almost certainly make things better for those families that already exist.

I'm not sure if I get your "subsidizing" claim either. Welfare payments to unwed mothers clearly subsidize out of wedlock single parent births. Is the government paying gay people to have children? Because if they are, that something that I'm entirely against.
6.9.2006 6:44pm
Hans Gruber (www):
"To paraphrase what is often said about dog breeds, I think there is a lot more variation within each gender than there is between the genders."

This sort of reasoning is essentially nihilism--no distinction can be drawn between two groups where the variance is greater within one of the groups than between the two groups. A rule like this would eliminate 90% of the distinctions made by government policy. It's a formula for governing by the exception rather than the rule.

"And as Cornellian points out, a preference for gender diversity is only one of many preferences we might have (and indeed do have, in many other contexts) for the "ideal" parents. And yet, once again, "coincidentally" the only one of these many parenting ideals that we are willing to strictly enforce by a total ban on marriage happens to be the one that keeps gay people from marrying."

Not just gay marriage. Polygamy and polamory as well, for different reasons. The pickiness of the state is necessarily limited by political realities and the need for generational stability.

A lot of my opposition to SSM is a matter of prudence. I want to see the effects of SSM before the state begins to subsidize it. I think prudence is warranted given the importance of marriage. Others disagree.
6.9.2006 6:46pm
jrose:
RichC,

The 25% threshold only applies to initiative amendments, which cannot be used to overturn judicial rulings.
6.9.2006 6:49pm
Jon Rowe (mail) (www):
Another theory I think that needs to be explored is given that a) gay couples don't naturally have children, but b) do and will have children regardless (perhaps because all human beings have a natural urge to parent), perhaps the process of getting from a to b will have the effect of screening for more responsible people among gay parents, a sort of "responsibility effect" if you will.

For instance, heterosexuals don't need to do anything but "the act" to conceive. And clearly the pathologies that we see with single parent households are compounded by the fact that such mothers are often poor, uneducated, young and clearly "not yet ready," to have children.

But a lesbian couple going to a sperm bank or two gay men adopting have to jump through endless hoops of responsibility, and are likely only to have children when they are financially ready and responsible for it.

It may well be that everything else being even, a child is better off with opposite sex parents than same sex parents. But we don't live in a world where "everything else" is equal. Everything else being equal, it's clearly better for children to have parents who tend to be more affluent than who tend toward the poorer or even working class side. But we wouldn't dream of forbidding poorer or more blue collar folks from marrying in order to discourage them from having kids.

Life is about trade-offs. And I see no evidence whatsover that an intact financially secure same-sex couple can't do a good job raising children, even if that is not a first best world result.
6.9.2006 6:54pm
Archon (mail):
Just because a family dynamic may exist in a free society does not mean that the government has to set policy to condone all family dynamics.

To be fair - studies on child rearing and same sex couples have all had divergent and completely opposite results. It is impossible to say with any certainty that a same sex couple can raise a child as successful as a traditional couple. This might some day change - but for the time being findings are at best inconclusive.

A legislature is completely within its rights to set policy which it believes will promote the most condusive child rearing environment. For the tiem being - it appears to be one man and one woman.
6.9.2006 7:11pm
Gordo:
Mr. Carpenter is forgetting that the same ease by which constitutional amendments banning gay marriage (or more) have been passed in some states means that these consitutional provisions can just as easily be repealed. Living in Oregon, a measure repealing the recently passed ban on same sex marriages could just as easily be passed in a future popular election.
6.9.2006 7:17pm
Jon Rowe (mail) (www):

A legislature is completely within its rights to set policy which it believes will promote the most condusive child rearing environment. For the tiem being - it appears to be one man and one woman.


Okay. Then let me ask then how the legislature in exercising its rights to promote the one man one woman policy as the most best for child rearing is tackling single parenthood, especially single parenthood by poor, uneducated, unwed mothers?

As I've said, you've put the cart before the horse. Gay people are and will continue to have children unless we impose draconian measures to attempt to prevent them from so doing. I'd imagine the answer as to why government is having a hard time tackling single parenthood problem that I mentioned is...what are they supposed to do? Mandate norplant until everyone is a married adult and financially secure? Take away children from unwed mothers and put them up for adoption or in an orphanage?

Gays are already having children and will continue to do so. Clearly, it would be better for the children if the gay couple could marry.
6.9.2006 7:21pm
Hans Gruber (www):
John Rowe,

Good points. I have viewed the current crop of child-rearing gays to be something of an elite group (by motivation and affluence, at least), though many of these children are the result of heterosexual unions, so it's difficult to tell how much the screening effect would impact parent quality. We probably won't know for some time how effective gay households are in rearing children, but something like what you describe could work to negate any intrinsic detriment gay marriages possess.
6.9.2006 7:27pm
jrose:
Archon,

How does same-sex marriage hurt what you claim is the most condusive child rearing environment? You make it sound like same-sex marriage will result in kids who would otherwise be raised by their fathers and mothers, being raised instead by same-sex couples. These marriages would only result in kids being raised by same-sex couples who otherwise wouldn't have been born at all - or maybe would have been raised by two unmarried same-sex partners. Are you arguing society is better of with kids being raised by unmarried same-sex partners than married same-sex partners?
6.9.2006 7:28pm
Archon (mail):
There is no cart before the horse in my reasoning. The government is completely within its rights to promote what it considers to be the most ideal situation for child rearing and confering benefits upon it.

The single parent issue is a red herring.

Gay people will have children and can have children. No draconian regulations which prevent them to have children should ever be enacted in a free society. But, just because gay people CAN have children, does not mean that a legislature has to ENCOURAGE the practice by confering the benefit of marriage upon them.

Conversely, it is turns out that after careful studying gay people were better at raising children then a traditional family, the legislature might very well be justified in bestowing the benefit of marriage solely on gay couples.
6.9.2006 7:31pm
Hans Gruber (www):
"Gays are already having children and will continue to do so. Clearly, it would be better for the children if the gay couple could marry."

This was the same argument presented for welfare. It would be better for children now raised by single mothers for the government to subsidize them, too. But that's not wise because it leads to more single mothers, which isn't healthy for society. Determining if there is any negative effect from being reared by a gay household is important. If this effect is small to negligible, it may make sense to still provide gay marriage equality, as the benefit to the children would outweigh the social cost of slightly reduced parent quality induced by government subsidization and attendant social approval.
6.9.2006 7:34pm
Hans Gruber (www):
"You make it sound like same-sex marriage will result in kids who would otherwise be raised by their fathers and mothers, being raised instead by same-sex couples. These marriages would only result in kids being raised by same-sex couples who otherwise wouldn't have been born at all."

If children raised by heterosexual parents are superior citizens, preventing the birth of children by withholding subsidization makes perfect sense. If gays don't do a good job of raising children, why should the state encourage them to do so? Again, we don't know if this is true, and maybe the opposite is true. But prudence dictates we move slowly.
6.9.2006 7:39pm
Splunge (mail):
...you've put the cart before the horse.

Has he? What, exactly, will be the argument for pressuring the single mother to marry the father of her child, a guy she's obviously not crazy about (or else she'd need no pressure), after we have duly enshrined as Constitutiona law the principle that the public has no right or interest in saying who should marry whom?

Seems to me once we agree marriage is primarily about the desires of the adults concerned, we've given up all moral standing to lecture people on preserving or contracting marriage for the sake of children. What we'll have done, in essence, is sever the issue of whether or not to marry, and whom to marry, from the issue of how best to parent a child. We can't pressure Sally to marry Phil, the father of her child, rather than Randy, whom she likes much better, if we've already said the state has no business telling Sally she should at least marry a man instead of a woman for the sake of her child.
6.9.2006 7:48pm
frankcross (mail):
I understand the need for prudence, but I'm not sure you realize that a great deal of research on the issue exists, which consistently finds no different outcomes between children raised by gays and those by heterosexual couples. Prudence can't be used as an excuse to eternally postpone decisions.
6.9.2006 8:08pm
Archon (mail):
frankcross -

You are incorrect. The data, at best, is inconclusive. There are not reams of studies that show there is absolutely no difference.

Until, there is conclusive evidence that there is no difference, I would err on the side of caution.

Who knows, maybe the data will show that same sex parents ARE better parents and we should only confer the benefits of marriage on them.
6.9.2006 8:16pm
SLS 1L:
Archon - you're right, to an extent. I'm pretty sure what we're seeing is a failure to detect a statistically significant difference, not a statistically significant finding of no difference.

However, your caution is unwarranted. Given the reams of studies that have failed to find differences, it's very likely that any differences are small - much smaller than the effects of other differences that don't exclude people from marrying, like race, wealth, and disability. On the other hand, we do know that kids raised by two gay parents do much better than e.g. kids raised by single parents, kids in foster care, etc. The benefits are known to be large, but the harms are speculative and small if they even exist.

It's also not clear what the potential harms of gay parenting would be, or why we'd even expect them to exist.
6.9.2006 8:31pm
Cornellian (mail):
"Gay people will have children and can have children. No draconian regulations which prevent them to have children should ever be enacted in a free society. But, just because gay people CAN have children, does not mean that a legislature has to ENCOURAGE the practice by confering the benefit of marriage upon them. "

So preventing gay marriage is about making it more difficult for them to have children?
6.9.2006 8:32pm
Cornellian (mail):

If children raised by heterosexual parents are superior citizens, preventing the birth of children by withholding subsidization makes perfect sense. If gays don't do a good job of raising children, why should the state encourage them to do so?


Perhaps because ability to do a good job raising children is not a requirement imposed on opposite sex couples?
6.9.2006 8:33pm
Splunge (mail):
[The]...ability to do a good job raising children is not a requirement imposed on opposite sex couples.

Er...forgotten (or never studied much) biology, have we? This particular requirement is imposed on people by their DNA, not by the johnny-come-lately law. Or are we to imagine a woman generally needs a lecture from a learned judge or wise philosopher to learn how to nurse her child, hold it gently, or distinguish its cry from all others, and a father generally needs to read a good textbook to learn to care passionately whether his son is happy or sad? Jeez.
6.9.2006 8:53pm
SLS 1L:
Splunge - Lots of married opposite-sex couples are bad parents. Some of them are really bad, up to and including criminal neglect or abuse. We make absolutely no effort to screen out people likely to do those things.

Also, why does DNA that predisposes you to homosexuality makes you love your kids less?
6.9.2006 9:00pm
AllOverButTheScreaming:
Why exactly are we still debating this? The writings on the wall.

In the next 18 months, a dozen more states will ratify into their constitutions bans on SSM. That will bring the total # of states up to about 35 with constitutional amendments, 10 with DOMA statutes and 5 with either nothing or court-mandated SSM (WA, MA, NY, NJ, one other).

About 18 months after that, in a 5-4 decision, Justices Stevens, Ginsburg, Souter, Breyer and Kennedy, despite every protest in Lawrence that they wouldn't, will invent the right to SSM, the 45 states that passed constitutional amendments or state DOMA statutes be darned.

Dale calls a Supreme Court victory for SSM "unlikely". Dale, respectfully, can you count to 5? I can.

It is all over but the screaming folks. The real questions are 1) how will SCOTUS get the case and 2) WHEN (not if) SCOTUS creates this right out of whole cloth, will the polygamists be next?
6.9.2006 9:19pm
Medis:
Hans,

You say: "Fat people can raise children just fine."

That is lowering the bar for fat people. Gay people can raise children "just fine" as well, but your argument is that they would not be IDEAL parents. In other words, you are requiring gay people to be the BEST parents, whereas fat people only have to be "just fine".

And don't fat parents fall short of IDEAL too? I'm sure one could show all sorts of correlations between fat parents and fat children, arising out of poor eating habits and just good ole genetics. Heck, fat parents are less than ideal simply because they are more likely to die themselves in an untimely fashion. So, fat parents clearly are not the best parents--and I bet it is a lot easier to show that statistically then to show that gay parents are not the best parents.

In any event, that is just one of many examples, and far from the most compelling. For example, we let alcoholics, highschool dropouts, and convicted felons marry, often to each other. And yet we don't allow gay marriage because we believe that gay couples will not be ideal parents? Yeah, right.

You also say: "This sort of reasoning is essentially nihilism--no distinction can be drawn between two groups where the variance is greater within one of the groups than between the two groups. A rule like this would eliminate 90% of the distinctions made by government policy. It's a formula for governing by the exception rather than the rule."

No, it is an argument specifically against the idea that we absolutely need one from Column A and one from Column B. And it is a perfectly fine rebuttal of that sort of argument to show that the items in Column A and Column B respectively have such a high degree of variance and overlap that your strict gender-diversity rule is both over- and under-inclusive when it comes to substantive diversity.

Incidentally, it is question-begging to say that I want to govern by the exception and not the rule. What I am actually arguing is that you have chosen a bad rule, and with a better rule we wouldn't create so many exceptions in the first place.
6.9.2006 9:25pm
Cornellian (mail):
About 18 months after that, in a 5-4 decision, Justices Stevens, Ginsburg, Souter, Breyer and Kennedy, despite every protest in Lawrence that they wouldn't, will invent the right to SSM, the 45 states that passed constitutional amendments or state DOMA statutes be darned.

Hence the requirement for a constitutional amendment that will prevent state legislatures from enacting SSM?
6.9.2006 9:29pm
Medis:
Oh, and as another poster related, one thing is absolutely clear at this point: controlling for all other factors, if having gay parents has any effect at all on childhood outcomes, it is very small, and far smaller than many other factors we ignore when determining who can get married.

But this entire argument is obviously dependent on an arbitrary shifting of the bar--the bar is always increased all the way up to "best parents" when it comes to gay couples, and lowered all the way down to "minimally fit parents" when it comes to straight couples. And even straight couples who are, or would be, unfit parents (meaning that the state did or would terminate their parental rights) can still get married.
6.9.2006 9:34pm
Splunge (mail):
Lots of married opposite-sex couples are bad parents....We make absolutely no effort to screen out people likely to do those things.

Don't be silly. Of course we do. Since you're in (or have gone to) law school, you're just focussed on screening we might do through the mechanism of the law. But society exerts pressure on people through many channels other than the law, arguably more effectively. A great deal of what we do as parents has, indeed, the ultimate purpose of making sure our children raise our grandparents right. And when people see others who would make bad parents, you bet they make efforts to dissuade them from becoming so. Do we do it legally? No. So what? Much that is not done legally is very effective.

Also, why does DNA that predisposes you to homosexuality makes you love your kids less?

I never said it did. I only said we know the predisposition to heterosexual bonding and baby-making correlates with better parenting. Generally speaking, people who want to marry and have babies are better parents than those who do not. (At least, this is the accepted reasoning for why we should not force women unwillingly pregnant to become mothers.)

Would the DNA that makes you gay make you a better or worse parent? Who knows? Is it the kind of thing with which to experiment on a national scale? Well, how do you feel with experimenting with global climate by pumping bazillions of tons of CO2 into it? If the latter makes you queasy, so should the former.

I don't have a dog in this fight. But some of the arguments here are laughably disconnected with reality.
6.9.2006 9:36pm
Splunge (mail):
Oops...s/grandparents/grandchildren/g.
6.9.2006 9:44pm
jrose:
Hans,

Even if you are correct - and there is no evidence to support it - that "children raised by heterosexual parents are superior citizens", it does not follow that the state shouldn't encourage same-sex marriage.

Your conclusion would only follow if either 1) children raised by same-sex couples were bad for society (which is far different than less-than-superior) or 2) same-sex marriage caused children who would otherwise be reared by there mothers and fathers not to be.

It appears to me these arguments are grabbing at straws. I conclude they are merely for public relations to hide the true reason for opposition to same-sex marriage - opposition to homosexual conduct.
6.9.2006 9:47pm
Medis:
Splunge,

But the point is that when it comes to straight people, we make absolutely no attempt to keep straight couples who would be less than ideal--or even legally unfit--parents from marrying.

So, sure, in various informal ways we try to encourage straight parents--and gay parents--to be better parents. I actually think it is much more rare for us to encourage straight people, even marginally fit ones, to not have children at all. But in any event, it again seems awfully coincidental that we try to exert this "pressure" (not letting them get married) only on gay people, and not on the many, many classes of straight people who would be less fit.

jrose,

Of course these are just rationalizations, and transparent ones at that. But I actually think the real reason behind the aversion to gay marriage is more complicated than opposition to homosexual conduct. In fact, I think moral disapproval of homosexual conduct and an aversion to gay marriage actually have a common cause (rather than the former causing the latter)--namely, the engrained intuitive sense that gayness is taboo.

Indeed, for evidence, I would again note that couples who engage in all sorts of behavior that would attract widespread moral disapproval (eg, co-dependent drug addicts) can still get married. So, the idea that immoral people should not be allowed to get married is hardly universal. Rather, the idea seems to be that gay people getting married could actually "corrupt" marriage in a way that straight people, no matter how immoral, could never accomplish. And that essentially magical power of corruption is the essence of taboos.
6.9.2006 10:18pm
Splunge (mail):
[W]e make absolutely no attempt to keep straight couples who would be less than ideal--or even legally unfit--parents from marrying.....So, sure, in various informal ways we try to encourage straight parents...to be better parents.

These are logically inconsistent statements. Which is it? We make no attempt to pressure people to be better parents, or for people unsuited to be parents to shape up, or we do? It can't be both.

I think you're a bit hung up on the "informality" of the social pressures exerted on parents. That they may be extra-legal has zero bearing on their force -- and if you think parents (or would-be parents) don't feel significant pressure from friends, neighbors, and even strangers in the fruit aisle of the grocery store to conform to accepted social standards of parenting -- well, you can't have been a parent or grandparent yet! Just try suggesting in the presence of your girlfriend's parents that it's unnecessary for you two to be married, or for you to have a full-time job with good prospects, before she gets pregnant. Then stand back a few paces.

In any event, I suggest you're forgetting that to some people -- arguably most, historically speaking -- marriage itself is exactly the formal way in which society puts pressure on parents to behave well towards their children. The major characteristics of marriage itself -- its permanence, the mingling of goods, the promise to support no matter what, the heavy penalty for infidelity, the public subsidization, both formal and legal and informal -- are all strongly to the benefit of children conceived by the couple, and hard to square with the idea of marriage as a private contract between two consenting adults (only).

Honestly, I don't even see why gay people who are not parents, or planning to be, would even want to marry. What's the point? Why invite the general public to be a party in your contract, why ask the legislature to enforce certain conditions on how you two behave towards each other? This seems bizarrely masochistic.

Perhaps some people have convinced themselves that acquiring the right to marry, that is, acquiring a symbolic sign of equality, would somehow magically transform to real equality and acceptance, even a welcoming warmth from the heterosexual majority. This seems a sad and perhaps ultimately self-defeating delusion.
6.9.2006 11:27pm
Cornellian (mail):
Honestly, I don't even see why gay people who are not parents, or planning to be, would even want to marry. What's the point? Why invite the general public to be a party in your contract, why ask the legislature to enforce certain conditions on how you two behave towards each other? This seems bizarrely masochistic.

Hmm, automatic hospital visitation rights, right to make decisions about treatment of the spouse when spouse is incapacitated, automatic inheritance rights, to name just a few things that married couples take for granted.
6.10.2006 12:02am
Cornellian (mail):
I never said it did. I only said we know the predisposition to heterosexual bonding and baby-making correlates with better parenting. Generally speaking, people who want to marry and have babies are better parents than those who do not.

So why does this rationale apply only to straight people who want to marry and have babies, but not gay people who want to marry and have babies?
6.10.2006 12:04am
Hans Gruber (www):
I'm enjoying this debate. The ad hominem has been kept to a minimum.

RE: the hospital visitation rights and all that. This is one talking point I just don't get. Civil contracts that confer different packages of rights &responsibilities--medical power of attorney, wills, etc--could act as an easy substitute for these sorts of concerns. I see two reasons to advocate for gay marriage equality. Spousal insurance in the era of rising insurance costs is a real benefit. The probability of increased social approval and status is the other reason. Nothing stops somebody from having a will or medical power of attorney drawn up. I do not find these points persuasive in the least. There is little denied to gay couples that they cannot get for themselve with some modest effort and expense (beyond the two substantive points of insurance and societal approval).
6.10.2006 1:45am
jrose:
Hans,

In addition to spousal insurance benefits, there are spoudal tax advantages (the estate tax exemption), spousal Social Security and veterans benefits, family and medical leave, spousal immigration benefits (sponsoring your partner for a green card), spousal domestic violence protection laws, the spousal self-incrimination privilege, and peference for child custody and adoption.

But, increased societal approval is certainly part of the marriage debate. Which gets us back to the real reason people oppose same-sex marriage: they don't want increasaed approval of homosexual relationships. The current status of no recognition (no approval, no tolerance, no nothing) is what they want.
6.10.2006 6:22am
Medis:
Splunge,

You say: "These are logically inconsistent statements. Which is it? We make no attempt to pressure people to be better parents, or for people unsuited to be parents to shape up, or we do? It can't be both."

There is no inconsistency because the first phrase you quoted is about keeping straight couples from marrying, and the second phrase is about encouraging straight parents to be better parents. The fact that with straight people, we do the latter and not the former is precisely what suggests that we have not tied marriage for straight people to being good parents, and we do not typically withhold marriage from straight couples in some (less than clear) attempt to encourage them to be better parents. Again, this shows that if you are withholding marriage from gay couples because you think they would not be ideal parents, you are treating them to a completely different standard than straight couples.

You also say: "Honestly, I don't even see why gay people who are not parents, or planning to be, would even want to marry. What's the point? Why invite the general public to be a party in your contract, why ask the legislature to enforce certain conditions on how you two behave towards each other? This seems bizarrely masochistic."

First, as always, it is important to note that you cannot completely duplicate marriage through a private contract. States will refuse to enforce contracts where "meretricious consideration" is an essential term, and that extends to sexual relations and romantic love.

So, civil marriage in that sense represents an exclusive kind of contract, and you cannot enter into such a contract without the state allowing you to marry. Of course, one solution to this problem would be for the state to stop this practice of not enforcing such private contracts. But unless that happens, denying gay couples access to civil marriage is denying gay couples freedom of contract in this area.

The second issue is the legal incidents and subsidies associated with marriage. Some of those incidents and subsidies are in fact tied to childrearing, but many are not. For example, things like visitation rights are based on the notion that marriage is an announcement by the parties to the marriage that these two people have a unique and privileged relationship. By barring access to marriage, you are barring gay couples from that legally-recognized signalling device. Other subsidies associated with marriage are based on the idea that a married couple serves societal interests by taking care of each other, such as in cases of ill health or old age, and that the state accordingly benefits by subsidizing these activities. By barring access to marriage, you are asking gay couples to perform the same socially-beneficial co-caretaking tasks without receiving the same subsidy.

Finally, obviously many straight couples get married even when they are unwilling or unable to have children. So this "bizarre" practice would hardly be unique to gay couples--although, of course, some gay couples either are raising children or are planning to raise children in the future.
6.10.2006 8:22am
Medis:
Hans,

In addition to the incidents and benefits which cannot be contracted for, I will again point out that states will refuse to enforce contracts where "meretricious consideration" is an essential term. So it simply is not true that gay couples can create the equivalent of marriage through private contract, because the state has effectively declared a monopoly in that area and denied freedom of contract to those who do not participate in this monopoly.
6.10.2006 8:24am
Medis:
Here are the facts of one case, so people can see what I mean. This is from Jones v. Daly, 122 Cal.App.3d 500 (1981). The plaintiff was a man who had entered into a cohabitation agreement with his male lover, who had since died. The plaintiff was seeking enforcement of his cohabitation agreement against the estate of his deceased lover, and the executors of the state sought to avoid the agreement as unenforceable. The court reasoned:

"The first cause of action (for declaratory relief) alleges: Plaintiff, Randal Jones, first met James Daly in December 1975. Between that time and March 1976, they 'met on frequent occasions, dated, engaged in sexual activities and, in general, acted towards one another as two people do who have discovered a love, one for the other.' In March 1976 plaintiff and Daly orally agreed that plaintiff would move into Daly's condominium with Daly, quit his job, go travelling with Daly and 'cohabit with him [Daly] as if [they] were, in fact, married.' They also entered into an oral agreement (referred to hereinafter, in the language of the complaint, as 'cohabitors agreement') whereby each agreed: during the time 'they lived and cohabited together,' they would combine their efforts and earnings and would share equally any and all property accumulated as a result of their efforts, whether individual or combined, except that Daly would give plaintiff a monthly allowance for his personal use, and they 'would hold themselves out to the public at large as cohabiting mates, and [plaintiff] would render his services as a lover, companion, homemaker, traveling companion, housekeeper and cook to Daly'; and 'in order that [plaintiff] would be able to devote a substantial portion of his time to Daly's benefit as his lover, companion, homemaker, traveling companion, housekeeper and cook,' plaintiff would abandon 'a material portion' of his potential career as a model, and in return Daly would furnish financial support to plaintiff for the rest of his life. Pursuant to and in reliance on the 'cohabitors agreement,' plaintiff and Daly 'cohabited and lived together continuously' from March 1976 until Daly's death, and plaintiff allowed himself to be known to the general public 'as the lover and cohabitation mate of Daly.' Plaintiff performed all of the terms and conditions required to be performed by him under the 'cohabitors agreement.' During the time that plaintiff and Daly 'lived and cohabited together' they acquired, as a result of their efforts and earnings, substantial real and personal property (hereinafter, in the language of the complaint, 'cohabitors' equitable property'). . . .

In determining whether the 'cohabitors agreement' rests upon illicit meretricious consideration, we are guided by the following principles: '[A] contract between nonmarital partners, even if expressly made in contemplation of a common living arrangement, is invalid only if sexual acts form an inseparable part of the consideration for the agreement. In sum, a court will not enforce a contract for the pooling of property and earnings if it is explicitly and inseparably based upon services as a paramour.' . . .

There is no severable portion of the 'cohabitors agreement' supported by independent consideration. According to the allegations of the complaint, the agreement provided that the parties would share equally the earnings and property accumulated as a result of their efforts while they lived together and that Daly would support plaintiff for the rest of his life. Neither the property sharing nor the support provision of the agreement rests upon plaintiff's acting as Daly's traveling companion, housekeeper or cook as distinguished from acting as his lover. The latter service forms an inseparable part of the consideration for the agreement and renders it unenforceable in its entirety."

So, again, principles like this will thwart freedom of contract.
6.10.2006 8:49am
SLS 1L:
Splunge - I think you are missing a few things:

First, social pressure isn't just exerted on married parents. It's exerted on unmarried parents as well, and in plenty, whether they're living together or apart.
I only said we know the predisposition to heterosexual bonding and baby-making correlates with better parenting. Generally speaking, people who want to marry and have babies are better parents than those who do not.
I'm not following your argument at all. The predisposition to heterosexual baby-making (i.e. the predisposition to get laid) is very different from wanting to have kids. There are millions of kids out there who at least one parent didn't want.
Would the DNA that makes you gay make you a better or worse parent? Who knows? Is it the kind of thing with which to experiment on a national scale?
The issue there is that we don't have any reason to think being gay would have bad effects. With climate change, we have a plausible scientific explanation of how the bad effects would happen, but we don't have anything remotely analogous with being gay.
6.10.2006 10:06am
johnt (mail):
AllOverButTheScreaming, your post is well taken. Four of the five Justices you mention delight in nose snubbing pontification. However they can assert an abitrary power while gazing down at the large body of cattle that is the American people they will happily do.
Lately I'm less sure of Kennedy. Presented with a choice of receiving encomiums from the NY Times["an apostle of tolerance"] and making sense to Justice Roberts with a coherent defense of what his law clerks are telling him, he has swung towards Roberts. Perhaps Roberts takes him out for drinks and whispers in his ear," you are an apostle of tolerance". Whatever works, and it may work for one or two more of the Fabulous Four.
6.10.2006 10:45am
AllOverButTheScreaming:
johnt: Kennedy along with the other 4 are certain to do what they want and will force SSM. Look at Kennedy's opinion in Lawrence

"The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. "

Take a good hard look, because that will be how Kennedy and the other 4 justifies this; as just an extention and expansion of Casey.

Who knew abortion was going to lead to SSM? Kennedy's already told us the way he plans on doing it.

Dale and others who claim the Supreme Court ruling in favor of SSM is an "unlikely event[]" are naive at best.

Unlike the miscegeny (sp?) laws which were limited to only a few states in the South, these CONSTITUTIONAL AMENDMENTS and LAWS will be or are in place in 45 states.

The only five states that have not are New Jersey, New Mexico (which may soon), New York, Rhode Island and Massachusetts (which may soon).

With such overwhelming evidence against them, the 5 SCOTUS Justices will do what they've done best lately: cite to some foreign courts as "proof" that the U.S. Constitution requires SSM.

The debate as to IF SSM will happen is over. It will, and I think deep down everyone knows the SCOTUS will do it within 3 years.

What you see now in these posts and debates is just the screaming and in the case of those who deny it will happen wishful thinking.
6.10.2006 11:21am
Truth Seeker:
Those who support same sex marriage seem to start from the assumption that homosexuality is a normal condition and that society should not discriminate against people who are born that way. But just because someone is born with a condition does not make it normal. People are born blind and crippled and with all kinds of defects. Biologically speaking, the purpose of sex and love is to propagate the species so homosexual sex and love is deviant behavior that goes against that purpose. Whether homosexuality is caused by a gene or a mother's hormonal changes, the condition is not normal.

So the question is, should we as a society support or encourage this deviant behavior. In Western societies the birth rate is lower than replacement level, so encouraging homosexuality would be detrimental to society. If as gender studies advocates say, there are not two genders but a range that is flexible, then we should do what we can to discourage flexible members of society from deviating from being child productive. In societies like China where overpopulation is a problem, perhaps homosexuality should be encouraged and, especially for men since female babies are being aborted at a higher rate and there is a surplus of men.

Now if society were to decide that individual rights were more important than society's needs and wanted to encourage or sanction homosexual behavior, how would it draw the line between it and other currently considered deviant sexual behaviors? Supporters of same sex marriage claim there is no comparison to polygamy, bestiality, pederasty, incest and other sexual behaviors, but people who have sexual urges for several women, animals, under age females or their siblings do not choose those urges. They were born with them just as homosexuals were born with their urges. If we agree to sanction unions other than male/female adults, where do we draw the line?
6.10.2006 11:25am
Cornellian (mail):
In societies like China where overpopulation is a problem, perhaps homosexuality should be encouraged and, especially for men since female babies are being aborted at a higher rate and there is a surplus of men.


Presumably in a free country like America we don't regard any individual man or woman as having a duty to the State to reproduce. We don't demonize people who never have children or who never marry or claim that the failure to do so is somehow "deviant" or "objectively disordered."
6.10.2006 11:39am
Jon Rowe (mail) (www):

Those who support same sex marriage seem to start from the assumption that homosexuality is a normal condition and that society should not discriminate against people who are born that way. But just because someone is born with a condition does not make it normal. People are born blind and crippled and with all kinds of defects.


And you haven't given us a relevant definition of the term "normal." Let's say your analogies are proper. We tend to look to blindness and crippled as blameless and socially neutral conditions. Indeed, we grant them civil rights under the ADA and other pieces of legislation and demand that society make "reasonable accomodations" to thse "abnormalities." They are socially neutral conditions.


Biologically speaking, the purpose of sex and love is to propagate the species so homosexual sex and love is deviant behavior that goes against that purpose. Whether homosexuality is caused by a gene or a mother's hormonal changes, the condition is not normal.


And who the Hell are you to say what the purposes of sex and love are? In this sweeping pronoucement you've just also made "abnormal" masturbation, oral and anal sex between heterosexual adults, contraception, sex between infertile couples, and all acts of sex with post-menopausal women.

Very nice.
6.10.2006 11:42am
Cornellian (mail):
Now if society were to decide that individual rights were more important than society's needs and wanted to encourage or sanction homosexual behavior, how would it draw the line between it and other currently considered deviant sexual behaviors?

Your right not to get married and not to have children even if you do get married is subordinate to the State's need for more children? This is America, not China.

Supporters of same sex marriage claim there is no comparison to polygamy, bestiality, pederasty, incest and other sexual behaviors, but people who have sexual urges for several women, animals, under age females or their siblings do not choose those urges. They were born with them just as homosexuals were born with their urges. If we agree to sanction unions other than male/female adults, where do we draw the line?

The fact that children and animals cannot provide informed consent to sex would seem to me to be a pretty significant distinction. There is no other basis for saying that sex between two 20 year olds is legal but sex between a 20 year old and a 15 year old is a crime for the 20 year old, but presumably not for the 15 year old. Polygamy/Polyandry results in a shortage of marriageable adults, and cannot be mapped onto the current law of binary married relationships without a non-trivial overhaul of such law. Is the third person married to both of the others, or just the opposite sex one? Does the non-birth parent have a say in child rearing? Does majority rule decide that issue or is there some other approach? If you get divorced, can you divorce only one, or do you have to divorce everyone?

It's fun to repeat your argument, but in language more appropriate to the 1950's. See how it looks:

Supporters of interracial marriage claim there is no comparison to polygamy, bestiality, pederasty, incest and other sexual behaviors, but people who have sexual urges for several women, animals, under age females or their siblings do not choose those urges. They were born with them just as miscegenists were born with their attraction for people of different races. If we agree to sanction unions other than same race marriages, where do we draw the line?

And 50 years from now, your argument will look to people of that time much like the above argument against interracial marriage looks today.
6.10.2006 11:49am
Randy R. (mail):
"In societies like China where overpopulation is a problem, perhaps homosexuality should be encouraged and, especially for men since female babies are being aborted at a higher rate and there is a surplus of men."

HAHA! Now this is funny. It so happens that China has a one child rule, which means that most parents who have a daughter put her up for adoption, or abort the fetus. (Hence the huge numbers of chinese female babies available for adoption.) This also means that you have an entire generation of mostly male being raised, and that means that there are far fewer marriage prospects for men than for women.

So an entire generation is growing up not knowing many woment their age. These guys go out drinking with their male buddies, they go to the movies together, they dance together, and they have sex together. Why? Because of the paucity of women to have sex with!

Doubt this? Then just go to China, as I have. And in fact, I have a very good friend who is gay and has lived in China for many years and has documented this very fact. He also documents that in places such as Cambodia and Thailand, where dating women doesn't exist because of societal norms (marriages are often arranged in some fashion), most men have sex with other men while growing up. Now, of course, they are supposed to stop this when they actually get married, but since thier primary experience is with men, they don't.

It's amazing how little we really know about sexuality, isn't it?
6.10.2006 12:42pm
therut:
Reakky do have a crystal ball. I see the future in another way. I think there will be a time when pfuture generations will look back in horror and wonder how people could have condoned abortion and gay "marriage". Don't be so sure of the future. Just as people state the time will come when gay marriage is accepted there also may be a time when it is looked back upon in horror. As the saying goes "Only time will tell".
6.10.2006 12:43pm
Randy R. (mail):
"In societies like China where overpopulation is a problem, perhaps homosexuality should be encouraged and, especially for men since female babies are being aborted at a higher rate and there is a surplus of men."

HAHA! Now this is funny. It so happens that China has a one child rule, which means that most parents who have a daughter put her up for adoption, or abort the fetus. (Hence the huge numbers of chinese female babies available for adoption.) This also means that you have an entire generation of mostly male being raised, and that means that there are far fewer marriage prospects for men than for women.

So an entire generation is growing up not knowing many woment their age. These guys go out drinking with their male buddies, they go to the movies together, they dance together, and they have sex together. Why? Because of the paucity of women to have sex with!

Doubt this? Then just go to China, as I have. And in fact, I have a very good friend who is gay and has lived in China for many years and has documented this very fact. He also documents that in places such as Cambodia and Thailand, where dating women doesn't exist because of societal norms (marriages are often arranged in some fashion), most men have sex with other men while growing up. Now, of course, they are supposed to stop this when they actually get married, but since thier primary experience is with men, they don't.

It's amazing how little we really know about sexuality, isn't it?
6.10.2006 12:44pm
Truth Seeker:
The fact that children and animals cannot provide informed consent to sex would seem to me to be a pretty significant distinction.

Our societies say consent is "legal" at 16 or 18 but biologically speaking, a person is ready for sex at 12 or 13 and some societies have no such prohibitions. So itis not a fact it is a societal preference.

As for animals, I would think that if an anmal did not run away from intimate contact it could be presumed to consent, though I have no experience in this area. But again you're mixing theory with fact.
6.10.2006 1:26pm
Truth Seeker:
Presumably in a free country like America we don't regard any individual man or woman as having a duty to the State to reproduce. We don't demonize people who never have children or who never marry or claim that the failure to do so is somehow "deviant" or "objectively disordered."

No we don't demonize them but we don't help them celebrate their decision on an equal par with those who do reproduce or we risk becoming extinct as a society,
6.10.2006 1:33pm
Truth Seeker:
And who the Hell are you to say what the purposes of sex and love are? In this sweeping pronoucement you've just also made "abnormal" masturbation, oral and anal sex between heterosexual adults, contraception, sex between infertile couples, and all acts of sex with post-menopausal women.

Open your eyes and look at the Earth. Every life form that has sex does it for the sole purpose of reproduction. As for love a cursory look at psychology shows that it helps hold families together.

While occasional masturbation to relieve stress or oral and anal sex between heterosexuals for excitement would not seem abnormal, a life devoted to marturbation or oral and anal sex would appear to any rational observer as abnormal.
6.10.2006 1:42pm
Jon Rowe (mail) (www):
Well as a raw #, there are far more heterosexual couples than homosexual couples who devote themselves to reproductionless (infertle, contracepted) sex. And we don't regard them as "abnormal." I know on my mother's side, she is one of 5 siblings. All are married and two out of the five are involved in purposefully childless life-time marriages.
6.10.2006 1:54pm
Jon Rowe (mail) (www):

Every life form that has sex does it for the sole purpose of reproduction.


This betrays an abysmal ignorance of natural biodiversity. While procreation may be the prime purpose of sex in nature, it is most certainly not for our species, and for many other animal species, the "sole purpose" of sex.
6.10.2006 1:56pm
Cornellian (mail):

Open your eyes and look at the Earth. Every life form that has sex does it for the sole purpose of reproduction. As for love a cursory look at psychology shows that it helps hold families together.

While occasional masturbation to relieve stress or oral and anal sex between heterosexuals for excitement would not seem abnormal, a life devoted to marturbation or oral and anal sex would appear to any rational observer as abnormal.


Presumably then you'd consider a woman who continues to have sex after menopause to be "abnormal" and would you describe her life as one "devoted to non-procreational sex?"
6.10.2006 1:57pm
Ramza:
Poor priests and other people that live a life of celibacy, being so abnormal and despised by the rest of society.
6.10.2006 2:50pm
Medis:
Truth Seeker,

So I suppose you would outlaw contraception, correct?

And I also suppose you would outlaw the practice of using one's ears to support one's eyeglasses, seeing as how the purpose of ears is to hear with.
6.10.2006 3:54pm
Medis:
Oh, and dancing. Must not forget to outlaw dancing. The purpose of feet is walking, not dancing.
6.10.2006 3:55pm
Frank Drackmann (mail):
Kids suck, I just had the final 2 minutes of the Sweden/Trinidad World Cup interrupted because of a local amber alert, they broadcast these damn things on every channel. When I was a kid you were lucky to get put on the side of a milk carton.
6.10.2006 4:45pm
David Chesler (mail) (www):
And sex standing up, because of what it might lead to.
6.10.2006 9:02pm
Truth Seeker:
So I suppose you would outlaw contraception, correct?

Who said anything about outlawing anything? I'm just saying that government sanction should not be given to something that is not in the best interest of society. You can have all the contraception and kinky gay sex you want. Just don't ask the government to say that gay sex is equal to procreative matrimony.
6.10.2006 9:20pm
Truth Seeker:
Kids suck, I just had the final 2 minutes of the Sweden/Trinidad World Cup interrupted because of a local amber alert.

Unless it's your kid.
6.10.2006 9:21pm
Medis:
Truth Seeker,

But to be clear, you think using contraception is "deviant", right?

Incidentally, I always find it interesting when people effectively claim that the only thing that contributes to social welfare is creating and raising children. The actual happiness of those children when they become adults apparently is irrelevant, because at that point society only has an interest in those former children making more children.

Of course, one might suggest that the purpose of civil society is not just to perpetuate itself, but rather to also improve the lives of members of the society. And perhaps human beings are not just viruses, whose only purpose is reproduction. And perhaps there is more virtue to human love than its role in making more humans.

Just a thought.
6.10.2006 10:25pm
Truth Seeker:
But to be clear, you think using contraception is "deviant", right?

No, I think that birth control is one of the greatest inventions mankind ever had. It gives individuals control over when and with whom they will reproduce.

I spent about 30 years making good use of birth control of every sort, but then one day, after my parents were gone and I was working on my family tree and saw that I was just a dead end and wondered what the point of my life had been other than a lot of fun that no one would ever care about I realized that having a child and teaching him everything I had learned would be the best thing I could do in life.

Yes, the purpose of civil society is to improve the lives of members, or rather to allow the members to improve their own lives. But I just don't think civil society should make rules pretending that deviant behavior is normal just to make people feel better about themselves.
6.10.2006 10:52pm
Medis:
Truth Seeker,

But before, you said : "Biologically speaking, the purpose of sex and love is to propagate the species so homosexual sex and love is deviant behavior that goes against that purpose."

How is sex with contraception not "deviant" according to your own definition?

You also say: "But I just don't think civil society should make rules pretending that deviant behavior is normal just to make people feel better about themselves."

But marriage is not just about married people: (a) having children and raising children; and (b) "feeling better about themselves". It is also about the benefits of marriage to the couple, which in turn benefit society both directly, insofar as the welfare of the couples involved is part of our social calculus, and also indirectly, insofar as by taking care of each other, married individuals relieve the rest of society of various caretaking burdens.

Your analysis of the purposes of marriage entirely ignores these broad categories of direct and indirect social benefits of marriage (the benefits arising out of the ways in which marriage increases the married couple's own welfare and relieves the state of various burdens). And that is precisely why I think it is obvious that your argument depends on ignoring the fact that civil society is not just about creating more human beings.

So, the question is not whether gay couples are "deviant" by your (inconsistently applied) definition. The question is rather whether gay couples will benefit from marriage, and whether society in turn will benefit from gay marriage. And just as with straight marriages (which, incidentally, would often involve a lot of "deviant" sex if you consistently applied your definitions), these social benefits can accrue even if the gay couple never has or raises children (which, incidentally, they often do anyway).
6.10.2006 11:11pm
Truth Seeker:
How is sex with contraception not "deviant" according to your own definition?

Sex with contraception just controls the timing of offspring. It does not necessarily form the basis of an offspring-free life.

I'm not saying that nonreproductive sex is always deviant, but that society should not positively promote lifestyles that consist solely of non-reproductive sex. There is a difference.

But marriage is not just about married people: (a) having children and raising children; and (b) "feeling better about themselves". It is also about the benefits of marriage to the couple...

Okay, let's have civil unions which give the same rights as marriage.

Why do gays prefer same sex marriage to civil unions? Because most of the human race thinks of gay sex and thinks "eeeeew" or "yuk" and some people think they should be stoned to death and others just jailed. So gays want marriage so they can say they are normal and kids on the playground won't say "You're SO GAY."

But I'm saying that homosexual behavior is not normal, it is deviant and we should not pretend it is normal because to do so would be harmful to our society in the long run.
6.11.2006 12:58am
David Chesler (mail) (www):
Sex with contraception just controls the timing of offspring. It does not necessarily form the basis of an offspring-free life.

It depends on the method of contraception. If the method is sterilization or menopause, any timing is in the past. Is sex at that point (such a man who had a vasectomy during a marriage that has now ended, who has remarried to a single mother) deviant?

Okay, let's have civil unions which give the same rights as marriage.

Cool! Leave the marriages to the churches, and let the civil government do only civil things. As someone who was married by a clergymember, I've always felt that calling these City Hall weddings "marriages" cheapens what I what I promised religiously. (Not really, because Jews don't get married till death us do part, the ketubah looks awfully like a pre-nup to me.)
6.11.2006 1:21am
Medis:
Truth Seeker,

You say: "I'm not saying that nonreproductive sex is always deviant, but that society should not positively promote lifestyles that consist solely of non-reproductive sex. There is a difference."

That means you shouldn't have said "homosexual sex" is "deviant". Similarly, you should not have said "homosexual behavior" is "deviant". And, of course, many gay people do in fact reproduce at some point in their lives.

So to be clear, you now agree that homosexual sex is not "deviant", right?

Conversely, many straight people only practice nonreproductive sex for their entire lives, either by choice, or because of their inability to reproduce, or because of an unwillingness or inability to reproduce by their partner(s). By your latest definition, at least those straight people are "deviant", right?

In fact, what do you feel about fertile people marrying infertile people? That is "deviant", right? And society should not allow such marriages, right? Because such people are committing to a "lifestyle" of non-reproductive sex, right?

You also say: "Okay, let's have civil unions which give the same rights as marriage."

I'll do you one better--let's have that exact same system for both straight and gay couples, and let private parties and institutions (such as churches) decide who they want to recognize as married.

Finally, you say: "we should not pretend [homosexual behavior] is normal because to do so would be harmful to our society in the long run."

How so? It is plausible that if gayness was not taboo, significantly more people would have gay sex at some time or another in their lives. It is not plausible that there would be a significant increase in the percentage of people who would commit to only having non-reproductive sex for their entire lives. And according to your argument, only the latter, and not the former, should concern you.

By the way, if you are actually concerned about current trends in birth rates, this is all a massive waste of your time. You need to focus on the big issues, like reversing urbanization (throughout history, urban areas have had below replacement birth rates). Of course, that in turn means you need to undo the Industrial Revolution, which is what caused urbanization in developed countries, and is causing it in developing countries. That is likely to be a big task, so get cracking.

Also, you need to stop the trend of decreasing teen pregnancies. Almost all the difference between the relatively low birth rates in Western Europe and the at-replacement birth rate in United States is due to a higher teen pregnancy rate in the United States. So, you need to start encouraging teens to get knocked up. Fortunately, that is not such a big task--just exposing them to a lot of Britney Spears and ineffective sexual education seems to do the trick pretty well.
6.11.2006 2:13am
jrose:
Truth Seeker,

Your arguments that homosexual behavior is not normal because of reproduction are weak. Medis has detailed the many contradictions (e.g., why only homosexual behavior and not heterosexual behavior that is exclusively non-reporductive such as practiced by the infertile and elderly).

You'd be better off admitting your belief about homsoexual behavior is rooted elsewhere - maybe because you join (what you claim is) the majority of the human race in thinking "yuk"?

Also, if homosexual behavior were deviant, why would you support civil unions?
6.11.2006 9:33am
Medis:
jrose,

And if preserving the "yuck factor"-based normative sentiment is the goal, then gay marriage is again a side issue, because the percentage of people who think gay sex is immoral is steadily decreasing, and the acceptance of gay sex is steadily increasing. Moreover, it appears that the acceptance of the "gay lifestyle" for other people (versus for the individual answering the question) has achieved predominance.

The AEI has a great summary of trends in attitudes on these issues. Here is just one trend:

"Do you feel that homosexuality should be considered an acceptable alternative lifestyle or not?

Acceptable Not acceptable

Jun. 25-28, 1982 Gallup 34 51
Jun. 4-8, 1992 Gallup 38 57
Aug. 20, 1992 CBS/NYT 38 50
Mar. 15-17, 1996 Gallup 44 50
April 18-20, 1997 Gallup 42 52
Feb. 8-9, 1999 Gallup 50 46
May 10-14, 2001 Gallup 52 43
May 6-9, 2002 Gallup 51 44
May 5-7, 2003 Gallup 54 43
Jul. 25-27, 2003 Gallup 46 49
May 2-4, 2004 Gallup 54 42
May 2-5, 2005 Gallup 51 45
May 8-11, 2006 Gallup 54 41"

I'm not sure what caused this dramatic reversal, but I suspect it is the increased visibility of gay people starting in the early 1990s. In other words, what makes people think gay people are "normal" and "acceptable" is not anything like the legal system's treatment of gay people. Rather, it is the opportunity for people to observe gay people and see for themselves whether they are "deviants" or not.

In any event, Truth Seeker appears to be trying to fight a battle which has already been lost, and gay marriage or not, I doubt this trend will be reversed.
6.11.2006 11:37am
SLS 1L:
I'm not saying that nonreproductive sex is always deviant, but that society should not positively promote lifestyles that consist solely of non-reproductive sex. There is a difference.
I agree. If anyone's life consists of nothing but sex of any kind, over and over and over (possibly with breaks to eat, sleep, and excrete?) that would indicate that person had a serious problem. It would be pretty unhealthy too, if only because the erogenous zones probably can't take that much rubbing.

But back in reality, gay people's lives consist of more than sex, just like straight people's do.
But just because someone is born with a condition does not make it normal. People are born blind and crippled and with all kinds of defects. Biologically speaking, the purpose of sex and love is to propagate the species so homosexual sex and love is deviant behavior that goes against that purpose.
Why is something bad just because it goes against "biological purpose"? Is shoe-wearing a biological purpose of feet, or baseball-bat-swinging a biological purpose of the arms and shoulders? Is it a biological purpose of the brain to figure out new methods of contraception? Is it a biological purpose of the hands to engage in anonymous arguments over the Internet?

But even if you have some complicated story for why those things are consistent with the biological purpose of those various organs, why should the "biological purpose" matter to us? You seem to think the problem with blindness is that it frustrates "biological purpose": I think the problem is that blind people lack an extremely important and useful ability, namely sight.
6.11.2006 5:05pm
Bob Van Burkleo (mail):
the beginning point of marriage equality

does every citizen have a right to marry?

I think we all agree
is the coupling of two adults of the same gender a marriage?



The question everyone dances around is:

does our acknowledged right to marry include those people who couple up with someone of the same gender?

From this assessment all the rest of the argument flows.


Judge Dowing in Washington state used the presumption that they could as his beginning premise:

The plaintiffs are eight pairs of individuals, each pair sharing a mutual commitment and a wish to be married. In a basic sense of the word, they are already married but they seek something more and that is what brings them to court.

...

Just as all of the plaintiffs have exercised their natural right to marry in the linguistic sense, so too have a number of them exercised their right to marry in the eyes of their particular religion.


Was he correct in his assessment? Can gay couples marry?

To decide that an examination of the right to marry and its origins must be done.

We marry because we as human beings want to - if no one wanted to it would even be considered a right. So why do we? If modern science is correct its because humans like many other mammals has an oxytocin/vasopressin mediated pair-bonding response. We are attracted to someone, and develop an psychological attachment that is biological in origin and can last a lifetime.

And the truth is that a bond of this nature can occur regardless of the gender combinations Romeo & Juliet or Brokeback Mountain its origins are really the same.

So if our right to marry is really our right to fulfill our natural pair-bonding urge, then yes, same gender couples can naturally marry and if they do they have a case of requesting equal access to the contract that state licenses in support of marriage which is how the reasoning flows in the Downing decision.

The conflicting view is that our rights come from a supernatural source and it has not giving a right for same gender couples to marry and they therefore are incapable of naturally marrying. This would of course invalidate the first link in the chain of Judge Dowing's reasoning and make requests for equal access almost nonsensical.

I of course side with the biological point of view - Humans rights flow from our biology and we have a natural right to fulfill our biological imperatives ('pursuit of happiness') and as such any valid government must also acknowledge them to be useful or fully functional.

But I can understand others having the other view even though I don't think our totally secular government should base its decisions on such standards.
6.11.2006 6:46pm
David Chesler (mail) (www):
does every citizen have a right to marry?

They already do. The question is whether they have the right to marry the person of their choice regardless of race (no longer open question) or gender. If you're going to frame it as a deductive proof, don't leave out steps.


And the truth is that a bond of this nature can occur regardless of the gender combinations

There are examples of the bond in all gender combinations. Any one person's oxytocin/vasopressin mediated pair-bonding response is likely to be significantly stronger for one half of the human population than for the other.

The conflicting view is that our rights come from a supernatural source (emphasis added)

Another conflicting view is that rights come from the social contract, specifically our national and state constitutions, without reference to either the supernatural or to natural urges.
6.11.2006 7:36pm
Bob Van Burkleo (mail):
They already do.

If you look at it as a motivation-less pairing up, then yes everyone does just as every fish can have a right to ride a bicycle. If you say that means people have a right to 'build a life' only with someone of the opposite gender and some people are incapable of that then they don't have the right in any practical sense - A right that can't be reasonably exercised to me is really no right at all.

Another conflicting view is that rights come from the social contract, specifically our national and state constitutions, without reference to either the supernatural or to natural urges.

That would make rights essentially arbitrary and disconnected from any physical reality since the social contract is a purely abstract conceptual tool. In this case without a social contract there would be no rights at all.

I go more with TJ that our rights are endowed by the Deist Creator, i.e, our biological natures, which makes them 'self-evidient' and are ours before mental constructs like 'society', 'law' and 'gonvernent' even enter the picture.

But that is an overlooked alternative. Thanks.

Under the arbitrary social contract origins of rights then yes, they could be absolutely anything and need not have any logical real world basis at all.

So Judge Downings ruling seems to hinge on:
the 'natural origin' source of rights that exist outside of 'society' 'law' and 'government',
rights conferred by a fortuitous choice of a supernatural source, or
the right of marriage in the social contract can be shown to already be gender-combination blind.
6.11.2006 8:38pm
jrose:
David Chesler,

Bob Van Burkleo makes a very strong point regarding whether the liberty interest is "the right to marry" or "the right to marry the person of your choice".

If the liberty interest is "the right to marry the person of your choice" then strict scrutiny would apply to polygamy laws (although a man wouldn't have the right to marry a second woman of his choice, the second woman would have the right to marry that man if he was her choice). If instead the liberty interest is "the right to marry - defined as the ability to marry someone from the feasible set of people, although not the exact person of your choice", then polygamy would not be subject to strict scrutiny, but same-sex marriage would be.
6.11.2006 10:54pm
David Chesler (mail) (www):
Along time ago, when the 'net was flat, this would have been referred to as "the right to marry a MOTAS".

Of course there also isn't a right to marry Sergey Brin, no matter how attracted you are to billionaires, and there isn't a right to marry someone underaged. But this is no different than any other contract, that both parties must be willing and able to enter into the contract. Sergey Brin might not be interested in you, the underaged person is legally incapable of consenting to marriage[*], and the would-be bigamist has waived his right to marry for the duration of his existing marriage. That seems to neatly solve the desired maintenance of the binary nature of marriage, which is apparently desirable either because it would require a lot of reprogramming, or because it validates a slippery-slope argument. (Personally I'm not so worried if polygamy became legal. Other places have dealt with it and not fallen apart, and it might be the best happiness for some people.)

Analyzed from the point of view of the rights of the would-be bigamist, rather than the rights of the would-be second spouse as jrose did, he has lost the right to marry (in this case the absolute right, not just to the person of his choice) on account of his being married instead of single, but I don't know that this is a problem. "Married" is not, AFAIK, a class protected against discrimination.

[*]The age to consent to marriage is sometimes lower than the age to consent to have sex. We now recognize that rape can be committed against one's spouse, that marriage is no longer a defense to rape. So why is it that marriage is a defense to statutory rape?
6.12.2006 1:32am
jrose:
David Chesler,

You argue that both parties have to be willing and able. Only "able" is relevant to whether the second wife has the right to marry the would-be bigamist (assume he is willing). Thus, your analogies to Brin and the underaged aren't relevant since they only concern "willing" (an underaged person is not willing because lack of informed consent).

On the other hand, your argument that the second wife's right to choose her spouse can only extend to those who are able to marry her in their own right (and clearly, the man does not have a right to choose a second wife) has merit.
6.12.2006 10:47am
Clayton E. Cramer (mail) (www):
David Chesler writes:

<blockquote>
Yes it (and the entire Civil War) was, in fact that period marked the beginning of the end of federalism; and yes it was working well. Slavery was on its way out, and would have ended with or without the Thirteenth Amendment.
</blockquote>

Slavery was indeed on the way out <i>when the Constitutional Convention met</i>. Most educated men of the time thought that within two or three generations, it would fade away, as it was doing in the North at the time. What brought it back was Eli Whitney's patent of the cotton gin—something that the new Constitution gave Congress authority to do.

By the time of the Civil War, slavery was in no danger of going away. From an economic standpoint, it made little sense, but the slave states had spent huge piles of money to protect the institution, because it was a fundamental part of their culture, and because the relatively small number of large slave owners dominated the state governments.

David Chesler writes:

<blockquote>
Goodridge makes strong analogies to Loving. I'd like to hear the non-circular argument for why the analogies fail.
</blockquote>

The analogy of <i>Goodridge </i>to <i>Loving </i>collapses for the following reasons:

1. Interracial marriage bans were a recent innovation. The first of these doesn't appear until the late 17th century in America. By comparison, defining marriage as one man, one woman, goes back even before Christianity. Even classical societies that were relatively tolerant of homosexuality didn't recognize SSM.

2. Interracial marriage bans were never universal in America. At the high point around 1920, a bit more than half the states either banned all interracial marriages, or banned whites marrying blacks. (Some places didn't bother to ban whites marrying Asians, for example.)

3. The Virginia statute struck down in Loving was not simply a refusal to recognize interracial marriages; it actively punished it, threatening the Lovings with prison if they did not leave Virginia, and stay out for at least 25 years. The Massachusetts statute simply refused to recognize SSM. That's a big difference.
6.12.2006 1:27pm
jrose:
Clayton,

SSM is a new thing only becasue recognition of homosexuality as a defining trait (who you are, not what you do) is new. Relying on historical practice makes little sense if the liberty interest at stake is the right to marry someone from the set of people for which marriage makes sense - that feasible set of people being determined by who you are.

Do you think Loving would have been decided differently if there was no criminal punishment?
6.12.2006 1:39pm
Medis:
Clayton,

In line with what jrose suggested, in general it is not clear to me why any of those differences between Loving and Goodridge are material to the legal issues involved. And, of course, nonmaterial differences do not defeat an analogy.
6.12.2006 2:42pm
Anonymousss (mail):
it's not clear to me why the differences clayton pointed out would be material to the moral issues involved either.
6.12.2006 2:54pm
Clayton E. Cramer (mail) (www):
Jrose writes:


SSM is a new thing only becasue recognition of homosexuality as a defining trait (who you are, not what you do) is new.
Defined by who? Homosexuals have chosen to define themselves that way. A fair number of people don't buy into it. Pedophiles are beginning to make the same argument—that this is their identity, not "what they do." What makes a pedophile's claim of identity less valid than a homosexual's claim?

Relying on historical practice makes little sense if the liberty interest at stake is the right to marry someone from the set of people for which marriage makes sense - that feasible set of people being determined by who you are.
Makes sense—to whom? There's a number of areas where the legislature defines "the set of people for which marriage makes sense" and they have done so for many centuries. In this case, homosexuals, through their puppets in black, are overruling the legislatures. On what basis can any legislative decision about what constitutes marriage be secure if all you need is a bunch of judges prepared to override legislative actions?

Do you think Loving would have been decided differently if there was no criminal punishment?
I really don't know (and since the justices who made the decision are dead, neither does anyone else). I will say that had the Virginia law simply refused to recognize such marriages, it would have been an inconvenience to the Lovings, but not in the same category as the threat of prison.
6.12.2006 4:55pm
David Chesler (mail) (www):
Responding to an email from Clayton that was mostly the same as the comment he posted (earlier than his most recent).

1. Slavery was indeed on the way out when the Constitutional Convention met. ... What brought it back was Eli Whitney's patent of the cotton gin

I'd misremembered the cotton gin and stand corrected.


By the time of the Civil War, slavery was in no danger of going away. From an economic standpoint, it made little sense...


I'm sure there are vast bodies of research here. There was an Abolition movement of course. And as alluded to in the thread, sharecropping and Jim Crow weren't much better. The big hammers (Civil War, 13th Amendment, Roe v. Wade, Goodridge, and the federal DMA) occassionally work, but often lead to resentment and strengthening of the prior contrary opinion. "A man convinced against his will is of the same opinion still."

Of course there are reasons to contrast Emancipation Proclamation (as applying only to CSA) and 13th Amendment.

The analogy of Goodridge to Loving collapses for the following reasons:

1. Interracial marriage bans were a recent innovation. ... Even classical societies that were relatively tolerant of homosexuality didn't recognize SSM.


There are those who would claim otherwise, Henry James' "Boston Marriage" coming to mind. The boundaries of civil marriage (for things like spousal privilege, wives owning property, marital rape, etc.) have not been constant.

I tend to be a strict and literal constructionist, legislative intent and unintended consequences be damned. The line of reasoning in Goodridge strikes me as stronger than finding a privacy right in the penumbra or in finding all commerce to be interstate as in Wickard.

2. Interracial marriage bans were never universal in America. ...

I'm not analogizing SSM to DRM -- obviously DRM was recognized in the other half of the states. And once you've got a mixed-race baby, you can't pretend, no way, no how, as you can with a homosexual couple, that they're just very good friends who live together, you've got to deal with the mixed-race baby legally.

The Goodridge court did refer to Loving, and the line of reasoning seems valid. (My high school's motto, part of the mural we passed under every day, was "Every great advance in science has issued from a new audacity in thinking" -- completely welcoming unexpected, if not unwanted, consequences.) We would both be interested in seeing what I'd think if the MA legislature in ConCon were able to outlaw SSM, and then the MA SJC figured out a way to conclude on substantive grounds that SSM was legal anyway.



c. The Virginia statute struck down in Loving was not simply a refusal to recognize interracial marriages; it actively punished it, threatening the Lovings with prison if they did not leave Virginia, and stay out for at least 25 years. The Massachusetts statute simply refused to recognize SSM. That's a big difference.



Yes, homosexual couples have not faced prison and exile for a few decades now. I don't agree that the degree of the injustice bears on its constitutionality. (Whether or not it's a new right, whether or not it's a good or just idea, whether or not it's an idea whose time has come, the ability for a gay couple to enter into a legally-recognized relationship which is the same as, or equivalent to, or close to, DSM is not de minimis [and much more so for the particular gay couple than for any straight couple whose marriage needs defending or for the rest of society.])
6.12.2006 5:01pm
Clayton E. Cramer (mail) (www):
Medis writes:


Clayton,

In line with what jrose suggested, in general it is not clear to me why any of those differences between Loving and Goodridge are material to the legal issues involved. And, of course, nonmaterial differences do not defeat an analogy.
You don't see, "We are going to ignore your so-called marriage" and "We're going to send you to prison if you don't leave the state for 25 years" as a material difference? One involves selective laissez-faire; the other involves putting the full power of the state into arrest and imprisonment. If that isn't a material difference, what is?

You know, when homosexuals asked the government to leave them alone, they got a lot of sympathy from those with small government sympathies. But when you insist that the government do something, think of Aesop's Fable about the frogs who wanted a king. You are already enjoying the attention that comes from state constitutional amendments to explicitly define marriage as "one man, one woman." Keep working on it; you may get the frog-eating stork that Zeus finally sent down so that the frogs could have a "real king."
6.12.2006 5:04pm
Clayton E. Cramer (mail) (www):
Medis writes:


Clayton,

In line with what jrose suggested, in general it is not clear to me why any of those differences between Loving and Goodridge are material to the legal issues involved. And, of course, nonmaterial differences do not defeat an analogy.
You don't see, "We are going to ignore your so-called marriage" and "We're going to send you to prison if you don't leave the state for 25 years" as a material difference? One involves selective laissez-faire; the other involves putting the full power of the state into arrest and imprisonment. If that isn't a material difference, what is?

You know, when homosexuals asked the government to leave them alone, they got a lot of sympathy from those with small government sympathies. But when you insist that the government do something, think of Aesop's Fable about the frogs who wanted a king. You are already enjoying the attention that comes from state constitutional amendments to explicitly define marriage as "one man, one woman." Keep working on it; you may get the frog-eating stork that Zeus finally sent down so that the frogs could have a "real king."
6.12.2006 5:05pm
David Chesler (mail) (www):
You don't see, "We are going to ignore your so-called marriage" and "We're going to send you to prison if you don't leave the state for 25 years" as a material difference?

I don't. Either way, if my state told me "If you live here, you're not married to your spouse" I'd move to another state.
6.12.2006 5:15pm
Medis:
Clayton,

That difference may be material to all sorts of other issues, but I don't see why you think it is material to the legal issue of how to apply Loving to future cases. In Loving, the Supreme Court noted that Virginia law both prohibited and punished interracial marriages, and the Court specifically noted both the applicable criminal statute and the applicable civil statutes, the latter of which automatically invalidated marriages between white people and "colored people" without a judicial proceeding.

The Court didn't distinguish these statutes for the purposes of Equal Protection Clause analysis, but rather held, "There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause." Similarly, with respect to the Due Process Clause, the Court reasoned, "The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."

Of course, maybe you think the Court was wrong to treat all of these statutes under the same analysis. But that is what the Court did in Loving, so I again don't see why you think your distinction remains material to the legal question of how to apply Loving to other cases.

By the way, as I have said before, I'd support the government getting out of the marriage-recognition game entirely, replacing it with a generic civil union scheme.
6.12.2006 5:45pm
Chimaxx (mail):
Hans Gruber:
You're confused. The "fundamental institution" of marriage is distinct from the ability of any two heterosexuals to enter that instititution. The growth and recognition of gay marriage, polygamy, and polyamory all threaten the "fundamental institution" of marriage as a societal norm.


How would giving Sue and Ann down the black a marriage license to help them raise their two kids threaten the status of marriage as a societal norm more than having Sue and Ann and their two kids living down the block without benfirt of a marriage license? They're still a couple. They and their kids still show up at the block party, obviously different from the "scoietal norm" represented by the rest of the block. Heck, they even wear matching rings from their commitment ceremony at the MCC, and all the kids on the block think they have the coolest Halloween decorations. The presence or absence of the FMA won't make them any more or less visible.

So just how would giving them a marriage license and being married in the eye of the state make them more of a threat than they are now by living down the street, married in the eyes of their neighbors and their church?
6.12.2006 5:47pm
jrose:
Clayton,

I concur with Jon Stewart of the Daily Show that "it's a debate about whether you think gay people are part of the human condition or just a random fetish." I guess you think it is the latter. I go with the former. I am willing to settle this debate on which position is correct. Deal?

As far as pedophilia, let's assume that too is a human condition (I'm not sure). Obviously, informed consent is required of both parties in sexual or marital relations. So, the analogy to same-sex couples fails.

Do you agree that if Loving would have been decided the same way without the criminal penalty, then your last point on why Loving should be distinguished from Goodridge does not hold?
6.12.2006 6:03pm
Medis:
Chimaxx,

And to repeat a point I suggested above, it is already clear that the relevant social norms are changing, irrespective of whether the state recognizes the gay marriages which are already occurring. That includes with respect to gay marriage itself, opposition to which has been steadily decreasing.

In that sense, legal recognition of gay marriage will likely be an effect of changing norms involving gay marriage, not the other way around.
6.12.2006 6:04pm
NY (mail):
Medis:
Truth Seeker,

But to be clear, you think using contraception is "deviant", right?


Maybe Truth Seeker is onto something, though he isn't as clear as he should be and he isn't also clear why it matters where law and policy is concerned.

My guess is this is what he's thinking: if you think evolution is the answer to the development of life and speciation on the planet, pray tell why (how!) would evolution evolve exclusively-SS creatures? They would be selected out after the first generation. From that perspective, they are deviants from the normal course of life on the planet [whose only goal is to propagate their genetic material], but not in the dichotomous sense [1 or 0], more in a fuzzy sense [.3 instead of .99 exclusively hetero]. Similarly, the infertile [say .4], the menopausal [maybe, .45], etc. So contraception use may be .6 or so, not full-on deviant, but not exactly what your genes are telling you to do.

I think the fact that he used the dirty word "deviant" got John Rowe, et al., riled up. He should have looked harder for a euphemism, or maybe he's in statistics and probability and thought nothing of it.

(Sociobiologists have couple answers on why evolution would create exclusively SS beings, but the one I like is that our brains evolved to associate the act with the pleasure. It became pleasurable so we would breed, but it got so good, we later only sought the pleasure for the pleasure's sake and forgot about the breeding part. [This conveniently answers why the elderly, and others similarly situated, still rub up on one another, why it gets used as therapy or a bargaining chip, viz. for things other than procreation, the proximate cause is the pleasure, even though ultimately it's about making rug rats.])

Still, I don't see how this has any impact on legislation.

Incidentally, I always find it interesting when people effectively claim that the only thing that contributes to social welfare is creating and raising children.

No one said anything about breeding being the ONLY thing. But evolution would certainly say it's a BIG giant huge part.

The actual happiness of those children when they become adults apparently is irrelevant, because at that point society only has an interest in those former children making more children.

Their happiness as adults IS the point of a lot of the prior posts, that their later happiness in life is dependent on a hetero-only marriage regime.

Of course, one might suggest that the purpose of civil society is not just to perpetuate itself, but rather to also improve the lives of members of the society.

The main purpose of civil society is to perpetuate itself, that's why certain protected individual rights give way before state demands; isn't there a quote by someone to the effect that certain rights cannot be interpreted as to undermine the state that protects those rights?

And perhaps human beings are not just viruses, whose only purpose is reproduction. And perhaps there is more virtue to human love than its role in making more humans.

I don't want to be cynical, and I can appreciate your noble view of human existence, but I'd say, ultimately, whatever those stats are you love about some other "virus," it's about their fitness to breed (money and status in the tribe). Evolution would not have it otherwise.

We're only different from viruses in that we reproduce differently and we have fun short-term justifications. And that moon landing thing.
6.12.2006 6:14pm
Bob Van Burkleo (mail):
jrose its actually easier than that:

is it normal for humans to be sexually attracted to adult women? yes.
is it normal for humans to be sexually attracted to adult men? yes.
is it normal for humans to be sexually attracted to children? no.
is it normal for humans to be sexually attracted to their pet? no.
is it normal for humans to be sexually attracted to the dead? no.

homosexuality is about normal activities, the complaint is about the gender of the person engaging in the activities. All the other slippery slope orientation possibilities are condemned for the activity itself. There is a qualitative difference in the situations.
6.12.2006 6:16pm
Chimaxx (mail):
Splunge:
Honestly, I don't even see why gay people who are not parents, or planning to be, would even want to marry. What's the point? Why invite the general public to be a party in your contract, why ask the legislature to enforce certain conditions on how you two behave towards each other? This seems bizarrely masochistic.


Perhaps we could ask analogous group to find the answer: Why would widowed retirees--with adult children and well past wanting more, even if they are the bizarre exceptions who could conceive them at that age--want to marry? What's the point? Why invite the general public to be a party in your contract, why ask the legislature to enforce certain conditions on how you two behave towards each other? This seems bizarrely masochistic--and unlike most gay couples, retired widows remarrying know from experience the strictures and limitations they are inviting by remarrying, even when their adult children approve.

I don't have the answer for either situation. But your not knowing the answer and my not knowing the answer to why they'd want to doesn't make a good legal reason to prohibit either group from doing so.
6.12.2006 6:20pm
jrose:
Bob,

Your use of the word "normal" was (likely unintentionally) not supported with reason. You leave open the possibility for the majority to define homosexual conduct as not normal without having to supply a reason.

Of course, Lawrence has prohibited such a reason-free declaration and the reason sex/marriage with dead people, pets and kids is not acceptable because there is not informed consent.
6.12.2006 6:27pm
Bob Van Burkleo (mail):
there is no such thing as 'homosexual activities', there are just homosexuals engaging in activities. A kiss is a kiss no matter if the lips both have a Y chromosome or not.
6.12.2006 6:31pm
Chimaxx (mail):
Truth Seeker:
Those who support same sex marriage seem to start from the assumption that homosexuality is a normal condition and that society should not discriminate against people who are born that way. But just because someone is born with a condition does not make it normal. People are born blind and crippled and with all kinds of defects. Biologically speaking, the purpose of sex and love is to propagate the species so homosexual sex and love is deviant behavior that goes against that purpose. Whether homosexuality is caused by a gene or a mother's hormonal changes, the condition is not normal.


Assuming that your assertion is correct that homosexual love is "deviant" behavior that goes against some essentialist "purpose," you frame your argument by comparing homosexuality with blindness and being "crippled"--and yet we do not prevent those who are legally blind or "crippled" from marrying or raising children--even with each other. Why is one sort of "defect" sufficient to prevent legal intermarriage and not the other?
6.12.2006 6:38pm
Bob Van Burkleo (mail):
oh and as far as the dead, having sex with them is no different than having sex with a melon as far as 'informed consent' goes right? - they are both non-sentient non-viable organic objects. I don't think you could successfully use an 'informed consent' objection in either case.
6.12.2006 6:42pm
Medis:
NY,

As an aside, there are many examples of species with nonreproductive individuals, sometimes even in the vast majority (eg, worker ants). Evolution does not wipe out these species because the genes of the nonreproductive individuals can be passed on by some of their "brothers" and/or "sisters", and the overall system of relegating reproduction to only certain individuals in the "family" may have competitive benefits. Of course, I have no idea if gay people serve such a function for humans, but a priori evolutionary logic does not rule it out.

Indeed, consider just one possibility: that gay people could serve as surplus caretakers for children whose natural parents are unwilling or unable to do so. Insofar as gay people were taking care of genetically-related children, extended families with a small number of gay people could acquire a competitive advantage. Again, this is all pure speculation, but my point is that we cannot rule out the possibility that gay people in fact serve some sort of purpose from an evolutionary perspective simply because they are individually nonreproductive.

Anyway, you say:

"The main purpose of civil society is to perpetuate itself, that's why certain protected individual rights give way before state demands."

I disagree. The purpose of civil societies is to benefit their members. A certain amount of stability and continuity is a means to this end, but it isn't the end itself. And individual rights do not always give into state demands. Moreover, when they do, at a minimum it should be because there is some social-welfare-enhancing purpose, not just some benefit to the state.

You also say: "isn't there a quote by someone to the effect that certain rights cannot be interpreted as to undermine the state that protects those rights"

Sure, lots of people have said that, including all sorts of fascists, socialists, and other authoritarians. But liberal societies (in the classic sense) like ours are willing to accept a certain amount of risk to the state's welfare in exchange for greater individual liberty. Again, we do this precisely because we think the state exists for our benefit, not the other way around, and we believe individual liberty is generally beneficial.

Finally, you say: "We're only different from viruses in that we reproduce differently and we have fun short-term justifications. And that moon landing thing."

Well, that last implies a big category. We are thinking, creative, rational beings, and as such we can decide for ourselves how to use our resources. For example, we can decide not to maximize our reproductive success if we don't feel like it, and would rather enhance the quality of our individual lives.

To be sure, if another competitor for our biological niche ever arises, such a decision might cause us trouble (or it might not--sheer numbers are not the only deciding factor in war). But competitors are not the only things which wipe out species--it is in fact possible for a species to overreproduce, exhaust the available resources, and experience a mass dieout. In other words, the environment can supply natural selection as well.

So, broadly speaking, we are in fact subject to natural selection. But natural selection does not necessarily require maximizing reproduction, and in general does not apply in a straightforward way to thinking beings like us.
6.12.2006 7:36pm
Medis:
By the way, I think there are at least two reasonable arguments in favor of prohibiting having sex with dead people. One argument is that we don't want to give people any additional incentive to want other people dead. The other argument is that property rights, in the broad sense, should continue past death (eg, that is what wills are all about), and that having sex with a dead person is a violation of that person's continuing property rights over their body. In other words, it would still be rape in the same sense that taking a ring off the corpse at a funeral is still theft.
6.12.2006 7:44pm
Bob Van Burkleo (mail):
actually would the dead person have rights? Isn't even the term 'dead person' an oxymoron? Although you could infer the deceased individual's estate would include their body - would that mean it was protected in the same way all materials in the estate are? Same with the stolen ring, you aren't stealing from the deceased, you are stealing from the deceased's estate.
6.12.2006 7:55pm
David Chesler (mail) (www):
The dead person might have willed you the ring (ignore probate and all that). The dead person might have directed that his organs be transplanted, or that his body be given to science. The hospital might allow the grieving spouse a few minutes alone with the recently departed, to "say goodbye" and that might involve some touching. So could a person direct that when he no longer has use for his body it be given to specified others for their sexual (or, or and/or, gustatory) gratification?
6.12.2006 8:47pm
Bob Van Burkleo (mail):
I apologize to everyone for bringing this up. Sincerely. Cross my heart and hope to die and leave my same sex spouse everything. (wanted to stay relevant)
6.12.2006 10:05pm
Bob Van Burkleo (mail):
[b]Bob, why do you keep insisting on completely disregarding reality?

Don't you remember Bob, YOU hoisted Dr. Spitzer, as your monolithic support, for your monolithic position? 

It surely wasn't me doing so...[/b]

You are getting a brain fever - that's the only explanation for you telling such an obvious lie when everything I've said is on this one long message thread, here is ALL I said about Dr. Robert Spitzer prior to you bringing in the NARTH bedtime fairy tale:
[i]"Dr. Robert Spitzer, the researcher who found that a few people CAN change their sexual orientation, estimates that only 3 or 4% of gay people have this sort of 'malleable' sexual orientation...."
"Even Dr. Robert Spitzer, they guy who got some data at a few can change says that is only about 3-4% of any group"[/i]

Gosh, he is my 'monolithic' support, my 'monolithic' position? And then you reference a paper that in its true form supports my position? You don't win many debates do you?

[b]Perhaps to discuss studies indicating homosexual men being far more likely to be involved in pedophilia compulsions and behavior, than heterosexual men??[/b]

Hahahahaha! Yes yes the defining someone as homosexual by the gender of their target rather than their sexual orientation, mixing those with adult orientations with pedophiles. We've all seen that slight of hand before. And of course, saying that the guy with the wife and 3 kids that molests the neighbor boy is a 'homosexual'. You are very very funny but your material is stale - brighter homophobes than you have already covered this and had their backsides handed to them each and every time. But please, keep repeating it, the more you lie the more you make it obvious to everyone around you have been seduced by the Dark Side of the Force™ just like Tim Eyman ;)
6.12.2006 11:29pm
Bob Van Burkleo (mail):
my goodness completely wrong blog! I am sooo sorry ;)
6.12.2006 11:30pm
Legal Novice:

The federal amendment, already on life-support, is dead for the foreseeable future, barring one of three very unlikely events: (1) a Supreme Court "victory" for gay marriage; (2) unprecedented and overwhelming gains for the anti-gay-marriage movement in the next few national election cycles; or (3) a proposal for a much narrower amendment that would, for example, simply strip courts of jurisdiction over the issue. Even a narrower amendment would probably fail, but things would get a lot more interesting.


Actually, The federal amendment, now progressing from infancy to adulthood will remain alive and gaining in strength for the foreseeable future, barring one very unlikely event: (1) homosexual activists, e.g. legal terrorists, e.g. Lambda Legal, cease shopping cases around looking for activist court sympathy in imposing the illegitimate cause they advocate for upon the citizenry.

The issue of marriage rightly has been one previously embodied completely within State jurisdiction; however, the issue is not the issue -the issue is not marriage -the issue involves the illegitimate reasoning premising the judicial activism that is cause for the solution.

The issue is federal and as such the answer must too be federal...

Why the FMA now? Besides, this is a State Issue!


What some fail to realize is two fold -the clear and present danger is now AND the assault is not one being prosecuted under a social contract context pursued under guise of a political movement seeking societal recognition and privilege for what [they] contribute to society. The social contract issue wherein privilege is extended premised upon a rational basis of reciprocal societal benefit potentially realized is but an incidental result of the assault and not what the assualt actually comprises.

While some recognize there is an assault in progress they miss the methodology those waging this war against reality employ. The front lines may be seem impenetrable; however, it is not the front lines being assaulted it is the flank.

Yes, the accommodation and privilege extended marriage on the State level has been a State issue and in this the Fed has always conceded such identification of those to be accommodated via such a social contract to the States. However, such is not the case in Massachusetts anymore in regard to homosexual marriages e.g. Federal Tax filing status...

One must wonder why the objectively contradicted Federal issue, e.g. Federal Tax filing status, hints not even remotely at this being a Federal issue?

It is obvious that proponents of homosexual marriage are arguing and the judiciary is ruling premised upon some transcendental equal rights (homosexual rights) construct not specifically enumerated in any Constitution whether it be State or Federal. ALL this premised upon some elite understanding as yet construed from the Fourteenth Amendment -an understanding achieved by conflating individual human rights that homosexuals merit with some supposed "innate homosexual class" rights that seek to equate a "homosexual class" identified alone by sexual activity legtimately discriminated against with the class of all humanity -innately identified as male and female heterosexuals regardless the sexual activity engaged in...

Where are such equal classes established and where are such "class rights" determined, settled, codified and enumerated? Repeat after me F E D E R A L - not State...

To nip this lunacy in the bud and stop the proponents of the illegitimate construct of "homosexual rights" one must go Federal asap.

The opposition is imposing this nonsense via illegitimate class rights arguments, yet some suggest the matter is a State issue -as such, they miss the mark completely...
6.13.2006 2:24am
Medis:
Legal Novice,

What makes you think the FMA is "gaining in strength"?
6.13.2006 8:31am
Medis:
Legal Novice,

Sorry, and you say: "Where are such equal classes established and where are such 'class rights' determined, settled, codified and enumerated? Repeat after me F E D E R A L - not State."

Descriptively, this is false. State constitutions and statutes can and do provide for equal and/or nondiscriminatory treatment under state law. As state courts have frequently held, these state provisions need not be equivalent to the 14th Amendment's Equal Protection Clause, and can provide additional protections not afforded by the 14th Amendment.
6.13.2006 8:42am
David Chesler (mail) (www):
In fewer words than Legal Novice, same ratio of opinion to reasoning: You wrong, SSM not bad, SSM OK. End of world not imminent.
Where are such equal classes established and where are such "class rights" determined, settled, codified and enumerated? Repeat after me F E D E R A L - not State...
I think I'm going to stop using my words, and start using Marshall's -- almost everything addressed in these comments was addressed in Goodridge.

The Massachusetts Constitution protects matters of personal liberty against government incursion as zealously, and often more so, than does the Federal Constitution, even where both Constitutions employ essentially the same language. See Planned Parenthood League of Mass., Inc. v. Attorney Gen., 424 Mass. 586, 590 (1997); Corning Glass Works v. Ann &Hope, Inc. of Danvers, 363 Mass. 409, 416 (1973). That the Massachusetts Constitution is in some instances more protective of individual liberty interests than is the Federal Constitution is not surprising. Fundamental to the vigor of our Federal system of government is that "state courts are absolutely free to interpret state constitutional provisions to accord greater protection to individual rights than do similar provisions of the United States Constitution." Arizona v. Evans, 514 U.S. 1, 8 (1995).

The opposition is imposing this nonsense via illegitimate class rights arguments
Although recognizing harm to a class of individuals (sorry Blogfather, for saying "individuals" and not "people" -- in this case the usage distinguishes that the many people similarly situated are still separate):

The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason. [emphasis added]

the conclusion was reached not on the basis of membership in a protected or suspect class, but on the failure of the Commonwealth to demonstrate that dividing the people into members or non-members of that class satisfied
the strict scrutiny necessary for so fundamental a right as the right to choose to marry:

For the reasons we explain below, we conclude that the marriage ban does not meet the rational basis test for either due process or equal protection. Because the statute does not survive rational basis review, we do not consider the plaintiffs' arguments that this case merits strict judicial scrutiny.

...


We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution.
6.13.2006 9:37am
Legal Novice:
You address one case, the bizarre exception that does not even attempt to legitimately premise its illegitimate desired result on ANY legitimate basis e.g. the Fourteenth...

You construct first an irrational rainbowed platitude similar to one of the several the court constructed (All the while ignoring the very real rational basis - PROCREATION):


David Chesler:

"the conclusion was reached not on the basis of membership in a protected or suspect class, but on the failure of the Commonwealth to demonstrate that dividing the people into members or non-members of that class satisfied the strict scrutiny necessary for so fundamental a right as the right to choose to marry"


Though try hard as one might, reality that illegitimates the platitude comes forth:

The Goodridge legislation from the bench is absurd on many levels including the illegitimate flowery construct you reference and quote. The court conflated "fundamental a right as the right to choose to marry" with the very real legislative rationally based discriminations that dictate who one can and can not marry...

The activist court's hand wave attempt to negate the legislature's rightful determinant role is at best bizarre judicial activism...

Does one have a fundamental right to marry a cucumber -a ten year old child, a goat, a homosexual penguin?

LOL

Goodrich comprises but a leftist smoke and mirrors attempt to impose the court's own fantasy version of a social village utopia. Sadly, it is a ruling that continues until set aside feeding the never to be realized and accepted hopes and dreams of the delusional...
6.13.2006 6:45pm
jrose:
Novice,

If the standard is rational basis, encouragement of procreation is enough in my view to uphold a prohibition against same-sex marriage even though the argument is very weak because of the infertile and elderly. But if the right to marry (not the right to marry the exact person of your choice) is subject to strict scrutiny and the legislature forbids same-sex marriage, then gays cannot marry anyone in the feasible set of people for whom marriage makes sense. They are effectively forbidden from the right to marry and the prohibition must be invalidated.
6.13.2006 7:44pm
Legal Novice:

jrose:

If the standard is rational basis, encouragement of procreation is enough in my view to uphold a prohibition against same-sex marriage even though the argument is very weak because of the infertile and elderly. But if the right to marry (not the right to marry the exact person of your choice) is subject to strict scrutiny and the legislature forbids same-sex marriage, then gays cannot marry anyone in the feasible set of people for whom marriage makes sense. They are effectively forbidden from the right to marry and the prohibition must be invalidated.

All you do is illegitimately conflate the two by employing the "makes sense" strategy.

Just as a polygamist, bigamist, or pedophile premised rational basis for what makes sense does not trump the legislature's rational basis for what makes sense -a homosexual premised rational basis for what makes sense does not trump the legislature's rational basis for what makes sense -- UNLESS on planet bizarro where a court can illegitimately impose its rational basis for what makes sense upon the legitimate legislative body like was done in Goodridge...
6.14.2006 12:16am
Legal Novice:

jrose:

If the standard is rational basis, encouragement of procreation is enough in my view to uphold a prohibition against same-sex marriage even though the argument is very weak because of the infertile and elderly.


-or even those that contracept?

Why should marriage and with it the societal accommodation and privilege be limited to only heterosexual couples that wish to marry?

Simply put, because society has decided so. As evidenced in tradition, conventional wisdom, common law, and enacted law. Society -the people through elected representatives, in legislative bodies have enacted legislation that is premised alone upon the rational basis of procreation -society has decided such... Unlike those arguing for a leftist utopian socialist village ideology would suggest, marriage has never been accommodated, merited privilege, and rewarded simply to foster and promote love, child rearing, or even monogamous sex -these things are but incidental to the rational basis...

Incidental exceptions, e.g. couples who choose to contracept, do not negate the rational basis, they test it and in doing so clearly contrast against and specifically identify the basis that some attempt to deny as one very much existing and relevant. Case in point, Griswold v. Connecticut where premised upon a right to privacy it was decided that individuals have the right NOT to procreate via use of contraceptives...

One can clearly see that with Griswold it is that contrasted with the exception that demonstrates clearly the rule, the rational basis of procreation exists!

Regardless a legislature has not chosen to handle exceptions to the basis, e.g. those that choose to contracept, exceptionally by incorporating more rules or by changing totally the basis or doing away with ANY marital accommodation -that is their prerogative, not something for the courts to decide.

Again, as evidenced in Griswold v. Connecticut, there is no supposed heterosexual (or homosexual) right to be accommodated and rewarded by society for entering into non-procreative marriage -such marriages are exceptions incidental to the basis of procreation with such incidence being premised in the right to privacy (just as abortion is). Unlike privacy, marital accommodation, subsidy, and reward is a societal privilege premised upon legitimate and rationally based societal discrimination -marital accommodation, subsidy, and reward is NOT a right...

It is only by illegitimately ignoring the rational basis of procreation - illegitimately conflating the right to privacy (which prohibits the State from enforcing procreation) with the privilege accorded marriage (rationally based in procreation as provided for legislatively by the State) that one can even attempt to argue the ability to choose to engage in homosexual sex with another as something that merits anything from society.

In essence, homosexuals do not get a "free pass" under the privacy right like non-procreative heterosexuals do BECAUSE homosexuals objectively can not possibly ever procreate homosexually...

The ability to procreate and the possibility of procreation -something two homosexuals can not do no matter how much they try...

Some may argue -but what of no-fault divorce laws? Did not the "procreative position" as to rational basis lose most of its force in the 1970's when almost every state passed no-fault divorce statutes?

The legal impact of no-fault divorce laws could be argued both ways and I would suggest that in resolving apparent contradictions between the two ways one would necessarily find the truth as to just what the continued rational basis premising accommodation and privilege of heterosexual marriage was and even more so is now as evidenced by direct correlation to continued societal accommodation and privilege.

e.g. no fault divorce simply is an admission that love can not be legislated and as such is by default not a rational basis premising ANY accommodation and privilege (therefore promoting love via homosexual marriage is a non-starter)...

e.g. no fault divorce simply is an admission that keeping a couple together in the interest of raising children can not be legislated and as such is by default not a rational basis premising ANY accommodation and privilege (therefore promoting raising of children via homosexual marriage is a non-starter)...

Take the case of any single parent -yes, they procreated; however, they do not get the marital privelege or accomodation merited by society and enacted legislatively... Does finding a partner and engaging in homosexual activity suddenly change this legal precedence?

Take the case of two single parent sisters living together -yes, they procreated; however, not with each other YET they love each other as family -- AND they too do not get the marital privelege or accomodation merited by society and enacted legislatively... Would the two of them engaging in homosexual activity suddenly change this legal precedence?

Take the case of foster care parents who get funds from the State FOR the children not because of their sexual procilivity. Would foster care parents engaging in homosexual activity suddenly change this legal precedence?

IF society has not and does not reward love and child rearing with the benefits reserved marital privilege then what is the only rational basis that only the irrational would ignore? -- The answer is obvious --PROCREATION
6.14.2006 12:44am