pageok
pageok
pageok
The U.S. Supreme Court and Same-Sex Marriage:

I've long (and publicly) opposed the Federal Marriage Amendment, because it unnecessarily interferes with states' decisions about same-sex marriage.

Moreover, though I don't think that the U.S. Supreme Court ought to interpret the U.S. Constitution as mandating recognition of same-sex marriages, I don't see a need even for a narrow constitutional amendment that would preclude such an outcome -- it just seems to me highly unlikely that the U.S. Supreme Court will reach such a decision, at least any time in the next few decades. (I support recognition of same-sex marriages for policy reasons, but I think it should be done through the political process, for many of the reasons that others have discussed at great length elsewhere.)

Likewise, unless I'm mistaken, this was a common argument of many defenders of Lawrence v. Texas and critics of the FMA: (1) There's no real likelihood that the U.S. Supreme Court would mandate recognition of same-sex marriage any time soon. (2) People who are skeptical about the recognition of same-sex marriage thus need not be worried about the implications of Lawrence or eager to enact the FMA. (3) The same-sex marriage debate ought to just percolate at the state level, with no need for federal intervention through the amendment process and no real risk of federal intervention through a U.S. Supreme Court Goodridge-like decision.

Yet now Democratic National Committee chairman Howard Dean says this:

Statement by Howard Dean on the New York Court of Appeals Ruling on Same-Sex Marriage ...

WASHINGTON, July 6 /U.S. Newswire/ -- Democratic National Committee Chairman Howard Dean today issued the following statement in response to the decision by the New York Court of Appeals that the state constitution does not guarantee the right to marriage for same-sex couples, but that the state legislature could provide this:

"As Democrats, we believe that every American has a right to equal protection under the law and to live in dignity. And we must respect the right of every family to live in dignity with equal rights, responsibilities and protections under the law. Today's decision by the New York Court of Appeals, which relies on outdated and bigoted notions about families, is deeply disappointing, but it does not end the effort to achieve this goal.

"As that essential process moves forward, it is up to the State legislature to act to protect the equal rights of every New Yorker and for the debate on how to ensure those rights to proceed without the rancor and divisiveness that too often surrounds this issue."

Does this mean that a Democratic President is likely to appoint Justices who would reject "outdated and bigoted" decisions such as the New York Court of Appeals', and who would therefore interpret the U.S. Constitution the way Dean thinks the New York Constitution should have been interpreted -- as "guarantee[ing] the right to marriage for same-sex couples"? Does it mean that the sitting Justices would be acting in an "outdated and bigoted" way by not interpreting the U.S. Constitution as mandating the recognition of same-sex marriage? Does Dean merely condemn the particular reasoning of the New York Court of Appeals, but accept the result? Or does Dean believe that the New York court's interpretation of the New York Constitution was wrong, but the U.S. Supreme Court's similar interpretation of the U.S. Constitution would be proper? (Such a theory is certainly possible, but I just wonder whether this is indeed Dean's view.)

I realize that many people might welcome a Supreme Court decision mandating recognition of same-sex marriage. It justs seems to me contrary to the predictions that I'd heard from many sources about the unlikelihood that the U.S. Supreme Court would take such a view.

Chris S (www):
Is this the same Howard Dean that said:
"The Democratic Party platform from 2004 says marriage is between a man and a woman,"

He seems to have a hard time deciding what he wants.
7.6.2006 7:08pm
Anderson (mail) (www):
Does this mean that a Democratic President is likely to appoint Justices who would reject "outdated and bigoted" decisions such as the New York Court of Appeals', and who would therefore interpret the U.S. Constitution the way Dean thinks the New York Constitution should have been interpreted -- as "guarantee[ing] the right to marriage for same-sex couples"?

Well, reading what you've quoted Dean as saying, it "means" that he's upset by the decision's alleged "reliance on outdated and bigoted notions about families." As is arguably exemplified in the excerpts at Orin Kerr's blog.

If Dean actually thinks the NY Constitution "should have been interpreted" to guarantee gay marriage, then maybe you should, say, quote that language in your post? Or did he, perhaps, not say any such thing? (No link provided, so I dunno--do you?)

Saying that your state constitution doesn't guarantee gay marriage is one thing. Finding it rational to say that gay parents, *as such*, are more "unstable" than straight parents, *as such*, is another thing.
7.6.2006 7:12pm
Thorley Winston (mail) (www):
Here's a link to the press release.
7.6.2006 7:15pm
Anderson (mail) (www):
Here's another example of the NY court's reasoning:

There is a second reason: The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like. It is obvious that there are exceptions to this general rule — some children who never know their fathers, or their mothers, do far better than some who grow up with parents of both sexes — but the Legislature could find that the general rule will usually hold.
"Intuition and experience" can be, and have been, used to prove lots of things ... like the undesirability of "too many" Jews at Ivy-League schools ... or the perncious effects on children of mixed-race parents. To say nothing of certain racial theories prevalent in Europe back in the early 1940s.

Turning alleged "intuition and experience" into a "general rule" is just pitiful. And it's just astonishing how the admittedly limited social-science research contrary to the supposed "general rule" is somehow trumped by the utter lack of research support on the side of the "rule"; see pages 7-8 of the opinion, it has to be read to be believed.
7.6.2006 7:18pm
Anderson (mail) (www):
Thanks to Mr. Winston for the link, demonstrating that Prof. Volokh implied words into Dean's mouth (via the "Does that mean ...?" rhetorical-question tactic).

God knows, Dean is enough of a kook at times that he might turn around and say tomorrow exactly what EV has attributed to him today. But unless and until he does, could we stick to what the man actually said?
7.6.2006 7:22pm
Steve:
It's pretty clear to me that no Democratic candidate for President will be taking their ideological marching orders from Howard Dean, so I'm not sure how his statement is relevant to the appointment of Supreme Court justices unless he intends to run again himself.

Anyway, I don't see one word in this statement indicating that Dean believes there should be action on a federal level. It's certainly possible to decry an action taken by a particular state without believing that the federal government ought to overrule that action somehow, and I don't see anywhere that Dean is advocating to the contrary. And, as other commentors have noted, Dean specifically condemned the "outdated and bigoted" notions upon which this particular court rested its decision - he didn't say that opposition to gay marriage is necessarily outdated and bigoted.

Not that I expect a substantive debate to occur in the volokh.com comments section where Howard Dean is involved, mind you.
7.6.2006 7:24pm
Michelle Dulak Thomson (mail):
Anderson,

Saying that your state constitution doesn't guarantee gay marriage is one thing. Finding it rational to say that gay parents, *as such*, are more "unstable" than straight parents, *as such*, is another thing.

Actually, the opinion says exactly the opposite of what you imply:

The Legislature could also find that [heterosexual] relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement — in the form of marriage and its attendant benefits — to opposite-sex couples who make a solemn, long-term commitment to each other.

The point seems to be that gay relationships involving children necessarily involve a lot of thought, because you don't adopt a child or get yourself artificially inseminated on the spur of the moment after a romantic dinner. It's heterosexual relationships that can produce children more or less accidentally, which is why they might need "stabilizing." And again, the Court isn't saying this is so, merely saying that the Legislature might plausibly have thought along such lines.
7.6.2006 7:27pm
Michelle Dulak Thomson (mail):
Anderson,

Sorry — I meant to quote the following graf as well:

The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.

[my emphasis]

To me that doesn't mean that gay couples are more unstable than straight ones, but perhaps I read old books of logic.
7.6.2006 7:36pm
Anderson (mail) (www):
Michelle, my bad--"stable" is such a catch-all value term for "good home for kids," I misused it there. ("Anderson, at least criticize the court for what it actually said!")

Which actually casts light on just how vague the court's reasoning was: a child "benefits" from having parents of different sexes and thus "living models of what both a man and a woman are like." This is very thin gruel indeed. "Stability" is hard science by comparison.
7.6.2006 7:43pm
Thorley Winston (mail) (www):

Is this the same Howard Dean that said:
"The Democratic Party platform from 2004 says marriage is between a man and a woman,"

He seems to have a hard time deciding what he wants.


I suppose that DNC Chairman Dean could probably just say that he's not actually responsible or accountable to his party's platform and what the delegates approved at their national convention and what the people responsible for raising money and coordinating elections believe about this issue are two separate things.
7.6.2006 7:44pm
El Capitan (mail):
I've never quite understood why everyone is so certain that SCOTUS recognition of same-sex marriage is unlikely. I would probably be more shocked to see Ginsburg, Stevens, and Souter vote against rather than for. Breyer is somewhat less likely imho, while Kennedy certainly didn't do much to convince me of his opposition with the stupendously broad language and reasoning in the Lawrence decision (and to a lesser extent, Romer). I'm not saying those five all voting "yes" to same-sex marriage is likely, but it hardly strikes me as unlikely.
7.6.2006 7:46pm
Thorley Winston (mail) (www):

Thanks to Mr. Winston for the link, demonstrating that Prof. Volokh implied words into Dean's mouth (via the "Does that mean ...?" rhetorical-question tactic).


Actually, while I think that Professor Volokh is wrong about this issue, he seems to have pretty much read Dean's press release correctly. If Dean doesn't think that the decision is wrong, then he wouldn't have condemned it as "deeply disappointing." By characterizing it as being about the "right to equal protection under the law" and "equal rights, responsibilities and protections under the law," it's pretty clear that Dean thinks that the court's decision conflicts with those beliefs and that they should have come to a different decision.

But feel free to keep trying to spin it otherwise.
7.6.2006 7:51pm
Eugene Volokh (www):
My reasoning was largely the same as Thorley Winston's: (1) The statement that the decision (not just its arguments) is "deeply disappointing," (2) the implication that the decision's refusal to mandate the recognition of same-sex marriage is contrary to "every American['s] right to equal protection under the law and to live in dignity" and "the right of every family to live in dignity with equal rights, responsibilities and protections under the law," and (3) the characterization of his statement as a "response to the decision by the New York Court of Appeals that the state constitution does not guarantee the right to marriage for same-sex couples, but that the state legislature could provide this," sound to me like Dean indeed thinks the Court of Appeals should have reached the contrary result.

I did point to the contrary possibility, by asking "Does Dean merely condemn the particular reasoning of the New York Court of Appeals, but accept the result?" I just don't think that's the most plausible interpretation of Dean's statement.

Many thanks also to Mr. Winston for the link to the press release; I got the press release as a reliable-seeming e-mail, and tried to find the link, but couldn't -- very glad that Mr. Winston came to the rescue on this.
7.6.2006 8:00pm
Thorley Winston (mail) (www):
I've never quite understood why everyone is so certain that SCOTUS recognition of same-sex marriage is unlikely.


Agreed, federal courts have now discovered that sodomy laws and "under God" in the Pledge of Allegiance are suddenly "unconstitutional" while discriminating against applicants to a State college on the basis of skin color is constitutional. I see no reason to expect that a district or appellate court won't suddenly discover that the Fourteenth or Ninth Amendment requires that States redefine civil marriage based on someone's fetish nor trust the SCOTUS not to affirm their decision or punt as it did on the pledge case.
7.6.2006 8:02pm
Max Hailperin (mail) (www):
I think you are giving Dean's press release a more careful analysis than it deserves. I am embarrassed to identify myself as a Democrat when the National Committee Chairman can use a phrase like "outdated and bigoted notions" to describe the reasoning of four justices and then a moment later, without hardly pausing for breath, call for "debate ... to proceed without the rancor and divisiveness that too often surrounds this issue."
7.6.2006 8:06pm
Thorley Winston (mail) (www):
It's pretty clear to me that no Democratic candidate for President will be taking their ideological marching orders from Howard Dean, so I'm not sure how his statement is relevant to the appointment of Supreme Court justices unless he intends to run again himself.


I guess because some people interpret official press releases from the chairman of a major political party who was elected by members of that political party as somehow representing the views of the party. And since that party will be running a candidate for President in 2008 who will (if elected) likely appoint at least one Supreme Court justice, it's fair to ask whether those candidates agree with the stated position of their party's chairman.

As far as what the 2008 candidates think (I don't believe we have any declared candidates yet), I'd be willing to bet that at least one presidential candidate (my guess is Russ Feingold) calls for recognizing SSM. And I'm sure that President Mitt Romney will have a good chuckle about it while he makes his first two SCOTUS appointments. ;)
7.6.2006 8:14pm
frankcross (mail):
I think it's a pretty distant jump from the contents of a press release of Dean to the beliefs of the justices appointed by a hypothetical future Democratic president and confirmed by a Senate of unknown composition and an additional leap to assume that those justices, whatever their beliefs, would swing the Court.
7.6.2006 8:14pm
Chris Bell (mail):
As I read somewhere else:

The Constitution has been amended 26 times in almost two and a half centuries. Republicans tried to amend it twice in the last month.

P.S. Max's last comment cracks me up.
7.6.2006 8:14pm
BobN (mail):
I'd rather hear what the good Professor thinks about today's ruling than speculate about what Howard Dean might or might not mean in a press release.

But that's just me.
7.6.2006 8:20pm
Thorley Winston (mail) (www):
The Constitution has been amended 26 times in almost two and a half centuries. Republicans tried to amend it twice in the last month.


Twenty-seven times actually. As far as proposed constitutional amendments, the specter of the ERA continues to haunt Congress as late as 2005.
7.6.2006 8:28pm
dick thompson (mail):
I find it interesting that so many say that what Dean believes should not be linked to what a future presidential candidate would believe even though Dean is the party chairman. These same people profess to know exactly what a republican presidential candidate would believe because there are a lot of religious republicans. I would think that the beliefs of the chairman of the party who is elected by the members of the party would come a whole lot closer to the beliefs of the standard bearer of the party than some but not even a majority of the members of the party.

Personally if I were a democrat (perish the thought) I would be ashamed to admit that Dean was the party chairman. There are a lot of good democrats out there who would be good chairman and also would not be so likely to insert foot in mouth. Although I am not a democrat I would rather see them with a good, logical, clear thinking chairman than the buffoon they have in that position now. I think we need two parties with differing views that can be reasonably argued than what we have now which is one party with ideas and one party which is not able to state what their ideas are and that has leaders who spend more time with foot in mouth than out.
7.6.2006 9:20pm
Cornellian (mail):
Does this mean that a Democratic President is likely to appoint Justices who would reject "outdated and bigoted" decisions such as the New York Court of Appeals', and who would therefore interpret the U.S. Constitution the way Dean thinks the New York Constitution should have been interpreted -- as "guarantee[ing] the right to marriage for same-sex couples"? Does it mean that the sitting Justices would be acting in an "outdated and bigoted" way by not interpreting the U.S. Constitution as mandating the recognition of same-sex marriage? Does Dean merely condemn the particular reasoning of the New York Court of Appeals, but accept the result? Or does Dean believe that the New York court's interpretation of the New York Constitution was wrong, but the U.S. Supreme Court's similar interpretation of the U.S. Constitution would be proper? (Such a theory is certainly possible, but I just wonder whether this is indeed Dean's view.)

There's the possibility that SCOTUS would conclude the arguments in favor of restricting marriage to opposite sex couples were outdated and bigoted, but that such restriction was nevertheless not unconstitutional. After all, the federal constitution doesn't per se prohibit things that are outdated, or bigoted or both.
7.6.2006 9:27pm
Shelby (mail):
Thorley Winston:
see no reason to expect that a district or appellate court won't suddenly discover that the ... Ninth Amendment requires....

That would require first discovering that the Ninth Amendment exists, so you needn't fret. (Though you've a point about the Fourteenth, which apparently contains vastnesses beyond mortal (non-judicial) comprehension.)

Dick Thompson: Alas, I fear your description of "what we have now" is NOT meant as a joke. But that won't stop us non-true-believers from laughing.
7.6.2006 9:40pm
Al Maviva:
Turning alleged "intuition and experience" into a "general rule" is just pitiful.

Well, Anderson, I don't know about intuition, but I know that turning experience into a general rule, when done as an academic pursuit is called "History" and when done as political philosophy is called "conservatism." Hence neo-liberalism and traditional modern neo-liberal ahistoricism are the diametric opposite of conservatism and the study of history.

Now, did you arrive at your position - that it's "just pitiful" based on experience, or intuition?
7.6.2006 9:43pm
marghlar:
It is long past time to grant heightened scrutiny to discrimination against homosexuals under the equal protection clause. Indeed, it is hard to find a persuasive reason not to do so (at least on a textualist basis).

If this was done, it would become quite hard for the court to avoid the parallel of Loving v. Virginia.

But don't hold your breath -- I absolutely agree with Prof. Volokh that such a change is unlikley in the extreme.
7.6.2006 9:46pm
Rob Johnson (mail):
Eugene says:

I support recognition of same-sex marriages for policy reasons, but I think it should be done through the political process, for many of the reasons that others have discussed at great length elsewhere.


But then he says:

I don't see a need even for a narrow constitutional amendment that would preclude [the US Supreme Court from finding an equal protection right to same-sex marriage.


Am I alone in thinking that Eugene's position is untenable and unprincipled?

Once one separates the policy question from the constitutional question, there are four possible positions in the debate over same-sex marriage:

Position 1: Support same-sex marriage on policy grounds and believe it is a constitutional right.

Position 2: Support same-sex marriage on policy grounds but believe it is not a constitutional right. (Persons holding this position may believe that same-sex marriage should be a constitutional right, but they reject the idea that it presently is a constitutional right.)

Position 3: Oppose same-sex marriage on policy grounds but believes that it is a constitutional right. (Persons holding this position would support an amendment removing same-sex marriage from constitutional protection.)

Position 4: Oppose same-sex marriage on policy grounds and believe that it is not a constitutional right.

Eugene says he holds position 2, but then he says that he does not support a constitutional amendment to prevent the US Supreme Court from saying that there is a constitutional right to same-sex marriage. Eugene would presumably oppose an amendment that said: Nothing in this constitution creates a right for a person to marry another person of his or her own sex.

Look, either same-sex marriage is a constitutional right, or it's not. If it's not a constitutional right, you should oppose its judicial imposition, even if you support it as a policy matter. The question is more about what it means to live in a constitutional democracy than it is about whether to recognize same-sex marriage, and so far I find Eugene's views rather disconcerting.
7.6.2006 9:59pm
SLS 1L (mail):
The two major equal protection arguments in favor of recognizing ssm as a constitutional right are:

(a) a ban on ssm is unconstitutional sex discrimination;
(b) sexual orientation should be recognized as a suspect classification, which the ssm ban runs up against.

Professor: is there any chance we can get you to articulate the theory of equal protection that leads you to reject both of these claims?
7.6.2006 10:25pm
Steve:
Are people seriously asserting the position that all members of a party have the same position on a given issue? Or are they, as per usual, just clowning for purposes of an Internet debate?
7.6.2006 10:50pm
Moneyrunner43 (www):

Why Steve, you little tease you. Of course we are not saying that. For example, the Democrats have a pro-war faction (of Lieberman) and an anti-war faction of everyone else. They have an anti abortion faction of …(oh, bob Casey is dead) and an pro-abortion faction of everyone else. They have an tax reduction faction of ….uh… and a tax increase faction of everyone else. I could go on, but I'm sure I have proven your point.
7.6.2006 11:12pm
AllOverButTheScreaming:
Are you seriously only now starting to realize the way this works?

It is only a matter of time before the 5 liberal U.S. Supreme Court Justices, no doubt citing to foreign law and cases, "invents" the right of homosexuals to marry. Or, as I like to put it, it is all over but the screaming.

Until that time, the Dems will pretend to be in favor of Federalism and suggest that maybe the legislatures are the way to go, until the minute they get the liberal court decision they want.

Those claiming that there is no way the U.S. Supreme Court will not force gay marriage on the nation are either pro-gay marriage people who are being disengenuous or conservatives who are naive.

Speaking of the politics of this and the courts, look to Washington State's Supreme Court. July 7 (this Friday) is the last day to file signatures for constitutional amendment initiatives for the November 2006 ballot.

The Washington State Supreme Court has sat on its gay marriage decision for over 18 months.

Wonder why? Because they are going to go in favor of gay marriage and this way, there is no way the people can do anything about it for at least a year if not 2 years.
7.6.2006 11:22pm
JohnO (mail):
I do suspect that Democrats planning on running for President are probably really unhappy that Dean made this statement. Can't you picture the following question at a debate or town hall:


"Howard Dean, Chairman of your party, issued a press release saying that Democrats were disappointed that the New York Court of Appeals did not find a constitutional right for persons of the same sex to marry, and he further urged the New York legislature to create a right to same-sex marriage. Do you agree with your party chairman that the right to same sex marriage is a findamental right under federal and/or state constitutions, and do you believe that legislatures should permit such marriages in any event?"



I can then picture any candidate who doesn't explicitly support same-sex marriage as having to make an uncomfortable response that will not offend supporters in favor of permitting same-sex marriage while not actually supporting same-sex marriage. You can quibble with whether the proposed question above is a fair characterization of Dean's comment, but that's how the question would go.
7.6.2006 11:24pm
Steve:
Why Steve, you little tease you. Of course we are not saying that. For example, the Democrats have a pro-war faction (of Lieberman) and an anti-war faction of everyone else. They have an anti abortion faction of …(oh, bob Casey is dead) and an pro-abortion faction of everyone else. They have an tax reduction faction of ….uh… and a tax increase faction of everyone else. I could go on, but I'm sure I have proven your point.

My point about clowning? Yes indeed.
7.7.2006 2:54am
Bell90:
Dean is speaking as a politician who believes that gay people should have a right to be married. He probably cares less then we do about whether it takes place through the courts or the political branches. It is unfair to parse his statement for clues as to how he (or any other Democrat) would choose a Supreme Court Justice. He did not make any sweeping statements as to jurisprudential theory.

Moreover, he talks about taking the battle to the legislature in the wake of the NY decision, not trying to change the composition of the courts. Certainly this is a course of action Prof. Volokh would agree with. While I understand Dean is everyone's favorite whipping boy, Prof. Volokh's attack is unfair.
7.7.2006 12:04pm
The General:
All future Democratic presidents will have ideological litmus tests for their SCOTUS nominees, which tests will require certain political outcomes in decision-making, such as the maintaing/expanding Roe and constitutionalizing gay marriage and other left-wing policy preferences. They don't make any bones about it, so its naive to think otherwise.
7.7.2006 3:18pm
KeithK (mail):

The Constitution has been amended 26 times in almost two and a half centuries. Republicans tried to amend it twice in the last month.

Congress considers many, many more Constitutional amendments than the FMA and flag burnign amendment. According to a C-SPAN study more than 100 amendments were proposed during each Congress in the '90s and I suspect we'd have similar numbers in the last six years. The proposed amendments come from both sides of the aisle. Granted, most of these never reach the floor for a debate or a vote. The fact that two have recently simply reflects significant political support. Isn't this how the democratic process is supposed to work?
7.7.2006 4:00pm
Cyn23 (mail):
As to having "models," since the state still allows gay couples to have children -- in fact, allows them to adopt -- how exactly does burdening the thousands of gay families with a blanket ban as compared to supplying hetereosexual couples perhaps with certain additional privileges rational?

As the dissent notes, apparently it is fully rational to unnecessarily, nay irrationally, burden homosexuals (and their children) to further the needs of hetereosexual couples and their children.

I also like the sentiment that heterosexuals have accidental pregnancies and such. How about bisexuals? Do the judges not realize that many individuals are not either/or, and might still get pregnant or become parents the "natural way?" Or, that many same sex couples have families in part a result of past actions of this sort?

The opinion was inane. I understand the tradition argument, but it only goes so far. Anyway, I can't tell the future. Liberal justices in the 1960s supported discrimination in "private clubs" that were later deemed illegitimate. Just one sacred cow altered over time.

I'm a bit younger than Eugene. I reckon that the federal courts might in my lifetime decide the Loving for homosexuals.
7.8.2006 4:04am
logicnazi (mail) (www):
This has little to do with Lawrence v. Texas except for invoking the same constitutional clause. The cultural issues might be the same but the legal ones are not.

I think simple consistancy and legal principle demand that the supreme court either demand any restriction of gay marriage pass at least a rational basis test if not compelling interest OR overturn Turner v. Safley, Redhail and the handfull of other rulings holding marriage to be a fundamental right.

In particular Turner v. Safley really needs to go if they don't want to uphold gay marriage as O'Connor's holding here seemed to say that the features which gay marriage has (community regocnition, religious/spiritual significance etc..) were enough to warrant status as a fundamental right even if vaginal sex, procreative possibility, shared childrearing or anything special about male/female cohabitation are unavailible because of imprisonment.

I'd be perfectly happy with such a ruling. I've always thought it was absurd that there was a fundamental right to a state sanctioned marriage. I mean if it would be okay for the states to dissolve the legal notion and leave it to the religions/families/society to work out themselves how can it be a fundamental right? Moreover, since every collection of benefits provided by the legal recognition is not constitutionally demanded (tax breaks, testimony exception, etc.. can all be taken away) how can the thing as a whole be a right?

I think that the state should just totally get out of the buisness of marriage and I don't think you can call yourself a libertarian if you don't favor pure private contracts over state involvement in marriage. However, whatever it decides to do it should do consistantly and that either means overturning Turner v. Safley or giving gay folks the same marriage rights that even prisoners get.
7.8.2006 5:09am
jvarisco (www):
"As to having "models," since the state still allows gay couples to have children -- in fact, allows them to adopt -- how exactly does burdening the thousands of gay families with a blanket ban as compared to supplying hetereosexual couples perhaps with certain additional privileges rational? "

Can you ban gay adoption if you allow them to marry? You assume gay families are something the legislature supports, as opposed to an unfortunate occurrence that can be discouraged in the future.

I would expect that gay couples are substantially less likely to be given a child; even if one accepts that they are just as good (there may not be evidence disproving this, but intuitively it seems that children need both a mother and father - and so the burden should be on gay rights activists to offer evidence) there is still the fact that in any place in this country a kid with two fathers is going to be ostracized and made fun of. That's not going to change if you call it marriage, or domestic partnerships, or anything else.
7.9.2006 2:59am
Russ Davis (mail):
It's a sad fact that if you tell a lie long enough folk will believe. The simple fact is that for intelligent people that don't have to obey their slavemasters like leftists do (e.g. DNC, NOW &Planned Parenthood), there's no such thing as "homosex-" anything, another antiChristian lie foisted by clever antitheist bigots and their fools, see www.touchstonemag.com/archives/article.php?id=18-10-036-f
7.10.2006 11:25pm