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California Appeals Court Upholds State Marriage Law:

Opinion here. Next up, the California Supreme Court. And we're still awaiting a decision from the New Jersey Supreme Court.

Rob Johnson (mail):
Key lines from the majority opinion:

The dissent delivers what is essentially an impassioned policy lecture on why marriage should be extended to same-sex couples . . . . The time may come when California chooses to expand the definition of marriage to encompass same-sex unions. That change must come from democratic process, however, not by judicial fiat.


Sing it!

Look, whatever one's beliefs regarding the merits of same-sex marriage as a policy matter, we can find common ground by agreeing that the debate belongs in the legislature, not the courtroom.

Professor Carpenter has (in my view, persuasively) argued that a person who opposes same-sex marriage on policy grounds should nevertheless oppose a constitutional amendment foreclosing it. Similarly, a person who supports same-sex marriage on policy grounds should reject judicial activism imposing it.
10.5.2006 7:12pm
Mark Field (mail):

a person who supports same-sex marriage on policy grounds should reject judicial activism imposing it.


Well yeah, because we all feel so bad about Loving v. Virginia and (in CA) Perez v. Lippold.
10.5.2006 7:28pm
PeterH:

Look, whatever one's beliefs regarding the merits of same-sex marriage as a policy matter, we can find common ground by agreeing that the debate belongs in the legislature, not the courtroom.


You mean, like California, whose legislature already voted for full marriage rights for gay and lesbian people, only to have the governor veto it, because the decision belonged to the courts?
10.5.2006 7:37pm
Nom (mail):
PeterH:
Err, the people of Cali voted for an initiative banning SSM in 2000. Under the California Constitution, the legislature may not repeal or modify a law adopted directly by the people in an initiative.

Therefore, the legislature could not validly legalize SSM. The Governor took an oath to defend the California COnstitution, and was obligated to veto the bill.
10.5.2006 7:42pm
bob montgomery:
I like this line:
The six cases before us ultimately distill to the question of who gets to define marriage in our democratic society. We believe this power rests in the people and their elected representatives, and courts may not appropriate to themselves the power to change the definition of such a basic social institution.
10.5.2006 7:50pm
keypusher (mail):
PeterH: He vetoed it because California's voters had passed a referendum in 2000 defining marriage as between a man and a woman. Why not argue honestly?
10.5.2006 7:50pm
Rob Johnson (mail):
PeterH,

I agree. Governor Arnold had it bass-ackwards. I've got good news though . . . California can elect a different Governor.

The Governor's action could have been defensible though, if:

(1) Under California's Constitution, the legislature cannot reverse what the people have done via the initiative process;

(2) The legislature was trying to reverse what the people had done via the initiative process; and

(3) The Governor articulated the #1 and #2 or disagreement with same-sex marriage as a policy matter as the basis for his veto.

I do not know if these conditions were satisfied.
10.5.2006 7:52pm
Nom (mail):
10.5.2006 7:55pm
keypusher (mail):
Rob Johnson: So why not find out? It isn't hard.

veto message
10.5.2006 7:58pm
Nom (mail):
Eugene's post also establishes that (2) is the case. And (3) is established by this:

In California Governor Arnold Schwarzenegger's statement announcing his intended veto of a bill that would allow same-sex marriage, he claims that to do otherwise would be "unconstitutional." The statement says:

"Five years ago the matter of same-sex marriage was placed before the people of California. The people voted and the issue is now before the courts. The Governor believes the matter should be determined not by legislative action - which would be unconstitutional - but by court decision or another vote of the people of our state. We cannot have a system where the people vote and the Legislature derails that vote. Out of respect for the will of the people, the Governor will veto AB 849."
10.5.2006 7:58pm
KeithK (mail):

You mean, like California, whose legislature already voted for full marriage rights for gay and lesbian people, only to have the governor veto it, because the decision belonged to the courts?

regardless of the governor's rationale for vetoing this bill, the fact is that it did not become law. In no way does this subvert the democratic process. The executive veto is a fundamental part of our system where the power to make laws is split bewteen the two political branches.
10.5.2006 8:00pm
Rob Johnson (mail):
Nom,

Do you know if (2) and (3) are the case? If they are not, I do not think the Governor's veto is defensible. I remember reading some press coverage at the time and not being impressed with his analysis. It sounded to me like he was saying: this is an issue for the courts to decide, which, as you know, I think is 180 degrees wrong.
10.5.2006 8:02pm
Nom (mail):
Rob:

see the previous few posts. It seems all three of your criteria are satisfied here.
10.5.2006 8:04pm
Rob Johnson (mail):
Keypusher,

Thanks for the link to the Governor's veto letter. I agree that it establishes conditions 1, 2 and 3 and that his veto was justifiable.

I don't know why I thought I remembered him vetoing the bill on the grounds that the issue belonged to the courts. My bad! Thanks for the correction.
10.5.2006 8:08pm
Archon (mail):
I'm tired of people thinking that Loving v. Virginia is somehow morally equal to the current same sex cases. The only justification for interracial marriage laws was sheer racism (read the lower court opinions in Loving affirming the practice).

Loving is nothing but a red herring. There are legitimate reasons why society should not recognize gay marriage. For instance, promoting the best child rearing environment, protecting a 3000 year old institution, and efficiently allocating scarce resources as marriage benefits.
10.5.2006 8:28pm
Rob Johnson (mail):
Archon,

The majority opinion destroys the specious analogy to Loving on page 37.
10.5.2006 8:42pm
Jiffy:
The majority's analysis distinguishing Loving is persuasive. Archon's isn't.
10.5.2006 8:54pm
Randy R. (mail):
Archon,
What you are tired of is gay people wanting to get married.
Good thing you are protecting marriage, though, since it apparently is so fragile it can't withstand a handful of gay people getting married. Actually, gay people ARE getting married, in Massachusetts. And their 'scarce' resources are being efficiently allocated among gay couples as well as straight without any problems.

But we are still around, and we'll still be yammering for it for a long, long time. New York will probably be next!
10.5.2006 9:06pm
Archon (mail):
So if Loving wasn't about racism, why did the Supreme Court state in dictum:

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.

Once the junk science of the 1910's and 1920's was debunked, the government had no rationale basis on which to justify interracial marriage bans. The only justification left was sheer racism.

Whereas, there are numerous legitimate reasons why gay marriage should be banned. These include the ones I posted above.

Loving is still nothing but a red herring in the gay marriage argument.
10.5.2006 9:08pm
Archon (mail):
If you need more proof that Loving was only about racism, look at footnote 11. The act codifying the ban was called "An Act to Preserve Racial Integrity," which coincidentally only banned white interracial marriage, but allowed all other races to intermarry.
10.5.2006 9:10pm
Rob Johnson (mail):
Sorry Jiffy, but it's essentially the same analysis. Prohibitions on inter-racial marriage were born out of racial discrimination. In contrast, prohibitions on same-sex marriage are not born out of discrimination towards men or women.

If anything they single out same-sex couples for disparate treatment, but same-sex couples are not a protected class.
10.5.2006 9:11pm
Archon (mail):
Also, like I said above, look at the justification the lower courts used to find the statute constitutional. I'll only copy the best lines:

[to preserve] "the racial integrity of its citizens"
[to prevent] "the corruption of blood,"
[to prevent] "a mongrel breed of citizens,"
[to stop] "the obliteration of racial pride"

Sounds like pure racism to me.
10.5.2006 9:14pm
Mark Field (mail):

The majority opinion destroys the specious analogy to Loving on page 37.


I assume you refer to this passage:

"No evidence indicates California's opposite-sex definition of marriage was intended to discriminate against males or females, and respondents do not argue that the purpose of the definition is to discriminate
against either gender. If anything, relevant legislative history and voter materials suggest the intent was to single out same-sex couples for disparate treatment."

I find this singularly unpersuasive. The court missed the whole point. The key fact both in Loving and here is that the law discriminates by limiting who may be chosen as a spouse. In Loving, if you were white, you could only choose a white person as your spouse. Here, if you are male, you can only choose a female as your spouse. The situations are thus parallel.

The court's refusal to treat sexual orientation as a protected class is also error, as was its characterization of the "fundamental right" involved. The dissent has much the better of the argument.
10.5.2006 9:22pm
Archon (mail):
Mark -

You logic is so flawed that it is laughable. To even think that race and sex are parallel is absurd. To begin with, in order for race and sex to be parallel, they would have to be somewhat similar to each other.

Race and sex are so different that it is like comparing apples to elephants. At best, the difference between the races is skin color, minor differences in physical features, and different perpensities to be predisposed to certain genetic diseases. Men and women are completely different mentally and physically. I won't go into details because I assume you have already had a high school biology class.
10.5.2006 9:30pm
Jiffy:
Archon and Rob Johnson are actually making my point. The argument has been offered that gay marriage prohibitions discriminate on the basis of gender just the way that the laws against interracial marriage struck down in Loving discriminated on the basis of race. The California court has responded that while the intention of the race laws in Loving was clearly to discriminate against blacks, the gay marriage prohibitions are not intended to discriminate against either men or women. They "only" discriminate on the basis of sexual orientation which, unlike race and gender, is not a suspect classification. So, Loving is not helpful to the pro-gay marriage side in showing that gay marriage bans are gender discrimination. That is very different from saying, as Archon tried to at first, that gay marriage bans are justified by "legitimate reasons"--reasons I suspect will in 20 years be just as discredited as the rationales rejected in Loving and which sound to me like "pure discrimination."
10.5.2006 9:39pm
Archon (mail):
I'm not trying to say that I would never support gay marriage. I just want more of a rationale to support it other then, "to not support gay marriage is to support discrimination."

Right now, the authorities are, at best (and I am stretching the use of this phrase), inconclusive as to whether gay households are good child rearing environments. For all I know they might be better. If they turn out to be equal or better - I will be all for gay marriage. But, I'm not going to support a radical change in a 3000 year old institution just because some people think it is impermissable discrimination to keep marriage exclusively between a man and a woman.
10.5.2006 9:46pm
Rob Johnson (mail):
I suspect will in 20 years be just as discredited as the rationales rejected in Loving and which sound to me like "pure discrimination."


Don't hold your breath. The highest courts in most of the states are going the other way.
10.5.2006 9:50pm
Daryl Herbert (www):
The trial court concluded the marriage laws are discriminatory, reasoning: "If a person, male or female, wishes to marry, then he or she may do so as long as the intended spouse is of a different gender. It is the gender of the intended spouse that is the sole determining factor." Obviously, however, the opposite-sex requirement for marriage applies regardless of the applicant's gender. The laws treat men and women exactly the same, in that neither group is permitted to marry a person of the same gender. We fail to see how a law that merely mentions gender can be labeled "discriminatory" when it does not disadvantage either group.
Pages 33-34 (emphasis added)

This is only true if you think men and women are equal:
As a chauvanist, misogynist, male supremacist, I think women are scum. The fact that any ordinary woman has the right to marry a man, but all men are limited to marrying obviously inferior women, is gender discrmination on its face. I want the right to marry a hairy lad who can bend me over and strap it on, and it's hard to find women like that.
How far do you think I'd get with that argument in court? (I am joking--I strongly prefer women to men and I don't think they're at all inferior.) We could probably make it a bit more PC and Oprahfied, though . . . something like this:
I'm a woman, I'd rather be with a woman than a man, because women tend to be softer, more emotionally aware, emotionally stronger, more sensuous, have better sex organs, and smell nicer. If I was a man, I'd have the right to marry a woman. But since I'm a woman, I'm limited to marrying some man. And while there are some metrosexual men in touch with their emotions and wearing nice perfumes, it's still not good enough. First, they still don't have vaginas. Second, they're still not emotionally women. Third, they're hard to find--even if I could find one, this is about discrimination against women as a whole, and not all women are as successful/attractive/able to land a metrosexual as me.
In all seriousness, do you think this argument works?
10.5.2006 9:51pm
Rob Johnson (mail):
The key fact both in Loving and here is that the law discriminates by limiting who may be chosen as a spouse.


Mark Field: Are there any other ways that the "law discriminates by limiting who may be chosen as a spouse"? I find it very disheartening when someone is unwilling to take his arguments to their logical conclusions. Are you?
10.5.2006 9:55pm
Daryl Herbert (www):
Rob Johnson:
I remember reading some press coverage at the time and not being impressed with his analysis. It sounded to me like he was saying: this is an issue for the courts to decide, which, as you know, I think is 180 degrees wrong.
...
I don't know why I thought I remembered him vetoing the bill on the grounds that the issue belonged to the courts. My bad! Thanks for the correction.
Actually, the quote that might have confused you might be in today's judicial opinion:
Although Assembly Bill No. 849 passed both houses of the Legislature in September 2005, it was vetoed by the Governor. In his veto message, Governor Schwarzenegger explained that while he supported domestic partnerships for gay and lesbian couples, he did not believe the Legislature could amend Family Code, section 308.5 without submitting the provision for voter approval. (Governor's veto message to Assem. on Assem. Bill No. 849 (Sept. 29, 2005) Recess J. No. 4 (2005-2006 Reg. Sess.) pp. 3737-3738.) Moreover, because the constitutionality of the marriage laws was pending before this appellate court at the time, the Governor believed Assembly Bill No. 849 would add "confusion" to the constitutional issues under review. (Ibid.) He remarked, "If the ban of same-sex marriage is unconstitutional, this bill is not necessary. If the ban is constitutional, this bill is ineffective." (Ibid.)
Pages 20-21.
10.5.2006 9:58pm
Plato:
Of course, the court would have found a law limiting marriage to couples who can reproduce constitutional, no?
10.5.2006 10:02pm
Rob Johnson (mail):
Daryl Herbert,

Thanks but I don't think that was it . . . or if it was, I seriously misunderstood what the Governor was saying. Nothing in that statement is troubling to me.
10.5.2006 10:04pm
Daryl Herbert (www):
The laws treat men and women exactly the same, in that neither group is permitted to marry a person of the same gender. We fail to see how a law that merely mentions gender can be labeled "discriminatory" when it does not disadvantage either group.
Page 34. But there is a disparate impact. There are more male non-straights than female non-straights. And when you look only at "true" homosexuals--not bisexuals, not 90/10s--there are many more males than females, possibly on the order of 5:1. This law has a much stronger negative impact on men than on women.

That wasn't a motivating factor behind the law, though . . . and lots of laws have a disparate impact on men (for instance: most criminal statutes). However, most of laws aren't about gender.

I suppose this theory could most effectively be rebutted if we looked at marriage statistics from Massachussetts and saw that women equal or outnumber the men in terms of same-sex marriages.
10.5.2006 10:17pm
BobN (mail):
Someone correct me if I'm wrong, but is this not the very first time that the level of judicial scrutiny warranted in an appeals court case has been based on a CBS poll?

Your sexuality is 50% immutable. The people say so!

What a farce.
10.5.2006 10:25pm
Realist Liberal (mail):
Rob Johnson~
What you may be remembering is the media's discussion of statements of Assemblyman Mark Leno (Democrat from San Francisco who spear headed the effort to get the bill passed). Essentially he argued that Prop 22 (the proposition that people talk about) didn't actually deal with whether or not CA would sanction same-sex marriages but rather whether or not CA would recognize out of state same-sex marriages. This really is not a very strong argument but a lot of the media latched onto that and started mischaracterizing Leno's argument to make it sound more persuasive.

For full disclosure, I heard Leno speak to law students where he tried to make his case. I really wanted to agree with him (because I'm in favor of gay marriage as a policy) but found that he was completely unconvincing and was grasping at straws.
10.5.2006 10:26pm
Randy R. (mail):
So far as I know, there have been no credible studies that show that children of gay marriages are any worse than children of straight marriages. There are, however, several studies that show that children turn out at least as well.

And intuitively, that should be the case. There are good parents and bad parents in the world, but that has nothing to do with sexual orientation. Furthermore, most people would agree that since gay people are parents *already*, then it makes sense for the stability of the family unit that the parents be able to marry. Denying marriage to a gay family unit hardly seems to accomplish anything other than to make the family life more difficult.
10.5.2006 10:36pm
Archon (mail):
Just because a free society must tolerate something, does not mean that government policy must bestow benefits upon it. Society has to tolerate pornographers and bigots, but does not have to bestow public benefits on them because of their beliefs or behavior.

The government has an interest in promoting the best environment to rear children and can bestow benefits upon those who promote that environment.
10.5.2006 10:46pm
Rob Johnson (mail):
Randy R.,

You understate the power of the counter-argument. The case for a mom and a dad is similar to the case for "diversity" in the class room. Children miss out on certain viewpoints and perspectives when they do not have a mom AND a dad. How good an individual parent is is irrelevant.
10.5.2006 10:46pm
Jiffy:

Don't hold your breath. The highest courts in most of the states are going the other way.


Please explain your point. What do court decisions have to do with whether theories about whether gays are good parents (for example) become discredited or whether they are "pure discrimination" against gays?
10.5.2006 10:47pm
Jiffy:
Archon

Right now, the authorities are, at best (and I am stretching the use of this phrase), inconclusive as to whether gay households are good child rearing environments. For all I know they might be better. If they turn out to be equal or better - I will be all for gay marriage.

I'm not sure what "authorities" you're referring to, but I can tell you someplace where there is very good evidence about childrearing outcomes: children of poor families turn out, on average, far worse than children of wealthier families. Are you in favor of a ban on marriage between poor people?

By the way, where did you get the idea that "marriage between one man and one woman" is a "3000 year old institution"?
10.5.2006 10:55pm
Mark Field (mail):

Are there any other ways that the "law discriminates by limiting who may be chosen as a spouse"? I find it very disheartening when someone is unwilling to take his arguments to their logical conclusions. Are you?


Of course there are. Let me make my point more explicit, though I think it was obvious enough in context before. The VA law in Loving said, in effect, "if you are white, you may only take a white person as your spouse". That discriminated on the basis of race because it did
not allow the white person to take a non-white as a spouse.

The CA statute says, in effect, "if you are male, you may only take a female person as your spouse." That discriminates on the basis of gender because it does not allow the male to take a male as a spouse.
10.5.2006 10:57pm
Daryl Herbert (www):
At the time the traditional marriage law was adopted, men and women were not seen as equals; Men had more rights and women were to be kept in their place.

Prohibiting same-sex marriage denied women the the opportunity to enter into an equal marriage.

Now that I've shown the discriminatory intent, the discriminatory effect, and the nexus between the two, don't I have a prima facie case of gender discrimination in the traditional laws being challenged?
10.5.2006 11:44pm
JoshL (mail):

The VA law in Loving said, in effect, "if you are white, you may only take a white person as your spouse". That discriminated on the basis of race because it did
not allow the white person to take a non-white as a spouse.



The VA law in Loving did indeed essentially say "you may only take a white person as your spouse if you are white," but an important factor is that this was the ONLY classification that was applied. That is, an Asian and an African American were free to marry if they wanted, but the white person couldn't marry either. This does then discriminate between races. The story would be different if it said "whites may only marry whites, blacks blacks, Asians Asians," etc. You might be able to argue racism in a legal sense, but it would be on a wholly different ground.

It would also be more similar to this situation (an even more similar way would be to say that there were only two races, white and black, and that a white could only marry a black and vice versa)- in this case, a male can only take a female spouse, but a female can only take a male spouse. There's no discrimination terms of gender here, however much you might want to say that there is. There is certainly discrimination against sexuality and sexual preference, but as stated above, that's not seen as a protected class.

There's also the historicity example to consider: in Western civilization (I'm not certain about non-Western ones), there has never been a culture that permitted marriage between two members of the same sex (keep in mind that we're not just talking Judeo-Christian norms here; the same applies for Rome, as well as ancient Greece, however much various sexual practices may have been permitted). On the other hand, while there may have been taboos against interracial marriage, it certainly was permitted in at least some cultures. This isn't, to my memory, a significant argument in this particular case, but it could certainly be one in others.

The bottom line is: until homosexuals are a protected class in this context, there's not going to be a widespread judicial reversal of same-sex marriage bans.
10.5.2006 11:59pm
Cornellian (mail):
Look, whatever one's beliefs regarding the merits of same-sex marriage as a policy matter, we can find common ground by agreeing that the debate belongs in the legislature, not the courtroom.

And yet every state amendment proposed to "save" us from judicially imposed same-sex marriage has in fact been drafted so as to prevent legislatures from enacting same sex marriage. I see very little support for the proposition that activists opposed to same sex marriage are content to leave the matter to legislatures.
10.6.2006 12:17am
Mark Field (mail):

The VA law in Loving did indeed essentially say "you may only take a white person as your spouse if you are white," but an important factor is that this was the ONLY classification that was applied. That is, an Asian and an African American were free to marry if they wanted, but the white person couldn't marry either. This does then discriminate between races. The story would be different if it said "whites may only marry whites, blacks blacks, Asians Asians," etc. You might be able to argue racism in a legal sense, but it would be on a wholly different ground.


It's discrimination on the basis of race either way. In the latter case, each person is limited in the choice of spouse solely on the basis of race. See below.


It would also be more similar to this situation (an even more similar way would be to say that there were only two races, white and black, and that a white could only marry a black and vice versa)- in this case, a male can only take a female spouse, but a female can only take a male spouse. There's no discrimination terms of gender here, however much you might want to say that there is.


No, you've misread the analogy. In Loving, the state's argument was exactly the argument that you're trying to make with respect to gender. The state argued that there was no discrimination because blacks as a group and whites as a group were treated equally. That was true in the limited sense that both groups were restricted to their own color. But that was not the flaw in the statute. The key is to look at the statute from the point of view of the individual trying to marry, not of the group to which he/she belonged. The flaw in the statute was that an individual white was limited in his/her choice of spouse on the basis of race.

Similarly, under the CA law males as a group and females as a group are both equally restricted, but that's not the flaw. The flaw is that an individual is limited in his/her choice of spouse on the basis of gender.
10.6.2006 12:31am
Caliban Darklock (www):
As I understand it, homosexuals *can't* become a protected class because a homosexual can easily masquerade as a heterosexual. All he need do is not say he is homosexual, and everyone will assume he is heterosexual. It is therefore trivial for the homosexual to evade any and all persecution on the basis of sexual preference, because there is simply no need for him to volunteer any information about it.

Gender and skin color are a little harder to keep on the down-low.

As I see it, this revolves around a fundamental failure in the gay community to differentiate between acceptance and approval. They demand acceptance, and they get it, but they're unsatisfied because what they really want is approval. There's a void here which no amount of legislation or protection can fill.

I frequently wonder why no one has taken the very simple step of pointing out that if gay marriage is rationally portrayed as a slippery slope leading to polygamy and bestiality, it's logical to assume that we've gotten to gay marriage via the slippery slope of straight marriage. Rather than slide further down the slope, why not climb back to the high ground by simply discontinuing any governmental support for and recognition of marriage in all its forms? There is no real basis for it outside of religious scripture. What rational secular basis is there for a government sanction of marriage in modern society?

Keep in mind that even today, nobody prevents you from having the same ceremony and making the same vows. Marriage itself would go nowhere; only governmental support for it would vanish.
10.6.2006 12:34am
Lev:
This will all be quaintly irrelevant when Sharia Law becomes the law of the land.
10.6.2006 12:51am
jgshapiro (mail):

[U]nder the CA law males as a group and females as a group are both equally restricted, but that's not the flaw. The flaw is that an individual is limited in his/her choice of spouse on the basis of gender.


Saying this is gender discrimination if you look at it from the perspective of the person who wants to get married puts you on a slippery slope from which you cannot escape. That individual is also limited in his/her choice on the basis of age, number of spouses and consanguinity too. The rationale that says that I get to choose anyone I want to marry not only says I can marry another man, but also my daughter, my sister, or the 14-year old girl down the street. The dissent never distinguishes why a state can say no to these choices, but not the opposite sex limit. Those choices would also reflect my identity, reflect a deep personal commitment and would be synonomous with intimate personal association. But they are not allowed.

This is not gender discrimination. The plaintiffs tried to shoehorn the case into that box because it gives them some level of increased scrutiny, but the peg does not fit into the hole. It is really sexual orientation discrimination, and ultimately, the Loving analogy fails to work in court after court because race is a suspect class and sexual orientation is not.

It seems to me, as a litigation strategy, the plaintiffs and the groups that support them skipped a step between Lawrence and these cases. They needed to establish that sexual orientation should be treated as a suspect class to move from a decision saying they cannot be imprisoned for private, non-commercial homosexual conduct to a decision saying they are entitled to public recognition and benefits for a relationship based in no small part on that conduct. If they can check that box, they have a lot more leg to stand on than they do now (litigation-wise).

But no evidence appears to have been presented on this claim in the trial court, and it does not appear to have been advanced by any of the parties in the court of appeal (at least from the opinion; I did not read the briefs). No court has ever held that sexual orientation is a suspect class (at least without being reversed), and until that happens, I think this type of litigation is a dead end.
10.6.2006 1:16am
jgshapiro (mail):
Caliban:

As I see it, this revolves around a fundamental failure in the gay community to differentiate between acceptance and approval. They demand acceptance, and they get it, but they're unsatisfied because what they really want is approval.

I think there is a gap here that the dissent seems to miss: saying that you cannot punish someone for doing X, at least in private and non-commercially, does not mean you must subsidize or publicly celebrate/endorse a relationship based in large part upon X.

The dissent does not seem to recognize this, thinking that once Lawrence says that Bowers is overruled, every other decision relating to sexual orientation that ever mentioned Bowers is also effectively overruled. Scalia made the same mistake in his Lawrence dissent.

I really don't see how that follows. California can't stop me from travelling across the country, but they don't have to buy my bus ticket, even if they pay for some others. Why does it follow that because California can't stop two gay men/women from engaging in gay sex that California must allow them to get married?

As I understand it, homosexuals *can't* become a protected class because a homosexual can easily masquerade as a heterosexual.

Where did you get that from?
10.6.2006 1:28am
Randy R. (mail):
I agree that this is not gender discrimination. jg, you've given a very good analysis of the issue. Thanks!

Caliban: You didn't do such a good job. Basically, you are saying that gay people don't have to be discriminated against so long as they remain closeted. Well, but the whole point is that we don't WANT to be closeted anymore! At work, why should you get to talk about your wife all the time, and I can't talk about my husband? I would just have to remain quiet about it. And look, I even tried that tactic -- for years at my old job, I kept mum, just as you advise, yet when I came out to everyone, they all just said, what took you so long? Ditto with all my relatives. Everyone knew, and I was only kidding myself.

Bottomline: Why should I have to live my life to adapt to your concerns? Why not the other way around? Or better yet, why not just say that we can all live the life we want to live, and shouldn't suffer discrimination for it? It's really not that hard, millions of people do that every day!
10.6.2006 1:33am
NickM (mail) (www):
jgshapiro - i don't think Scalia made a mistake. I think he was anticipating panels where Kline's view commanded a majority.

Nick
10.6.2006 2:09am
Caliban Darklock (www):
@ jgshapiro:

There's a definition somewhere of what a protected class is, and it involves "obvious and distinctive" characteristics or something like that. I don't recall where I saw it, which is why I prefaced it with "as I understand it". Hopefully someone else can shed more light on it.

@ Randy:

> the whole point is that we don't WANT to be closeted
> anymore!

And you don't *have* to be closeted. However, when you open your big mouth and say what you like to do on your personal time, you run the risk that other people will not like it and will judge you harshly on that account. If you do not want to run that risk, you do not have to *do* anything, you simply have to keep your big yap shut.

> why should you get to talk about your wife all
> the time, and I can't talk about my husband?

Because I am willing to accept whatever other people think about me having a wife. I work with two people who simply cannot understand that "married" and "whipped" are not synonymous. If I tell my wife I love her on the phone, they nod knowingly at each other and generally act like jerks.

Because I have volunteered that information, I have to live with that. If you choose to volunteer similar information about your husband, you have to accept in so doing that you don't get to dictate what people think of that information. If they want to look down on you for being gay, that is their prerogative. You can make all the laws you want, but you can't stop them. You can only force them to spend a little more time making up excuses.

> when I came out to everyone, they all just said,
> what took you so long?

This isn't about people who will accept you however you are, it's about people who would discriminate against you. People who discriminate are largely a self-deluded population. They can tell you're gay, they just choose to ignore it. It's the only way they can deal with you. By keeping your mouth shut, you allow them to keep living in their happy fantasy world where nobody they know is gay.

When you decide you deserve to be "out", you are also deciding that HE doesn't deserve his happy fantasy world. Regardless of your personal freedom and rights as an individual, to a certain degree you are *hurting* him. You are taking something away that is not yours to take.

You simply cannot rationally prescribe the "proper" conduct of irrational people. It doesn't work. You may as well propose that we make a law forcing people with OCD not to wash their hands; not only is that law unenforceable, it's actively persecuting people with a real medical condition. Homophobia is most productively viewed as a similar condition: it is not susceptible to reason, it is simply a pernicious and contagious disease with no known cure.
10.6.2006 2:47am
Rob Johnson (mail):
I said:

Look, whatever one's beliefs regarding the merits of same-sex marriage as a policy matter, we can find common ground by agreeing that the debate belongs in the legislature, not the courtroom.


Cornelian responds:

And yet every state amendment proposed to "save" us from judicially imposed same-sex marriage has in fact been drafted so as to prevent legislatures from enacting same sex marriage. I see very little support for the proposition that activists opposed to same sex marriage are content to leave the matter to legislatures.


My response:

I would much prefer process-based amendments like "Nothing in this Constitution creates a right for a person to marry another person of his or her own sex" than substantive amendments like "marriage in this state is the union of one man and one woman." That said, however, judicial activism by the courts and imprudent constitutionalization by "The People" are birds of an entirely different feather.
10.6.2006 3:14am
Dell Adams (mail):
Anyone else notice the majority opinion is structured like a dissent? Starts complaining about the dissent's view right away and keeps on.
10.6.2006 3:40am
jgshapiro (mail):
Nick:

I'm not sure whether Scalia was warning against judges making the jump that Kline ultimately made (not to mention the Mass SJC), or was agreeing with their unstated premise - that there is no jump: if you can't prohibit gay sex, you must recognize same sex marriage.

The majority in Lawrence rejected that logic, understanding that there is a big gap between the premise and the conclusion. Yet, Kline follows the 'logic' of Scalia's dissent because he does not want to recognize the gap, or wait for it to be filled by additional developments (such as sexual orientation being found to be a suspect class, or the decision by numerous state legislatures to allow same sex marriage.)
10.6.2006 3:59am
Jiffy:
A side point: I believe that the talk about the potential of homosexuals becoming a "suspect class"--and the related concern that people could pretend to be part of that class since homosexuality, unlike race and gender, is somewhat self-identified--misses the mark. The real issue is whether sexual orientation will be a "suspect classification." Homosexuals wouldn't be a specially-protected group; any classification based on sexual orientation would be suspect. Given that, I don't understand the concern about people "faking" their sexual orientation.
10.6.2006 10:18am
Houston Lawyer:
Before analogizing to Loving, you should remember what it was about. The law Loving overturned made it a felony for a Black person to marry a White person. The law understood that a Black person and a White person could be married and would, after taking their vows, actually be married. It sought to punish those who broke that taboo.
10.6.2006 11:17am
Jon Rowe (mail) (www):

As I understand it, homosexuals *can't* become a protected class because a homosexual can easily masquerade as a heterosexual.


Being a "protected class" has nothing to do with the ability to "masquerade." Jews can also "masquerade," as gentiles. Hispanics can also "masquerade" as Anglos -- see Geraldo Rivera changing his name to "Jerry Rivers."


All he need do is not say he is homosexual, and everyone will assume he is heterosexual. It is therefore trivial for the homosexual to evade any and all persecution on the basis of sexual preference, because there is simply no need for him to volunteer any information about it.



All he need do is not say he is homosexual, and everyone will assume he is heterosexual.


Well, let's see. Both Clay Aiken and Liberace tried that, and it didn't seem to work for them.
10.6.2006 12:56pm
Mark Field (mail):

Saying this is gender discrimination if you look at it from the perspective of the person who wants to get married puts you on a slippery slope from which you cannot escape. That individual is also limited in his/her choice on the basis of age, number of spouses and consanguinity too. The rationale that says that I get to choose anyone I want to marry not only says I can marry another man, but also my daughter, my sister, or the 14-year old girl down the street. The dissent never distinguishes why a state can say no to these choices, but not the opposite sex limit. Those choices would also reflect my identity, reflect a deep personal commitment and would be synonomous with intimate personal association. But they are not allowed.


Your argument proves too much -- it also rules out Loving. Exactly the same points could have been raised in support of VA law there.

Factors such as age (I assume you mean minority) and consanguinity both have a rational basis and do not affect a protected class. Factors such as gender and race DO affect a protected class and, pace the majority, cannot survive even a rational basis test, much less any stricter scrutiny.

I don't understand your reference to the number of spouses. That's a red herring. Nobody is arguing for more than one spouse. In any case, that prohibition likewise raises no issues with respect to any protected class.
10.6.2006 1:18pm
PeterH:

As I understand it, homosexuals *can't* become a protected class because a homosexual can easily masquerade as a heterosexual. All he need do is not say he is homosexual, and everyone will assume he is heterosexual. It is therefore trivial for the homosexual to evade any and all persecution on the basis of sexual preference, because there is simply no need for him to volunteer any information about it.


But religion (or religious affiliation) is protected. All a Jew has to do to avoid any and all persecution on the basis of religion is to stop practicing his religion. But where is the freedom there?

Look closely at what you are claiming. Being gay (especially as it relates to marriage) is not just a matter of "what happens in the bedroom" (to euphemize.)
It is about creating relationships and living life just as openly as our heterosexual neighbors do. Owning property, having the authority to make medical decisions, having custody of our children, and all the other thousand or more things that come with marriage.

Those aren't things where you can just "not mention that you're gay" and get equal treatment about. Those are things where you have to actively and positively claim a certain form of relationship for. And believe me, they do notice the genders involved, whether we "vounteer the information" or not.

That's not to mention all the fuzzy sorts of thing without legal ramifications, like being able to take your spouse to the company party -- although, if it is legal to fire people simply for being gay, then it becomes a hell of a lot less fuzzy fast.



The fact that someone can "hide" that they are a member of a minority is hardly a basis to claim that as a result, no unfair discrimination can take place against that minority.
10.6.2006 1:27pm
Michael J:
jgshapiro,

I don't believe that the argument that gay marriage bans are gender discrimination is necessarily a slipperly slope to anything. Gender discrimination (like other discrimination) can be permissable. I know of no law attempting to ban single-sex bathroom facilities, for example. Single-sex fraternal organizations can still operate.

When we look at marriage law with respect to consanguinity, age, etc, the government has to have a rational reason for the prohibition. Age of consent laws are well-established. Consanguinity is a little stickier but there are long-term societal health concerns linked to incest so that is probably a rational enough reason to keep them. So the fact that a man cannot marry a man but can marry a woman is gender discrimination; the question is, what reason does the government give to justify that discrimination? Tradition, in my opinion, is not a rational enough reason. Responsible procreation and paternity linking are great reasons for recognizing marriage. But the law doesn't discriminate against those who cannot or will not procreate except when that inability is gender-based.
10.6.2006 2:05pm
A.C.:
As a matter of policy, it seems to me that we should be in favor of creating dense social networks whenever that goal does not conflict with other social goals. Health is a good reason to reject incestuous relationships, and the potential for oppression and non-support can be a good reason to reject polygamy, but I can't see any reason to prevent two adults of the same sex from committing to support one another. This doesn't just affect the couple -- it reaches out to children, elderly parents, and other in-laws. The more permanent connections there are in a society, the fewer people fall through the net and have to be taken care of by the state.

One can argue that gay marriage will entitle gay couples to a few public and employment benefits, but it will also raise the odds that any given individual has people to rely on in an emergency. The government is pretty good at passing out social security payments, but it just isn't set up for round-the-clock nursing (of civilians) or psychological support in a crisis. That's what families are for, and that's what gay people want to have access to... and to contribute to. It's not just about the sex!
10.6.2006 5:22pm
Caliban Darklock (www):
> Being a "protected class" has nothing to do with the
> ability to "masquerade."

No, it has to do with the exact opposite: the ability of others to identify.

Homosexuality does not in and of itself have distinguishing physical features like the Latino skin color or the Jewish nose. It does not require constant recogniseable behavior like the wearing of kippot or the distinctive dress and grooming of hasidim.

What is at issue here is the norms for a given class. It is the norm for Hispanics to be recogniseably Hispanic, so they are a protected class. It is the norm for Jews to be recogniseably Jewish, so they are a protected class. But it is *not* the norm for homosexuals to be recogniseably homosexual, because the things we recognise as homosexual behaviors or actions are NOT a natural and necessary part of homosexuality.

We can all pretty much agree that if you drive a car with a large rainbow sticker on the back, you're probably gay, but you don't *have* to be gay to put a rainbow sticker on your car - and you don't *have* to put the sticker on your car if you're gay. It's completely independent of homosexuality. The same is true of all the behavior, dress, and culture that we call gay: it just ain't necessarily so. And that, as I understand things, is the fundamental issue with gays being a protected class.

@ PeterH:

> It is about creating relationships and living life
> just as openly as our heterosexual neighbors do.

We're not really that open. We'd generally like you to live it as QUIETLY as we do. My neighbors don't know anything about my sex life, and they shouldn't. If you happen to show up at one of the parties my wife and I attend, THEN we can talk about my sex life, but not in front of the other neighbors. There is a vast quantity of sexual discrimination in America, and it is not all gender-based.

Just the prevalence of christianity in America, with its repressive policies and meddlesome attitude, is more than enough to convince me that my neighbors don't need to know anything at all about who I am and what I do. They are more than welcome to make up their own version of that, because they will tend to make up something just like what they would do, which in turn tends not to attract their "correction" efforts.

> Owning property, having the authority to make
> medical decisions, having custody of our children,
> and all the other thousand or more things that
> come with marriage.

You can *have* all those things. You just can't have it called "marriage" by the state. You can have all the contracts and agreements drawn up at more or less any law office. You can even call it "marriage" yourself. Sure, it costs a little more and takes a little longer; that's the price you pay for not having a "normal" relationship. And since more than ninety percent of the population will never have a relationship like this, why exactly do you deserve your own special government-sponsored package?

Even heterosexuals don't all agree on marriage law. That's why we have the pre-nuptual agreement. Fundamentally, the complaints about gay marriage aren't about your life or your relationship, they're about convenience and economic benefit. We don't *have* to give convenience and economic benefit to gays. There's simply no legitimate argument to justify it. There aren't *enough* of you to merit more than a nod and a wave from the legislature.

YOU NEED TO EXPAND YOUR ARGUMENT.

This is already about changing the fundamental nature of marriage. Make a bigger change. If you can find a change that gets heterosexuals something THEY want, and homosexual marriage just naturally falls out of the system as a side effect, you may have a snowball's chance in hell of getting that past the voters. Remember, when you change something this basic and important, you will have dedicated resistance from everyone who DOESN'T profit from your proposal, and only fair-weather support from everyone who DOES. IMO, you need to make a proposal that benefits some eighty percent of the people, and it wouldn't hurt if it also increased tax revenue.
10.6.2006 5:50pm
PeterH:

We'd generally like you to live it as QUIETLY as we do. My neighbors don't know anything about my sex life, and they shouldn't.

I wasn't talking about sex. Being a gay couple is no more or less about sex than being a straight couple. Please reread, and note that I was talking about things like home ownership and child custody. And it isn't about what your neighbors know or don't. It is what you are demanding we keep hidden. There's a big difference.


You can *have* all those things. You just can't have it called "marriage" by the state. You can have all the contracts and agreements drawn up at more or less any law office.

Absolutely wrong. You can get some of them, but by no means all of them. Just to mention a few, inheritance without a gift or inheritance tax, Social Security benefits, the right not to testify against one another, and the right to citizenship that comes when a non-citizen marries a citizen. There are lots more.


And since more than ninety percent of the population will never have a relationship like this, why exactly do you deserve your own special government-sponsored package?

That's really rich. Asking for exactly, no more, no less, than the other 90% gets is somehow asking for something special? By what twisted standard is that?
10.6.2006 7:02pm
Jon Rowe (mail) (www):

What is at issue here is the norms for a given class. It is the norm for Hispanics to be recogniseably Hispanic, so they are a protected class. It is the norm for Jews to be recogniseably Jewish, so they are a protected class. But it is *not* the norm for homosexuals to be recogniseably homosexual, because the things we recognise as homosexual behaviors or actions are NOT a natural and necessary part of homosexuality.


Excuse me but Liberace and Clay Aiken are recogniseably homosexual even when they claim to be straight.

And just as many gays can't be recognized, so too can many Jews and Hispanics not be recognized.
10.6.2006 7:02pm
Caliban Darklock (www):
> Being a gay couple is no more or less about sex
> than being a straight couple.

I don't believe that is accurate. It's already been outright stated (albeit in a different comment thread) that when you go to a gay bar, you are *assumed* to be looking for a sex partner. This is not true in bars elsewhere. The gay community in general revolves much more closely around sex than mainstream culture.

Don't get me wrong; I think this is a *good* thing. But the general community at large is not comfortable with sex, and prefers not to discuss it or be confronted by it. They are therefore uncomfortable talking with gay couples, who are in my experience FAR more likely to make sexual remarks. This is certainly a way of being open, but it is not an openness that American society generally wants or enjoys, and it is everyone's responsibility to make reasonable efforts not to offend one another.

That's not to say you can't challenge the status quo, e.g. my statements about teenage sexuality and age of consent elsewhere, but you don't march around the neighborhood waving a sign.

> You can get some of them, but by no means all of them.

That's true. You can't get special treatment, e.g. economic incentive or personal privilege stemming from your relationship. I believe we've already established that you don't have a *right* to special treatment.

> Asking for exactly, no more, no less, than the
> other 90% gets is somehow asking for something
> special? By what twisted standard is that?

Why, by the fallacy of the undistributed middle, of course. Because that's not what you're asking.

The whole 90% doesn't get those special privileges. Only the portion that actually gets married gets them. Approximately 70% of American heterosexuals will be married at some point in their lives, or 63% of the population.

Since the gay community represents a distinct minority of the remaining 37% of the population, why exactly do they deserve to have those privileges more than the rest of the heterosexual community? After all, these people aren't rejecting the privileges, they're rejecting opposite-sex marriage... and thus they cannot have the privileges. Even the 8.5% of the population consisting of heterosexual cohabiting couples don't get those privileges, even though they clearly outnumber the same-sex marriages that would result from legalisation.

Since the compelling state interest in married couples is ostensibly to encourage the raising of children by both of their biological parents, doesn't it obviously make more sense to extend the same privileges to unmarried cohabiting heterosexual couples BEFORE extending it to same-sex couples? They're clearly more likely to have children.

So the gay community is not just asking for the special privileges of 63%, they're asking for that privilege without serving the state's interest, while simultaneously ignoring a larger demographic than theirs which IS serving the state's interest.

This is a complicated issue. Much of that complication comes from the fact that our idea of the American family is, indeed, changing - but it has not only changed in the sense that gays can adopt children, or that same-sex couples are now freely cohabiting. It has also changed in the sense of how children are brought into the world and how couples commit to one another. This represents a major dilemma for the government, and it is simply irresponsible for the gay community to push their own personal agenda at the expense of everyone else.

@ Jon Rowe:

> Liberace and Clay Aiken are recogniseably
> homosexual even when they claim to be straight.

Liberace claimed to be straight in order to win a libel suit against the Daily Mail when they called him "fruit-flavoured". I don't believe he actually intended to claim heterosexuality. He was certainly quite open about his homosexuality later in life.

But Clay Aiken has never admitted to homosexuality; nor has he ever been shown to have had a homosexual relationship, engaged in a homosexual act, or sought a homosexual partner.

So how can you say you know for a fact that Clay Aiken is gay? Have you personally had gay sex with Clay Aiken?

Because if Clay Aiken is *not* gay, you have just perfectly demonstrated my point.

> And just as many gays can't be recognized, so too can
> many Jews and Hispanics not be recognized.

That's not even remotely relevant. Gays do not have a single set of uniquely distinguishing features possessed by a majority of the group, and if anyone were to propose otherwise, they would object.
10.6.2006 9:39pm
jrose:
I concur there is no gender discrimination. But, I do believe an Equal Protection analysis should trigger strict scrutiny because a fundmental right is at stake. What is the argument - other than arbitrary line drawing - that restrictions against opposite-sex couples marrying are afforded strict scrutiny while restrictions against same-sex couples are not.
10.6.2006 10:27pm
jgshapiro (mail):
Michael J;

I don't believe that the argument that gay marriage bans are gender discrimination is necessarily a slipperly slope to anything.

Re-read my post; that is not what I said. I said that viewing the dispute as an individual's right to choose whatever marriage partner he/she wants is a slippery slope. If it is ok for me to choose someone of the same sex, why is it not ok to choose a family member or a 14-year old or to marry two people? Each of those options could meet the standards that the dissent said should govern marriage.

Age of consent laws are well-established.

What a strange statement. Opposite-sex requirements are far more well-established. I have not researched the subject, but I would bet that opposite-sex requirements predated age-of-consent laws by hundreds of years, if not thousands, and are therefore even more "well-established." In fact, until a few years ago, I doubt that same sex marriage had ever been allowed in any human society in history. Even today, same-sex marriage is allowed in Spain, Canada, the Netherlands and Massachusetts, and (unless I am forgetting someone) prohibited in every other nation (or subdivision thereof) on Earth.

So the fact that a man cannot marry a man but can marry a woman is gender discrimination . . .

No, it is not and prefacing the statement with the word "so" does not make it so. Neither gender is treated differently than the other; neither gender is worse off than the other as a result of the limitation. Neither gender is discriminated "against." Compare typical gender discrimination cases, such as VMI's refusal to allow women to enter, or laws automatically preferencing women over men for parental rights, entry into nursing school, etc.

Tradition, in my opinion, is not a rational enough reason.

Maybe not, on first glance, but consider that the court was being asked to recognize a right exists in the state constitution, which has not been recently changed in any relevant way, to something (same sex marriage) that has never been allowed before anywhere in the nation except MA, and has been allowed in MA only for 2 years. At the same time, this "right" has been affirmatively rejected by every other state to consider it, both legislatively and juridically. This is not the recognition of an existing right but the creation of a new one. The latter is within the province of the legislature, and that was the point of the opinion.
10.7.2006 2:15am
jrose:
I said that viewing the dispute as an individual's right to choose whatever marriage partner he/she wants is a slippery slope.

Would a law which prohibited a rich person from marrying a poor person be subject to strict scrutiny? If it were, it could only be because of a fundamental right to choose your marriage partner. Would that lead us down a slippery slope?
10.7.2006 12:13pm
Mark Field (mail):

Would a law which prohibited a rich person from marrying a poor person be subject to strict scrutiny?


Not under current law.
10.7.2006 1:35pm
Jon Rowe (mail) (www):

Liberace claimed to be straight in order to win a libel suit against the Daily Mail when they called him "fruit-flavoured". I don't believe he actually intended to claim heterosexuality. He was certainly quite open about his homosexuality later in life.


No Liberace claimed to be straight in public for most of his career. Even w/o knowledge of the fact that he had sex with men, I think it's obivous to oh, just about everyone except those little blue haired old ladies in denial who were in love with him, that he was gay, without ANY choice of his "coming out" publicly on the matter, which he never did.


But Clay Aiken has never admitted to homosexuality; nor has he ever been shown to have had a homosexual relationship, engaged in a homosexual act, or sought a homosexual partner.

So how can you say you know for a fact that Clay Aiken is gay? Have you personally had gay sex with Clay Aiken?

Because if Clay Aiken is *not* gay, you have just perfectly demonstrated my point.


I've never had sex with Clay Aiken; he's never come out in public. Yes, it's been documented by others that he has had gay sex (I could send you the links, rather not post them here b/c they are sleazy). But even before all of this was documented, people knew he was gay for the same reasons people knew Liberace was gay, even while they publicly denied it and claimed to be straight.

> And just as many gays can't be recognized, so too can
> many Jews and Hispanics not be recognized.


That's not even remotely relevant. Gays do not have a single set of uniquely distinguishing features possessed by a majority of the group, and if anyone were to propose otherwise, they would object.


Neither to Jews or Hispanics. You've shot and missed. What are you trying to argue? All Jews have big noses?(they don't), that all hispanics have dark skin? (they don't).

If Geraldo Rivera -- who I understand is half-Jewish and half-Hispanic -- identified himself as "Jerry Rivers" (which he once did) I wouldn't be able to tell he wasn't an Anglo.
10.7.2006 1:51pm
jrose:
Mark Field,

How did you conclude that a law which prohibited the rich from marrying the poor would not be subjected to strict scrutiny under current law?
10.7.2006 2:10pm
lucia (mail) (www):
Caliban Darklock
I don't believe that is accurate. It's already been outright stated (albeit in a different comment thread) that when you go to a gay bar, you are *assumed* to be looking for a sex partner. This is not true in bars elsewhere.


Ahem... Not true in bars elsewhere? If you are going to use your own statements on other threads to support identical claims here, please do not forget responses on the other thread: On that same thread, "someone" responded that many assume those going to non-gay bars are looking for sex partners too!


The fact that you get hit on at gay bars tells me men in gay bars act pretty much like men in non-gay bars. Some of them are there to pick up sexual partners; they hit on the people who suit their fancy. When turned down, some are persistent and try to persuade with ridiculous arguments. This has nothing to with being gay vs. straight!

The reason hetero-guys aren't hitting on you in non-gay bars is not that they don't think you're looking for sex. It's that you aren't their type.
10.7.2006 2:45pm
Mark Field (mail):

How did you conclude that a law which prohibited the rich from marrying the poor would not be subjected to strict scrutiny under current law?


Because to the best of my knowledge, the SCOTUS "has never heretofore held that wealth discrimination alone provides an adequate basis for invoking strict scrutiny".
10.7.2006 2:50pm
BobN (mail):

Since the gay community represents a distinct minority of the remaining 37% of the population, why exactly do they deserve to have those privileges more than the rest of the heterosexual community?


Only those in the gay community who are in consentual, mutually-dependent, long-term relationships would get the privileges of marriage. They, ehr... we deserve to have those priviliges for the exact same reasons that our straight counterparts do: because we're in the same kind of relationship.
10.7.2006 2:59pm
jrose:
Mark Field,

Under Zablocki, strict scurinty was triggered when Wisconsin did not allow a dead-beat dad to marry because marriage is a fundamental Equal Protection right. Why wouldn't that same analysis apply to a law which prohibited the rich from marrying the poor?
10.7.2006 3:05pm
Mark Field (mail):

Under Zablocki, strict scurinty was triggered when Wisconsin did not allow a dead-beat dad to marry because marriage is a fundamental Equal Protection right. Why wouldn't that same analysis apply to a law which prohibited the rich from marrying the poor?


Ah, we're talking past each other. I think we actually agree. I concur that such a law would violate the EPC.

I understood your question to be asking whether strict scrutiny applied to wealth differences. My answer was correct to that, but it seems you were asking a different question. My bad.
10.7.2006 7:51pm
Chairm:
The Loving analogy fails for the reasons already discussed.

In addition:

There is just one human race and it is two-sexed. Human generativity is both-sexed. Marriage is the social institution that uniquely combines integration of the sexes and responsible procreation.

That combination is extrinsic to the one-sex arrangement, whether or not that arrangement is homosexed.

Gay union would selectively segregate the sexes. And while adoption and 3rd party procreation may be an option in such a segregated arrangement, neither adoption nor 3rd party procreation is responsible procreation. Both depend utterly on parental relinquishment.

And even at that, the relinquishing parent retains parental status for various purposes -- such as for incest provisions and for inheritance provisions.

Whatever its merits, gay union is not marriage. It is also the virtual inverse of marriage.

The marriage laws selectively segregate the sexes -- outside of marriage. For example, the prohibition on too-closely-related combinations. This prohibition is essentially a moral-based provision. The line has been drawn differently in different places and at different times. But being too-much the same has always produce a prohibition.

Looking at that near-universal prohibiton more closely you will find that the incest and marriage laws explcitedly intersect. Two siblings who held themselves to be married would comit incest without even touching each other, let alone engage in sexual intercourse. By merely attempting to present themselves as actually married, they publicly admit incest. Of course, incest outside of marriage is also prohibited but the transgression would be sexual relations; creating a child through incest would not protect the adults from the incest laws but would rather stand against them.

There is an exception made in some few states where a compromise was made for cousins. All other jurisidictions either permit or ban such closely-related combinations both inside and outside of marriage.

Either the male and female cousins are segregated outside of marriage or they are integrated within marriage.

But in 2-3 states cousins may marry if one partner is beyond the age of 65 or if one partner is medically sterile. By sterile, the provision anticipated the use of surgical sterilization or sterility due to the onset of old age.

In essence the exception recognized the procreative nature of marriage; and it drew a zig-zag around the cousin prohibition -- which discouraged young cousins from marrying and, it was hoped, also discouraged young cousins from incestuous relations and incestuous childbearing.

The compromise is deeply flawed. If cousins can qualify by virtue of sterility, then, so could other more closely-related combinations, surely.

Also, tubal ligations and vasectomies can be reversed with high rates of success. And men can continue to be potent long past age 65 which seems to be an arbitrary and perhaps ujustly discriminatory way of advantaging some men but not all women; a lower age based on menopause tests would overly burden women.

The imperfect line needed to be drawn in the compromise, but it can also be challenged with the same sort of arguments made by those who attack the man-woman criterion of marriage. Individualized choice trumps all.

The upshot: Selective sex segregation on the basis of subjective racial identity was discarded with Loving but now gay union would now embrace selective sex segregation on the basis of self-professed gay identity. Such sex segregation may have its merits and demerits, but it is not at home within marriage.

The choice to form a nonmarital arrangment, homosexed or not, is a liberty exercised, not a right denied.
10.8.2006 5:51am
jrose:
Marriage is the social institution that uniquely combines integration of the sexes and responsible procreation.

If a state passed a law which did not allow the infertile and elderly from marrying, would that law be constitutional?

The choice to form a nonmarital arrangment, homosexed or not, is a liberty exercised, not a right denied.

Civil marriage allows a person to sponsor their spouse for a green card, obtain health insurance through their spouse, receive Social Security benefits on the death of their spouse, take a leave of absence from work when their spouse is sick, access favored tax-law treatment, be further legally protected from domestic violence, exercise the privilege of not incriminating their spouse under oath, and receive favored treatment in estate planning, child custody, visitation and power of attorney.

Are these not rights?
10.8.2006 10:38am
PeterH:
Chairm,

Your claim that same-sex marriages with children require a 3rd party reliquishment of parental rights ignores the fact that exactly the same situation applies with opposite-sex couples raising a child who is not the biological offspring of both, whether through adoption, divorce, or surrogacy -- the identical situation to gay couples, and it is not in the slightest an impediment to the marriages of those opposite-sex couples. So it hardly can be used as a defining reason to invalidate gay marriage.

The fact is, same-sex couples would simply be individual citizens who make the same decision that some opposite-sex couples make, to marry someone (for reasons of their own) with whom they know that they cannot conceive a child. It's impossible to know, but given the very small percentage of gay people, it's entirely possible that the raw numbers might be similar.

If you add in the number of straight couples who are theoretically capable of having children together but marry knowing that they do not intend to (because they already have children from a previous marriage, or are old enough that they don't want to, for example), it is very possible that there are MORE straight couples marrying with not intention of mutually conceiving children.

After all, if we assume that the percentage of the gay population who would choose to marry is the same as that of the straight population, then we are only talking about 3 - 5% of the opposite sex married couples knowingly or deliberately not having children, without bringing cousins into it anywhere.
10.8.2006 12:15pm
Chairm:
jrose, marital status is a special status that is based on what the social institution of marriage is, not the lsit of incidents associated with it.
10.8.2006 5:07pm
Chairm:
>> "Your claim that same-sex marriages with children require a 3rd party reliquishment of parental rights ignores the fact that exactly the same situation applies with opposite-sex couples ....."

My remark does not ignore such a scenario.

Adoption is a different social institution. The practice of 3rd party procreation is intrinsically extramarital. Neither are intrinsic to the combination of sex integration and responsible procreation. Neither dicates marriage law. In fact, it is lawful for the laws governing these means of attaining children to prioritize the married combination over the nonmarital alternatives.

The one-sex arrangement does not integrate the sexes and relies on either adoption or extramarital procreation -- both dependant on parental relinquishment -- and so cannot combine integration with resonsible procreation. It is the inverse of the social institution of marriage.
10.8.2006 5:13pm
jrose:
marital status is a special status that is based on what the social institution of marriage is, not the lsit of incidents associated with it.

I disagree in part. Civil marriage is both a recognition of the special status and legal incidents associated with that status. Are rights (e.g., the ones I listed) being denied when a same-sex couple is denied the incidents of marriage?
10.8.2006 5:21pm
Chairm:
PterH:

>> "After all, if we assume that the percentage of the gay population who would choose to marry is the same as that of the straight population, then we are only talking about 3 - 5% of the opposite sex married couples knowingly or deliberately not having children, without bringing cousins into it anywhere."

The participation of the adult homosexual population in domestic partnership, registered partnership, civil union, and even in SSM where it is enacted, is very low. This holds true for participation in the more broad cateogry of same-sex householding as estimated by census bureaus in various countries, including the USA.

Less than 11% of the adult homosexual population resides in such households. Less than 3% of the adult homosexual population resides with children in such households. About 90% of the children in those households do not come from alternative sources such as adoption or ARTs/IVF (3rd party procreation). This is the virtual inverse of societal participation in the social institution of marriage and childbearing. It is certainly the inverse of the marriage idea when most children, by far, in same-sex households migrated with parents from previously procreative relationships (marriage typically) with the other sex.

The presence of these children demonstrates, again, that the children have both moms and dads and for that to change to double-mom or double-dad arrangements one or the other parent relinqishes.

There may be merits to state recognition of the one-sexed arrangement, selective sex segregation within such an arrangement (homosexed or not), and so forth, but that would entail societal, through the state authority, recognizing a nonmarital alternative. If such recognition were accorded, it would need to stand, or fall, on its merits rather than piggyback on marriage which combines sex integration and responsible procreation.

Upshot is that pointing to children does not really bolster the argumentation for special status (i.e. like marital status which is preferential) for the homosexed relationship. It must stand on something else that is adultcentric.
10.8.2006 5:23pm
Chairm:
>> "Are rights (e.g., the ones I listed) being denied when a same-sex couple is denied the incidents of marriage?"

Incidents that arise from a preferential status are not fundamental rights. If you depend on compartmentalizing marriage into this and that set of benefits, then, you are not realy arguing for the extension of marriage but for recognition of various nonmarital alternatives that access benefits rather than marital status.

Now, it may be that society decides that preferential status for marriage is no longer desired or needed. I doubt that, myself, but the legislators could take the state out of the marriage business. Or it could merge recognition of marriage with recognition of nonmarital alternatives (some or all) and thus demote marriage by making it non-unique as a social and legal status.

This is where the SSM argumentation generally heads toward. Civil marriage is the legal shadow of the thing, the social institution, that society, through state authority, recognizes, privileges and benefits. The legal shadow is not the thing itself. Likewise the incidents that arise from the preferential status that today nonmarital alternatives seek to appropriate.
10.8.2006 5:31pm
jrose:
Incidents that arise from a preferential status are not fundamental rights.

I take it the your answer was 'no' to my question, "[a]re rights ... being denied when a same-sex couple is denied the incidents of marriage?" If so, I strongly disagree.
10.8.2006 5:40pm
Chairm:
>> "If a state passed a law which did not allow the infertile and elderly from marrying, would that law be constitutional?"

I think, no. But to enforce it would require a police system that intruded far too much and would upend liberty. It would also mean abandoning state recognition of the social institution of marriage in favor of some other thing.

By the way, no one-sex twosome is infertile because such a twosome, by its nature, can not be fertile.

I've come across SSM advocates who claim that two individuals can be fertile and thus form a fertile twosome; but that is misleading because each individual would not be fertile without the other sex. Together they would be neither fertile nor infertile.

The closest category to which the one-sex arrangement can be compared is the lone individual who also might be fertile, or infertile, with the other sex but not without the other sex.

As for infertile couples, these are always man-woman combiniations. The experience a disability that arises from illness or the progress of old age. To discriminate against the disabled or the aged would seem rather contrary to the marriage idea (in sickness and in health, for life, and so forth) and I don't think you can point to the history of marriage law to claim that the marriageability of the infertile twosome could justify the inclusion of the one-sexed arrangement. Same today.

You would simply be arguing for the lines to be drawn more severely within the man-woman category -- and that redrawing would transgress the marriage idea as well undermine the liberty that arises from a society ordered on the elevation of marriage as essential to good governance.
10.8.2006 5:54pm
Chairm:
jrose, you strongly disagree that legal incidents are not fundamental rights? On what basis?
10.8.2006 5:55pm
Chairm:
Oops, I meant that "I think yes" discriminating against the infertile combination and the elderly would be constitutional. It would also mean recognizing something other than the social institution of marriage.
10.8.2006 5:57pm
jrose:
you strongly disagree that legal incidents are not fundamental rights? On what basis?

Zablocki forced Wisconsin to issue a civil marriage license to a dead-beat dad. Can the Congress pass a law which says married dead-beat dads aren't eligible for Social Security spousal benefits, while all other married people are?

I meant that "I think yes" discriminating against the infertile combination and the elderly would be constitutional.

It would shock me to no end if SCOTUS made such a ruling. Scalia pretty much acknowledged his agreement with me in his Lawrence dissent.
10.8.2006 6:17pm
Chairm:
jrose, you are not showing that legal incidents of a preferential status are fundamental rights. I think you are returning to marriage as a fundamental right.

As for a law that would bar the infertile couples and the elderly couples, it probably would be constitutional. But, as I said, the enforcement system would be far too intrusive and thus unconstitutional.

But who knows? This is a speculative question you raised. The infertile couples are, as couples, disabled persons. No one-sex twosome is infertile because no such twosome was ever fertile in the first place.

I already pointed out the problems of an arbitrary age limit. The enforcement system would have to make all kinds of exceptions and, in the end, the system would need to start with the presumption that all man-woman couples are sterile until proven fertile. That obviously would mean mandatory premarital sexual intercourse and premarital childbearing to prove fertility. Clearly against the marriage idea.

So, yes, if the bar was done under state recognition of marriage, there would be a very big problem due to the fundamental right to marry. Entailed in state recognition is the combination of sex integration and responsible procreation.

As I said, such an unlikely bar would mean the state would cease to recognize the social instituiton of marriage and replace it with recogniton of some other thing. And that seems to be the point of SSM argumentation.
10.8.2006 10:07pm
jrose:
you are not showing that legal incidents of a preferential status are fundamental rights. I think you are returning to marriage as a fundamental right.

This detour began with your assertion that "marital status is a special status that is based on what the social institution of marriage is, not the lsit of incidents associated with it." You are hung up on marriage being (only) about a special status, as if the legal incidents are chopped liver.

Of course I am not arguing that the legal incidents are fundamental rights in and of themselves, but they do become fundamental when offered as part of marriage. Thus, when a gay person is denied the incidents of marriage, he is denied what are fundamental rights for straight people - and real (not just symbolic) harm to gay people results.

As I said, such an unlikely bar would mean the state would cease to recognize the social instituiton of marriage and replace it with recogniton of some other thing.

If the court strikes down a law prohibiting the marriage of the infertile and elderly, it will not cease to recognize marriage and replace it with another institution. It will merely confirm that marriage is already not (just) about procreation.
10.8.2006 11:10pm
Chairm:
Hi jrose,

>> "when a gay person is denied the incidents of marriage, he is denied what are fundamental rights for straight people"

No gay person is denied the fundamental right to marry. Gay identity is not a filter in the marriage law.
10.9.2006 10:24am
Chairm:
Hi jrose,

>> "when a gay person is denied the incidents of marriage, he is denied what are fundamental rights for straight people"

No gay person is denied the fundamental right to marry. He is treated as any other man before the marriage law.
10.9.2006 10:24am
Chairm:
>> "If the court strikes down a law prohibiting the marriage of the infertile and elderly, it will not cease to recognize marriage and replace it with another institution."

You did a switcheroo right there.

I had said that by enacting such a bar, the state would stop recognizing the social institution of marriage. That would be constitutional. However the enforcement system would necessarily be unconstitutional.

Now, you point to the court's action in declaring that system unconstitutional as confirmation of something that has not been contested. Recognition of marriage is not just about procreation. You miss the forest for the trees.

Marriage is the combination of responsible procreation (not mere procreation) combined with sex integration. It is a combination. Neither responsible procreation nor sex integration are standalones in the social institution that society esteems and that its state authority recognizes with the legal shadow of marriage.

I think you do as SSM argumentation would have society do: compartmentalize marriage into pieces and distribute those pieces so as to render marital status non-unique.

The SSM campaign is really about merging the nonmarital alternative (presumptively homosexed in nature) with the marital status (the combination of sex integration and responsible procreation). The two different things merged would replace state recognition of marriage.

* * *

SSM argumentation strains marriage through the filter of Gay Identity and thus, the ideal that is advocated for all of society is based on the inescapable limitations of the homosexed variation of the one-sexed arrangement.

If the ideal is excellent for the homosexed variation, why is the participation rate so very low?
10.9.2006 10:35am
jrose:
No gay person is denied the fundamental right to marry. He is treated as any other man before the marriage law.

A gay person cannot marry his lover, while a straight person can. A gay person cannot sponsor his lover for his green card, while a straight person can. A gay person cannot always take a leave from work when his lover his sick, a straight person can ...
10.9.2006 11:02am
jrose:
I had said that by enacting such a bar, the state would stop recognizing the social institution of marriage. That would be constitutional.

As previously argued, it is preposterous to conclude a ban against the infertile and elderly marrying would be constitutional.

Marriage is the combination of responsible procreation (not mere procreation) combined with sex integration.

That is but one aspect of civil marriage. Another, independent aspect of marriage as it already exists is to encourage people to settle down with their lifemate because the state believes such people are happier, more stable and more productive citizens.
10.9.2006 11:14am
Chairm:
jrose, no, it would indeed be constitutional for the state to get out of the marriage business.

That is what the state would do if it enacted some new status based on a system that would prohibit infertile couples and elderly couples.

The problem, constitutionally, would be in enforcing such a prohibition.

You have not provided an argument to counter these points.

* * *

No two persons of the same sex can mate with each other. If you think that homosex is of great importance to society, then, make the case for preferential status based on that independent aspect. Since that would be the inverse of marriage (sex integration and responsible procreation) it needs to stand on an independant claim, as well.

SSM argumentation simply boilsdown to a proposed ideal for the homosexed duo. But the profound flaw is the attempt to extend that ideal to all of society -- and to use the limitations of that arrangement to redefine the social institution of marriage. This is not the extension of marriage but the replacement of marriage.
10.9.2006 9:34pm
Chairm:
>> "A gay person cannot marry his lover ..."

No one, gay or otherwise, lover or not, can marry someone of the same sex. The gay person is treated equally.

The equal participation of both sexes is not unequal treatment of men and women.

Selective sex segregation may be the best thing since sliced bread, for the homosexed person. But that is extrinsic to marriage. If someone chooses such a nonmarital alternative, that is certainly a liberty exercised. It is not a right denied.

The rest of your comment returns to mistaking legal incidents for the right to marry.

If you wish to claim a preferential status for a gay person and his immigrating lover (presumably of the same sex) then make your case on the merits of that arrangement. No need to touch marriage.
10.9.2006 9:44pm
jrose:
jrose, no, it would indeed be constitutional for the state to [...] prohibit infertile couples and elderly couples [from marrying].

Zablocki makes that claim preposterous. You are free to believe otherwise, but I will stake my argument on the wrongness of your claim.

No one, gay or otherwise, lover or not, can marry someone of the same sex. The gay person is treated equally.

Gays have lovers of the same sex, straights do not. Thus, only gays are prevented from marrying their lover.
10.9.2006 9:59pm
Chairm:
jrose, please do not to put words into my mouth. You have misrepresented what I have said.

What I said stands on its own and you have not answered it.

* * *

What would make it unconstitutional to enact a system that prohibited infertile couples? Be specific.

I say that such a system would ultimately require the presumption that all man-woman couples are sterile (not infertile, but sterile) until proven fertile (conceiving and bearing children). I also say that such a system would not be in aide of marriage, but of something else in place of marriage.

Please describe the system you imagine and then explain how such a system would run afoul of the Constitution.

Thusfar, you have made the attempt to equate dead-beat dads with infertile couples and elderly couples. It is an odd thing for you to describe as an argument.

Yes, you made passing reference to one court case. Make your argument plainly.

* * *

It is nonsensical to say that "gay persons are prevented from marrying their lovers".

Gay identity is irrelevant. No one-sexed combo can marry, no matter the political identity claimed. It is not just because the law sayso. The law recognizes this as so. You seem to be fixated on the legal shadow rather than the social institution that casts that shadow.

Note: don't confuse gay identity with same-sex attraction. The two are not one and the same.

Choosing a lover of the same sex is a liberty exercised, not a right denied. That does not equate to a fundamental right to state treatment of nonmarriage as marriage.

You may want society to accord gay lovers with a special status. Marriage is a special status, but apparently you pose the scenario in which the gay lovers prevent themselves from entering marriage due to their choice to form a nonmarital alternative.

Whatever its merits, state recognition of the one-sexed arrangement should stand on its own two feet rather than crawl onto the back of marriage for a ride.

Now, some people may want to merge gay union with marriage and call the merged thing, marriage, but that's a shell game. Selective sex segregation has no place within marriage.
10.10.2006 2:00am
jrose:
What would make it unconstitutional to enact a system that prohibited infertile couples? Be specific.

From Zablocki: "By reaffirming the fundamental character of the right to marry, we do not mean to suggest that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny. To the contrary, reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed."

Of course, a prerequisite of fertility significantly interferes with decisions to enter into marriage. As I said, you can delude yourself into believing otherwise, but I will rest my case on your claim being wrong.

It is nonsensical to say that "gay persons are prevented from marrying their lovers".

Not only is not nonsensical, it is a plainly-obvious fact.
10.10.2006 11:35am
Chairm:
It is your contortion of that fact which is nonsensical.

The one-sex twosome is sex segregative. No such twosome can become a double-dad or double-mom arrangement without a parental relinquishment.

That is the inverse of marriage.

Perhaps you argue that the inverse is no difference. But that would be false. So, maybe you mean something yet unsaid.
10.10.2006 5:27pm