It's Civil Unions in New Jersey (for now):
The state assembly opted to give gay couples civil unions, rather than marriage. Expect another round of litigation in the state courts arguing that the bill does not go far enough.
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Whoever thought that the anti-gay-marriage crowd would respect the judgement of a duly appointed judiciary and stop there?
No silly, but it does say everybody has equal protection under the law. Since marriage is a fundamental right (note I didn't say same sex marriage), everybody is entitled to that right. Now to limit marriage just to one man one women the state has to show a rational reason, rooted in a state interest, why it discriminates. Because only men and women can procreate naturally isn't a good enough reason for you must show why gay marriage doesn't further this state interest and you must show a harm/reason not to allow those benefits to homosexual couples who want to marry a person of the same sex.
Under the consitution if a state can find a reason that is connected to legimitate state interest that marriage should be only limited to right handed people it could. But it also has to show a reason why left handed people shouldn't get married for it harms the state interest. If it can not expect a lawsuit and the law to be voided unconsitutional under the 14th ammendment and/or state consitutional provisons.
And this is even under rational basis, and not strict or heightened (intermediate) scrutiny.
Equal is equal. CUs are not equal.
I would assume something like this happened when miscegeny laws were revoked.
-Ty
Watch for adoption agencies not being allowed to prefer a mother and a father to a mother and another mother because that would be bigoted.
Whatever it is, it's most certainly not nonsense; to the contrary and decidedly so. Judges are responsible for upholding the law of the land: the Constitution first and foremost and then statutory law. As such the Constitution reflects the most foundational formulations of classical liberal tenets, such as Locke's consent of the governed tenet (thus "We the people ...", not "We the elites, jurists, monied and experts ...", being the primary, prescriptive tenet of this country's foremost legal document). Thus proclamations about "nonsense" are themselves, bare minimum, a type of meta-nonsense. Though they're more as well as they are, in practical terms, contemptuous of the Constitution's most basic tenets.
"The rule of law" is basic, though it is not equivalent to overly leveraged judicial initiatives or power plays. Hence another basic, classical liberal and Constitutional tenet, reflected in Montesquieu's separation of powers concern, comes into play as well.
Besides, virtually everyone is seeking a responsible and well considered solution. And no one has suggested they would fail to abide by the results of the democratic process - the consent of the governed - which more typically is not written off as or considered to be mere nonsense. No one, that is, excepting the Left, "progressives" and such who have in fact sought to usurp the democratic process itself.
In terms of rationality, we're not discussing mathematics or other abstractions, we're discussing rationality as it plays itself out in the social/political arena. 1 + 1 always equals 2, but one person plus another doesn't always equal a successful relationship, much less a marriage, even less so the institution of marriage as conceived from a societal point of view.
Hence the rationality reflected in "We the people ..." - or "the consent of the governed" - is the applicable rationality, not a mathematical/abstract rationality and not the facade of rationality reflected in power seeking, whether reflected in an overly leveraged judiciary or any other type of abrogation of the Constitution's most basic tenets.
Agreed, which is why civil unions are indeed a resonsible and well considered solution, at least for now. It's halfway between marriage and no marriage.
I sense a degree of bitterness from the anti-gay marriage crowd on this post. What's the problem? If you don't like gay marriage, then don't get married to someone of the same sex! Otherwise, leave us alone to enjoy it.
As for the consent of the governed, the "elite" judges, and so on -- if this were really a problem, then why did the majority of the senate and house of NJ pass this legislation without much rancor, and the gov. agree to sign it? How many MORE people do you need to approve of this before you people get on board?
Unless you can find a poll that shows a majority of New Jerseyans are against civil marriage, you have a hard time saying that the judges are elitist or not governing with the consent of the people. There are in fact, other people who actually want gay marriage, or at least civil unions.
If non-gays could marry people of the same sex then gays would have cause to claim that they were not receiving equal protection. As is (or was), both gays and non-gays could marry the opposite sex person of their choice (within certain restrictions) and neither gays nor non-gays could marry someone of the same sex. The fact that not everyone wants the same thing has nothing to do with whether they are being treated the same under the law. "The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets or steal bread." Anatole France.
Ramza:
Marriage is a fundamental right? I know that the Lochner-era court said that due process liberty included the right to marry and have kids, but today don't we all agree that they went too far with their radical substantive due process theory? After all, the having kids part was infringed upon by Buck v Bell, which is still good law.
As opposed to limiting it to two men, four women, and a German shepherd? Seriously, if we accept your reasoning then what grounds are there for continuing to prohibit polygamy, plural or group marriages, or any other conceivable configuration?
How about protecting and/or upholding the public's morals? Homosexuality has traditionally been viewed by Americans as being immoral. That being the case, legislatures have been and are able to legitimately employ their police powers against it. Yes, laws against homosexual sex have been overturned but on two basis.
1. Sodomy laws were only enforced against same sex couples even though the definition of sodomy that they used could apply to acts committed by opposite sex couples as well and that violated the equal protection clause.
2. That homosexual sex in private fell under the nebulous new right of "privacy".
Seeking a license from the state to marry and then receive legal benefits from various governments and businesses seems like the very antithesis of "privacy" so if the people of a state feel that homosexuality is counter to their moral standards then I fail to see how they could be forced to endorse it.
Of course, if the public's morals change so as to not view homosexuality as immoral then the legislature can and should change the law, which is its job and not a court's.
Gays and their supporters think that ANY distinction between gays and straights is de jure irrational. They can't conceive of any rational basis for treating the two differently. The argument amounts to the notion that for 200 years, state marriage laws were irrational and that further, in enacting the 14th amendment, ANYONE understood it to mandate civil unions/gay marriage.
Despite not using race or color or any other similar term, even a cursory examination of the Cong Globe, the State ratification debates and the other comtemporary sources will show that the equal protection clause was directed at distinctions based on race, color, creed, native origin and the like. There were specific evils such as the BLACK codes that it was designed to remedy. It wasn't the GAY codes. All the discussion on it as centered around race/color/ethnicity differences. Bingham, Howard, Stevens et al weren't worried about two guys getting married.
At least with Brown you can find a few guys here and there like Sumner who seemed to favor desegregation. I challenge any gay marriage supporter to cite ONE example of anyone from the period of 1866-1871 claiming or expressing an understanding that the 14th amednment's equal protection clause mandates gay marriage/civil unions or even has anything to do with homosexuality in the first place.
The record shows that the language in both the 1866 Civil rights Bill and the 14th was modified because certain framers thought it lent itself to judicial abuse and unwarranted constructions so they chose language that was more defined and limiting. And someone thinks this language mandates gay marriage?
I'm not saying gay marriage is illegal or civil unions. If any state wants to enact it throught their legislative process that's fine. But the idea that it is constitutionally mandated is farcical.
as a legimite state interest, an opinion shared by the vast majority of judges and lawyers.
I assume this is parody, since Anatole France was criticizing the sterile view of equality reflected in the first sentence.
First, Judges aren't supposed to govern, even with the consent of the people. The state constitution says that is the job of the political branches of the government.
Second, All the polls I can find are focused on if respondants prefer civil unions or marriage. I did find one from November that said over 50% of respondants favored changing the state constitution to ban gay marriage, which is a pretty extreme step. That suggests that they feel very strongly about the issue. 16% wanted the legislature to simply ignore the court ruling but saying that the ruling should be ignored is very different from merely saying that you would rather it had gone the other way.
If there was all this support for same sex marriages of one sort or another, then why did the legislature and governor need the court to force them to change the law? It's not like homosexuals aren't a formidible lobby.
Of course no one in that period in the United States would have mentioned homosexulaity for any reason whatsoever during that period: The term "homosexuality" wasn't coined until 1869 and pretty much no one outside of Hungary heard of the word or used it until Kraft-Ebbing published Psychopathia Sexualis in 1886.
Jay Myers: We're less than a week from the sarcasm thread and you couldn't tell that France was using his bitter sarcasm pen when he wrote that? The quotation supports the pro-same-sex-marriage argument, not the anti.
the clause does not apply to behavior. Differences among people based on behavior such as sexual behavior, smoking, drinking, drug use, eating habits, etc... are not protected by the clause. Straights are no more protected than gays are by it. Both are unprotected. If CA decided to only have gay marriage, there's nothing in the 14th amemdnment that prevents them from doing so. It certainly would not violate a staright person's equal protection rights. We have no equal protection rights based on our sexual behavior. Maybe there's a 1st amendment free association right but that's a bit of stretch.
It's the reason why smoking bans or transfat bans or drunk driving laws or liquor laws or drug use laws aren't constitutionally suspect. Or athletic scholarships. ALlen Iverson got a 4 yr ride to Georgetown because he could shoot the rock. The fact that Georgetown didn't give me a 4 yr ride becuase I can't doesn't mean my equal protection rights were violated. Now if Georgetown only gave out scholarships to black players and refused to give them out ot white players or turned down white players because they were white, then they'd have a claim. But a distinction based on sexual behavior deosn't implicate the 14th amednment at all.
Justice Black was right in Harper, as was Harlan, as was Stone in Koch, Douglas in Skinner, etc... The equal protection clause is satisfied by a basic rational basis test. For a Judge to say that laws limiting marriage to a man and a woman have no rational basis is the height of judical arrogance and the very definition of "government by judiciary" and the platonic masters that Judge Learned Hand cautioned us about so many years ago.
Sexual behavior is not a protected interest. Try as some might want it to be, the idea that the equal protection clause protects it is not grounded in any fair or reasonable interpretation of the text and its history.
Furthering my previous comment.
So since the very word didn't exist in America, no one could have been discussing its relevance to the 14th Amendment at the time of passage. Nor did they have the language to identify homosexuality as a distinct category on which equal protection claims may some day need to be made--either as an issue that needed to be included or excluded as they debated the Amendment's implications.
Surely they must have known that future generations would find other grounds that they had not yet identified upon which equal protection claims would one day need to be made, so just where in the text of the 14th Amendment is the clause limiting its equal protection provisions to distinctions recognized at the time of its passage?
And of course, that traditional view is incorrect. Plenty of scientific studies have shown that homosexuality is as normal in humans and the animal kingdom as heterosexuality. Beside, it has nothing to do with 'morality.' Morals deals ones treatment towards another and whether any harm occurs. When two men engage in consensual sex, there is no more harm done than between two consenting heterosexuals. If you disagree, please inform us exactly HOW being gay is immoral. I hardly think worshipping Cher, rehabbing an inner-city rowhouse and being a passionate fan of the opera constituties any sort of immorality.
For those who are so bitter over the 'elitist' judges, I need only remind you that in 1967, the Supreme Court overturned the ban on interracial marriages in Loving v. Virginia. At the time, 80% of Americans opposed interracial marriage. So if judges are not supposed to govern, then this decision was wrong? the people should have waited until the state of Virginia would allow interracial marriage? Thank god they did not, and yet somehow -- SOMEHOW -- the republic survived this bit of judicial mandate.
And because that decision, the vast majority of the public today has no problem at all with interracial marriage. Once we see that they sky has not fallen, everyone's fears dissappear. This at heart is the bitterness of the anti-gay crowd -- they know that once people will see gays getting married, that marriage is not somehow 'destroyed', then people will have no problems with it.
And that, in a nutshell, is what scares them the most. Notwithstanding the conspiracy that the vast gay lobby controls!
Sexual behavior is whether you prefer missionary position or doggy style. Sexual orientation is far more fundamental than that.
Which again gets to the heart of the matter. There are some people who simply hate the fact that two men are having sex anywhere in the world, and they seek to ban it if they can, and if they can't, to at least make it shameful and have everyone hate anyone who engages in it. Of course, I don't see you asking to ban S&M bahavior, or other forms of kinky sex that hetersexuals engage in. Why not? Is that not also 'immoral' behavior? Is that also 'not protected?' Why not get the morals police on those people as well?
I really dont' care what you do in the privacy of your own bedroom -- I ask for the same courtesy from you and from my government. That is also the heart of real conservatism.
It would be like saying the equal protection clause mandates laws for the befit of metrosexuals or transgenered or hipsters or hippies or any other term that describes a group that the framers and ratifiers showed no concern over whatsoever.
Ramza, the question isn't whether you or any vast majority of judges/lawyers(maybe in NY and DC and Frisco) think it's rational, it's whether the state thought it was rational and whether there existed any conceivable set of circumstances or facts that could lead them to that determination. Unless their decision is so blatantly out there like for example saying Gays can't drive, it's entitled to deference.
As I said above the idea that there is a rational basis for limiting marriage to a man and a woman is so plain that it is not even worthy of discussion. Even conceding to a discussion cheapens it becuase it implies that there might be some room for argument. The evidence is so apparent and the opposition so blind to reality. It's just not worth it.
And you can't either, can you?
Well I guess the police can use infared to spy on your home, after all them looking at your house from a hundrend yards away is not very unreasonable is it? They aren't violating your persons, houses, papers, and effects. Just because something wasn't discussed a hundrend and forty years ago doesn't mean the 14th ammendment, the other ammendments, or the consitution doesn't apply to it.
Can we please call shenanigans on this invidious "argument" once and for all? If not because the Anatole France quote illustrates its absurdity (and utter lack of empathy), then because it's the one place where the Loving analogy indisputably holds?
So death by electrocution couldn't possibly be cruel and unusual punishment because electric power hadn't been invented when the Framers wrote that clause?
The biggest problem with alternatives to real marriage like Civil Unions is the effect they will have on heterosexual couples: namely the idea that there are legitimate choices other than marriage. If you're really a supporter of marriage and not just another bigot, you should be supporting marriage for gay couples even if you personally dislike gay persons.
Personally, I prefer Civil Unions and look forward to the day when marriage is demoted to a religious rite and exists nowhere in US law.
So long as it has all the same rights, it seems to me not to matter whether we call it marriage or civil union or farfegnugen.
So our morals as humans are dictated by animal behavior. That is the first I have heard of this theory. Some of us think the point of civiliazation is to rise above our base animal instincts. That is why man has religion, law and clothing. We don't go around raping or fucking every woman we see and killing those who get in our way.
Assuming that separate is not inherently equal in this case, words have symbolic meaning. What symbolic meaning is imparted by using one word for opposite-sex couples and another for same-sex couples?
Actually, the argument isn't "animals do it, therefore it's not immoral"--it is "animals do it, therefore it's not unnatural."
The difference I see is that CU allows two people to order their own affairs as they see fit. Why shouldn't someone be able to name their own next of kin, etc.? I have just heard too many horror stories over the years about gay partners being excluded at death, not inheriting joint wealth, etc. I look at CU as primarily a right to contract issue.
But the GM issue is an attempt to attach the state (and therefore societal) sanction of marriage to a union that has never before warranted that sanction on the basis essentially that gays want it. The argument seems to be it would be somehow unfair to deprive gays of that - but I have yet to see any real reason (despite Eugene's heroic efforts) that this isn't a big slippery slope.
So, the NJ Supreme Ct. may not be happy with this, but I sure am.
Chimaxx, you've proved my point for me. Thank You! So you honestly expect one to believe that a term that didn't exist until AFTER the ratification of the 14th amendment is all of a sudden after more than 100 years, grounds for asserting an equal protection claim under it?
Why not? I honestly believe such a thing. The 14th Amendment applies to all laws passed before or after it.
But "animals do it, therefore it's not unnatural" is an irrelevant argument, because whether something is "natural" or not is of no consequence in the debate over whether that thing should be legal.
Killing is perfectly natural, yet it's usually illegal. The production of plastic is perfectly unnatural, yet it's quite legal.
As a basic logical matter, the "animals do it" argument is without even a shred of merit unless one also accepts the premise that anything animals do should be legal. I suspect most gay marriage proponents don't believe human laws should be equivalent to what happens in the animal kingdon. If that's true, then most gay marriage proponents have to give up this silly "animals do it" argument.
Some people believe it should be illegal since it violates there idea of natural law. Since animals do it, arguing it goes against natural law is a very weak position.
Killing produces a harm to an individual by ending his life. What harm does gay sex, gay committed unions do to an individual or society?
The arguements build on each other, you can't pretend only this arguement is the only thing that is defending the entire position. When a person has a position that the gay marriage/civil unions laws should change they have multiple arguements arguing why, and multiple counter arguements to other peoples arguements why not. Each arguement doesn't exist in a vaccum.
And then I wanted to protect my assets so I married someone.
To see what's really at stake here see what State Assemblyman Ronald S. Dancer (R) had to say:
I admit to being unfamiliar with the New Testament, but Mr. Dancer's approach seems to have very interesting consequences. First and foremost, while the Jewish Bible doesn't define marriage, it explicitely assumes that marriage is between one man and several women. In other words, polygamy should be an essential element of marriage law. In fact, why don't we incorporate the roles about forcibly marrying women war captives (after the appropriate mourning periods for they dead husbands)? More seriously, is marriage as defined in Mr. Dancer's book available to non-christians? I believe most sacraments are limited to members of the Church.
Finally, could one of our christian gay-lifestyle-opposing commenters explain the following point to me: as far as I know, the only part of the Christian Bible that proscribes homosexual behaviour occurs in Exodus. Why did this prohibition then survive the New Testament reformation, when other bans (e.g. on the eating of shellfish) laws (e.g. "eye for an eye") and even major commandments (not lighting fires in your settlemets on Shabbat) didn't?
This is so classic. People who hate gays argue that it is simply unnatural. So then I point out that no, it is quite natural, that it happens in every society and throughout the animal kingdom. Then they argue, OH so, now you are saying we should act like animals.
Classic bait and switch. If you want to argue about whether it is natural, please do so. If you want to argue the morality of it, please do so. But don't confuse the two issues.
As for morality, I have asked how specifically homosexuality is immoral, and no one has yet come up with an answer. The sole basis for their idea that it is immoral comes from the Bible, which has over 350 admonitions against hetersexuality, and only about two or three about homosexuality. so if you want to argue morality, we should really be more focused on what you striaght people do.
I also asked if kinky sex is immoral, and no one has responded to that one. Should it be illegal?
I am bloggin right now from Moscow, and last month I was traveling throughtout China on business. Guess what? Neither of these countries, which have long histories of totalitarian and extensive restrictions on human rights, have any laws against homosexuality. And yet, some argue here that we should be more restrictive than a communist country! Not a good argument to make on the Volokh board.
The Russians only recently got rid of theirs (in 1993 I think). Russia has a curious history on this matter. Until the time of Peter the Great the matter fell under the purview of the Church (which in practice was often tolerant, and even administrered a same-sex blessing sacrament on male couples) and early Western visitors to Muscovy were shocked by the oppenness of homosexuality in the country. Peter the Great passed the first laws against male homosexuality as part of his westernizing reforms and these were gradually strengthened over the next 150 years, though enforced only sporadically. Lenin initially got rid of these statutes along with the rest of teh Tsarist law code, but Stalin enacted some very stringent anti-homosexuality laws including the first Russian laws applying to Lesbians. These laws stayed on the books until the fall of Communism.
I suppose it should be noted that some while GM advocates have no trouble associating the anti-GM stance with disapproval of homosexual conduct, only a minority of GM opponents devote similar resources in support of laws targeting 'kinky' heterosexual conduct -- though surely many more find such behavior disagreeable.
It's almost as if one's opinion of gay marriage has nothing to do with the response to deviant sexual conduct.
I'm not sure I see any "symbolic meaning" being imparted. After all, you used different words also ("opposite-sex" vs. "same-sex"). Was there a symbolic meaning to your use of different words?
Adam and Eve are what we call an "opposite sex couple" who have a relationship we call a "marriage".
Adam and Steve are what we call a "same sex couple" who have a relationship we call a "civil union".
Don't see the difference.
I don't have a problem with a different word for something that grants all the same rights. (After all there is one word for a married man and another for a married woman, but they get the same rights.)
But I wish people would stop pretending that civil unions are anything close to marriage.
The same way interracial marriage 'all of a sudden' became a constitutional right in 1967.
"As I said above the idea that there is a rational basis for limiting marriage to a man and a woman is so plain that it is not even worthy of discussion. Even conceding to a discussion cheapens it becuase it implies that there might be some room for argument. The evidence is so apparent and the opposition so blind to reality. It's just not worth it."
Except, of course, that there is no rational basis for limiting it. And growing numbers of people in the US are seeing that, almost 50% according to recent polls. And that other countries, such as Belgium, The Netherlands, Canada and Spain see that.
Stamping your feet and trying to shut down the discussion in this manner is a childish way of dealing with it. If you can't argue in an adult manner, than please don't post here.
What I'm reading today from some is quite the contrary. As one commentator keeps asking, w/o answer: WHAT IS IMMORAL ABOUT HOMOSEXUAL MARRIAGE? WHAT RATIONAL BASIS DOES THE STATE HAVE FOR BANNING IT? The question is not whether gay marriage is constitutionally mandated, it's whether a set of laws (that confer important individual rights) that systematically exclude people based on immutable characteristics is constitutional.
As mentioned above, the real solution is banning marriage from the public sphere altogether. The only thing the state has authority to issue is civil union. Marriage is a religious concept that has no business being sanctioned by the state. Then, let the bigots get married in whatever facilities they choose and they could exlcude whomever they choose. But the state cannot choose to be so discriminatory.
The ONLY basis whatsoever for banning GM is that certain religions purportedly ban it. This reasoning fails on a constitional level.
At least y'all ain't dumb enough to use the "what'll prevent people from marrying their dogs" argument.
Oh, and I'm heterosexual and happily married. Never once in my life did I ever feel threatened by homosexual relationships.
Adam and Steve are what we call a "same sex couple" who have a relationship we call a "civil union".
Don't see the difference.
Then, why not use the same word?
Indeed, you recognize that even if civil unions afford all the rights of marriage, the symbolic meaning of words is important, in this case degree of sanction. However, what message is sent when the state does not sanction same-sex relationships to the same degree that it does opposite-sex relationships?
Because opponents of courts deeming gay marriage to be a right, aren't trying to control the actions of individuals, but are rather responding to what they see as a usurpation of the proper legislative role.
Even those who go further and oppose gay marriage laws pushed through the legislature, are often not trying to control the actions of individuals but rather trying to determine what actions or relationships the government will recognize and support. "Banning gay marriage", is a ban on government recognition, not individual action.
That's true of marriage too. Not single same sex married couple in MA enjoys any of the federal rights of marriage.
Unless, for example, they travel to Israel, where the married couple would be recognized as such.
Assuming you don't -- and I don't think many people do -- the argument for gay marriage has to be premised on something other than pretending that the male/female distinction is as insignificant as the black/white one.
(Yes, yes, I can anticipate one response: at the time of Loving, people thought the black/white one was very significant, and they were wrong. And that's entirely true -- but not a meaningful response. The fact that people were wrong at one point is not evidence that they're wrong at another point. You have to show that they're wrong now, not just show that they were wrong once.)
The problem is that too many people on both sides of the debate want to skip past premises and jump right to ideological beliefs. Before one can decide whether there's a basis for distinguishing between men and women in marriage, one must first establish (a) the basis for the existence of marriage, and (more importantly for our purposes) (b) the basis for the existence of government-recognized marriage.
A public restroom is an accommodation which everyone uses. A marriage is something which involves two people. Big difference there. Now if someone proposed a law that men and women must always use different restooms even in the privacy of their house (so all houses must have two bathrooms) then you would have the equivalent of banning gay marriages.
A public restroom is an accommodation which everyone uses. A marriage is something which involves two people. Big difference there. Now if someone proposed a law that men and women must always use different restooms even in the privacy of their house (so all houses must have two bathrooms) then you would have the equivalent of banning gay marriages.
He wasn't arguing that Loving mandates same-sex marriage. He was only saying that the "equal application automatically implies equal protection is achieved" argument:is without merit because of Loving.
http://www.youtube.com/watch?v=TrwAUV8Ofcc&eurl=
What? This doesn't make any sense at all. Gay marriage proponents are making the argument that straight people can get married, but gay people cannot. Since marriage today is open to any straight people who wish to get married, it should also be open to any gay people who wish to get married. What part of this do you not understand?
Or, as another example, bringing up Loving in a context where it does apply still leads to knee-jerk responses from otherwise intelligent people like David M. Nieporent. The pro/anti marriage arguments have been hashed over so many times online that people get lazy in reading, see a few key words they recognize as "argument X" and quickly type out "response Y" and feel like they've contributed. (And shamefully, I'm sure I've done that on occasion.) At this point in the discussion it just degenerates into boilerplate and loses value.
I try to avoid those pitfalls by avoiding the pro-gay boilerplate key words when possible and ignore those responders that can't seem to break out of boilerplate at all. (As an example, I have online experience with Clayton Cramer since the early 90s [alt.politics.homosexuality] and tend to just jump by his arguments on this topic. I presume he does the same to mine.)
Alek's argument needs to be taken in the context of what he was responding to. He was debunking an argument against gay marriage that used gender differences. This sort of confusion is avoided with threaded forums and readers.