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Defense Of Marriage Act Unconstitutional

when applied to exclude same-sex married couples from federal employee benefits: So concluded Ninth Circuit Judge Stephen Reinhardt earlier this week, in an internal order resolving a complaint brought by a Ninth Circuit employee. Chief Judge Alex Kozinski suggested in a similar order last month that DOMA might be unconstitutional in such situations, but interpreted the federal benefits statute in a way that avoided the need to decide whether DOMA is indeed unconstitutional. [UPDATE: These orders are not binding precedent, but they are a hint of how these judges -- and presumably some of their colleagues -- may rule in future cases arising outside this context of internal Ninth Circuit employment complaints.] (Thanks to Robert Iafolla and John Roemer of the L.A. Daily Journal for breaking the story.)

Judge Reinhardt concluded that applying the Defense of Marriage Act's mandate that "marriage" under federal law shall include only opposite-sex couples violates the Due Process Clause because it is not "rationally related to a legitimate governmental purpose." The opinion concluded that:

  1. The denial of benefits "cannot be justified simply by a distaste for or disapproval of same-sex marriage or a desire to deprive same-sex spouses of benefits available to other spouses in order to discourage them from exercising a legal right affored them by a state," since that would constitute "a bare desire to harm a politically unpopular group."

  2. The federal government interest in "defending and nurturing the institution of traditional, heterosexual marriage," mentioned in the House report on DOMA, "is largely irrelevant to the rational basis analysis here because the same-sex couple here is already married," and the government's denial of benefits to same-sex spouses wouldn't "encourage[ gay people] to enter into marriages with members of the opposite sex."

  3. As to the interest in "defending traditional notions of morality" also mentioned in that House report, "if the denial is designed to 'defend' traditional notions of morality by discouraging same-sex marriage, it does so only by punishing same-sex couples who exercise their rights under state law, and thus exhibits the 'bare desire to harm' same-sex couples that is prohibited under City of Cleburne and Romer." Moreover, "denying married same-sex spouses health coverage is far too attenuated a means of achieving the objective of 'defending traditional notions of morality," plus "Romer and Lawrence v. Texas strongly suggest that the government cannot justify discrimination against gay people or same-sex couples based on 'traditional notions of morality' alone."

  4. Finally, the third interest mentioned in the House report, "the government's interest in preserving scarce government interests" "does not provide a rational basis for that policy if the policy is, as a cost-saving measure, drastically underinclusive, let alone founded upon a prohibited or arbitrary ground."

Some of these rationales might be restrictable to employee benefits alone. But the logic of this argument, I think, would ultimately invalidate the entire Defense of Marriage Act, and for that matter would read the U.S. Constitution to secure a right to same-sex marriage (at least so long as the government recognizes opposite-sex marriages).

I like the idea of giving same-sex spouses the same health benefits as opposite-sex spouses; and I support same-sex marriage as a policy matter. But it seems to me that these claims that the law lacks a "rational basis" are not sound. The principle behind the Defense of Marriage Act — and nearly all states' recognition of opposite-sex marriage but not same-sex marriages — is that (1) heterosexual relationships are better for society than homosexual ones, and that the (2) government's preferring same-sex marriages in a wide range of contexts will tend to reinforce that norm among the public. I'm skeptical of both these claims, but I don't think they can be said to be irrational, or animated by a "bare desire to harm": Many critics of same-sex marriages genuinely believe (even if in my view ultimately wrongly) that specially fostering heterosexual relationships is indeed materially better for society than treating heterosexual and homosexual relationships equally — their desire is to try to help society (even if this in the process means excluding some groups for benefits), not "bare[ly]" "to harm" people.

And this is especially so since sexual behavior is indeed alterable for quite a few people. Whatever one might think about the alterability of sexual orientation, there is strong evidence that many (perhaps about half) non-purely-heterosexual men and most non-purely-heterosexual women are actually bisexual, and may thus be not unlikely to respond to social norms in their choices of partners. As I've suggested before, I don't think we should try to pressure this choice using government benefits; but that doesn't make the contrary view irrational, it seems to me. Moreover, while I am told that there is a considerable amount of intriguing evidence about sexual orientation being innate, I'm pretty skeptical that the matter is conclusively resolved at this stage of the investigation. I thus don't think it's irrational for Congress to believe that, at least as to some people, broad social norms may affect their felt orientations and not just their choices within a felt bisexual orientation.

Of course, any particular application of the law (e.g., to employee benefits) might not have that much of a norm-reinforcing effect. But that sort of particularization isn't the proper approach under the rational basis test, I think, nor should it be: The point of this law, as of many other laws, is to have a significant effect through its aggregate incentive and norm-setting function.

Finally, I should acknowledge that the famously mysterious decision in Romer v. Evans, and the less famously mysterious but still, in my view, not well-reasoned decision in City of Cleburne v. Cleburne Living Center might be read as supporting the conclusion that DOMA is unconstitutional here. This is so precisely because they are so vague, and because the "rational basis with bite" review that they are said to create is so unclear on what that "bite" is supposed to mean, and what actual legal rule judges are supposed to use to implement this "bite." But I'm pretty sure that those decisions don't mandate the results (again, precisely because they are so vague).

In any case, let me stress again: I think wise employers, federal, state, and private, should care about keeping their employees happy and productive — including by helping the employees' provide for their families — and not about the employees' choice of spouses or life partners. I also support the recognition of same-sex marriages. But while I think the views contrary to mine are mistaken, I don't think they're irrational, either in the lay sense or in the constitutional sense.

Related Posts (on one page):

  1. The Ninth Circuit and DOMA:
  2. Defense Of Marriage Act Unconstitutional
Steve:
High time for Congress to repeal that part of DOMA anyway.
2.5.2009 2:53pm
OrinKerr:
What's the precedential value, if any, of an "internal order"? I don't think I've seen those before.
2.5.2009 3:02pm
Pragmatist:
This will just serve as a rallying cry for the federal constitutional amendment to define marriage as the union of one man and one woman. Perhaps the economy will overshadow the issue, though.
2.5.2009 3:05pm
Dave N (mail):
Orin Kerr,

I was thinking the same thing, particularly since Judge Reinhardt was not bound by Judge Kozinski's prior order in a related case. I am guessing the answer to your question is "none."

I also think that this is a decision that is pretty much unreviewable. It certainly stakes out Judge Reinhardt's position--but then again, give me any policy issue and I can probably predict Judge Reinhardt's position without reading a word he writes.
2.5.2009 3:08pm
AF:
Mysterious or no, cases like Romer, Cleburne, and Lawrence v. Texas are leading precedents on the meaning of rational basis scrutiny. The notion that rational basis scrutiny is always highly deferential is obsolete, no longer supported by the case law.
2.5.2009 3:13pm
PLR:
The principle behind the Defense of Marriage Act — and nearly all states' recognition of opposite-sex marriage but not same-sex marriages — is that (1) heterosexual relationships are better for society than homosexual ones, and that the (2) government's preferring same-sex marriages in a wide range of contexts will tend to reinforce that norm among the public.

Similarly, the principle behind my not-yet-introduced Defense of Breasts Act is that (1) larger breasts are better for society than smaller ones, and (2) government's limitation of breast reduction surgery will tend to reinforce that norm among the public.
2.5.2009 3:19pm
themighthypuck (mail):
Arguing about the soundness of rational basis tests is (a) insane; (b)(1) absolutely necessary; and (b)(2) a good reason to keep a few lawyers around after the revolution. Also, I don't think it is fair to be too hard on Judge Reinhardt vis predicting his position on policy issues. This is true of a hell of a lot of Judges at or near the top of the appellate chain.
2.5.2009 3:20pm
Dilan Esper (mail) (www):
Actually, the more important aspect of Romer (and Lawrence) is that it rejects the state "interest" in promoting heterosexuality as illegitimate. And I don't see how one can square that with an assertion that DOMA is constitutional because it rationally relates to THAT "interest".
2.5.2009 3:21pm
Terry4511 (mail):
Sexual orientation itself isn't alterable one bit, but acting upon it certainly is. Who you have sex with defines how you are perceived, but in the end, what is attractive to us -- and what isn't -- is a totally private interior conversation.

What is more, we can't track how many husbands who appear to be happily married run off to massage parlors, public parks and bathrooms to have sexual encounters with other men. We don't know how many happily married women secretly masturbate to lesbian porn. But a really reasonable expectation is that it is a much higher number than we know, by it's very nature. Private, secretive, out of public view.

Just get out of our lives. Seriously. There are so many more important things to worry about than policing the private lives of real Americans. And if you gave a damn about marriage, divorce would be illegal. Full stop.
2.5.2009 3:24pm
Natural Blond:
Blond people are beautiful.

Beautiful blonds are good for society and the government preferring of blonds will tend to reinforce that norm. People may alter their hair color to be blond.

Therefore, it is not irrational for the government to offer monetary incentives to blond people.

Oh wait, yes it is... It's irrational because the base assumptions of the government are irrational. Just because their reasoning flows logically from irrational assumptions does not make the entire thing rational.
2.5.2009 3:24pm
Sean M.:
Judge Kozinski's order strikes me as the better reasoned, less political one. It also gets the parties involved their benefits and avoids a constitutional morass. Judge Rheinhardt's order, of course, is as political as can be.
2.5.2009 3:29pm
martinned (mail) (www):
@Sean M: True, but then again, I'm not sure what to think of the tendency of all sorts of judges declaring statutes "ambiguous" when they clearly aren't.
2.5.2009 3:31pm
MarkField (mail):

I don't think they can be said to be irrational, or animated by a "bare desire to harm": Many critics of same-sex marriages genuinely believe (even if in my view ultimately wrongly) that specially fostering heterosexual relationships is indeed materially better for society than treating heterosexual and homosexual relationships equally — their desire is to try to help society (even if this in the process means excluding some groups for benefits), not "bare[ly]" "to harm" people.

And this is especially so since sexual behavior is indeed alterable for quite a few people. Whatever one might think about the alterability of sexual orientation, there is strong evidence that many (perhaps about half) non-purely-heterosexual men and most non-purely-heterosexual women are actually bisexual, and may thus be not unlikely to respond to social norms in their choices of partners.


I'm not convinced by this reasoning. Let's suppose the law barred benefits to those whose marriage ceremony was performed by any non-Christian. There are plenty of Christians who believe that "God does not hear the prayers of a Jew"; surely they honestly believe it would be better for society if marriages were legitimate -- i.e., Christian.

I find it hard to describe such beliefs as "rational" (perhaps partly because it would disqualify my own marriage), nor would I be so charitable as to say that statute was not intended to harm Jews, Muslims, and other non-Christians.

Selecting the person to officate at a marriage is clearly a choice, albeit one deeply personal and intrinsic to most people's sense of identity and integrity. We nevertheless understand that religious beliefs, though in theory alterable, are not the sort of thing society should be interfering with in this way. The same is no less true of gay marriage, even if one concludes that aspects of being gay involve "choice".
2.5.2009 3:32pm
Duncan Frissell (mail):
"I support same-sex marriage as a policy matter"

Eugene, What flipped you? You used to be agnostic. Or was that agnostic on the question of SS parenting?
2.5.2009 3:36pm
Happyshooter:
My gosh. What an unexpected result in the 9th Circuit.
2.5.2009 3:39pm
wm13:
O, Mark Field, I don't think that argument works. The First Amendment forbids the government to favor one religion over another, but it doesn't forbid the government from favoring, say, patriotism over hatred of country, or courtesy over rudeness, or non-discrimination over racism, or marital stability over divorce. In short, there is a special rule for religion requiring government neutrality, but there is no general rule requiriing government neutrality between conceptions of the good.
2.5.2009 3:50pm
ShelbyC:

"a bare desire to harm a politically unpopular group."



Uh, aren't most laws based on a bare desire to harm a politically unpopular group? Laws against murder, drug use, etc are based on a bare desire to harm murderers and drug users, no?
2.5.2009 3:54pm
BGates:
But while I think the views contrary to mine are mistaken, I don't think they're irrational

Then you had better think they're driven by pure maliciousness. If you don't think views contrary to yours (whatever yours may be) are the product of irrationality and/or hatred, you really don't belong on the internet.

There are plenty of Christians who believe that "God does not hear the prayers of a Jew"; surely they honestly believe it would be better for society if marriages were legitimate -- i.e., Christian.
Surely you could quote someone voicing the latter belief.
2.5.2009 3:55pm
Dilan Esper (mail) (www):
wm13:

Actually, the Court's equal protection jurisprudence is all about the restrictions on government favoritism of particular groups. And without saying that I think the Court gets all of the particulars right (it doesn't), I think it is entirely plausible that favoritism of heterosexuals is the type of thing that fits into the Court's jurisprudence as the sort of favoritism that is generally illegitimate (because such favoritism is almost always motivated by bigotry and homophobia). And Romer and Lawrence are consistent with that.
2.5.2009 3:58pm
mga (mail):
I agree that some people genuinely believe that society is better off with purely heterosxual marriages. Unless that view rests on some basis other than traditional notions of morality, it does not survive Lawrence.
2.5.2009 4:00pm
Jon Rowe (mail) (www):

And this is especially so since sexual behavior is indeed alterable for quite a few people. Whatever one might think about the alterability of sexual orientation, there is strong evidence that many (perhaps about half) non-purely-heterosexual men and most non-purely-heterosexual women are actually bisexual, and may thus be not unlikely to respond to social norms in their choices of partners. As I've suggested before, I don't think we should try to pressure this choice using government benefits; but that doesn't make the contrary view irrational, it seems to me. Moreover, while I am told that there is a considerable amount of intriguing evidence about sexual orientation being innate, I'm pretty skeptical that the matter is conclusively resolved at this stage of the investigation. I thus don't think it's irrational for Congress to believe that, at least as to some people, broad social norms may affect their felt orientations and not just their choices within a felt bisexual orientation.


I think Eugene needs to think a little deeper about the continuum (whatever problems there are with Kinsey's research, he got that one right). The scale is from 0-6, with 0 being a perfect heterosexual, 6 a perfect homosexual, and 3 a perfect bisexual. Eugene is probably right that there are a lot of folks who are not Kinsey 0s and 6s among both self identified gays AND straights. However, there are very few 3s (those with a full and even bisexual attraction). There are probably more female 3s than male. And perfect bisexuals among men are so rare that they may well be nonexistent. And, I would argue a Kinsey 1 (a basically heterosexual guy who can get off having homosexual sex) and a Kinsey 5 (a basically homosexual guy who can get off having heterosexual sex) really don't have any kind of meaningful choice about whom they settled down with in the long run. Many of these married men who come out later in life like McGreevy I think are Kinsey 5s. I don't think a perfect Kinsey 6 would be able to sexually function with women enough times to father numerous children with them.

Finally we've seen a lot of conflicting data regarding just how many homosexuals and bisexuals there are. If we define homosexuality and bisexuality as Kinsey 3-6, then we are probably dealing with no more than 3-4% of the population (those are the folks who make up the "gay or bi" social group). If on the other hand we look for heterosexual purity and define homosexuality or bisexuality as 1-6, then well over 10% of the population is homosexual or bisexual, most of whom understand and define themselves as "straight" and live most of their lives as well functioning heterosexuals (they aren't part of the "gay or bi" social group).

I would argue unless you are a perfect Kinsey 3 (and few folks are) social norms will have little effect on your choice of partners.
2.5.2009 4:01pm
Clayton E. Cramer (mail) (www):
"Rational basis with bite" really means, "We didn't like the decision of the city government (in Cleburne) or the voters of Colorado (in Romer), but we don't have any other valid basis to overturn it." I actually agree that the City of Cleburne's decision was almost certainly based on prejudice against the mentally disabled. But if every decision that a legislative body makes can be overriden without a very clear violation of a provision of the Constitution, then the judiciary is making the rules, not the people, and we can just dispense with the pretense of elections.
2.5.2009 4:08pm
Clayton E. Cramer (mail) (www):

I think it is entirely plausible that favoritism of heterosexuals is the type of thing that fits into the Court's jurisprudence as the sort of favoritism that is generally illegitimate (because such favoritism is almost always motivated by bigotry and homophobia).
So why is favoritism to those who don't have sex with animals legitimate? I'm not saying homosexuality is the same as bestiality. But in both cases, the government has historically expressed disapproval based purely on the grounds that it was immoral. Why does the government get to disapprove of one, but not the other?

At least discouraging male homosexuality could be rationalized based on concerns about the spread of AIDS. Not so with bestiality.
2.5.2009 4:12pm
Clayton E. Cramer (mail) (www):

It's irrational because the base assumptions of the government are irrational. Just because their reasoning flows logically from irrational assumptions does not make the entire thing rational.
But that's only because you have defined disapproval of homosexuality as irrational. Even fifty years ago, approval of homosexuality was overwhelmingly considered "irrational." Read almost any work that discusses the subject for the last fifteen centuries--and homosexuality is "the infamous crime against nature."

What makes something "irrational" or "rational" largely reflects the assumptions that you bring to question. If you want to argue that the majority has come to its senses about this subject, then fine, make that argument. But then you are in no position to complain about majority decisions--like DOMA.
2.5.2009 4:18pm
Jon Rowe (mail) (www):
There are many states that have decriminalized bestiality (as Jefferson proposed VA do in his proposed revision of the criminal code that reduced the penalty for sodomy from death to castration). It's not exactly priority #1 on most governments' watch list. Nor should it be.
2.5.2009 4:18pm
Clayton E. Cramer (mail) (www):

Sexual orientation itself isn't alterable one bit, but acting upon it certainly is.
As Spitzer's work demonstrates, at least for some homosexuals, orientation (not just acting on it) is alterable. Perhaps not for all. Perhaps not even for most homosexuals. But your statement is certainly not true for at least some homosexuals, because some have successfully changed their orientation from 4s and 5s to 0s and 1s--enough so to be happy married to a member of the opposite sex.
2.5.2009 4:20pm
nit (pick me):

I think it is entirely plausible that favoritism of heterosexuals is the type of thing that fits into the Court's jurisprudence as the sort of favoritism that is generally illegitimate. . . . Romer and Lawrence are consistent with that.


On the contrary, such laws are not "generally illegitimate" -- they are presumptively valid as long as some conceivable rationale can be finessed. "a classification 'must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.'").

"a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous."


Lawrence "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter."
2.5.2009 4:23pm
Clayton E. Cramer (mail) (www):

There are many states that have decriminalized bestiality (as Jefferson proposed VA do in his proposed revision of the criminal code that reduced the penalty for sodomy from death to castration). It's not exactly priority #1 on most governments' watch list. Nor should it be.
Why? Isn't it just bigotry against animal lovers is acceptable?

Every argument that you can make that starts out, "Hostility to homosexuality is based on irrational religiously based prejudices" applies to a whole bunch of other practices that are still illegal: bestiality; child marriage; public masturbation; public nudity; public defecation and urination (provided you clean up the mess afterwards).
2.5.2009 4:24pm
Lib (mail):
At least discouraging male homosexuality could be rationalized based on concerns about the spread of AIDS. Not so with bestiality.
It is hard for an animal to consent (in the way humans think of consent) to sex so that could be justification for a blanket ban on bestiality.

It seems like bans on polygamy or bans on incestuous marriages between infertile or same sex relatives are better examples.
2.5.2009 4:25pm
Clayton E. Cramer (mail) (www):

It is hard for an animal to consent (in the way humans think of consent) to sex so that could be justification for a blanket ban on bestiality.
Animals don't consent to be killed and eaten, either, and that's a bigger violation of consent than having sex with them, isn't it? If your justification for bestiality laws is lack of consent, than laws against killing animals (except in self-defense) are necessary for consistency.

Our laws against bestiality exist because the Bible makes them capital offenses. There is no other reason.

Don't get squeamish on us. If you want to argue that laws against homosexuality are wrong, because they are based on irrational prejudices, then be consistent, and see where that takes you.
2.5.2009 4:29pm
wm13:
Dilan Esper, you have shifted to a pure equal protection argument. Mark Field, as I understood him, was arguing that government could not constitutionally advance Christianity over Judaism, which is true, but which doesn't prove that the government can't constitutionally advance heterosexual unions over homosexual ones.

I find such equal protection arguments pointless, since we need an underlying agreement about substantive good to decide what equality mean. Obviously, if you have decided that homosexual unions are morally indistinguishable from heterosexual ones, equal justice requires that they be treated equally. But the substantive judgment, not some principal of equality, dictates that result.
2.5.2009 4:29pm
Keith Jackson:
Clayton, I'm sorry, but your argument doesn't work. Bestiality can be opposed on animal cruelty grounds that have nothing to do with religion. Child marraige can be opposed based on societal judgements about the age of maturity that have nothing to do with religion. Defecation and urination? seriously? I don't care if you "clean it up afterwards", its still a health risk. I could also make the case that public masturbation and nudity could fail for the same reason the government can regulate obscenity over the public airways. See child marraige. Try again.
2.5.2009 4:31pm
nit (pick me):
Sorry. I inadvertently hit "post comment" without completing my comment.

Anyway, see Heller v. Doe, 509 U.S. 312, 320 ("a classification 'must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.'").

As for Romer and Lawrence, in general, "a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous." Romer at 632.

And Lawrence, as we know, "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." In which case it provides no support for the view that a "favoritism of heterosexuals is the type of thing" is "generally illegitimate."
2.5.2009 4:32pm
Jon Rowe (mail) (www):
1. bestiality;

Jefferson said something about bestiality never making "progress" in human nature. Therefore we shouldn't be concerned with it -- that's why he proposed decriminalzing it. I'd like to see the animal lovers come out and make their case. I doubt they constitute more than a fraction of 1% of the population (if they exist at all). Most bestiality porn is for heterosexual men who get off watching women do things with animals.

2. child marriage;

These used to be legal up until recently. This victimizes children; that's why it's wrong.

3. public masturbation;

a public act. Nothing wrong with masturbating in private.

4. public nudity;

ditto

5. public defecation and urination (provided you clean up the mess afterwards).

I don't think you can compare homosexuality with exceratory bodily functions. I see this as analogous to public nudity. In fact if you do clean with the mess or urinate in an area -- like a wooded area -- where it won't stink the area up and no one sees your private parts, I don't have a problem with it. I think this -- discretely urinate in public because you have to go -- is something that most of us have done in our lives.
2.5.2009 4:33pm
Jon Rowe (mail) (www):

Animals don't consent to be killed and eaten, either, and that's a bigger violation of consent than having sex with them, isn't it? If your justification for bestiality laws is lack of consent, than laws against killing animals (except in self-defense) are necessary for consistency.

Our laws against bestiality exist because the Bible makes them capital offenses. There is no other reason.


I'm not a big fan of killing &eating animals is the slaughter is done in inhumane ways. I'd also argue if we make analogies, it's quite clear that homosexuality and heterosexual are far closer to one another than either are to bestiality. When you make analogies you ALWAYS compare apples to oranges because to compare apples to apples is to compare duplicates. Apples to oranges is actually a pretty close (both are baseball sized fruits that grow on trees). But Lemons to Oranges would be even closer.

If heterosexuality is like an apple, homosexuality is like an orange and bestiality is like crabgrass. There should be no burden on those arguing on behalf of homosexuality to distance itself from bestiality.

That said, if the animal doesn't mind the act, bestiality clearly ISN'T something about which we ought to be seriously morally concerned. I see it not unlike someone who likes to have sex with washing machines. Strange, but not a big moral deal. And totally unlike homosexuality or heterosexuality.
2.5.2009 4:38pm
Clayton E. Cramer (mail) (www):

Bestiality can be opposed on animal cruelty grounds that have nothing to do with religion.
Why are you assuming that it's cruel? Certainly for some animals, it would be. (Birds, for example.) But what about horses? What about that group of men that were having horses sodomize them, until one of the guys died from internal bleeding? How was that cruel to the animal?

You are trying to rationalize a religiously based prohibition without admitting why we have it.


Child marraige can be opposed based on societal judgements about the age of maturity that have nothing to do with religion.
Wrong again. Our laws against child marriage are an expression of Christian opposition to Roman practices, where 12 was the marriage age for girls--and often not even consistently followed.


Defecation and urination? seriously? I don't care if you "clean it up afterwards", its still a health risk.
Jon Rowe thinks differently. (See above.) And while you would be grossed out by this (with good reason), if you clean it up afterwards, there's no health risk, and thus there's no rational basis for prohibiting it.


I could also make the case that public masturbation and nudity could fail for the same reason the government can regulate obscenity over the public airways. See child marraige. Try again.
And why do we regulate obscenity over the public airways, except that a bunch of bluenoses think that it isn't a good idea to expose children to sex too early? You are trying so hard to defend the results of Judeo-Christian values in every area except one.
2.5.2009 4:41pm
Clayton E. Cramer (mail) (www):

3. public masturbation;

a public act. Nothing wrong with masturbating in private.
Why is there something wrong with it public?
2.5.2009 4:41pm
Pragmatist:

I agree that some people genuinely believe that society is better off with purely heterosxual marriages. Unless that view rests on some basis other than traditional notions of morality, it does not survive Lawrence.

There is no Lawrence issue in DOMA. No part of DOMA restricts what individuals can do in the privacy of their homes, just what benefits they are granted by the government.

All laws are based on morality, whether theft, murder, etc. When most people think same sex marriage is moral it will become legal, just like when most people believe murder is moral it will become legal.
2.5.2009 4:42pm
zuch (mail) (www):
[Clayton Cramer]: "Rational basis with bite" really means, "We didn't like the decision of the city government (in Cleburne) or the voters of Colorado (in Romer), but we don't have any other valid basis to overturn it."...

The whole problem with "rational basis" is that it's not really what a rational person would say is in fact a rational basis. The deference given to stated reasons is appalling, when people just make sh*te up to justify what they clearly want for less 'legitimate' reasons. It was simply the fact that some whack-jobs don't know when to keep their mouths shut (and to just simply spew the "talking points") that sunk the cases in Wallace v. Jaffree and Edwards v. Aguillard. There really needs to be a searching examination of the reasons when there is A). a very unconvincing "rational" basis; that is to say, one that, while stated, has no real evidence to back up that it will do what is claimed (or do so effectively), and B). a known sentiment, even if unexpressed by the lawmakers themselves, towards the less legitimate reason for the action. You have to allow the gummint to goof every once in a while, but you don't have to allow for pernicious sub rosa 'legitimisation' when it's pretty much obvious to the common observer that such subterfuge is happening.

I actually agree that the City of Cleburne's decision was almost certainly based on prejudice against the mentally disabled.

Yes. As should be pretty plain to an ordinary observer. Why this is not recognised, and why the court has to go digging for some flaws in what is a patent sham excuse, is what I don't understand.

In the present instance, the desire of the anti-gay marriage people to do what they think is right, and to justify it with allegedly neutral and benign rationales ("protecting marriage", "saving the kids", etc.), is no excuse. Plenty of criminals think that what they're doing is "good" (or at least justified) too ... if they even bother to think about such. But there's no getting away from the religious animus towards homosexuality that suffuses all these efforts.

Cheers,
2.5.2009 4:42pm
Clayton E. Cramer (mail) (www):

I'm not a big fan of killing &eating animals is the slaughter is done in inhumane ways. I'd also argue if we make analogies, it's quite clear that homosexuality and heterosexual are far closer to one another than either are to bestiality. When you make analogies you ALWAYS compare apples to oranges because to compare apples to apples is to compare duplicates. Apples to oranges is actually a pretty close (both are baseball sized fruits that grow on trees). But Lemons to Oranges would be even closer.
The problem is that you are making an argument for why homosexuality should not be discouraged based on the supposed irrationality of the prohibition--which is based on the Bible. The same "irrationality" argument should apply to other prohibitions that have the same origin.

What this really comes down to is that very few people really oppose writing morality into the law. They just want homosexuality given an exception.
2.5.2009 4:44pm
John D (mail):
Jon Rowe:
If we define homosexuality and bisexuality as Kinsey 3-6, then we are probably dealing with no more than 3-4% of the population (those are the folks who make up the "gay or bi" social group). If on the other hand we look for heterosexual purity and define homosexuality or bisexuality as 1-6, then well over 10% of the population is homosexual or bisexual, most of whom understand and define themselves as "straight" and live most of their lives as well functioning heterosexuals (they aren't part of the "gay or bi" social group).


I'm almost certain I don't quite follow that and I don't have my copy of Sexual Behavior in the Human Male at hand (Google Books wouldn't give me the right page), but I do know that you're not up on what Kinsey found.

The famous 10% number comes from his lumping together 5s and 6s, that is, men who are predominately or absolutely homosexual in their activities. The 6s represent some 2-3% of the population.

I once tallied up the number and the implication was that in the 1940s fully 40% of the male population engaged in same-sex sexual activity at some point in their adult lives.

Do these numbers still hold? No idea. Not a sex researcher.
2.5.2009 4:46pm
Jon Rowe (mail) (www):

Jon Rowe thinks differently. (See above.) And while you would be grossed out by this (with good reason), if you clean it up afterwards, there's no health risk, and thus there's no rational basis for prohibiting it.


Has anyone here ever NOT peed in public because you really had to go?
2.5.2009 4:46pm
Clayton E. Cramer (mail) (www):

Plenty of criminals think that what they're doing is "good" (or at least justified) too ... if they even bother to think about such. But there's no getting away from the religious animus towards homosexuality that suffuses all these efforts.
Except that DOMA was passed by Congress, based on majority opposition to same-sex marriage. If you want to compare the majority in a democracy to criminals, that's fine. But it wasn't that many years ago that homosexuals were all criminals.
2.5.2009 4:47pm
Clayton E. Cramer (mail) (www):

I once tallied up the number and the implication was that in the 1940s fully 40% of the male population engaged in same-sex sexual activity at some point in their adult lives.
There were bigger problems with Kinsey's work, especially the primitive way in which he weighted his raw data with only four demographic characteristics, and that he relied heavily on groups that were likely to be atypical (prisoners, mental hospital inmates in a time when hospitals were sex segregated).
2.5.2009 4:48pm
Melancton Smith:
First, I think govt should get out of the marriage business. Everyone should get a govt recognized civil union. Then if they desire, couples can go to their chosen church and get 'married'.

However, govt benefits, inheritance, etc. only respect the civil union.

Civil unions should be granted to any two consenting adults.

Animals are not capable of consenting to being part of a civil union.

Sex (the act) should have nothing to do with any of this.
2.5.2009 4:49pm
Clayton E. Cramer (mail) (www):

Has anyone here ever NOT peed in public because you really had to go?
I've never whipped it out in the middle of a busy street to do so. Both because it would get you arrested, and because it is bad manners.
2.5.2009 4:49pm
Jon Rowe (mail) (www):
John D,

I'm not defending Kinsey's #s. I think he may have erred there (though I defend his concept of the continuum). I'm basing my assertions in part on latest data that was reported in the NYT a few years ago. I think Kinsey may highball the amount of homosexual behavior. But most modern studies including the latest one that showed over 10% of the population had some kind of incidential bisexuality, lowball the numbers. It wouldn't surprise me if 1/3 of folks have had a same sex orgasm which one study found.
2.5.2009 4:50pm
Jon Rowe (mail) (www):

I've never whipped it out in the middle of a busy street to do so. Both because it would get you arrested, and because it is bad manners.


I've never done that either and that's not what I'm defending. I'm talking about pulling off on the side of the road and going behind a tree where no one can see you.
2.5.2009 4:51pm
Keith Jackson:
Jon Rowe, to be fair, I was thinking mostly of defacation. Though I will say that even for urination, most people who really have to go try to do it in some out of the way area, ie. someplace less public.
2.5.2009 4:51pm
Jon Rowe (mail) (www):

The problem is that you are making an argument for why homosexuality should not be discouraged based on the supposed irrationality of the prohibition--which is based on the Bible. The same "irrationality" argument should apply to other prohibitions that have the same origin.


Well yes. Many of the things in the Bible are quite irrational and strange.
2.5.2009 4:53pm
Clayton E. Cramer (mail) (www):

Why this is not recognised, and why the court has to go digging for some flaws in what is a patent sham excuse, is what I don't understand.
Because in America, political power comes from the people. Limitations on popular authority are written into our Constitution.
2.5.2009 4:53pm
Clayton E. Cramer (mail) (www):

Well yes. Many of the things in the Bible are quite irrational and strange.
You, at least, are prepared to admit that you don't believe that laws against bestiality are defensible. There seem to be others here who want to keep Bible-based moral laws that they like, while rejecting others. If there is some rational basis to deciding that some laws are invalid, then let's apply this consistently. If we do that, the absurdity of the "homosexuality is special" argument becomes apparent.
2.5.2009 4:57pm
Sarcastro (www):
Hmmm. If we eat sheep, I suppose sheep fighting should be lawfull since that's better than killing them.

At last, my prayers have been answered!
2.5.2009 5:01pm
Clayton E. Cramer (mail) (www):

It wouldn't surprise me if 1/3 of folks have had a same sex orgasm which one study found.
I would find this barely credible if you include mutual masturbation starting at puberty. And even then, this seems quite unbelievable. I would find it even hard to believe if you limited it to men.

Study after study find that in the preceeding five years, the percentage of men who report sexual contact with other men is 3-4.5%; for women, it's not even that high--often 1-2%. There are men and women who definitely spend some period of time in their early years experimenting with the same sex, but don't stay with it. There are some who stay frozen in that experimentation stage--perhaps because our mass media now encourages it.
2.5.2009 5:02pm
Keith Jackson:
Or perhaps Clayton, some of us recognize that many of the examples you point to have long been taboo in cultures that were never influenced by the bible. A fact that some of us, who frankly could care less what the bible has to say on the matter, think points to the fact that there is a value to society in banning such behavior having nothing to do with religion.
2.5.2009 5:02pm
Dave N (mail):
Keith Jackson,

Your point might have validity if you could point to one culture anywhere on the planet where same sex marriage has been legal in the last millenium prior to the last 2 decades.
2.5.2009 5:06pm
Clayton E. Cramer (mail) (www):

Hmmm. If we eat sheep, I suppose sheep fighting should be lawfull since that's better than killing them.
1. Cockfighting is actually more cruel than a humane death. And ditto for bullfighting.

2. The argument against animal cruelty is not that animals have rights, but that the majority made the decision that this is a barbarous action. The notion of animal cruelty being something that needs to be prohibited comes out of Victorian sensibilities. Is there a constitutional obligation to do so? No. Nor is there a constitutional right to be cruel to animals, either. Oh dear, we're letting the majority make moral decisions again, can't have that!
2.5.2009 5:07pm
Clayton E. Cramer (mail) (www):

Or perhaps Clayton, some of us recognize that many of the examples you point to have long been taboo in cultures that were never influenced by the bible.
Dave N points out that no culture recognized same-sex marriage. Indeed, a great many modern, non-Bible-based cultures have homosexuality as a taboo, or at least as prohibited. And even classical Greco-Roman culture's homosexuality was a lot closer to pedophilia than sex between equals.
2.5.2009 5:09pm
Jon Rowe (mail) (www):

There seem to be others here who want to keep Bible-based moral laws that they like, while rejecting others. If there is some rational basis to deciding that some laws are invalid, then let's apply this consistently. If we do that, the absurdity of the "homosexuality is special" argument becomes apparent.


I'm not entirely against this sort of cafeteria Christianity because I agree with a lot of what the Bible says. It's just' "because the Bible says so" seems indefensible because of so much that I disgree with the good book.

In the context of Lawrence &sodomy laws, I distinctly remember Mr. Cramer pointing to the existence of codes like the 1641 Mass. Body of Liberties as evidence against the historical claims made in that case. Yet, as I read that and similar statutes, it seems evidence FOR the proposition that much of the Bible is wacky and holds no proper place whatsoever in American civil laws.

Let's read from the capital laws where the sodomy law is contained:


94. Capitall Laws.

1.
(Deut. 13. 6, 10. Deut. 17. 2, 6. Ex. 22.20)
If any man after legall conviction shall have or worship any other god, but the lord god, he shall be put to death.


2.
(Ex. 22. 18. Lev. 20. 27. Dut. 18. 10.)
If any man or woeman be a witch, (that is hath or consulteth with a familiar spirit,) They shall be put to death.


3.
(Lev. 24. 15,16.)
If any person shall Blaspheme the name of god, the father, Sonne or Holie Ghost, with direct, expresse, presumptuous or high handed blasphemie, or shall curse god in the like manner, he shall be put to death.

[Page 274]

4.
(Ex. 21. 12. Numb. 35. 13, 14, 30, 31.)
If any person committ any wilfull murther, which is manslaughter, committed upon premeditated malice, hatred, or Crueltie, not in a mans necessarie and just defence, nor by meere casualtie against his will, he shall be put to death.


5.
(Numb. 25, 20, 21. Lev. 24. 17)
If any person slayeth an other suddaienly in his anger or Crueltie of passion, he shall be put to death.


6.
(Ex. 21. 14.)
If any person shall slay an other through guile, either by poysoning or other such divelish practice, he shall be put to death.


7.
(Lev. 20. 15,16.)
If any man or woeman shall lye with any beaste or bruite creature by Carnall Copulation, They shall surely be put to death. And the beast shall be slaine, and buried and not eaten.


8.
(Lev. 20. 13.)
If any man lyeth with mankinde as he lyeth with a woeman, both of them have committed abhomination, they both shall surely be put to death.


9.
Lev. 20. 19. and 18, 20. Dut. 22. 23, 24.)
If any person committeth Adultery with a maried or espoused wife, the Adulterer and Adulteresse shall surely be put to death.


10.
(Ex. 21. 16.)
If any man stealeth a man or mankinde, he shall surely be put to death.


11.
(Deut. 19. 16, 18, 19.)
If any man rise up by false witnes, wittingly and of purpose to take away any mans life, he shall be put to death.


12.
If any man shall conspire and attempt any invasion, insurrection, or publique rebellion against our commonwealth, or shall [Page 275] indeavour to surprize any Towne or Townes, fort or forts therein, or shall treacherously and perfediouslie attempt the alteration and subversion of our frame of politie or Government fundamentallie, he shall be put to death.


I agree with the moral principles behind number 4, 5, 6, &11, though not necessarily the death penalty for all of them. I'm not sure what the context is of 10, prohibition on manstealing, Ex. 21. 16. I've seen some try to argue that it's antislavery in its sentiment. But as I read it, it's saying if you steal the slave of another, that's crime which would make it proslavery.

I'm not sure of the biblical reason for #12. One could cite Romans 13. And indeed the Founding Fathers all would have been put to death under this provision for revolting against Great Britain. 1,2 &3, seem nuts, the very antithesis of religious liberty. And I've read many letters from Jefferson &J. Adams where they utter "high handed blasphemie" against the doctrine of the Trinity. But at least they did it in private.
2.5.2009 5:09pm
Clayton E. Cramer (mail) (www):

I'm not entirely against this sort of cafeteria Christianity because I agree with a lot of what the Bible says. It's just' "because the Bible says so" seems indefensible because of so much that I disgree with the good book.
Except that I'm not arguing for laws "because the Bible says so." I'm not a supporter of sodomy laws, for example. But when you argue that a law passed by a majority should be struck down because it is "irrational" and use its Christian roots as the basis for arguing that it is irrational, then you should be prepared to be consistent on this, and have the courts strike down all other laws that are similarly based on Christianity.

And your list of laws from 1641 that you find offensive? Where did those laws go? Were they struck down by the courts because they had no rational basis? No, they were repealed when majorities found them no longer sensible. I understand that New Jersey's last witchcraft trial was in 1815.
2.5.2009 5:14pm
Clayton E. Cramer (mail) (www):
By the way, I have a collection of Colonial sodomy, buggery, and other capital laws here. They pretty well demonstrate the falsity of the historical claim that Lawrence makes that: "At the outset it should be noted that there is no long-standing history in this country of laws directed at homosexual conduct as a distinct matter."
2.5.2009 5:19pm
lucia (mail) (www):
JohnRowe
Has anyone here ever NOT peed in public because you really had to go?

Me!

I'm trying to figure out how I have managed this, but I have.

Have we exceeded the TMI threshold?
2.5.2009 5:19pm
zuch (mail) (www):
Clayton Cramer:

Limitations on popular authority are written into our Constitution.

Yes. Such as the Fourteenth Amendment. Which is why we don't take kindly to people not being treated equally.

Cheers,
2.5.2009 5:19pm
Clayton E. Cramer (mail) (www):

Yes. Such as the Fourteenth Amendment. Which is why we don't take kindly to people not being treated equally.
It would help if you understood what the EPC actually has historically meant. Somehow, for more than a century after passage of the Fourteenth Amendment, no one noticed that EPC prohibited laws against homosexuality. Of course, since sodomy was a felony everywhere in the U.S. when the Fourteenth Amendment was ratified, it was pretty obvious that no one thought that the 14th's EPC would invalidate such laws.

There were challenges almost immediately under the EPC to sex discrimination in laws. And the Court upheld those laws, since they recognized that the original intent of the 14th Amendment was not to strike down the existing laws that discriminated based on sex.
2.5.2009 5:25pm
zuch (mail) (www):
Clayton Cramer:

[Arne]: Plenty of criminals think that what they're doing is "good" (or at least justified) too ... if they even bother to think about such. But there's no getting away from the religious animus towards homosexuality that suffuses all these efforts.

[Clayton]: Except that DOMA was passed by Congress, based on majority opposition to same-sex marriage. If you want to compare the majority in a democracy to criminals, that's fine.

My guess is some 40%. ;-)

But do you disagree that the majority was of the opinion that homosexuality is bad? If not, then what is the point of banning such unions?

My point about criminals (which you snipped out of context) was that people's own beliefs in the justice and soundness of their ideas is not sufficient reason to give them free rein, particularly when contrary principles of justice come into play.

Cheers,
2.5.2009 5:25pm
Clayton E. Cramer (mail) (www):
Lucia writes:

Me!

I'm trying to figure out how I have managed this, but I have.
Men have an unfair advantage in this area which, alas, no amount of judicial activism will be able to correct.
2.5.2009 5:26pm
Clayton E. Cramer (mail) (www):

[Clayton]: Except that DOMA was passed by Congress, based on majority opposition to same-sex marriage. If you want to compare the majority in a democracy to criminals, that's fine.

My guess is some 40%. ;-)
Uh no, every survey that I have seen shows that opposition to same-sex marriage exceeds 50%. Why, even liberal California went ahead and voted against it.


But do you disagree that the majority was of the opinion that homosexuality is bad? If not, then what is the point of banning such unions?
Probably. But there are other reasons that people may oppose same-sex marriage, including the desire to avoid creating confusion about the meaning of the term "marriage." This may explain why a big minority of Americans support civil unions.


My point about criminals (which you snipped out of context) was that people's own beliefs in the justice and soundness of their ideas is not sufficient reason to give them free rein, particularly when contrary principles of justice come into play.
You are assuming that treating homosexuals differently from straight people is contrary to "principles of justice." I would argue (and so would a majority of Americans) that we're being nice to you by letting you do what you want in private. That's doesn't mean that we approve of what you are doing in private.
2.5.2009 5:31pm
Sean M.:
Of course, we have gotten so far away from the actual order in this case, but I suppose that is what Reinhardt was hoping for.

Another reason why I like Kozinski's.
2.5.2009 5:31pm
Sarcastro (www):

no amount of judicial activism will be able to correct

oh, you just wait...
2.5.2009 5:32pm
Jon Rowe (mail) (www):

Study after study find that in the preceeding five years, the percentage of men who report sexual contact with other men is 3-4.5%; for women, it's not even that high--often 1-2%.


Yes, those are the 3-4% of the population who comprise the gay or bi social group and are probably between 3-6 on the Kinsey scale.


There are men and women who definitely spend some period of time in their early years experimenting with the same sex, but don't stay with it.


And those are the 1s &2s. What I'm speak of is for instance a women, happily married in her 40s. She had one or a few lesbian experiences in college (or high school) She enjoyed it, though not as much with a man. She still feels some kind of minor sexual attraction to women, but again not as much as with a man. But hasn't had a lesbian experience for 20 years and never plans on it again. She identifies as "straight." They don't figure into the first block quote; yet there are a Hell of a lot of them out there. I'd imagine there are more of them than there are "real" gays or lesbians.
2.5.2009 5:33pm
Clayton E. Cramer (mail) (www):

And those are the 1s &2s. What I'm speak of is for instance a women, happily married in her 40s. She had one or a few lesbian experiences in college (or high school) She enjoyed it, though not as much with a man. She still feels some kind of minor sexual attraction to women, but again not as much as with a man. But hasn't had a lesbian experience for 20 years and never plans on it again. She identifies as "straight."
If, as you say, "there are a Hell of a lot of them out there," then surveys that ask, "Have you had sexual relations with a member of the same sex in the last year? last five years?" should hit some significant fraction of people who are passing through this stage.

Or, alternatively, the 1-2% of women and 3-4.5% of men includes only some lifelong homosexuals, and a lot of the cohort going through their homosexual fling stage.

Or since these surveys generally only ask those who are 18 and above--maybe this experimentation is overwhelmingly in the group that is 18-5 and younger.
2.5.2009 5:39pm
ShelbyC:

Which is why we don't take kindly to people not being treated equally.


But isn't that the whole point of having laws? To treat people who engange in conduct we want to proscribe unequally?
2.5.2009 5:59pm
Clayton E. Cramer (mail) (www):
To further poke holes in the "Hell of a lot of them out there" claim, let's do the math. Figure that an average lifespan is about 75 years for men and women. If a "Hell of a lot" go through a same-sex phase during their adult lives, that means that at any given time, a certain fraction of this transient bisexual population will be hit by the "last five years" question. How much? 75 years - 18 years (the age most of these surveys start at) = 57 years. Divide 57 years by 5 years--and you get about 9% of this transient bisexual population should show up in any particular survey.

If "Hell of a lot" means that they outnumber lifelong homosexuals by 5:1 (so about 20% of men and 10% of women), then these transients would be about 1/3 of the 3-4.5% of mne and 1-2% of women who identify in these surveys as homosexual or bisexual. If, as Jon Rowe suggests, 1/3 of people are either lifelong or transient homosexual/bisexual, then the transients would be more than half of those who show up in the "last five years" surveys.

Does anyone besides me find this implausible?

More importantly, if 1/3 of Americans are lifelong or have been transient, it would imply that the 30% of Americans who support same-sex marriage (as distinguished from civil unions) includes almost no one who supports same-sex marriage and is straight. Or perhaps, many opponents of same-sex marriage have gone through transient bisexuality.
2.5.2009 5:59pm
Greg Q (mail) (www):
So, I've now read, or at least glanced at, every single comment to this post. And I can't find a single person willing to try to claim that there is any actual evidence that homosexual relationships benefit society the way heterosexual ones do.

You want your "rational basis"? Fine, here it is:

The is a large pool of studies showing that heterosexual marriages benefit society. The result in better children (children who do better in school, have better criminal records, and do better in life), and in better parents (in particular, marriage matures men, and makes them less reckless, and less criminal). That is why society rewards heterosexual marriage, and that is why it should continue to do so.

To the best of my knowledge, there are no such studies showing the same for homosexual marriages / civil unions. Until such studies are produced, there is no reason to believe that homosexual marriages provide the same benefits to society as heterosexual marriages.

In short, it would be contrary to rationality to give SSMs the benefits of of heterosexual marriage, unless and until valid studies are produced to show that SSMs provide society the same benefits as to heterosexual marriages.
2.5.2009 6:18pm
Clayton E. Cramer (mail) (www):
For those who missed it--the Goodridges (on whose behalf the Massachusetts Supreme Judicial Court and Superlegislature ruled) have filed for divorce. And one of the other early adopters filed for divorce in Rhode Island last year to force that state to recognize same-sex marriage. It all smells like an elaborate way of forcing straight society to pretend that homosexuals are just like everyone else.
2.5.2009 6:21pm
billb:
Greg, who are we going to study to determine all that given that homosexuals can't legally marry?
2.5.2009 6:25pm
Jon Rowe (mail) (www):

Or perhaps, many opponents of same-sex marriage have gone through transient bisexuality.


I think this is extremely plausible. I know of some Christian women, happily married, never lived as exclusive lesbians but who experimented with it when younger.

The data of which I am aware (which I think lowballs the % of homosexuality) shows that between 10-15% of the population "are lifelong or have been transient," and "transient" is read very broadly. It could include that women who had two or three lesbian experiences when she was 20, twenty some years ago. She might barely register as a Kinsey 1. And btw even though "lesbian" identity is smaller than "gay man" identity, I think a lot more women experiment with lesbianism than men do with homosexuality.
2.5.2009 6:32pm
Clayton E. Cramer (mail) (www):
The primary reason why the government has a "rational basis" for being involved in marriage is to settle disputes concerning spousal and child support, and custody of minor children.

Spousal support's traditional reason was that mothers stopped working to raise children. This isn't much the case anymore.

Child support and child custody remain the major interest that the state has in marriage law. Homosexuals do not have children as a result of their relationships. There are no biological children from any homosexual union. Guaranteed. No amount of judicial activism can change that. Nor can dishonest, manipulative stuff like the "pregnant man" freak show in California.

Non-fertile heterosexual couples are freeriders on the state's legitimate interests in heterosexual marriage. If the taxpayers were paying $100,000 per heterosexual marriage that had no prospect of producing any children, I suspect that there would be some interest in solving this free rider problem. But childless marriages are relatively cost-free to the taxpayers. The real ugly stuff usually involves custody disputes.

Everything else that might conceivably (great choice of word after that discussion) be a legitimate gripe comes down to either simplifying existing contract law, a minor tax advantage, or Social Security survivor benefits. I'm willing to discuss work on these matters.

The rest of this same-sex marriage controversy is an attempt to get the rest of the society to pretend that homosexuals are just like everyone else. As the Proposition 8 battle demonstrated in California, arrogant power madness just irks people in the middle.
2.5.2009 6:32pm
MarkField (mail):

Dilan Esper, you have shifted to a pure equal protection argument. Mark Field, as I understood him, was arguing that government could not constitutionally advance Christianity over Judaism, which is true, but which doesn't prove that the government can't constitutionally advance heterosexual unions over homosexual ones.


Dilan was correct -- I was making an equal protection argument, not a First Amendment one.


I find such equal protection arguments pointless, since we need an underlying agreement about substantive good to decide what equality mean. Obviously, if you have decided that homosexual unions are morally indistinguishable from heterosexual ones, equal justice requires that they be treated equally. But the substantive judgment, not some principal of equality, dictates that result.


It's not quite what you say. Equal protection jurisprudence demands at least a rational basis for the law. Laws based on bigotry are, by definition, not rational even if the beliefs are held in good faith. It seemed to me that Prof. Volokh was eliding the distinction between good faith and rational, and my example was intended to get at that.
2.5.2009 6:36pm
Clayton E. Cramer (mail) (www):


Or perhaps, many opponents of same-sex marriage have gone through transient bisexuality.

I think this is extremely plausible. I know of some Christian women, happily married, never lived as exclusive lesbians but who experimented with it when younger.
They outgrew it, and realized that it wasn't something that they were stuck with. Good for them. There are people who go through that phase. I used to go to church with a guy who left homosexuality behind in 1971. For those who are still stuck, it must be quite painful to realize that others have moved on.
2.5.2009 6:36pm
Clayton E. Cramer (mail) (www):

Equal protection jurisprudence demands at least a rational basis for the law. Laws based on bigotry are, by definition, not rational even if the beliefs are held in good faith.
I don't think you got the point: you are defining disapproval of homosexuality as bigotry, therefore laws that distinguish based on sexual behavior violate equal protection. A majority of Americans clearly don't see disapproval of homosexuality as bigotry, but a rejection of what they regard as an immoral and destructive behavior.

You are welcome to try and persuade us. (You've been trying for a couple of decades, with all the power that Hollyweird can throw at us.) But that's not the same as using your control of the judiciary.
2.5.2009 6:39pm
Randy R. (mail):
Clayton:"What this really comes down to is that very few people really oppose writing morality into the law. They just want homosexuality given an exception."

Nope. What we are saying is that homosexuality, by itself, is no more or less 'moral' than heterosexuality. There may be immoral gays and immoral straights, but they are immoral not because of their sexual orientation, but because they, for instance, lie, cheat or steal.
2.5.2009 6:45pm
Ricki Beaver (mail):
I'd like to see the animal lovers come out and make their case. I doubt they constitute more than a fraction of 1% of the population (if they exist at all).

Okay. You provoked me into it. Here's the case:

Bestiality, as a sexual activity, is very common (I think Kinsey came up with something like 18% incidence among rural male teenagers a while back?), but is understood mostly through pathological examples that attract disproportionate attention.

Bestiality is unfortunately used as a method for the exploitation of women, which is reprehensible, and something I am embarrassed to be even remotely associated with. Web searches on the subject mostly come up with very disturbing woman/animal porn that has nothing to do with what I'm talking about here.

Bestiality is also an expression of a sexual orientation, whose incidence is unknown. For a time, I personally led a "Zoo Lunch" group where a good number of zoophiles (a term favored for the orientation, as opposed to the act) met on a monthly basis for several years. All were male. I don't think there is any argument for homosexuality being an "orientation" that could not be applied to the people I met through this informal group, who experienced their sexuality as innate and immutable. I did not see among them any increased incidence of mental or emotional dysfunction, and in particular any kind of mistreatment of animals was absolutely condemned. These were not people who were "kinky", jaded, or reckless; in fact, what friction I had with the group came mainly from its conservative tendencies, which I found confining.

The only reason homosexuality is now widely considered "acceptable" while zoophilia is not is because homosexuality requires contact with other people to happen. This leads to the development of a community, which in turn leads to political action. Since zoophiles are so overwhelmingly shy and reclusive, they have never reached the critical mass necessary for political action.

And finally, on "consent" - no, animals can't make legally binding decisions, but they say "yes" and "no" with great clarity. Their lack of abstract thought actually makes the moral situation simpler than with humans in some respects; humans often bring ulterior motives to sex, while animals are merely (and transparently) horny. Not all animals are interested, and the great majority are not. (Of mares, perhaps the most approachable and popular animals, only about 20% seem agreeable to the idea, the rest want nothing to do with it.) Believe me, when you are dealing with an animal that can kill you, making sure they like the experience is a matter of great concern.

And yes, I'm posting under a pseudonym, although I do receive email at the above address for those that are interested in serious discussion of the subject. I was once "out of the closet" on this matter, but have since decided that it was a hopeless cause that put me at considerable risk for no good reason. I guess I'm less of an idealist than when I was younger. ;-) It would sure be nice if those who constantly raise bestiality as a rhetorical strawman could gain some understanding of real, actual zoophiles rather than projecting their prejudices onto an utterly misunderstood way of being. But I'm not holding my breath.
2.5.2009 6:46pm
ReaderY:
How can the federal government's denial of government benefits (such as contracts) to companies who engage in sex discrimination be justifiable under rational basis? What's the difference? Aren't such laws nothing more than animosity towards an unpopular group? Why should it matter whether judges share the animosity or not?

Under Lawrence, it would seem that if government can't prohibit employment in general, it also can't prohibit employment based on sexual preference. People in same-sex companies are just as productive and can function economically in the same manner as the heterosexual companies the governemnt prefers. Government has no rational grounds to refuse to do business with gay companies.
2.5.2009 6:46pm
Clayton E. Cramer (mail) (www):
A pre-emptive strike: at some point, someone is going to argue that laws that force the majority to confront their bigotry against homosexuals is good, because of the "educative power of law." If the "educative power of law" (which is a polite way of saying, "We're going to force you to do what we want") is such a wonderful thing, why wasn't the "educative power of sodomy laws" such a wonderful thing when it forced homosexuals to confront their sinful nature?

This desire to use government as an instrument of social policy cuts both ways. You might be better off going for less coercion on your side--because if the majority ever gets control of this country back from the judges, you might find that the same "educative power of law" rhetoric will be used to justify forcing homosexuals back into the closet (or worse, the prisons).
2.5.2009 6:49pm
zuch (mail) (www):
Clayton Cramer:

[Clayton]: Except that DOMA was passed by Congress, based on majority opposition to same-sex marriage. If you want to compare the majority in a democracy to criminals, that's fine.

[Arne]: My guess is some 40%. ;-)

Uh no, every survey that I have seen shows that opposition to same-sex marriage exceeds 50%. Why, even liberal California went ahead and voted against it.


C'mon, put on your thinking cap. IIRC, Congress is about 40% Republican....

[Arne]: But do you disagree that the majority was of the opinion that homosexuality is bad? If not, then what is the point of banning such unions?

Probably. But there are other reasons that people may oppose same-sex marriage, including the desire to avoid creating confusion about the meaning of the term "marriage." This may explain why a big minority of Americans support civil unions.


Nonsense and kibosh. No one is worried about "confusion" (and if they are, they're showing they are persons of very little brain; in any case, those that are militant about banning such marriages are hardly in a position to be confused -- they know exactly what it means and simply don't want teh gay to have it). This is a fine example of the faux "rational basis" that keeps getting trotted out when we know what the real issue is.

[Arne]: My point about criminals (which you snipped out of context) was that people's own beliefs in the justice and soundness of their ideas is not sufficient reason to give them free rein, particularly when contrary principles of justice come into play.

You are assuming that treating homosexuals differently from straight people is contrary to "principles of justice." ...


No. What I said was that other (contrary) "principles of justice" countervail the presumption that people's (professed) instincts about "justice" should be trusted. One of these is the principle of equal treatment. You may disagree with this countervailing principle, but it is usually considered to be one of the fundamental principles of our country.

I would argue (and so would a majority of Americans) that we're being nice to you by letting you do what you want in private. That's doesn't mean that we approve of what you are doing in private.

How very kind of you ... how very indulgent. Seeing as it's NOYB. And to be honest, I don't give a fig as to whether you approve. What I care about (and what ought to be the subject of this post) is how the law ought to treat people. DoMA denies some people rights and privileges under the law afforded to others. And does so basically on the basis of personal (even if religiously based) animus.

Cheers,
2.5.2009 6:50pm
Clayton E. Cramer (mail) (www):

Nope. What we are saying is that homosexuality, by itself, is no more or less 'moral' than heterosexuality.
That's your opinion. The majority disagrees.
2.5.2009 6:50pm
Clayton E. Cramer (mail) (www):

C'mon, put on your thinking cap. IIRC, Congress is about 40% Republican....
And even many Democrats won't repeal DOMA.
2.5.2009 6:53pm
Randy R. (mail):
Greg Q:"And I can't find a single person willing to try to claim that there is any actual evidence that homosexual relationships benefit society the way heterosexual ones do."

There are plenty of ways homosexual relationships benefit society. As you know, sexual orientation, for the vast majority of people, cannot be changed. Therefore, whether you like it or not, there is a certain percentage of people who are gay.

Before being gay became acceptable,most gay men and women thought that there was 'something wrong' with themselves, or figured that they could be straigntened out by getting married. Or they succommbed to family or society pressures to get married. So many did. These are,in fact,sham marriages,and they happened all the time. I know quite a few gay men who are in the middle ages or older who were married. Their marriages were deeply unhappy, as you can imagine. But now, with greater acceptance, you have fewer gay men getting married. That is a good thing for society, as it reduces unhappy marriages and divorces. Isn't that a good family value? (I'm sure if you had a daughter, you would rather she marry a straight man rather than a closeted or conflicted gay man, wouldn't you?)

Second, gay people are coupling up regardless of whether they get societies or your approval. Even more, these gay couples are adoping children or having children on their own (as when lesbians get inseminated, for instance). Isn't it better for society if those children have married parents rather than just parents living together? The children get the stability of marriage plus all the benefits of marriage,such as health care for the family, and many other benefits.

Third, by what measure do you say that heterosexuals couples contribute to society? Are they less productive economically than straight couples living together? Are they a drain on the public funds? I don't see it. If you could quantify how straight unmarried couples are less beneficial to society, then would we have a measuring stick.
2.5.2009 6:54pm
Clayton E. Cramer (mail) (www):

How very kind of you ... how very indulgent. Seeing as it's NOYB.
I actually agree with you about NOYB. What consenting adults do in private should be none of the government's business--and it shouldn't matter if that is sodomy or employment. If only homosexuals shared that view, instead of demanding that the government punish people for refusing to hire them.

And to be honest, I don't give a fig as to whether you approve. What I care about (and what ought to be the subject of this post) is how the law ought to treat people. DoMA denies some people rights and privileges under the law afforded to others. And does so basically on the basis of personal (even if religiously based) animus.
Nope. It does it based on broad classifications. In some states, first cousin marriage is prohibited. In other states, first cousin marriage is as close as you can get. Marriages where one party is below a particular age are prohibited. Marriages with more than two spouses are prohibited. We've got lots of rules, and many of them are strictly religously based. Get used to it. Your just upset that you feel stuck in an orientation that isn't generally accepted.
2.5.2009 6:59pm
Randy R. (mail):
Clayton:"Nope. What we are saying is that homosexuality, by itself, is no more or less 'moral' than heterosexuality.
That's your opinion. The majority disagrees."

Then please explain how me loving a man is immoral, but if I love a woman in the way, it's moral? Or are you saying that ALL gays are per se immoral? If that's what it is, then what is morality?

"Child support and child custody remain the major interest that the state has in marriage law. Homosexuals do not have children as a result of their relationships. There are no biological children from any homosexual union. Guaranteed. No amount of judicial activism can change that. Nor can dishonest, manipulative stuff like the "pregnant man" freak show in California. "

And yet you completely ignore the fact that thousands of kids are being happily raised by gay couples around the country. What about them? They don't deserve the same benefits of having married parents?
2.5.2009 7:00pm
Randy R. (mail):
" If only homosexuals shared that view, instead of demanding that the government punish people for refusing to hire them"

And were are we demanding that the gov't punish people for refusing to hire a gay person? Any evidence, or just more rhetoric from you?
2.5.2009 7:02pm
zuch (mail) (www):
ShelbyC:


[Arne]: Which is why we don't take kindly to people not being treated equally.

But isn't that the whole point of having laws? To treat people who engange in conduct we want to proscribe unequally?



They aren't treated unequally (unless they're high-ups in a Republican administration). Hopefully they're all treated the same. In the wake of Lawrence, though, prohibitions against private homosexual sexual conduct cannot stand.

But as for gay marriages, I'd note that the laws specify nothing about sexual orientation; it is equally prohibited for a straight man to marry another man as it is for a gay man. All that is accomplished is the prohibition of certain types of marriage, just as was the case in Loving. In the aptly titled Loving v. Virginia case, Virginia defended the laws in part (the part about God's plan for the races we can leave for another day) based on the fact that all were treated "equally". It was just as impermissible for a white to marry a non-white as it was for a non-white to marry a white. All were equally prohibited from inter-racial marriages. What result then? What result now?

Cheers,
2.5.2009 7:02pm
Clayton E. Cramer (mail) (www):

Before being gay became acceptable,most gay men and women thought that there was 'something wrong' with themselves, or figured that they could be straigntened out by getting married. Or they succommbed to family or society pressures to get married. So many did. These are,in fact,sham marriages,and they happened all the time. I know quite a few gay men who are in the middle ages or older who were married. Their marriages were deeply unhappy, as you can imagine. But now, with greater acceptance, you have fewer gay men getting married.
I actually agree that it is better for people who can't be happily married to not engage in a sham. (Remember: I used to be represented by Senator Happy Feet.) But this isn't an argument for gay marriage. It's argument for leaving you alone, which I'm happy to do, as long as you are prepared to do likewise. If I don't want to photograph your same-sex civil commitment ceremony, or "Ricki Beaver's" (above) tender moments with his horse, don't use the government to punish me for saying no.
2.5.2009 7:02pm
Clayton E. Cramer (mail) (www):

And were are we demanding that the gov't punish people for refusing to hire a gay person? Any evidence, or just more rhetoric from you?
ENDA.
2.5.2009 7:03pm
Randy R. (mail):
"We've got lots of rules, and many of them are strictly religously based.

We do?Can you name any?

" Get used to it. Your just upset that you feel stuck in an orientation that isn't generally accepted."

Ah,yes,there's that Christian compassion for you. Clayton realizes that gays can't change their orientation -- it is something that God granted to us. And we are supposed to accept the fact that we are denied basic rights for no other reason that people don't like us.

Seems like you view us as the lepers were treated in the Bible. "It's your own damn fault for being sick, and we will treat you as the outcasts you deserve to be!"

It's just that, well, I think there was a person who didn't think that way. And his thinking sorta changed the world. In fact,I think they even named a religion after him.

But no matter. If they people hate you, you deserve it, right?
2.5.2009 7:05pm
zuch (mail) (www):
GregQ:


In short, it would be contrary to rationality to give SSMs the benefits of of heterosexual marriage, unless and until valid studies are produced to show that SSMs provide society the same benefits as to heterosexual marriages.


"... and until they prove this, we just won't let them get married."

Worthy of Joe Heller's attention, I'd say.

Cheers,
2.5.2009 7:06pm
Jon Rowe (mail) (www):

They outgrew it, and realized that it wasn't something that they were stuck with. Good for them. There are people who go through that phase.


I don't think this quite "gets" it. Some predominantly heterosexual men and women experimented with homosexuality for very brief periods in their lives that might have been only a few DAYS of their lives. They were never really "with" it.

Some, indeed many homosexuals experiment with heterosexual sex trying to "straighten" themselves out. I think you can do this a handful of times and still be a Kinsey 6. One of my friends is 57 and has been having homosexual experiences since he was a young teen (with other similarly aged males). He said he tried to straighten himself out at 18. After the third try with sex with a woman -- after she asked for oral sex and it disgusted him -- he struck out and hasn't had sex with a woman since then.

Though if a predominantly homosexual person can have heterosexual sex regularly enough, get married, have children, I doubt you are a Kinsey 6. I don't think Leonard Bernstein, Anthony Perkins, McGreevy, the many gay males who have been involved in heterosexual marriages were perfect Kinsey 6s. Though I don't think a Kinsey 5 can make a heterosexual marriage work. Theirs didn't.
2.5.2009 7:09pm
Randy R. (mail):
"I actually agree that it is better for people who can't be happily married to not engage in a sham."

But Clayton,when you go off and say that being gay is immoral, then that encourage gay people to think there is something wrong with them. And when they think that, they will do anything to try to be straight, including getting married,in the hopes that somehow it's a passing phase, or it will somehow all work out.

You can't despise a whole group of people and then expect them all to act as though they are not despised.

ENDA: First, it hasn't passed. But there are quite a few jurisidictions that prohibit discimination against people based upon sexual orientation. In fact, some estimate that at least one third of the entire work force is covered by some form of ENDA.

So — where are the lawsuits against businesses for not hiring gays? None of them, and certainly not ENDA, have a quota. All of them have exemptions for religious institutions and small businesses. And in fact, none of the 'require' that businesses hire a gay person. They just say that you cannot fire or not fire a person *solely*because they are gay. Or Straight, for that matter.

As you have admitted — you don't care what a person does in his bedroom. Therefore,why would you care, if you are an employer,if your employees are gay or straight? All other things being equal, if they do their job, then there is no reason for you to fire any gay person, right?
2.5.2009 7:12pm
Pragmatist:

Then please explain how me loving a man is immoral, but if I love a woman in the way, it's moral? Or are you saying that ALL gays are per se immoral? If that's what it is, then what is morality?

I don't think that anyone is saying that loving a man is immoral, although many would say that having sex with someone of the same sex is immoral. Along those lines all gays aren't immoral, they just commit immoral acts whenever they have gay sex, just as they commit immoral acts whenever they lie, steal, etc.

Everyone does immoral things, it just seems strange to many for the government recognize and endorse immoral actions.
2.5.2009 7:14pm
Randy R. (mail):
Greg Q:"In short, it would be contrary to rationality to give SSMs the benefits of of heterosexual marriage, unless and until valid studies are produced to show that SSMs provide society the same benefits as to heterosexual marriages. "

Or, how about the reverse? Massachusetts has had SSM for several years now. Where is there any harm to society? If you can't establish any harm at all, then there is no rational basis for banning SSM.

Or,look at it another way. SSM are contributing the same benefits to society as are heterosexual marriages in Massachusetts. Unless you can prove that statement wrong, then there is no rational basis for denying SSM,right?
2.5.2009 7:15pm
zuch (mail) (www):
Clayton Cramer:

[to me]: Your just upset that you feel stuck in an orientation that isn't generally accepted.

Really?!?!? Do tell. Don't you think you might be just a tad bit prejudiced here?

FWIW, I have considered whether it would be possible -- should society deem my personal predilections less than "acceptable" -- to change my sexual orientation. I think the best answer I have is: No. Guess I'm stuck with it.

Cheers,
2.5.2009 7:16pm
Randy R. (mail):
Pragmatist: "many would say that having sex with someone of the same sex is immoral."

I understand that. My question is WHY is that immoral?

My notion of morality has to do with like being honest, not cheating, not making false accusations, not profiting at the expense of someone else, failing to help a loved one in need, etc.

I can see if you have sex with someone and you hurt that person, make fun of them, belittle them, that might be immoral. But applies to all sexual orientations.

By what standard is having same sex intimacy immoral? Is kissing immoral? How far do you have to go before the line is drawn between moral and immoral? Loving a man isn't immoral,but expressing that love is? How does that make any sense?

As long as it's between two consenting adults who are in love, why would that be immoral by any yardstick?
2.5.2009 7:20pm
Randy R. (mail):
"Guess I'm stuck with it."

Yup, Zuch, and you just have to live with the fact that the majority hates you and denies you the same rights and priviledges everyone else has. You see, the Declaration of Independence and the US Constitution, and all the commentary by our founding fathers, explicitiy state that 'equal protection' applies to everyone except homosexuals. Life, liberty and the pursuit of happiness -- No soup for you!

All because you are just plainly and irretreivably immoral. Why it's a wonder that people like Clayton are so nice to us that they don't throw us in jail anymore! But don't get too comfortable, because if you get him angry enough, he just might be inclined to do just that.

Get used to it.
2.5.2009 7:25pm
AndreaGauss (mail):
Without being coarse (but definitely trying to be ironic) this comment thread is the world's biggest same-sex circle j***. Everyone's anti-gay arguments keep coming down to "majority still thinks it's immoral." Do you guys really think you're advancing thought on this matter at all?

Gay people aren't going to sit around and wait for you to come to some kind of agreement. They will stand up, like so many other oppressed groups, and demand their rights. Turn on the firehose -- what do we care.

PS Clayton Cramer, please focus on quality, rather than quantity. "Flooding the zone" isn't cutting it.
2.5.2009 7:28pm
zuch (mail) (www):
Randy R.:

See the link on my last post. ;-)

I guess I should feel a tad better that I'm apparently dismissed and dissed by Clayton for my ideas, rather than for what my sexual orientation is. But it is disturbing that he doesn't appreciate this subtle irony.

Cheers,
2.5.2009 7:36pm
Pragmatist:

I understand that. My question is WHY is that immoral?

My notion of morality has to do with like being honest, not cheating, not making false accusations, not profiting at the expense of someone else, failing to help a loved one in need, etc.

Why is lying, cheating, or leaving someone to suffer immoral? If suffering is the only test of morality then do you believe it's moral to lie to someone as long as it makes them happier than knowing the truth?

Despite the rise of relative morality, many people still believe in right and wrong, whether they get that direction from a holy book, their parents, or their conscience.

Where is the line? That's a good question and applies to most other acts as well. Is picking up an object stealing? Is putting it in your pocket and replacing it before you leave the area stealing? Is taking an item and leaving money stealing? The nuances can be argued, even when everyone agrees that stealing is immoral.

Not everything between two consenting adults is considered moral. Common examples are incest, assisted suicide, selling organs, collusive price setting, etc. You might well believe all of them are moral, but homosexuality is hardly the only consensual practice that's often deemed immoral.
2.5.2009 7:43pm
Pragmatist:

Yup, Zuch, and you just have to live with the fact that the majority hates you and denies you the same rights and priviledges everyone else has.

No, gays have the same rights as everyone else: They can marry anyone of the opposite sex and sleep with whoever they want (excepting children, close relatives, and animals, of course).
2.5.2009 7:48pm
Lib (mail):
If your justification for bestiality laws is lack of consent, than laws against killing animals (except in self-defense) are necessary for consistency
I suggested that lack of consent could be a justification for banning bestiality - and offered alternative marriage related examples (polygamy and infertile incestuous marriages) for which bans could not be justified by the "consent" objection. And, yes, I do agree that anyone actually making the consent argument to justify bans on bestiality should address the question of killing/eating of animals against their consent (that's a whole different argument which I don't have a strong opinion on and which is also complicated by the laws that generally prevent one human from killing and eating another even with the consent of the eatee). I don't personally have a particular opinion about bans on bestiality except where it would constitute animal cruelty (in spite of finding the act odd and disgusting).
Don't get squeamish on us. If you want to argue that laws against homosexuality are wrong, because they are based on irrational prejudices, then be consistent, and see where that takes you.
I believe incestuous marriages that can't result in an inbreeding problem over the generations and polygamy should be treated the same as homosexual marriage (all or none should be legal, objections to all are based only on moral grounds which I think the state and Federal governments should be agnostic about where feasible). Mostly, I care about consistency -- not that the lobby for same sex marriage is stronger than the lobby for polygamy and incestuous marriages so we legalize same sex marriage on the grounds of "rights" but not polygamy and incestuous marriage (an "individual rights" argument applies equally if the right affects a single person in the US or all but a single person in the US). My personal viewpoint is that I would prefer that laws on marriage be neutral as to moral issues but stronger statements of long term commitments - especially financial.

I suspect, but have not studied the matter sufficiently, that even the inbreeding issue should probably not come into play for incestuous marriage or sex bans. We don't ban people from having children when both parties are known to have genetics which makes it much more likely that their children will suffer from substantial handicaps (for example, both parents have recessive genes that, if both are passed on to a child, will result in a child with serious disabilities) than that an "inbreed" child will have handicaps of such magnitude. We also don't ban women over some age (such as 40) from procreating in spite of substantially increased risk of various problems for their offspring (such as Down's syndrome), so why ban incestuous marriages or sex that are even less risky to the offspring (if this is the case).

For bans on polygamy, the public cost of changing the laws, rules, regulations and reinterpreting case law to accommodate polygamy may be high. An example of such a problem would be if spouse #1 of 4 is in a coma and there are two treatment options (perhaps option 1 has a high risk of death but a high chance of high quality of life if death is avoided while option 2 has a much lower chance of death but the eventual quality of life will never be as good as the best case for option 1). Spouse #2 and #3 are in the ER and disagree on which option to take while spouse #4's opinion is unknown and they can't be reached for over an hour. What should the ER doctor do to avoid liability - he doesn't have a majority vote of spouses but inaction is worse than doing something - somehow laws would need to be modified to accommodate situations such as this. Similarly, "married filing jointly" tax tables would get more interesting. Anyway, the high public cost of this disruption of the legal system might be a valid argument for retaining a ban on polygamy (or, at least, delaying such bans). However, I just don't see any such complication with incestuous marriage between infertile (or same sex) individuals.
2.5.2009 7:48pm
Pragmatist:

For bans on polygamy, the public cost of changing the laws, rules, regulations and reinterpreting case law to accommodate polygamy may be high. An example of such a problem would be if spouse #1 of 4 is in a coma and there are two treatment options...

Interesting point, but it seems like it would just follow the same procedure we use today if two parents disagree on the treatment of a child.
2.5.2009 7:55pm
jrose:
For DOMA, the fact the couple is already married is an interesting distinction. However, I think it can be argued that having the federal benefits incents the couple to marry in the first place, and thus I agree with Eugene that if Reinhardt's logic holds, then all states must offer same-sex couple civil marriage.
2.5.2009 7:59pm
Tammy Cravit (mail):
I'm scratching my head at some of the argument I'm reading here, because there seem to be a few people who are arguing that a ban on same-gender marriage should be permitted because "other laws are also founded on principles of morality" (which may or may not be defined by religious values or texts). I don't see it that way, though.

Take the prohibition on murder, for example. Is murder against the law because the bible says "Thou shalt not kill"? Or is murder against the law because to commit murder is to deprive another person of their liberty interest (in remaining alive) improperly? If the former interpretation were true, why are capital punishment and the use of deadly force in self-defense legal?

Here's another example. Is stealing illegal because the bible says "thou shalt not steal", or because denying another the right to his property improperly is a violation of her/his constitutionally-protected interest? Clearly, depriving another person of property is not absolutely wrong (consider the difference between a mugger parting you from your wallet, and the government parting you from your Learjet under asset forfeiture laws).

So it seems to me indefensible to argue that notions of morality (whether or not they're religiously driven) are the primary source that informs our laws. Rather, it seems to me that our laws are driven around the desire to afford a reasonable balance between each of our various interests in our personal liberty. Looked at from that context, laws prohibiting murder, theft, rape, fraud, etc. are defensible in that the transgression of them improperly impinges upon the "victim"'s liberties. I don't see a similar argument in support of a ban on same-sex marriage, especially since there exists no constitutional right not to be offended by another person's legitimate expression of their personal liberties.
2.5.2009 8:03pm
Lib (mail):
(consider the difference between a mugger parting you from your wallet, and the government parting you from your Learjet under asset forfeiture laws).
The difference seems rather subtle to me - indeed, I'm still trying to figure it out.
2.5.2009 8:12pm
geokstr:
It's interesting that no one here has picked up on another class of "marriage" that will soon be in contention in the public discourse - polygamy. And around the same time, demands will be made that our society accept as normal a marriage between an adult and a child, perhaps as young as nine or ten.

In fact, all the arguments enumerated above advocating that the law and society recognize and accept same-sex marriage pretty much apply to those too, and the proponents are fast becoming a very vocal force in Europe, Canada and soon here as well - Muslims.

Both the UK and Canada have done studies showing that polygamy is quite common in the Muslim communities in their countries, as well as arranged marriages between first cousins and forced marriages of very young girls to much older men. There have been sporadic reports of all of those occurring here too. In countries that Muslims control, it is not unheard of that very young Christian girls are kidnapped, coerced under threat of death to say that they have converted to Islam, and then married off to older Muslim men.

Hey, if that's their legitimate religious belief, and what is condoned as a matter of course in their own culture, who are we to say that our "morals" are any better than theirs? Under all this equal protection stuff, shouldn't we allow them to do what they choose as well?

If we think that there is a conflict between heteros and homos now, wait until that one hits. The practitioners of the Religion of Perpetual Outrage do not take kindly to infidels telling them what is legal and/or moral and what is not.
2.5.2009 8:51pm
Randy R. (mail):
Pragmatist: "No, gays have the same rights as everyone else: They can marry anyone of the opposite sex and sleep with whoever they want (excepting children, close relatives, and animals, of course)."

Oh, that's a knee slapper! I can marry any old girl on the street and that's okay. In fact, it would be strenthening marriage, right? And in fact, some gay men do that, as I mentioned earlier. I suppose you would have no problem with your daughter marrying a gay man, right?

But of course you are wrong -- please tell me the difference between Massachusetts law and the rest of the country. If you don't know,in MA, SSM is permitted, but it isn't in the rest of the country. We call that a 'difference' in the way gays are treated. Do you grasp the concept?

"Despite the rise of relative morality, many people still believe in right and wrong, whether they get that direction from a holy book, their parents, or their conscience."

So then answer my question: Why is homosexuality "immoral"? Why is it 'wrong'? I suppose if you are striaght, having sex with someone of the same sex would be wrong, and therefore possibly immoral. But if you gay, then would sex with a person of the same sex be 'wrong?"

If you base it on the bible, then you have to explain why eatins shellfish is immoral, or sitting on a chair that a menstruating woman sat on, or wearing clothes of mixed fibers. All are considered immoral by the bible. Do you?

"The nuances can be argued, even when everyone agrees that stealing is immoral. "

i agree. But you aren't talking about nuances. You are saying in all cases homosexuality is immoral. Why?
2.5.2009 9:19pm
Randy R. (mail):
geostkr: "It's interesting that no one here has picked up on another class of "marriage" that will soon be in contention in the public discourse - polygamy."

Where have you been? That's all everyone ever talks about when it comes to SSM. That and bestiality. No one who is in favor of SSM has advocated for polygamy or bestiality. Ironically, it is only those opposed to SSM that argue in favor.

So here's a solution for you: If you have no problems with SSM, but are concerned about the animals and polygamy, go ahead and get a constitutional amendment banning bestiality and polygamy. That's shouldn' be too hard to pass.

Then we would have SSM,but no threat of the other two. That way everyone is happy. Agreed?
2.5.2009 9:23pm
geokstr:
Randy R:

You have no idea how I feel about SSM, so why the uncivil attack? I have noted that that is your preferred mode in past threads.

I am an atheist and have been all my life. I am ambivalent about SSM. My major concern is the apoclyptic confrontation that is highly likely between the West and Islam, which I believe will be a very violent conflict, and in the very near future. How will libertarians and the left deny them their preferred marriage options if there really isn't any standard to apply to anyone whatsoever?

If you are going to argue that the West has no right to define its society and culture in a way that excludes anyone, you are not going to have an argument against the religious practices of Islam either. And unless you have been living in a cave for the last couple decades, you would understand that they don't just boycott, they kill gays, and apostates, and infidels.
2.5.2009 9:43pm
Pragmatist:
I've made no claims as to what strengthens or weakens marriage, and see little point in bringing that up or my feelings about some hypothetical situation (I know how I hope I would feel and react, but we never know until it actually happens).

I'm well aware of the legality of SSM in Massachusetts, and if the few people who live in Massachusetts are the ones with the "same rights and privileges everyone else has" that you were referring to, then it doesn't make much sense.

I have answered your question: Morality is decided by society based on a number of sources, among them are holy texts, tradition, and personal conscience. The Bible is just one factor and its proscriptions are better debated by theologians.

I don't think you'll accept any argument I give against SSM, so instead you give an acceptable argument against incest, bestiality, polygamy, or the closest analogue you can find and I'll phrase my argument the same way so you can be convinced.
2.5.2009 10:07pm
Dilan Esper (mail) (www):
One of the problems with Clayton Cramer's position (and that of others who oppose Lawrence and Romer) is it is as if homophobia / bigotry against gays and lesbians never existed.

In other words, he's saying "what about beastiality?" "what about public masturbators?" without recognizing that there isn't a long and sorry history of identification of such folks as a group and group-based discrimination against them (or against anyone suspected of being a member of that group), complete with indoctrination of the bigotry among children at a young age, massive employment and housing discrimination, and other aspects of such discrimination.

In other words, it isn't just that we had laws criminalizing homosexuality-- it's that we had a whole CULTURE that engaged in massive systematic discrimination against gays and lesbians, just like we did against blacks and women.

One of the strokes of genius of American constitutional law was Justice Stone's footnote in Carolene Products, about how discrete and insular minorities require additional legal protections. Gays and lesbians require that protection because so many of them are law abiding citizens who aren't harming anyone but who are being discriminated against because of their membership in a disfavored group.
2.5.2009 10:18pm
trad and anon:
No, gays have the same rights as everyone else: They can marry anyone of the opposite sex and sleep with whoever they want (excepting children, close relatives, and animals, of course).
And in Saudi Arabia, Muslims and Christians are equally free to worship at whatever mosque they want. Some kinds of "equality" aren't remotely equal.

Incidentally, I do have to take issue with CC's repeated claims that various of our social norms are based on religion. I think the reverse is true: people interpret the Bible to support what they're inclined to believe anyway. If people don't like something, it gets interpreted away (for non-Catholics, the ban on divorce comes to mind) or ignored (people hate it when politicians obey Matthew 6:5-6).
2.5.2009 10:25pm
jrose:
Pragmatist,

Lawrence at least stands for the notion that an amorphous appeal to morality can't be a rational basis for criminalizing an act. And as Scalia suggests in his dissent, if we accept that logic, it would apply to government recognition as well.
2.5.2009 10:34pm
trad and anon:
One of the strokes of genius of American constitutional law was Justice Stone's footnote in Carolene Products, about how discrete and insular minorities require additional legal protections. Gays and lesbians require that protection because so many of them are law abiding citizens who aren't harming anyone but who are being discriminated against because of their membership in a disfavored group.
That doesn't make a whole lot of sense though. Gays and lesbians aren't remotely insular, we're widely dispersed throughout the population. We're also invisible, unless we make ourselves visible. (What makes insular minorities more in need of protection anyway?)

I've never been able to make heads or tails of the idea of a "discrete minority." What's the alternative, a continuous minority?
2.5.2009 10:36pm
Ken Arromdee:
In other words, he's saying "what about beastiality?" "what about public masturbators?" without recognizing that there isn't a long and sorry history of identification of such folks as a group and group-based discrimination against them (or against anyone suspected of being a member of that group), complete with indoctrination of the bigotry among children at a young age, massive employment and housing discrimination, and other aspects of such discrimination.

I think it's fair to say that bestiality does have a long history of being frowned on by society, and that this includes employment discrimination, housing discrimination, etc. for anyone who is known to participate in it.

The same goes for polygamy and incest. Do you honestly think that someone who openly has multiple spouses won't find it hard to get a job when prospective employers find out?
2.5.2009 11:12pm
Randy R. (mail):
"so why the uncivil attack? "

I'm sorry - I didn't realize I was being uncivil. I was merely pointing out that if beatiality and polygamy are your concerns, don't blame it on gays -- we aren't the ones advocated for those sorts of things. And if really bothers you, your option is to seek to amend the constitution, and that would end the matter.

"How will libertarians and the left deny them their preferred marriage options if there really isn't any standard to apply to anyone whatsoever?

If you are going to argue that the West has no right to define its society and culture in a way that excludes anyone, you are not going to have an argument against the religious practices of Islam either. "

Where have I or any other advocate for SSM said that there should be "no standards"? Or that the West has no right to define its society in a way that excludes anyone?

It's this sort of sweeping assumptions that give rise to our frustration. We are not advocating the total breakdown of society -- we merely want the same marriage rights that you have. Nothing more, nothing less.

"
2.5.2009 11:15pm
TruePath (mail) (www):
I still think the elephant in the room is Turner v. Safley. If inmates in prison have a right to marry even when that marriage wouldn't be consummated and that right is (practically...don't remember what standard they actually claimed) enforced at a level stronger than the rational basis test then how do gay marriages not receive the same protections?

Given that we have precedents on the book recognizing a fundamental liberty interest in the purely spiritual aspects of marriage it makes it hard to explain why this doesn't invalidate gay marriage bans.

----

Of course there is a decent case to be made that Turner v. Safley was wrongly decided but that's a whole different issue.
2.5.2009 11:16pm
Randy R. (mail):
Pragmatist: "I have answered your question: Morality is decided by society based on a number of sources, among them are holy texts, tradition, and personal conscience. The Bible is just one factor and its proscriptions are better debated by theologians."

Sorry. Not good enough. I've asked what IS morality? How do you define it? All you have done is listed three sources that define it for you.

If personal conscience is one of the sources, then you are admiting that relative morality is good, but what is moral to you based on your personal conscience is immoral to another person based on their personal conscience. And that has little to do with what society decides. Some people think it is immoral that we have people sleeping in the streets, others are not bothered by it. Personal conscience, as you state.

So why can't you accept for for gays, homosexuality is not a moratliy issue? But of course, I can't convince you that it is moral. So let me put the issue another way:

Why do YOU think I am gay? If it's an issue of morality, then surely I, who want to be a moral person, would just date women, and then the issue goes away. So why do you think any person is gay if it is so obviously wrong?
2.5.2009 11:22pm
Pragmatist:
jrose,
Yes, it's a wonder how the court can say that an act being immoral isn't sufficient justification to make it a crime while out of the other side of its mouth it upholds anti-obscenity laws. I think that Lawrence logically makes poor precident for constitutionally requiring the recognition of SSM, but the courts are seldom bound by mere logic.
2.5.2009 11:22pm
Brian K (mail):
it's absolutely amazing how quickly you can read this post if you skip the nonsense that clayton spews. and it's much more enjoyable to boot!
2.5.2009 11:33pm
Pragmatist:
Randy R.
I'm sorry if you don't like how our society defines its morality, but you wishing it not true or not accepting it wont stop it from affecting us, whether through shame or legal restrictions.

Stating that conscience is a factor in defining morality in no way makes the judgment that it's "good" or "bad" but only describes the state of things. It also doesn't solely rest on that one factor, but is shaped by our history and upbringing. Society's morality does indeed change, arranged marriage was morally acceptable for many years and now it is not. Likewise, divorce was immoral for all but exceptional circumstances for many years and now it is commonplace. Homosexuality may some day be morally acceptable, but not today.

Homosexuality is a morality issue, and will be for some time to come, regardless of what you may wish.

As for the origin of evil (why you wish to be gay and good people have desires to cheat, steal, etc.), there are many theories, but again lets leave that to theologians.
2.5.2009 11:57pm
ReaderY:
The reason for laws against racial discrimination are essentially moral, as the Supreme Court held in Atlanta Motel held. If society can't legislate morality, racial discrimination laws would be the first to fall.

But many others would as well. Most environmental laws are essentially moral: individual acts, and the loss of any one species, have an effect on the environment so imperceptable that there's no harm done. If the individual act has to be itself harmful -- if society can't consider aggregate effects of large numbers of people over hundreds and thousands of years but has to justify each individual act separately and by itself -- then much contemporary legislation would be unconstitutional. Libertarians would have a field day. But our constitution doesn't mandate libertarianism.

The only reason to prefer a life surrounded by green fields to one surrounded by junkyards is aesthetic. If human emotion and sense of well-being cannot be considered in enacting legislation, then there is no rational reason for laws to enforce a preference for one over the other.

I've always wondered why the Commerce Clause is rational. According to the Supreme Court, the framers preferred an industrious society to an indolent one. Is there any rational reason to prefer one to the other? Simply a matter of taste.
2.6.2009 12:02am
ReaderY:
And why can government enforce legal tender currency. What makes one piece of colored paper any better or worse than another? Clearly it's not the paper itself, but the value associated with it, that's relevant. But what business does government have enforcing its own values on things and saying this piece of colored paper is valuable and that piece isn't? The government's preference for particular types of paper over others would seem completely arbitrary. Any piece of paper would do. Why shouldn't individuals be free to assign their own values to pieces of colored paper based on their own beliefs and preferences? If government can enforce its values on people in the economic realm by claiming certain things have economic value and others don't by pure fiat on grounds that an orderly system is good for society even if the particular choice of order may be wholy arbitrary, why can't the state do the same in the domestic realm? Pieces of colored paper involve the First Amendment -- written expressions of value are a kind of speech. If the rational basis test means that the specific choice has to be justified, government should only be permitted to assign value to pieces of colored paper if ther is a rational reason to regard one piece as more valuable than another and the reason is based on the qualities of the paper itself seen narrowly in microfocus, not some sort of generalized social context.
2.6.2009 12:13am
cmr:
There are plenty of ways homosexual relationships benefit society. As you know, sexual orientation, for the vast majority of people, cannot be changed. Therefore, whether you like it or not, there is a certain percentage of people who are gay.

Before being gay became acceptable,most gay men and women thought that there was 'something wrong' with themselves, or figured that they could be straigntened out by getting married. Or they succommbed to family or society pressures to get married. So many did. These are,in fact,sham marriages,and they happened all the time. I know quite a few gay men who are in the middle ages or older who were married. Their marriages were deeply unhappy, as you can imagine. But now, with greater acceptance, you have fewer gay men getting married. That is a good thing for society, as it reduces unhappy marriages and divorces. Isn't that a good family value? (I'm sure if you had a daughter, you would rather she marry a straight man rather than a closeted or conflicted gay man, wouldn't you?)

Second, gay people are coupling up regardless of whether they get societies or your approval. Even more, these gay couples are adoping children or having children on their own (as when lesbians get inseminated, for instance). Isn't it better for society if those children have married parents rather than just parents living together? The children get the stability of marriage plus all the benefits of marriage,such as health care for the family, and many other benefits.

Third, by what measure do you say that heterosexuals couples contribute to society? Are they less productive economically than straight couples living together? Are they a drain on the public funds? I don't see it. If you could quantify how straight unmarried couples are less beneficial to society, then would we have a measuring stick.


Note: none of this fulfills Greg Q's comment. All you've done is given some identity-based answer that is meant to garner sympathy, but it doesn't give purpose for SSM.

The truth is, it doesn't fulfill any particular interest or goal, other than the one set by those politicking to institute it. I mean, I don't know how many times opponents to SSM have to say it, but basically saying that SSM is a good idea because it will make people feel good isn't a legitimate reason. It's about as viable as the counter-argument by some who say, "we shouldn't allow it because it will please God."

On a different note, like Clayton Cramer said, the Goodridge's have divorced. This is interesting on it's own, but I wonder if anyone will see it a different way. A pioneer, so to speak, of the other big social issue -- abortion -- also has had a change of heart. Jane Roe, the litigant in Roe v. Wade, is a staunch pro-life advocate now. She has been for awhile, which is probably why you don't see her around as much.

It's funny. Jane Roe and the Goodridge's both went to court to enact change they just knew they needed, and now, they're on exactly the opposite side of the spectrum. Sure, Jane Roe could become pro-choice again, or one of the Goodridge's could re-marry, but for now, their efforts were largely unnecessary. For them, at least.
2.6.2009 12:24am
Randy R. (mail):
Pragmatist: "As for the origin of evil (why you wish to be gay and good people have desires to cheat, steal, etc.), there are many theories, but again lets leave that to theologians."\

Yup. Just as I thought. I asked you that to see if you believe I choose to be gay. I do not wish to be gay -- in fact, for a good part of my life, I wished to be straight. But I was not. Every single study that has studied this has shown that sexual orientation is not choosen or desired. In fact, even Exodus,the leading group that purports to help gays change, admits that for most people,changing their sexual orientation isn't possible.

you of course dodged the question by punting to theologians. You dont' need a theologian to tell you that sexual orientation in innate.

"but you wishing it not true or not accepting it wont stop it from affecting us, whether through shame or legal restrictions."

I don't particularly care whether you think being gay is immoral or not. What I do care about are my rights. And to base the denial of basic rights merely upon your notion of morality is an offront to the constitution, the notion that all men are created equal, and the notion that all people should be treated the same under law. Oddly enough, society IS changing -- homosexuality is being accepted more and more. And the reason is because people realize that there is nothing inherently bad about it, and that it is in any case innate. We no more choose to be gay than you choose to be straight.

And that is I think morality is all about. Anything that is immoral has something bad about it -- that's why it's considered immoral. Stealing is bad because you are taking something that isn't earned. Lying is bad we want to hear the truth. Unless we don't, in which case lying isn't bad.

You have not in any case identified anything bad about homosexuality. Instead, you keep saying that it's immoral because we say it's immoral,and it's always been immoral. Other than that, you have to admit that you have no other basis for declaring it immoral. Just like years ago, people said that slavery was good because,well, it's just the proper way of life.

And that's fine, of course. Things are slowly coming around to our side. SSM will be a reality in most states within the next 20 years or so.
2.6.2009 12:36am
Melancton Smith:
I don't see why the government has to show a positive societal benefit from allowing gay marriage. It should be required to prove a negative societal cost in allowing it in order to maintain its 'ban'.

One thing my socially conservative friends have failed to do is explain to me how allowing gays to marry harms them in any way whatsoever.

By the way, I do see one positive societal benefit to gay marriage...marriage tax penalty.
2.6.2009 12:58am
Perseus (mail):
As long as it's between two consenting adults who are in love, why would that be immoral by any yardstick?

I find it difficult to believe that anyone who gave such a moral code some serious thought would find it adequate (let alone ennobling).
2.6.2009 1:04am
Perseus (mail):
I don't see why the government has to show a positive societal benefit from allowing gay marriage.

Since marriage carries with it all sorts of goodies that impose costs on third parties, I think that it's perfectly legitimate as a policy matter to ask how the public as a whole will benefit by expanding the pool of potential beneficiaries.
2.6.2009 1:14am
Randy R. (mail):
Perseus: "I find it difficult to believe that anyone who gave such a moral code some serious thought would find it adequate (let alone ennobling)."

And what, exactly, is immoral about homosexuality? I never said it was ennobling. However, falling in love might be ennobling for a person, whether they are gay or straight.

There was a time when it was immoral for people of two different races to date, let alone marry. Why was that considered immoral? And today, few people view interracial marriage as immoral. What changed?

It's quite the same with homosexuality. Everyone says it's immoral because society has deemed immoral. Why did society deem it immoral? Because it always has been immoral. Why has it always been immoral? Because society has always deemed in immoral.

That, in a nutshell, is your argument. You can make a clear case of immorality for stealing, lying, and even for being a slut. But when it comes to gays, all you have is circular reasoning.

That,and of course, the unshakable belief that for some strange reason, we gays choose to be gay, and could be straight with just a smidgeon of will power.
2.6.2009 1:33am
zuch (mail) (www):
Perseus:

Since marriage carries with it all sorts of goodies that impose costs on third parties, I think that it's perfectly legitimate as a policy matter to ask how the public as a whole will benefit by expanding the pool of potential beneficiaries.

Since slavery carries with it all sorts of goodies that extract benefits from third parties, I think that it's perfectly legitimate as a policy matter to ask how the public as a whole will benefit by reducing the pool of potential slaves.

Do we really need another constitutional amendment to drum it through the heads of the troglodytes that SSM is the right thing to do?

Cheers,
2.6.2009 2:49am
Perseus (mail):
Everyone says it's immoral because society has deemed immoral. Why did society deem it immoral? Because it always has been immoral. Why has it always been immoral? Because society has always deemed in immoral.
That, in a nutshell, is your argument.


You're attacking a bunch of straw men. I was criticizing the "two consenting adults" moral code in general. But were I to make a moral argument against homosexual relations specifically, I would refer to Aristotle, Kant, etc., and not simply to societal tradition.
2.6.2009 4:24am
Perseus (mail):
Do we really need another constitutional amendment to drum it through the heads of the troglodytes that SSM is the right thing to do?

I suspect that the Supreme Court will find yet another penumbra in the Constitution long before the non-"troglodytes" would ever have sufficient numbers to pass a constitutional amendment.
2.6.2009 4:45am
Waldo (mail):
If I can get back to the rational basis test, and away from the morality argument, there is a rational basis for reserving marriage to heterosexuals. The majority of heterosexual couples have the potential to have children, without any government restriction, even when they don't intend to. No homosexual couple can have a child unless they specifically and rationally intend to do so. (Don't tell me heterosexuals can simply not have sex because I can cure AIDS with that argument.) Gay men are vetted and asked repeatedly if they wish to become fathers. For heterosexual men, the choices are somewhat more limited. That, IMHO, meets the criteria for rational basis.
2.6.2009 6:22am
scattergood:
The significant problem with SSM that most people see is not with the sexual relationship that two people have, but with the logic of making people who are offended by such a relationship, support it.

To use the Equal Protection Clause, an individual should be part of a 'protected group'. Historically to be defined as a 'protected group' the group had to be defined one of two ways. Firstly, membership in the group had to be 100% genetically deterministic. This is why Blacks, Women, Hispanics, etc. all fall under the EPC, for AT BIRTH one's membership in the group is determined. It is determined without any action or decision by the individual. Secondly, society as a whole can by explicit enactment of law create a group. This is why members of religions are not only protected under the First Amendment, but also under the EPC. Religions are protected explicty from government action, but also from being discriminated against by private citizens in hiring, firing, etc.

Homosexuality clearly fails in being a protected group in both cases. Homosexuality is NOT 100% deterministic. This is why twins are not uniformily homosexual, but they are uniformly Black. Even homosexuality researchers recognize that they don't really understand why one person is homosexual (to whatever degree they are) and another is not. Also, homosexuality has not found societally sanctioned protection. Writing in protection for homosexuals into various laws has failed.

So what is left? Judicial fiat, or what I like to call it, tyranny of the robes. The problems with such tyranny is twofold. Firstly, it has to ignore its own judicial statements to get to the result it wants. While most people will quote Loving v Virgina to demonstrate that marriage is a 'fundamental right', they tend to ignore what was actually said:


Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.


Even under Loving, SSM fails. It does not fulfill the procreative needs of a union which was understood to be 'fundamental to our very ixistence and survial'.


Secondly, the concern is that such tyranny of the robes is a double edged sword. Not only is there the concern that judicial fiat can be used in unintended way, the fact that judicial fiat is THE way to get an unpopular and legally unsupportable policy enacted is not a great way to run our society. If history, societal wishes, and the writings of the judiciary don't stop the judiciary, what will?
2.6.2009 9:06am
pluribus:
Pragmatist:

As for the origin of evil (why you wish to be gay and good people have desires to cheat, steal, etc.), there are many theories, but again lets leave that to theologians.

You lose all credibility when you compare homosexuality with cheating and stealing. Cheating and stealing are offenses (defined as crimes in our society) which violate the legitimate interests of others (who are defined as victims). How is the legitimate interest of a heterosexual violated if two homosexuals marry? If Joe and Bob get married, is the marriage of Ron and Liz thereby damaged or destroyed? Who is the "victim" when two gays marry in Massachusetts, or in Canada, or in the Netherlands, or Spain, or Norway? Also, you are way off base when you state that people "wish to be gay." Nobody "wishes" to be a member of a hated minority that is discriminated against socially and legally, scorned by the majority of the population, condemned from the pulpit, and often the object of violent attacks. A person is or isn't gay without "wishing" anything at all. I wonder why people who badly misunderstand the internal dynamics of sexual orientation feel so compelled to impose their misunderstandings on others, and to enforce those misunderstandings with the force of law.
2.6.2009 9:55am
Steve:
The majority of heterosexual couples have the potential to have children, without any government restriction, even when they don't intend to. No homosexual couple can have a child unless they specifically and rationally intend to do so.

I don't know if that passes my rational basis test. The government has an interest in encouraging accidental pregnancies? Society's purposes are furthered when a couple that doesn't intend to have kids has one? Even if these things were somehow true, I still don't see how restricting same-sex marriage would further those goals, frankly. I wouldn't want to be the advocate to stand up in front of the court and say "Your Honor, if we keep the gay people from marrying one another, some of them will settle for opposite-sex marriages, and some of those will result in accidental pregnancies which, just trust me on this last part, further a governmental interest."
2.6.2009 10:00am
cmr:
I don't know if that passes my rational basis test. The government has an interest in encouraging accidental pregnancies?


No, the government has an interest in regulating it. Hence, marriage. That risk not being there with same-sex couples, there is no interest there. Hence, the lack thereof.
2.6.2009 10:17am
jrose:
Pragmatist,

At first glance (having not though about it too much) I agree that it appears obscenity laws are based on nothing more than an amorphous appeal to morality. However, I think the Court got it right with sodomy and wrong with obscenity.

Unlike you, Scalia argues that the logic from Lawrence requires same-sex marriage. I however again agree with you. If rational basis is the standard, I believe prohibitons against same-sex marraige can be justified without an amorphous appeal to morality.
2.6.2009 10:35am
Randy R. (mail):
Perseus: " But were I to make a moral argument against homosexual relations specifically, I would refer to Aristotle, Kant, etc., and not simply to societal tradition."

Perhaps you could, but you don't. Aristotle and Kant said nothing about the morality of homosexuality, of course. They did talk a lot about morality, and Kant created the idea of the categorical imperative, which is about doing the best thing for yourself and society.
The best thing for myself is to be gay -- I have no other choice. It's also best for society, or else you end up being a Ted Haggard, deep in denial and a danger to his wife.

So once again -- the moralists fail to come up with anything to support their notion that homosexuality has anything to do with morality. Does race have anything to do with morality? Gender? Disability? Age? None of these things we have control over, and we don't say that femininity is immoral, or being ASian, or being over 50. Yet that is the arguement you make.
2.6.2009 10:46am
Randy R. (mail):
Waldo:"(Don't tell me heterosexuals can simply not have sex because I can cure AIDS with that argument.)

How? The World Health organization estimates that about 80% of the cases of AIDS in the world are within the heterosexual population. In Africa, that number is significantly higher.

"Gay men are vetted and asked repeatedly if they wish to become fathers. For heterosexual men, the choices are somewhat more limited. That, IMHO, meets the criteria for rational basis."

I don't understand your point. So it's okay to deny children of gay men the right to have their parents married, but not children of striaght? On what basis? Because they chose the wrong parents?

If your argument is that marriage should be only for people who can reproduce, then why are there currently thousands of gay couples who have children, even were SSM is banned? You haven't accomplished your goal.
2.6.2009 10:50am
trad and anon:
To use the Equal Protection Clause, an individual should be part of a 'protected group'. Historically to be defined as a 'protected group' the group had to be defined one of two ways. Firstly, membership in the group had to be 100% genetically deterministic. This is why Blacks, Women, Hispanics, etc. all fall under the EPC, for AT BIRTH one's membership in the group is determined. It is determined without any action or decision by the individual. Secondly, society as a whole can by explicit enactment of law create a group. This is why members of religions are not only protected under the First Amendment, but also under the EPC. Religions are protected explicty from government action, but also from being discriminated against by private citizens in hiring, firing, etc.
Do you know anything about EPC jurisprudence? SCOTUS has never created a well-defined standard for declaring something to be a suspect class. Instead, it just declares things to be suspect classes on an ad hoc basis.

Also, your scheme doesn't fit the suspect classes at all. Alienage is a suspect class, but can be changed by the individual. Illigitimacy and national origin have nothing to do with genetics. Many disabilities are 100% genetically deterministic, but those who suffer from them do not gain the benefit of EPC protection.
2.6.2009 11:01am
Tammy Cravit (mail):
The majority of heterosexual couples have the potential to have children, without any government restriction, even when they don't intend to. No homosexual couple can have a child unless they specifically and rationally intend to do so.

Given the appeal of others in this thread to the putative external costs to third parties, this would seem to me a stronger argument in favor of regulating childbirth than it would a justification of same-gender marriage.

But since we're talking about rational basis standards here, how about this: Statistically speaking, a sizable percentage of same-sex couples (and likely, of those stable enough in their relationships to seek marriage licenses, though I admit that part is slightly speculative) choose to adopt children, rather than seeking surrogates (for gay men) or sperm donors (for lesbian women) and having their own children. Of these, the percentage who adopt "special needs" children is significantly higher than the percentage of heterosexual couples who adopt these "special needs" children. ("Special needs" as used in the adoption world includes kids with medical or psychological challenges, as well as those who are difficult to adopt by virtue of their age). It is significantly more costly to the state for these children to remain in foster care rather than allowing them to be adopted.

To the extent that being married and having the legal protections thereto would encourage same-gender families to adopt these special needs kids and remove them from the state foster care system, why isn't that a rational basis for allowing same-gender marriage? (Especially when there are some 600,000 children, by one estimate, in the foster care system nationwide.)

On the other side of the coin, I offer this quandary: According to a World Health Organization statistic, about 10% of couples experience infertility. According to a number of estimates give the percentage of homosexuals in society at about 10% as well. If the external costs to third parties from homosexual marriage are sufficient to justify denying homosexuals the right to marry, why are those external costs not sufficient to deny infertile couples the right to marry as well? After all, the relative numbers of the two groups are approximately equal...
2.6.2009 11:08am
Pragmatist:

Cheating and stealing are offenses (defined as crimes in our society) which violate the legitimate interests of others (who are defined as victims). How is the legitimate interest of a heterosexual violated if two homosexuals marry?

Simple: heterosexuals are forced to subsidize the homosexual marriage through tax dollars.


Also, you are way off base when you state that people "wish to be gay."

I used imprecise language, I did not mean "You have a conscious, reasoned preference to go through your life as a homosexual" but rather that "you experience desires for intimacy with those of the same sex".

We all have desires to do immoral things, some can be overcome by shear willpower, some require help, and some are indulged. I'm not going to attack anyone for doing it, but I'm going to try to prevent the state from sanctioning it.


And that is I think morality is all about. Anything that is immoral has something bad about it -- that's why it's considered immoral. Stealing is bad because you are taking something that isn't earned. Lying is bad we want to hear the truth. Unless we don't, in which case lying isn't bad.

So you believe that only those things which directly harm others is immoral. So when politicians lie, but the people expect them to lie so no harm is caused, then they are acting morally. And cheating at a friendly game of Monopoly is moral, since no actual harm is caused. Someday society may agree with you, but if so I hope it's long after I'm gone.
2.6.2009 11:16am
trad and anon:
Unlike you, Scalia argues that the logic from Lawrence requires same-sex marriage. I however again agree with you. If rational basis is the standard, I believe prohibitons against same-sex marraige can be justified without an amorphous appeal to morality.
Well, it depends on what we mean by "rational basis." If we mean the rational basis "test," then it passes because there is no rational basis test. Nothing, no matter how irrational, has ever been struck down by following the rules of the rational basis "test." There are a handful of cases (e.g., Cleburne, Allegheny-Pittsburgh Coal Co.) where SCOTUS arbitrarily strikes down a law and claims it's doing so on rational basis grounds, but what's really distinctive about those cases is that SCOTUS always ignores the rules it's set down for applying the rational basis test, looking to whether the law actually serves its actual purpose, and whether the actual purpose is permissible.
2.6.2009 11:19am
Tammy Cravit (mail):
AT BIRTH one's membership in the group is determined. It is determined without any action or decision by the individual.

Does that mean you support abolishing the Americans with Disabilities Act and other protections for people with disabilities? Or limiting it to those who were disabled at birth? What about the military servicemembers who become disabled after birth, because of an action or decision on their part to join the military and put themselves in harm's way?

Or, look at the religion issue: Fundamentally, few people become religious AT BIRTH without any action or decision on their part. Even those who are born in deeply religious families must one day make a choice to continue to ally themselves with the religion of their upbringing (and many make a choice as adults to pick a different, or no, religion). Should the fact that religion is neither innate nor immutable cause us to repeal the Free Exercise clause?
2.6.2009 11:20am
Tammy Cravit (mail):
Simple: heterosexuals are forced to subsidize the homosexual marriage through tax dollars.

And homosexuals are forced to subsidize heterosexual marriages through tax dollars. And we're all forced to subsidize a variety of government programs and actions that we may disagree with, because our society doesn't allow taxpayers to pick and choose to solely allocate our tax dollars to those areas of governmental action that we happen to agree with or sanction. That's the way taxes work. I can't choose not to pay my taxes because I happen to feel that a certain government policy runs counter to my personal beliefs.
2.6.2009 11:26am
trad and anon:
So you believe that only those things which directly harm others is immoral. So when politicians lie, but the people expect them to lie so no harm is caused, then they are acting morally. And cheating at a friendly game of Monopoly is moral, since no actual harm is caused. Someday society may agree with you, but if so I hope it's long after I'm gone.
I agree that the standard you're attacking is unworkable, but I don't think "It's Just Wrong" is actually an adequate response. I've played games with friends where people are expected to try to cheat. Part of the fun of the game is in calling other people out for cheating, and trying to think of clever ways to cheat without getting caught. Is this immoral because Cheating Is Just Wrong?
2.6.2009 11:41am
trad and anon:
Or, look at the religion issue: Fundamentally, few people become religious AT BIRTH without any action or decision on their part. Even those who are born in deeply religious families must one day make a choice to continue to ally themselves with the religion of their upbringing (and many make a choice as adults to pick a different, or no, religion). Should the fact that religion is neither innate nor immutable cause us to repeal the Free Exercise clause?
Actually, nobody except maybe [insert appropriate prophet or god] becomes religious at birth. Even those born to deeply religious parents may never be raised in that religion, because their parents lose their faith, or die, or lose custody, while they are still young.
2.6.2009 11:47am
pluribus:

Simple: heterosexuals are forced to subsidize the homosexual marriage through tax dollars.


Tammy Cravit is correct in pointing out that homosexuals are forced to subsidize heterosexual marriages through tax dollars. And Catholics are forced to subsidize divorces through tax dollars to support the courts and marriage counseling and enforcement of child support payments and welfare payments to the children of homes in which the parents are divorced. And religious pacificists are forced to subsidize wars and the maintenance of a huge military establishment through tax dollars. And religious abstainers are forced to subdisize the consumption of alcohol and the societal problems flowing from it through tax dollars supporting police, courts, hospitals, and other facilities. Creationists are forced to support scientific education that includes Darwinism and the theory of natural selection through tax dollars that go to the public schools. There are thousands and thousands of things that people in a diverse society are forced to support through tax dollars that offend their moral sensibilities in one way or the other. Their moral sensibilities do not override the rights of those who offend them.
2.6.2009 12:26pm
zuch (mail) (www):
Waldo:

If I can get back to the rational basis test, and away from the morality argument, there is a rational basis for reserving marriage to heterosexuals. The majority of heterosexual couples have the potential to have children, without any government restriction, even when they don't intend to. No homosexual couple can have a child unless they specifically and rationally intend to do so. (Don't tell me heterosexuals can simply not have sex because I can cure AIDS with that argument.) Gay men are vetted and asked repeatedly if they wish to become fathers. For heterosexual men, the choices are somewhat more limited. That, IMHO, meets the criteria for rational basis.

Is this an argument for limiting marriage to only same-sex couples?

Cheers,
2.6.2009 12:27pm
pluribus:
Pragmatist:

I used imprecise language, I did not mean "You have a conscious, reasoned preference to go through your life as a homosexual" but rather that "you experience desires for intimacy with those of the same sex".

I think it was more than just imprecise language. It is imprecise thinking, based on an imprecise understanding of sexual orientation. That is one of the endemic problems with moralists. They are willing (even eager) to impose their morality on others even when (perhaps particularly when) they don't understand the facts at hand. If you understood the nature of sexual orientation a little better, you would not perhaps be so moralistic in addressing it--and perhaps more willing to adopt a live and let live attitude.
2.6.2009 12:36pm
zuch (mail) (www):
scattergood:

Homosexuality clearly fails in being a protected group in both cases. Homosexuality is NOT 100% deterministic. This is why twins are not uniformily homosexual, but they are uniformly Black.

First, you mistake "genetic" with "deterministic". There are other determinants than genetics. Second, you neglect the fact that children of blacks are not uniformly "black" (rare cases but nonetheless present; IIRC, there was a case of twins recently where one of the babies was "black" and one "white"). Third, what's "black" anyway? Are we going to use the 1/8th rule again? Fourth, what does any difficulties in the bigot's ability to accurately discriminate have to do with the rights we ought to afford? Fifth, why do you assume that something must be 100% "deterministic" to require the law to take note?

Cheers,
2.6.2009 12:36pm
jrose:
Nothing, no matter how irrational, has ever been struck down by following the rules of the rational basis "test." [...] SCOTUS always ignores the rules

What is the argument for applying a higher level of scrutiny (explictly or otherwise) to same-sex marriage?
2.6.2009 12:54pm
Randy R. (mail):
Pragmatist: "Simple: heterosexuals are forced to subsidize the homosexual marriage through tax dollars. "

Not so. In fact, the Congressional Budget Office did an extensive study on this very subject about five years ago. They concluded that if gay marriage is enacted across the US, it will result in a small net increase to the federal treasury.

"We all have desires to do immoral things, some can be overcome by shear willpower, some require help, and some are indulged. I'm not going to attack anyone for doing it, but I'm going to try to prevent the state from sanctioning it. "

But again, you have failed to explain why being gay is itself immoral.

As a gay man, here are my choices in life:

1) Be gay, and act on my impulses
2) Be gay, and not act on my impulses. IOW, be celebate.

Notice how Be straight or Not be gay are NOT options for me. Understand that? Now, of course, I could control my sex life and have none. So could you. But I know of no other group that is expected to refrain from sex their entire lives. For what? So if I'm celebate or having sex, I'mstill the same person, paying taxes, going to work, feeding the cat, and loving my boyfriend.

So it comes down to you think gay is immoral, and you don't want the state to approve of homosexuality. So what would you do with the millions of people who are gay? We should remain single our entire lives and be celebate? How would that impact upon your life at all, for good or for bad?

I can tell you exactly how it would impact upon you. It would the same way it did with Ted Haggard. He believes all you are saying, and all it did was ruin his life, and the lives of his family members. THAT is what happens with the pathology of being closeted. And people are closeted because they believe that they are immoral for something that is actually normal and natural.

Trust me, Pragmatist. There LOTS of men just like Haggard. They are gay, but because of people like you, they are ashamed of being gay. So they go out and have sex on the side, which puts them at tremendous risk. Only they don't call it sex -- they justify it by saying it isn't sex if there is no kissing,or I don't have a romantic attachment to the guy, or a hole is a hole no matter who it belongs to.

Men are going to have sex, and they have no problem justifying it. Making gay sex shameful only helps spread STDs and ruins the lives of others.

But it does make you feel good, because you are a warrior for morality!
2.6.2009 1:56pm
Randy R. (mail):
jrose: "What is the argument for applying a higher level of scrutiny (explictly or otherwise) to same-sex marriage?

Because you are denying a basic right to a group of people. Denying marriage to blue eyed people would also engender a higher level of scrutiny.
As it should.

Which doesn't mean that you can't discriminate -- but you must have show a compelling state interest for doing so,.
2.6.2009 1:59pm
whit:
not trying to throw smoke on the fire, but...

it would seem one could apply the logic in the OP (points 1 through 4) used to determine the DOMA unconstitutional as applies to same sex couples, and apply them about equally well to polygamous unions as well. except for point 2, and that's only because polygamy is universally illegal in the US (as far as i know)

fwiw, i support gay marriage, but i find it kind of disturbing the way (to borrow a phrase from the movement) polygamists are thrown under the bus, as not worthy (or politically correct to support) of the same "rights" as gays.
2.6.2009 2:02pm
Pragmatist:

I've played games with friends where people are expected to try to cheat.

That brings us back to the nuances of what is cheating. If the rules of the game allow certain types of "cheating" are you cheating when you follow them?

There are thousands and thousands of things that people in a diverse society are forced to support through tax dollars that offend their moral sensibilities in one way or the other. Their moral sensibilities do not override the rights of those who offend them.

That's true, so are you arguing that such a result is desirable and we should try to make even more immoral activities subsidized by the government? We all have the same rights: To marry any agreeable person who is not already married, a child, or the same sex.

If you understood the nature of sexual orientation a little better, you would not perhaps be so moralistic in addressing it--and perhaps more willing to adopt a live and let live attitude.

This is a moral issue, regardless of what you may wish. I am not advocating that the government criminalize who anyone because of who they live with or what they do in their bedroom, just prevent government from endorsing immorality. If the government wants to hand out money for telling lies I will oppose it with equal fervor, not because I want to impose morals on them but because I want the government not to encourage it.
2.6.2009 2:03pm
Tammy Cravit (mail):
This is a moral issue, regardless of what you may wish

And therein lies the problem. I have yet to hear an argument in support of preventing/denying recognition to same-gender marriage that doesn't ultimately come back to one's personal definition of morality. (As we've seen in this thread, an infinite number of angels can dance on the head of a pin trying to argue otherwise, of course). And it's fine to be honest and say, "Look, I don't like homosexuality, I think it's wrong, and because I'm in the majority and have the political power to do so, I'm going to deny gays and lesbians the right to marry."

The only peril with a majority group (be they atheists, Christans, one or other branch of Muslims - as is happening in parts of the Middle East - or whatever) making law based on their personal morality is that majorities tend to shift and change, and the people in power today often are themselves the marginalized group of tomorrow whose oppressors rely on the precedents they themselves created to marginalize them. Preserving freedom ultimately means preserving the freedom of everybody, because the alternative places everyone's rights up for auction to the whim of the majority of the day. (And, whatever group you occupy, the majority isn't always going to be you.)

Moving away from gay marriage for a second to underline the point...I happen to consider the ideology of the Ku Klux Klan repellent. I happen to think that those who would deny the Nazi Holocaust are espousing an abhorrent position. But I would never for one second dream of denying either group (or any number of others with whom I disagree) the equal right to share their ideas with any who choose to listen, because the societal cost of denying the rights of those with whom I disagree is unacceptable in a society which places the innate worth and liberty of all human beings on an equal footing.

So it is too with same-sex marriage. And lest someone throw out there the polygamy issue, let me only say that I'm not aware of a rational non-religious basis for criminalizing polygamy, so long as all the spouses involved are of legal age, consent to the arrangement, and are being properly treated and cared for by those to whom they're married, but I'm willing to be educated on the issue. To the extent that polygamous relationships in some religious groups seem to interpret polygamous relationships to include minors, lack of consent, and lack of effective support, I oppose them on purely non-moralistic grounds.

The cost of a free society is the requirement that we treat people with whom we disagree on an equal footing, and that we not deny or abridge the rights of a minority without a rational public policy basis for doing so.
2.6.2009 2:23pm
whit:

And therein lies the problem. I have yet to hear an argument in support of preventing/denying recognition to same-gender marriage that doesn't ultimately come back to one's personal definition of morality.


i've heard plenty ( i support SSM by the way).

for example, marriage as an evolved social construct , SSM not being consistent with the evolution of same, and the idea of SSM as not being MARRIAGE at all,and thus the EPC argument doesn't hold . etc.

not that i agree, but there are plenty of non-moral arguments, ones that can be made w/o any belief in a deity or religion either.
2.6.2009 2:50pm
Perseus (mail):
Aristotle and Kant said nothing about the morality of homosexuality, of course. They did talk a lot about morality, and Kant created the idea of the categorical imperative, which is about doing the best thing for yourself and society.

Perhaps your copies of Aristotle's Nicomachean Ethics and Kant's Lectures on Ethics are different from mine, but in my copies Aristotle characterizes homosexual relations as a form of unnatural brutishness (1148b25-30) while Kant argues that they violate the second formulation of the categorical imperative (and if you think that the categorical imperative is about "doing the best thing for yourself and society," then you clearly don't understand Kant's strictly deontological ethical code very well).
2.6.2009 3:32pm
jrose:
Which doesn't mean that you can't discriminate -- but you must have show a compelling state interest for doing so,.

What's the compelling state interest in denying polygamy or incestuous marriages?
2.6.2009 3:44pm
jrose:
and the idea of SSM as not being MARRIAGE at all,and thus the EPC argument doesn't hold

I agree there are legitimate arguments against SSM that don't appeal to an amorphous vision of morality, but circular reasoning isn't one of them.
2.6.2009 3:46pm
jrose:
polygamists are thrown under the bus, as not worthy (or politically correct to support) of the same "rights" as gays

I agree points 1 through 4 would apply to polygamy as well. But that doesn't mean there doesn't exist rational-basis points 5, 6, ... that apply only to polygamy. Also, if you believe that polygamy is "what you do" and (homo)sexuality is "who you are", then you aren't throwing a class of people under the bus in the same manner.
2.6.2009 3:54pm
Pragmatist:

Not so. In fact, the Congressional Budget Office did an extensive study on this very subject about five years ago. They concluded that if gay marriage is enacted across the US, it will result in a small net increase to the federal treasury.

That study was done before the reduction of the marriage penalty in 2004, which is where the increased revenue comes from. Let me know if there's a more recent study, I'd be interested to see the current impact.

So it comes down to you think gay is immoral, and you don't want the state to approve of homosexuality. So what would you do with the millions of people who are gay?

The government should do nothing about them. If we have to define in statutes or amendments what marriage has always meant then so be it, but we don't need any more special rules than we need for polygamy, incest, etc.

Tammy Cravit,
Society's morals do factor in to its laws. If you think morals never should, then that's a whole arguement in itself advocating massive legal change. The government refusing to acknowledge a new definition of marriage is hardly denying a fundamental right, but rather maintaining the same right as it's existed throughout history.
2.6.2009 4:00pm
Randy R. (mail):
jrose: "What's the compelling state interest in denying polygamy or incestuous marriages?"

I don't know. You tell me. I'm not arguing in favor of either, so I have no interest in the matter.

Perseus:"erhaps your copies of Aristotle's Nicomachean Ethics and Kant's Lectures on Ethics are different from mine"

I am by no means an expert on either philosopher. However, Aristtotle is wrong when he says homosexual relations are brutish and unnatural. First, it is completely natural -- at least for people whose sexual orientation is that way. Remember -- each of us has an orientation, and it isn't going to change. I enjoy sex with men, but not with women. So that's what's natural for me. Aristotle may have been straight and tried gay sex and found it brutish. Myself, I've never found it that way. Therefore Aristotle is wrong.

(And isn't Aristotle the one who thought laughter was immoral?)

As for Kant, from Ask philosophers.org:

"A few additional remarks. Kant's explicit condemnation of homosexual (or same-sex) sexual relations can be found in his Lectures on Ethics (the Vorlesung). His arguments are grounded in the Second Formulation of the Categorical Imperative (not the First, as suggested by the question), but mostly on his claim that homosexual acts are unnatural, "crimes against nature." For two essays on this apsect of Kant's views, see my "Kant and Sexual Perversion" The Monist 86:1 (Jan. 2003), pp. 55-89 -- also available at http://fs.uno.edu/asoble/pages/kmonist.htm -- and Lara Denis, "Kant on the Wrongness of 'Unnatural' Sex," History of Philosophy Quarterly 16:2 (1999), pp. 225-48. Finally, John Corvino's essay "In Defense of Homosexuality" (in A. Soble, ed., The Philosophy of Sex, 5th edition) includes this passage: "A Roman Catholic priest once put the argument to me as follows: 'Of course homosexuality is bad for society. If everyone were homosexual, there would be no society.' Perhaps it is true that if everyone were homosexual, there would be no society. But if everyone were a celibate priest, society would collapse just as surely, and my friend the priest didn't seem to think that he was doing anything wrong simply by failing to procreate. Jeremy Bentham made the point somewhat more acerbically roughly 200 years ago: 'If then merely out of regard to population it were right that [homosexuals] should be burnt alive, monks ought to be roasted alive by a slow fire.'"


So Kant apparently based his objections upon two premises: That homosexuality is a 'crime against nature' and if everyone were gay, there would be no society.

Premise two is easy to cut down -- only less than 10% of society is gay,so there is no danger of society dissovling. And we would have to force the childless and celebate to get going,which isn't gointg to happen.

Premise one: Kant lived before there was any knowledge about sexual orientation. In fact, the term homosexuality wasn't even coined until the mid-19th century. He could not have known that some people are naturally gay. Rather, he assumed everyone was straight, and that some people engaged in gay sex. And of course it IS natural -- most mammalian species have a few members that appear to be gay. If it occurs in the natural world, then by definiation Kant is wrong.

One thing no philosopher has ever grappled is this easy test: When debating morality, we also debate when and why things are moral. For instance, it is immoral to kill,but there are times when it is moral to kill. Ditto for lying, or stealing. But not once has any philsopher suggested that there might be a situation when homosexuality is moral. They don't even suggest the possibility -- rather, then dismiss it out of hand.

Which indicates to me they were reacting more to their own bias and ignorance on the subject.
2.6.2009 4:00pm
Thales (mail) (www):
"This will just serve as a rallying cry for the federal constitutional amendment to define marriage as the union of one man and one woman."

The chance of this passing Congress and getting the requisite 3/4 of state legislatures to ratify seems pretty close to zero. But rally all you want. You're on the wrong side of history.
2.6.2009 4:26pm
Thales (mail) (www):
"In fact, the Congressional Budget Office did an extensive study on this very subject about five years ago. They concluded that if gay marriage is enacted across the US, it will result in a small net increase to the federal treasury. "

Don't the populist gay-bashers usually complain that gays are generally high income and have unfair access to media outlets? Well, there's truth to the income stereotype--they have fewer or no children to inherit their wealth, and tend to be two income earner couples. If married, this tendency would probably put a lot of gay couples in the marriage tax penalty zone of rates. Can we now have the family values crowd call for an increase in the marriage tax penalty to discourage gays from marrying?
2.6.2009 4:31pm
jrose:
I don't know. You tell me. I'm not arguing in favor of either (polygamy, incest)

Not answering a hypothetical is not going to persuade very many people to your viewpoint (all marriage restrictions require a compelling state interest).
2.6.2009 4:38pm
Putting Two and Two...:

Our laws against bestiality exist because the Bible makes them capital offenses. There is no other reason.

Don't get squeamish on us. If you want to argue that laws against homosexuality are wrong, because they are based on irrational prejudices, then be consistent, and see where that takes you.


If you're squemish, you may want to pass this one up.

There are, actually, non-Biblical reasons to ban beastiality. Penetration of small to medium size animals by a human male can destroy the animal's internal organs and structures. You'll sometimes here police reports of injured or dead animals being found with such injuries. For larger animals, there are psychological risks. Sex and power-relationships are tied, certainly in mammal species. Subjecting animals to beastiality can alter their behavior towards ALL humans, sometimes to the extent that the animal poses a danger to people. Case in point, http://seattlepi.nwsource.com/local/397774_dogporn29.html

Clayton, predictably, will assert these same risks apply in regard to gay people...
2.6.2009 4:41pm
Libertyman13 (mail):
What about Full Faith and Credit? I always thought that would be the rationale behind striking it down, based upon a challenge by, for instance, a Mass. same sex couple who moved to Georgia or something.
2.6.2009 4:52pm
Real American (mail):
liberal judges simply won't find a rational basis in these cases because they don't agree with the basis, not because it isn't rational. In other words, the law must fit their personal biases. Reinhardt should be impeached.
2.6.2009 4:53pm
Perseus (mail):
Randy R:

First of all, your assertion that Aristotle and Kant said nothing about the morality of homosexual relations was not exactly accurate.

However, Aristtotle is wrong when he says homosexual relations are brutish and unnatural. First, it is completely natural -- at least for people whose sexual orientation is that way.

Aristotle himself posits the possibility of a biological etiology, but it requires a non-teleological view of nature (which Aristotle rejected) to conclude that it is natural simply because of its existence in nature.

Premise two is easy to cut down -- only less than 10% of society is gay,so there is no danger of society dissovling.

It's irrelevant what the precise percentage is (such empirical questions would be regarded by Kant as consequentialist). It's the universalizing of the act itself that determines the morality of an act.

And of course it IS natural -- most mammalian species have a few members that appear to be gay. If it occurs in the natural world, then by definiation Kant is wrong.

Kant's whole argument was that the deterministic realm of nature could not provide a basis for human freedom and morality (and his 3 Critiques were designed to limit that realm in such a manner so as to provide such a basis).

I am by no means an expert on either philosopher.

Not to be too snarky, but I agree.

To get back to the original point, I only offered these as examples of arguments that were not based simply on mindless societal tradition (Aristotle and Plato, for example, argued against ancient Greek tradition).
2.6.2009 6:04pm
scattergood:

First, you mistake "genetic" with "deterministic". There are other determinants than genetics. Second, you neglect the fact that children of blacks are not uniformly "black" (rare cases but nonetheless present; IIRC, there was a case of twins recently where one of the babies was "black" and one "white"). Third, what's "black" anyway? Are we going to use the 1/8th rule again? Fourth, what does any difficulties in the bigot's ability to accurately discriminate have to do with the rights we ought to afford? Fifth, why do you assume that something must be 100% "deterministic" to require the law to take note?


Um, no, I specifically stated, 100% deterministic, and in fact didn't mention DNA for a reason. I'd suggest you actually do some research on the determinism of behaviors vs. the determinism of status before you start making strange and illogical comparisons to race. The point is that no matter how much somebody WANTS to be Black, their behavior cannot make them a member of the legally protected class. This is not the case for homosexuality.

This is why creating SSM out of whole cloth has a lot of unintended consequences. One of the 'benefits' of marriage is the right to private conversations. Let's say two guys from the neighborhood, Alfonso and Guido, get married and then discuss something that may be related to a crime. They are asked to testify, and assert spousal privilege. Is it granted? Is it broken because their marriage isn't really 'valid'? How does the state know their marriage isn't really 'valid', do they invade the privacy of their bedroom to determine it? But the courts have ruled that the state has no right to be in the bedroom of somebody for the purposes of determining the suitability of their marriage, why should the be able to do so to determine the suitability of their marriage in this case?
2.6.2009 6:45pm
jrose:
scattergood,

Alfonso and Guido can't marry each other because they are already married to their wives.
2.6.2009 6:53pm
jrose:
Libertyman13,

It's not settled law, but DOMA probably survives an FFC challenge if the state has a clear public policy against SSM.
2.6.2009 7:00pm
scattergood:

Alfonso and Guido can't marry each other because they are already married to their wives.


Well:

a) That may or may not be true.
b) Even if true, there is the very highly likely probability that polygamy will be legal if SSM stands. How can you discriminate against people willing to enter into marriage, just because they are married? The state has no compelling interest in who gets married if SSM stands, AND marital status is a protected class for equal protection.
c) Your response doesn't answer any of the questions posed in my above post.
2.6.2009 8:09pm
jrose:
The state has no compelling interest in who gets married if SSM stands

Somewhere in there maybe an argument that prohibiting polygamy becomes impossible if SSM is permitted. But, I couldn't follow the argument.

marital status is a protected class for equal protection

Citation?

As to the rest of your questions, sure an otherwise unmarried Alfonso and Guido get spousal privelege. So what? You aren't seriously arguing SSM enables organized crime?
2.6.2009 8:31pm
Putting Two and Two...:

What this really comes down to is that very few people really oppose writing morality into the law. They just want homosexuality given an exception.


I have no problem with morality being written into the law. What I do not understand is why one particular Bronze Age morality should be written into the law, especially when the modern democratic state which is the embodiment of that very same Bronze Age culture ignores -- indeed flauts --- the few lines in question.
2.6.2009 8:57pm
Putting Two and Two...:

Some, indeed many homosexuals experiment with heterosexual sex trying to "straighten" themselves out. I think you can do this a handful of times and still be a Kinsey 6.


Kinsey, biologist that he was, measured experiences, not feelings. Either end of his scale was exclusive. Do it even once and you change your score.
2.6.2009 9:16pm
Randy R. (mail):
Persues: "Aristotle himself posits the possibility of a biological etiology, but it requires a non-teleological view of nature (which Aristotle rejected) to conclude that it is natural simply because of its existence in nature."

perhaps so. But what you are arguing is that homosexuality isn't natural. Aristotle is merely saying that because it isn't exists in nature doesn't mean it IS natural, but that it certainly COULD be natural. For instance, hetersexuality exists in nature, therefore one could easily conclude that it is natural. And if THAT is your basis for the morality of heterosexuality, then you cannot reserve yourself and say it is not the basis of morality for homosexuality as well.

"It's irrelevant what the precise percentage is (such empirical questions would be regarded by Kant as consequentialist). It's the universalizing of the act itself that determines the morality of an act."

Then celebate priests are immoral, because if you universalize it to everyone, it would mean the end of society. Giving up all your worldy possessions, such as St. Francis did, is wholly immoral, because if everyone did that, it would be the end of our economy. Being fat is immoral, because if everyone where fat, the cost of food would go up *(supply and demand), making it expensive for everyone.


"Kant's whole argument was that the deterministic realm of nature could not provide a basis for human freedom and morality (and his 3 Critiques were designed to limit that realm in such a manner so as to provide such a basis)."

Kant should have met Freud. He's wrong here, because to a certain degree, we ARE deterministic. Heterosexual people are attracted to people of the opposite sex; homosexual people are attracted to people of the same sex. There are intersexed people — those who exhibit both sexes. there are also people with XXY chromosomes, meaning that even their DNA can't determine whether they are male or female. What are those people suppsoed to do? I have a feeling you would say they are damned if they date a man and damned if they date a woman, but some part of them is going to be same sex attracted to same sex.

Look, this isn't a difficult concept. the entire world of pscycology and psychiatry understands the concept of sexual orientation and agrees upon it. there is no scientific dispute. You can claim we are immoral all you want, but I don't see how Alexander the Great, Michaelangelo, Schubert, Oscar Wilde, Aaron Copland, Alan Turing, the mayors of Berlin and Paris (and now the PM of Iceland), could all be considered immoral. So you can call everyone of them immoral — so what? Doesn't change anything. Is the guy who cuts your wife's hair any less of a nice guy merely because you insist on calling him immoral?

But thanks for the discussion nonetheles..
2.6.2009 9:18pm
whit:

There are, actually, non-Biblical reasons to ban beastiality. Penetration of small to medium size animals by a human male can destroy the animal's internal organs and structures. You'll sometimes here police reports of injured or dead animals being found with such injuries. For larger animals, there are psychological risks. Sex and power-relationships are tied, certainly in mammal species. Subjecting animals to beastiality can alter their behavior towards ALL humans, sometimes to the extent that the animal poses a danger to people. Case in point, http://seattlepi.nwsource.com/local/397774_dogporn29.html



however...

allowing the animal to penetrate the human does not present those problems and is ... still illegal.

why?

one reason, and one reason only. because despite claims to the contrary we DO legislate morality.

for example, a woman fellating a dog or horse is not in any way, shape or form being cruel or injuring the animal.

yet, at least in my state it is illegal.

interestingly, we did not use to have a bestiality law. the only law we had regarded cruelty to animals. a court (correctly imo) ruled that fellating an animal is NOT cruel, so the legislature understandably passed a law banning bestiality.

we also criminalize incest.

at least in the case of same sex incest (Where there is no risk of a child with birth defects, etc.), there is no reason to criminalize it except for morality.

there are other examples, but these are the most obvious examples of proof that we do legislate morality.
2.6.2009 9:58pm
Perseus (mail):
And if THAT is your basis for the morality of heterosexuality, then you cannot reserve yourself and say it is not the basis of morality for homosexuality as well.

Once again, that depends on one's overall view of nature, and in particular one's view of "monstrous productions" as Locke brutally put it. It's not like I haven't seen your argument made before by a number of modern philosophers like Locke who rejected the teleological view.

Kant should have met Freud. He's wrong here, because to a certain degree, we ARE deterministic. ...the entire world of pscycology and psychiatry understands the concept of sexual orientation and agrees upon it. there is no scientific dispute.

Kant didn't need to meet Freud because Freud is part and parcel of the deterministic nature of modern science, which continually assaults the realm of human freedom.

Is the guy who cuts your wife's hair any less of a nice guy merely because you insist on calling him immoral?

I assume that all humans beings possess a range of virtues and vices.
2.6.2009 11:14pm
scattergood:

Somewhere in there maybe an argument that prohibiting polygamy becomes impossible if SSM is permitted. But, I couldn't follow the argument.


The argument goes something like this:

1) The courts have ruled that the status of a person wishing to marry another person is a matter of privacy. In re Marriage in California relied on the privacy sections of the constitution to justify SSM.

2) Whether a person is married or not is a matter of privacy, just as whether they engage in homosexual acts or not is a matter of privacy.

3) Further, marital status is a protected class in a range of legal actions in California such as hiring, firing, lending, and housing.

4) Since the courts have ruled that the state has no compelling interest to abrogate the privacy of any party getting married, and even if it did in the case of marriage the marital status of a person is protected by state actions in other areas, what is the basis to discriminate against 3 people who all are willing to enter into a state of marriage between them?

5) Further, since polygamy in many cases in religiously sanctioned, isn't discriminating against people entering into polygamous marriages discrimination based on their religion? That certainly is a protected class.
2.7.2009 11:40am
scattergood:

Citation?

As to the rest of your questions, sure an otherwise unmarried Alfonso and Guido get spousal privelege. So what? You aren't seriously arguing SSM enables organized crime?




Here is a small answer to your citation question that actually raises more issues:

In a 4-3 decision issued April 9, 1996, the Supreme Court of California has ruled that the state's fair housing statute prohibiting discrimination against prospective tenants on the basis of marital status both protects unmarried applicants and does not violate the landlord's free exercise of her religious rights under federal or state constitutions and laws

http://www.nhlp.org/html/hlb/596/596challenge.htm


So not only is marital status protected here in the case of housing, but if a landlord who doesn't support SSM does so to a married homosexual couple based on religious grounds they will probably lose that fight as well. Welcome to the tyranny of the robes.

And yes, I am arguing that SSM with ENABLE criminal activities in a way that it doesn't today. If Guido and Alphonso are married, by what basis can the state compell the testimony of one, the other, or one against the other? How can it know if their marriage is legit or not? The whole thrust of the argument to support SSM is that it is an issue of privacy of who gets married, thus the state intruding into the status of somebody's marriage is cleary contrary to that ideal.
2.7.2009 11:46am
jrose:
scattergood,

The California Supreme court ruled that the scope of the right of marriage protected by the state constitution's guarentees of privacy and liberty is "the right of an individual to establish a legally recognized family with the person of one's choice". It would appear this formulation would leave out polygamous relationships.

A statute which prohibits discrimination in housing on the basis marital status does not imply that marital status is a suspect classification. In California, marital status is not a suspect classification, but sexuality is.

Under current law, Guido and Maria can have a sham marriage to plan crimes. Why not be concerned about that?
2.7.2009 2:47pm
Randy R. (mail):
scattergood: "So not only is marital status protected here in the case of housing, but if a landlord who doesn't support SSM does so to a married homosexual couple based on religious grounds they will probably lose that fight as well. Welcome to the tyranny of the robes."

It's a tyranny that landlords are more than happy to comply with. For instance, they can no longer discriminate in housing codes based on race, age, gender, disability status and so on. Yet, just a few decades ago, they could.

Today, the 'robes' have declared that they cannot do so. What's more, most landlords *happily* state in their housing contracts that they will adhere to the letter and the spirit of the law.

And why would it concern a landlord whether he rents to a gay couple that is living together versus a gay couple that is married? His only concern should be whether they pay the rent on time, and whether they keep the premises in good condition.
2.7.2009 4:08pm
Randy R. (mail):
Perseus:"I assume that all humans beings possess a range of virtues and vices."

Okay, I'll bite. What makes you immoral?
2.7.2009 4:09pm
Aleks:
Re: It's the universalizing of the act itself that determines the morality of an act.

Hmm. Try this then:
If everyone became a computer programmer no one would become a doctor and society would suffer due to the lack of medical personnel. Therefore becoming a computer programmer is immoral.
Kant's categorical imlerative is invalid when applied to situation where "If everyone did "X..." is an unrealistic hypothesis.

Meanwhile back upthread a ways Clayton Cramer's weird example of laws about public body functions being religious laws runs afoul of the historical fact that such laws are quite recent; for most of Christiandom's history people did indeed relieve themselves in street gutters if the need took them when away from home (there being no such thing as a public facility back then) Medieval etiquette even addressed the question of whether one should greet or ignore an acquaintance encountered in the midst of such an act. Our present day privacy fetish about such things isn't "Biblical" in the least; it's a child of modern day sanitary technology and the knowledge of how pollution spreads disease.
2.7.2009 5:07pm
John D (mail):
Aleks,

At risk of thread hijacking, but it sure beats seeing every thread on same-sex marriage turn into a debate on the morality of homosexuality...

In one of the stories about Aesop, he chides his master for urinating as the walks down the street.

Gentlemen, as apparently even a slave like Aesop knew, stop walking when they need to urinate.
2.7.2009 6:33pm
zuch (mail) (www):
scattergood:

[scattergood]: Homosexuality clearly fails in being a protected group in both cases. Homosexuality is NOT 100% deterministic. This is why twins are not uniformily homosexual, but they are uniformly Black.

[Arne]: First, you mistake "genetic" with "deterministic". There are other determinants than genetics. Second, you neglect the fact that children of blacks are not uniformly "black" (rare cases but nonetheless present; IIRC, there was a case of twins recently where one of the babies was "black" and one "white"). Third, what's "black" anyway? Are we going to use the 1/8th rule again? Fourth, what does any difficulties in the bigot's ability to accurately discriminate have to do with the rights we ought to afford? Fifth, why do you assume that something must be 100% "deterministic" to require the law to take note?

[scattergood]: Um, no, I specifically stated, 100% deterministic, and in fact didn't mention DNA for a reason....


You brought up blacks when talking about what's really "deterministic", and then said that homosexuality isn't deterministic. Tell me: Is melinization due to in utero effects>

... I'd suggest you actually do some research on the determinism of behaviors vs. the determinism of status...

Why? It is you that are making claims here about such. I'd think that it would be incumbent on you to at least cite research results for your proposition, if not going out and doing it yourself, so you'd know WTF you're talking about.

... before you start making strange and illogical comparisons to race.

Hate to say it, but one thing we can be sure of is that it was you that first made the comparison to race here. The proof of this is above, in the thread comments.

The point is that no matter how much somebody WANTS to be Black, their behavior cannot make them a member of the legally protected class. This is not the case for homosexuality.

Nice bald assertion. And it's been a traditional 'argument' for the righteousness of discrimination against homosexuals. However, it's been cast into doubt recently. Most professionals now think that "reparative therapy" is a crock, and that homosexuality can't be "cured" (regardless of whether we should actually attempt such).

This is why creating SSM out of whole cloth has a lot of unintended consequences. One of the 'benefits' of marriage is the right to private conversations. Let's say two guys from the neighborhood, Alfonso and Guido, get married and then discuss something that may be related to a crime. They are asked to testify, and assert spousal privilege. Is it granted? Is it broken because their marriage isn't really 'valid'? How does the state know their marriage isn't really 'valid', do they invade the privacy of their bedroom to determine it?...

Ummm, What's your problem here? Why do you think that spousal immunity should not apply? Explain your reasoning. And what makes you think that what goes on in the bedroom makes any bit of difference? Do they ask the wife if she's getting f*cked regularly before they decide not to ask her to testify againt her husband? Can you please try to maintan some semblance of logic in your 'arguments'?

...But the courts have ruled that the state has no right to be in the bedroom of somebody for the purposes of determining the suitability of their marriage, why should the be able to do so to determine the suitability of their marriage in this case?

Sorry, you lost me. Are you saying that the state needs to invade the bedroom to determine marital status for gay partnerships but not for straight ones? Why?!?!? You're one confusing ... and, dare I say, confused ... dude.

Cheers,
2.8.2009 3:28am
scattergood:

It's a tyranny that landlords are more than happy to comply with. For instance, they can no longer discriminate in housing codes based on race, age, gender, disability status and so on. Yet, just a few decades ago, they could.

Today, the 'robes' have declared that they cannot do so. What's more, most landlords *happily* state in their housing contracts that they will adhere to the letter and the spirit of the law.

And why would it concern a landlord whether he rents to a gay couple that is living together versus a gay couple that is married? His only concern should be whether they pay the rent on time, and whether they keep the premises in good condition.



I believe that your analysis is incorrect. The 'robes' didn't create the Fair Housing Acts, EPC. No, a civil war, congress, and the electorate did. The 'robes' in deciding that 'separate wasn't equal', and therefore Blacks should be integrated into schools under the already established amendments of the Constitution and the various Civil Rights Acts.

In the case of SSM, the process is very, very different. The congress and the electorate have on many occassions not only failed to enact 'sexuality' protections but have explictly stated that they do not want to create such protections that the 'robes' have decided to create by fiat. And in doing so they have specifically ignored the judiciaries own writings and positions on the issue, by abusing and selectively quoting Loving v Virginia for example.

I am arguing that the process of establishing SSM has some very painful and unintended consequences. One of which is to violate the First Amendment's protection of religious practices. Another is that it extends spousal privelge to a whole host of people who maybe shouldn't have it.

For all the people who argue that the slippery slope and unintended consequences shouldn't be considered the facts that the SCOTUS's decisions on contraception leading to legalized abortion (as predicted) and LAWRENCE V. TEXAS leading to SSM (as predicted) aren't too much in your favor.
2.8.2009 3:49am
scattergood:

The California Supreme court ruled that the scope of the right of marriage protected by the state constitution's guarentees of privacy and liberty is "the right of an individual to establish a legally recognized family with the person of one's choice". It would appear this formulation would leave out polygamous relationships.

A statute which prohibits discrimination in housing on the basis marital status does not imply that marital status is a suspect classification. In California, marital status is not a suspect classification, but sexuality is.

Under current law, Guido and Maria can have a sham marriage to plan crimes. Why not be concerned about that?



Your logic is unfortunately flawed. Person A marries Person B. Person A marries Person C. Person A has a legally recognized family with Person B. Person A has a legally recognized family with Person C. Welcome to polygamy.

It is disingenuous that to state that marital status is not a protected class when it is clearly and explictly written into housing, empoyment, insurance, and banking laws. It is further disingenuous to state that 'sexuality' is, when the voters and legislature have explictly refused to put it in various laws and enacted Federal laws and State constitutional amendments to exclude SSM.

Whetehr I am concerned about Guido and Maria is immaterial to the point. The fact is that SSM extends spousal priveleges as an unintended consequence. You don't seem concerned, which is clear.
2.8.2009 3:54am
jrose:
Person A marries Person B. Person A marries Person C. Person A has a legally recognized family with Person B. Person A has a legally recognized family with Person C. Welcome to polygamy

The scope of the marriage right from In re Marriage cases is "the right of an individual to establish a legally recognized family with the [my emphasis added] person of one's choice." Assume California denies Person A's request to marry Person C. If Person A sues, he will likely lose because he has already established a legally recognized family with the person (he doesn't get a right to more than one person) of his choice.

It is disingenuous to state that marital status is not a protected class when it is clearly and explictly written into housing, empoyment, insurance, and banking laws

Statutory protection and suspect classification are separate issues. One does not imply the other. The latter gives us the limits of what is required by the constitution, namely that government discrimination against a suspect classification is presumptively unconstitutional. The former can go beyond what the constitution demands by covering both suspect and non-suspect classifications, as well as both government and private-actor discrimination.

It is further disingenuous to state that 'sexuality' is, when the voters and legislature have explictly refused to put it in various laws and enacted Federal laws and State constitutional amendments to exclude SSM

As a matter of fact (not opinion), sexuality is a suspect classification in California (In re Marriage Cases).

Whether I am concerned about Guido and Maria is immaterial to the point. The fact is that SSM extends spousal priveleges as an unintended consequence. You don't seem concerned, which is clear.

Spousal privilege is an intended consequence. What wouldn't be intended are sham marriages that use spousal privilege to further crime. That applies equally to same-sex and opposite-sex marriages, so logically Guido/Maria should concern you as much as Guido/Alphonso.
2.8.2009 8:20am
scattergood:

The scope of the marriage right from In re Marriage cases is "the right of an individual to establish a legally recognized family with the [my emphasis added] person of one's choice." Assume California denies Person A's request to marry Person C. If Person A sues, he will likely lose because he has already established a legally recognized family with the person (he doesn't get a right to more than one person) of his choice.


The courts have ruled that the state has no compelling interest in the status of individuals in determining whether they can get married. This is the crux of the issue in allowing SSM. If the state has no interest in limiting marriage of people of the same sex who are willing participants, what is the rationale of of limiting the marriage of people who are willing participants who happen to be already married? What societal interest is protected? Who is harmed in a polygamous marriage? Especially if the people are Muslim or Morman, for whom polygamy is religiously sanctioned if not encouraged. Limiting polygamy would then not only discriminate based on the person's status as already married, but also deny them free expression of their own religions. Don't believe me, well our brother's in Canada and England ALREADY accept polygamy in the distribution of wellfare if the marriage was legally conducted in a country where it is legal already.

Given the abrogation of the state's interest in determing who is married, all people who are willing participants will eventually get the right to marry. Polygamy will be allowed. Consanguity restrictions will also fall, for as long as they are willing participants, what is the state's interest? Why not father and son for example? The father is retired and his pension goes bust, he can't get health care on the limited pension he has, so his son offers to marry him in order to get on his health care plan. What is the state's interest in limiting such SSM, if SSM is allowed? And if they allow father / son marriages, why not father / daughter marriages? Under the logic to allow SSM, the state has abrogated the reproductive issues related to marriage, so consanguiantiy can't be used to limit such a marriage.


As a matter of fact (not opinion), sexuality is a suspect classification in California (In re Marriage Cases).



Thank you for proving my point about the tyranny of the robes. I state that sexuality isn't a protected protected class because the traditional understanding is that it isn't, because the legislature has refused to make it one, because the electorate has specifically and repeatedly stated that it isn't one and that the court's creationg of sexuality as a class, out of whole cloth and not based on any fact other than they want it to be one, is a tyranny. Your response? It is one because the court says it is one. That is exactly the point I have been trying to make, at least we agree.

The thing is, actions like this aren't tyranny when you agree with them. You agree with SSM, and this is your blinder.


Spousal privilege is an intended consequence. What wouldn't be intended are sham marriages that use spousal privilege to further crime. That applies equally to same-sex and opposite-sex marriages, so logically Guido/Maria should concern you as much as Guido/Alphonso.



Yes, but SSM opens spousal privilege from 1/2 the population marrying the other 1/2, to anybody marrying anybody for a sham marriage. Was that an intended consequence of the SSM crowd? Nice, thanks for the honesty.
2.8.2009 9:54am
jrose:
The courts have ruled that the state has no compelling interest in the status of individuals in determining whether they can get married.

Citation?

The whole point of suspect classifications is to keep a hostile majority from discriminating against a vulnerable minority. As such, it would be farcical to require the approval of the majority for what classes are suspect.

If you are honestly worried about sham marriages, then why not call for the end of opposite-sex marriages while permitting same-sex marriages (result: same opportunity for sham marriages), or better yet call for the end to all marriages (result: no sham marriages)?
2.8.2009 10:55am
Brian Miller (mail):
DOMA was passed by Congress, based on majority opposition to same-sex marriage

So was the Fugitive Slave Act, based on majority opposition to slave owners losing their people-property. Slavery thus wasn't immoral in the 1880s, since a majority of Americans favored it.

Individuals opposed to slavery needed to tone down their rhetoric, since in many people's judgment in the 1800s, slaves as citizens are equivalent to bestiality. In fact, you might see interracial marriage, which was religiously offensive!

The simple answer is that slaves should have simply waited for societal attitudes about the morality of slavery to change. Rocking the boat by insisting that slaves are just like freedmen is crazy talk and an effort by activists to radically reshape American society!
2.8.2009 2:08pm
zuch (mail) (www):
scattergood:

And in doing so they have specifically ignored the judiciaries own writings and positions on the issue, by abusing and selectively quoting Loving v Virginia for example.

Care to explain this claim? Be specific now....

I am arguing that the process of establishing SSM has some very painful and unintended consequences. One of which is to violate the First Amendment's protection of religious practices....

No more than prohibitions on polygamy. In fact, less so.

... Another is that it extends spousal privelge to a whole host of people who maybe shouldn't have it.

Who "shouldn't have it"? And why?

Cheers,
2.8.2009 4:00pm
zuch (mail) (www):
scattergood:

And in doing so they have specifically ignored the judiciaries own writings and positions on the issue, by abusing and selectively quoting Loving v Virginia for example.

Care to explain this claim? Be specific now....

I am arguing that the process of establishing SSM has some very painful and unintended consequences. One of which is to violate the First Amendment's protection of religious practices....

No more than prohibitions on polygamy. In fact, less so.

... Another is that it extends spousal privelge to a whole host of people who maybe shouldn't have it.

Who "shouldn't have it"? And why?

Cheers,
2.8.2009 4:00pm
Putting Two and Two...:
whit:

allowing the animal to penetrate the human does not present those problems and is ... still illegal.


It's clear you didn't read the news story.



one reason, and one reason only. because despite claims to the contrary we DO legislate morality.


I have no problem with legislating morality. Legislating today's morality using Bronze Age morality -- and only that of ONE Bronze Age people -- is another matter.
2.8.2009 6:32pm
Putting Two and Two...:

at least in the case of same sex incest (Where there is no risk of a child with birth defects, etc.), there is no reason to criminalize it except for morality.


Birth defects are not the only reason for restrictions on incest. There are, according to my straight maile friends, more than enough girls with "daddy issues" as it is.
2.8.2009 6:34pm
scattergood:

Care to explain this claim? Be specific now....



I already have if you would have bothered to actually read http://volokh.com/posts/1233863347.shtml#528987

Please drop the sarcasm and condesention, especially when you haven't even to bother to read what I have already written.


No more than prohibitions on polygamy. In fact, less so.



I think you mean not the prohobitions on polygamy but the allowance of polygamy will have unintended consequences? If so, this of course is just another in a long line of illogical statements. So because SSM has unintended consequences, such as polygamy, and polygamy has unintended consequences which may be more than those of SSM, we shouldn't worry about the unintended consequences of SSM? This is just cirucular an self referential logic, which is pretty endemic in most of the SSM supporters line of thought.


Who "shouldn't have it"? And why?


Again, please read what I wrote above.

Thanks!
2.8.2009 6:38pm
scattergood:

You brought up blacks when talking about what's really "deterministic", and then said that homosexuality isn't deterministic. Tell me: Is melinization due to in utero effects>

For the purposes of being a member of a protected class, the amount of melinazation in one's skin is due to the genetic makeup of the individual, completely and irrespective of the individuals actions and decisions.

The act of engaging in sex with a person of the same sex is not due completely because of the genetic makeup of the individual. It is actually irrespective of their genetic makeup. People who do not consider themselves as homosexuals can and do engage in same sex behaviors. Are they members of the protected class because of their actions? Of course not.

This is why defining 'homosexuals' as a class is rediculous. It is a classification based on actions not status. Are alcoholics a protected class? Are people who eat too much? Are heroin addicts? Of course not because nobody is 100% compelled to be an alcoholic, over eater, or heroin addict and many people become them because of their actions.

You should read Peter Thatchell's, "Homosexuality: it isn't natural". Mr. Thatchell is an avowed gay rights activist and he at least understands the flaw in the homosexual determinism theories. (http://www.spiked-online.com/index.php?/site/article/5375/)



Why? It is you that are making claims here about such. I'd think that it would be incumbent on you to at least cite research results for your proposition, if not going out and doing it yourself, so you'd know WTF you're talking about.


I have mentioned a number of issues related to the determinism of homosexuality, so as it seems hard for you to grasp them I'll summarize below:

1) Twin studies -- if homosexuality were 100% deterministic, why are identical twins not uniformly homosexual? In the case of Black identical twins, both twins are share the same level of classification.

2) Bisexuality -- if homosexuality were 100% deterministic why are do some people who engage in homosexual sexual acts also engage in opposite sex acts?

3) Changing sexual preferences -- if homosexuality were 100% deterministic, why do some people engage in long term monogomous opposite sex relationships, drop them and then engage in long term monogomous same sex relationships, drop them and then engage in long term monogomous opposite sex relationships? Even Kinsey documented this and understood the fact that this clearly indicates that same sex relationships are not 100% determinsitic.


Nice bald assertion. And it's been a traditional 'argument' for the righteousness of discrimination against homosexuals. However, it's been cast into doubt recently. Most professionals now think that "reparative therapy" is a crock, and that homosexuality can't be "cured" (regardless of whether we should actually attempt such).



I haven't mentioned 'reparative therapy' or any other such factor. I have only pointed out, pretty conclusively, that homosexual behaviors are not 100% deterministic.

As for bald face assertions, you seem to know exactly what to do as demonstrated above.


Ummm, What's your problem here? Why do you think that spousal immunity should not apply? Explain your reasoning. And what makes you think that what goes on in the bedroom makes any bit of difference? Do they ask the wife if she's getting f*cked regularly before they decide not to ask her to testify againt her husband? Can you please try to maintan some semblance of logic in your 'arguments'?


My point is that in the discussion of SSM nobody seem to have thought of, cared about, or even mentioned the unintended consequence of enabling a whole host of people to take advantage of spousal privilege that haven't been able to.

You can have a problem with spousal privilege on the whole as it certainly can be abused by people in traditional marriages, but it seems worthy to point out that we are affording the opportunity for even more abuse.

Sorry, you lost me. Are you saying that the state needs to invade the bedroom to determine marital status for gay partnerships but not for straight ones? Why?!?!? You're one confusing ... and, dare I say, confused ... dude.



No, what I am saying is that IF you think Guido and Luigi shouldn't be able to afford themselves of the benefit of spousal privilege, the only way to do so is to determine the validity of their marriage or the suitability of the pair to be married. This would be in direct conflict with the proponet's of SSM ideas that the state shouldn't determing the validity of a person be married and to have the state not be involved in the private affairs of people in the bedroom.

Or you can argue that the 'benefits' of allowing SSM are worth the damage of abusing SSM in order to exploit spousal privelege. But at lest let's make the tradeoff clear.
2.8.2009 7:16pm
zuch (mail) (www):
scattergood:

Look, I'll try just this one more, and then I'm really done with you. There really is no point in conversing with a very confused person deficient in basic logic and even a post-high-school grasp of English.
[scattergood]; And in doing so they have specifically ignored the judiciaries own writings and positions on the issue, by abusing and selectively quoting Loving v Virginia for example.

[Arne]: Care to explain this claim? Be specific now....

[scattergood]: I already have if you would have bothered to actually read http://volokh.com/posts/1233863347.shtml#528987

Please drop the sarcasm and condesention [sic], especially when you haven't even to bother to read what I have already written.

I read what you wrote:
"While most people will quote Loving v Virgina to demonstrate that marriage is a 'fundamental right', they tend to ignore what was actually said:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.

Even under Loving, SSM fails. It does not fulfill the procreative needs of a union which was understood to be 'fundamental to our very ixistence [sic] and survial'.

Loving never held that the "procreative needs" were what made marriage one of the "basic civil rights of man". They're actually citing Skinner. where the actual issue was one of sterilisation (held by the court to be impermissible because of a basic right to procreate).

But they did say that marriage was on of the "basic civil rights of man" (it's right there in your quote). They didn't say that "marriage with procreation" was such. Just "marriage".

But if you're going to get into flogging the dead horse of marriage being only for procreation, then you'll have to explain why (some) marriages that are not capable of procreation are nonetheless recognised.
[scattergood]: I am arguing that the process of establishing SSM has some very painful and unintended consequences. One of which is to violate the First Amendment's protection of religious practices....

[Arne]: No more than prohibitions on polygamy. In fact, less so.

[scattergood]: I think you mean not the prohobitions on polygamy but the allowance of polygamy will have unintended consequences? If so, this of course is just another in a long line of illogical statements. So because SSM has unintended consequences, such as polygamy, and polygamy has unintended consequences which may be more than those of SSM, we shouldn't worry about the unintended consequences of SSM? This is just cirucular an self referential logic, which is pretty endemic in most of the SSM supporters line of thought.

I think I mean what I said. You're saying (as evidenced by the first quote there) that recognising SSM will "violate the First Amendment's protection of religious practices." I'm saying that a ban on polygamy violates such much more directly, but it is nonetheless not seen by reasonably rational students of the law to run afoul of the Constitution. I think your 'argument' is irretrievably broken here.
[Arne]: You brought up blacks when talking about what's really "deterministic", and then said that homosexuality isn't deterministic. Tell me: Is melinization due to in utero effects?

[scattergood]: For the purposes of being a member of a protected class, the amount of melinazation in one's skin is due to the genetic makeup of the individual, completely and irrespective of the individuals actions and decisions.

Not entirely. As I pointed out, even twins can on occasion be one "black" and one "white". As I also pointed out, the "amount" of melanisation was once defined at somewhere around an 1/8th for legal purposes. Of course, this was a rather absurd distinction. What was important in the end (when we finally got things right) was not the amount of melanin (or the purported effects of such), but rather the existence and the need to remedy animus based on such an invidious distinction. But this also brings up the silliness of your "distinctions" concerning bisexuality and your absurd differentiation of sexual orientation from racial classifications that present the very same conundrums.
The act of engaging in sex with a person of the same sex is not due completely because of the genetic makeup of the individual....

Nor is melanisation (think suntans).
...It is actually irrespective of their genetic makeup....

Nonsense and kibbosh. The more we learn, the genetic basis for sexual orientation is more firmly established. It is true that the heritability of such is not 100%, but heritability itself is a poor concept scientifically without specification of the exact circumstances (some traits are 100% "heritable" in certain environments, and essentially 0% heritable given a specific genetic variability and different environments). It's even a poorer concept when used for invidious discrimination.
People who do not consider themselves as homosexuals can and do engage in same sex behaviors. Are they members of the protected class because of their actions? Of course not.

I think (and I think the law thinks) that, when we ban discrimination based on sexual orientation, that goes for whatever orientation a person has. And when we say it's not our business what they do in the bedroom, we mean it. But, just to throw another monkey wrench into the guts of your 'argument', may I point out that none of the laws prohibiting SSM actually say anything about the sexual orientation of the partners? They simply say that neither gay men or straight men may marry another man (and similarly for women). It is, at base, an issue of gender discrimination if you look at the text of the laws. The only time that sexual orientation creeps in is when the creeps want to punish a specific class of people by denying them the right to marry the person of their choice. The animus towards homosexuality is with the people, not the text of the laws.
This is why defining 'homosexuals' as a class is rediculous [sic]. It is a classification based on actions not status.

But, as I pointed out, the anti-SSM laws are specific in applying to status (i.e., gender), not actions.

As for your absurd claim that we will have a horrible problem if we let vast legions of icky homos get off scott-free because of spousal immunity if SSM is passed, that is so far off the charts that even the most foaming RW legislators don't bother flogging it. For the very obvious reason that if such spousal immunity is a problem, then there's a far greater problem with granting it in the first place.

Cheers,
2.9.2009 1:55am
jrose:
It is, at base, an issue of gender discrimination if you look at the text of the laws

A law which textually classifies on the basis of "X" does not necessarily discriminate on the basis of "X", and could instead discriminate on the basis of "Y".

In this case, neither gender is preferred over the other, but straights are preferred over gays. In contrast anti-miscegentaion laws prefer whites over blacks because they were intended to perpetuate White Supremacy.
2.9.2009 8:57am
zuch (mail) (www):
jrose:
[Arne]: It is, at base, an issue of gender discrimination if you look at the text of the laws

A law which textually classifies on the basis of "X" does not necessarily discriminate on the basis of "X", and could instead discriminate on the basis of "Y".

Oh, I agree. The invidious purpose is to discriminate against people based on "Y", based on the pretty much undisputed fact that most if not all of the people trying to do "X" are in fact of category "y". But I'd note that the supposed 'rational bases' for writing laws concerning "X" must account for that specific language. They're not putting forth animus against "Y" (or other 'reasons' as to why "Y" should be legally disfavoured) as that rational basis; they instead tend make the argument on the basis of "X" (see, e.g., the "procreative" argument trotted out so often by those that don't want to admit their prejudice.

Cheers,
2.9.2009 2:40pm
cmr:
But, as I pointed out, the anti-SSM laws are specific in applying to status (i.e., gender), not actions.


I don't see what your point is. Men and woman are permitted, or restricted (depending on your outlook) in the same way...at least in terms of the sex restrictions.
2.9.2009 2:54pm
jrose:
They're not putting forth animus against "Y" (or other 'reasons' as to why "Y" should be legally disfavoured) as that rational basis; they instead tend make the argument on the basis of "X"

Is there a problem with that?
2.9.2009 6:02pm
zuch (mail) (www):
cmr:
[Arne]: But, as I pointed out, the anti-SSM laws are specific in applying to status (i.e., gender), not actions.

I don't see what your point is. Men and woman are permitted, or restricted (depending on your outlook) in the same way...at least in terms of the sex restrictions.

I'm not sure what your point was. My point was simply that the laws discriminate based on gender, not on sexual orientation. The actual sexual orientation of the principals makes no difference for the anti-SSM laws (at least on the text; ignoring the significant and well-known side-effect that the actual group most affected will be gays and lesbians).

As to your comment that men and women are equally affected (and equally prohibited from marrying a person of the same gender), that's true. But that was also one of Virginia's 'arguments' in Loving v. Virginia: Both blacks and whites were equally prohibited from marrying someone of the opposite race; neither race was 'disadvantaged' or treated differently. What result?

Cheers,
2.10.2009 12:49am
zuch (mail) (www):
jrose:
[Arne]: They're not putting forth animus against "Y" (or other 'reasons' as to why "Y" should be legally disfavoured) as that rational basis; they instead tend make the argument on the basis of "X"

Is there a problem with that?

Well, yes. It's dishonest. Just like the dishonesty of the city of Cleburne. I think the courts should take note of such patent dishonesty when it's known to all and sundry with a nod and a wink all around, and not just in the few cases (such as Epperson and Wallace v. Jaffree where some bonehead is too stoopid to keep their mouth shut within shouting distance of the court....

Cheers,
2.10.2009 12:54am
jrose:
zuch,

I don't think it is necessarily dishonest to argue that current marriage law permissibly discriminates against gays because it is rationally related to the legitimate state interest of encouraging straights to marry.

And in your latest response to cmr, you again claimed that "the laws discriminate based on gender, not on sexual orientation." I thought you backed down from that claim when you said, "[t]he invidious purpose is to discriminate against people based on "Y" {sexuality}".
2.10.2009 9:53am
hazemyth:
Yet, as has been stated above, the wording of anti-miscegenation laws was ostensibly neutral, not targeting blacks or whites per se, just like anti-SSM laws.

Further, given that the 'rational basis' for anti-SSM laws is that straight marriage is better for society and, implicitly, homosexuality is wrong or deficient, how would this not qualify as a sort of 'straight supremacy'?

---

On the main topic, I don't really understand how any statement such as "____ is better for society" is rational in itself. It's a factual assertion, not different from 'the sky is blue' or, for that matter, 'the sky is pink'. Is "segregation is better for society" a rational statement? Only if one believes in the virtue of racial purity. How then, can the rationalism of a statement be separated from its basis in fact or, as the case may be, prejudice?

Legally, is there a distinction between 'rational basis' and 'good faith'? The main argument does seem to conflate them, as has been noted.

Otherwise, it's just a mad-lib game. The rational basis test would seem to be a test no one could fail and seemingly without merit.
2.10.2009 12:31pm
hazemyth:
Also, on yet another side note, regarding the tyranny of 'robes'... Given the news in Vermont and New York these days, how soon before people are shaking their fists against the tyranny of the legislature, presently touted as the people's will embodied.

I'm always dubious when people become so impassioned about ostensibly procedural issues, especially since they tend to do so around select outcomes.
2.10.2009 12:38pm
zuch (mail) (www):
jrose:
I don't think it is necessarily dishonest to argue that current marriage law permissibly discriminates against gays because it is rationally related to the legitimate state interest of encouraging straights to marry.


Well, that is true ... over in BizarroWorld where "rationally related" is defined as "made up on the spot where no one has sufficiently identified an actual problem or explained how the response is going to do anything about it, and where there's known issues of far greater importance that the leges have chosen not to address, and where it is known and acknowledged that the leges are against SSM because they think homosexuals are icky."

FWIW, I didn't heed the call of my country and resisted marrage for 53 years ... until this last summer, where, in the great state of California, which had just recently started allowing gay marriages, I finally tied the knot. Needless to say, there were other considerations on my mind that were of far greater importance in taking this step, but if I were to factor in CA's policy on SSM, I'd say that the fact that this was available to all on an equal basis enhanced its desirabilty and acceptability for me. YMMV. But I notice no spate of divorces in MA or CA from all those people who are so horribly offended by SSM.

I'm serious; here's a question: Do you really think, under the circumstances, that this is a legitimate "rational basis"?
And in your latest response to cmr, you again claimed that "the laws discriminate based on gender, not on sexual orientation." I thought you backed down from that claim when you said, "[t]he invidious purpose is to discriminate against people based on "Y" {sexuality}".


No. I was very specific on differentiating the "text of the law" and the intent of those that wrote it. The law unarguably discriminates on the basis of gender (in just the fashion that the Virginia statutes did in Loving, as I explained above). The impetu... -- umm, sorry, "animus" -- behind the laws is the desire of those who propose them and support them to discriminate against a certain group.

Cheers,
2.10.2009 1:40pm
jrose:
Further, given that the 'rational basis' for anti-SSM laws is that straight marriage is better for society and, implicitly, homosexuality is wrong or deficient, how would this not qualify as a sort of 'straight supremacy'

Change "homsexuality is wrong or deficient" to "same-sex relationships are sub-optimal for society as a whole", and you pretty much have it. The difference with anti-miscegenation laws is that a higher standard than rational basis applied, whereas here rational basis maybe all that is needed.

I don't really understand how any statement such as "____ is better for society" is rational in itself

That's not the "rational" part. That's the "legitimate state interest" part. Or more accurately, encouraging straights to marry is the legitimate state interest. What has to be rational is that prohibiting same-sex marriage furthers that state interest.
2.10.2009 1:51pm

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