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Foreign Same-Sex Marriages and Distribution of Property on Death:

In re Estate of Ranftle, decided last week by the New York County Surrogate's Court, seems to me to reach exactly the right result. H. Kenneth Ranftle married J. Craig Leiby in Canada in June 2008. In November, he died, and was survived by Leiby and by three siblings.

The immediate question before the court was who was "entitled to receive process under SCPA 1403(1)(a), but since that refers to the "distributees" — those who would inherit under intestate succession — the procedural question included the substantive one: Should Leiby be treated as a surviving spouse? And this substantive question also applies to the more important situations where someone dies without a will, and the question is where the property goes (and not just who is notified about the probate when someone does have a will, as seemed to be the issue here). Yes, the court said:

Marriages valid where solemnized have long been recognized in New York; exceptions exist only for marriages affirmatively prohibited by New York law, or proscribed by "natural law" (Matter of May, 305 NY 486 [1953]). [Footnote: The "natural law" exception is generally limited to cases of incest and polygamy or where the marriage violates the state's public policy (Martinez v. County of Monroe, 50 AD3d at 191). It is noted that Governor David Paterson has instructed New York state agencies to recognize same-sex marriages that were valid where performed, through an Executive Directive dated May 14, 2008.] As decedent's marriage was valid under the laws of Canada, where performed, and falls into neither exception to the general rule, the marriage is entitled to recognition in New York (Martinez v. County of Monroe, 50 AD3d 189 [4th Dept 2008]) (recognizing Canadian same-sex marriage for purposes of entitlement to spousal health care benefits).

This strikes me as precisely correct. New York statutes do not bar recognition of out-of-state marriages. Neither do New York common-law principles; the "natural law" reference is indeed shorthand for "cases involving polygamy or incest in a degree regarded generally as within the prohibition of natural law." (By the way, Matter of May, which the court cites, upheld an uncle-niece marriage, which was valid under a Rhode Island statute that allowed such marriages for Jews; I expect that many people in 1953 thought such marriages to be inappropriate, and New York law in fact forbade them, but New York courts recognized the out-of-state marriage nonetheless.) The judge didn't have to do his own philosophical "natural law" reasoning to decide whether same-sex marriages are "natural" or "unnatural"; he was just reading the existing precedents no more broadly than they required.

And I think such a preference for recognizing foreign marriages that were legal in the place where they were entered into — a preference that is itself a long-standing legal principle — makes perfect sense, especially when it comes to intestate succession. Someone dies. He should have had a will, but he didn't, and it's too late for should-haves now. The legal system's goal should be to give the property to those to whom he would have most likely wanted to leave it, so long as this can be done without excessive fact-finding of the "Mother loved me best" variety. It's a fair bet that people would like to leave their property to their spouses; and that's true even if the law of the state wouldn't itself allow such a marriage.

You can like the marriage or dislike it, support uncles marrying nieces or oppose it, but when it comes to distributing the dead person's property, the focus should be (again, where it is consistent with the demands of clarity and minimal factfinding cost) on what the dead person would have wanted, not what the judge or the voters would have wanted. I'm not saying there's a constitutional obligation to do it — just that this is the soundest legal principle.

By the way, if you ask "But what about polygamy?," there's already an answer: In re Bir's Estate, in which the California Court of Appeal held — in 1948 — that California would recognize a foreign polygamous marriage (from India) for the purposes of intestate succession. Though California public policy might lead to a different result "if decedent had attempted to cohabit with his two wives in California" — remember that this was a time when cohabitation with someone who wasn't your legal wife could be criminal — "[w]here only the question of descent of property is involved, 'public policy' is not affected." Both wives were thus allowed to share equally in the decedent's property.

What's more, earlier cases took a similar view, especially as to the question whether the children of the second and later wives were to be treated as legitimate, back when more legal rules turned on legitimacy. These matter came up in some cases involving American Indian tribes, as well as marriages recognized in foreign countries. And the skies didn't fall, nor would they have, I think, if such cases had been more common.

UPDATE: I originally read the opinion as suggesting that Ranftle died intestate, because of the reference to the law of intestate succession at the end. But as a commenter pointed out, the opinion clearly says that Ranftle had a will. In any case, though, the significant legal consequence of this decision is that precisely the same reasoning would apply to intestate succession (where it would be considerably more important than for probate of a will). In any event, I've corrected the discussion of the facts -- my analysis of the law is the same as before.

ohwilleke:
One could also resolve the question, without reaching the issue of the actual validity of the marriage, by resorting to putative spouse doctrine, which gives even a non-spouse some legal recognition if the party seeking relief in good faith believed him or herself to be a spouse.
2.5.2009 6:58pm
ohwilleke:
No U.S. state prohibits leaving your estate to a same sex person with whom you cohabit when you are not married to anyone else at the same time by a will (Latin American countries often prohibit disinheriting your children without good cause, but New York is not Latin America, any more than it is pre-Staute of Wills England.)

Marriage certificates are in writing, signed by the parties, and generally witnessed by at least two people and made a matter of public record. (The notarization of a will, historically likewise made a will as public record, in the Continental European tradition from which notaries arise.)

It is hardly a leap to give a public record executed with all the formalities required of a will, like a marriage certificate, which has the same effect as a duly executed will for an intestate person in the place where the wedding memorialized, the same effect as a will leaving everything to the surviving spouse identified in that marriage certificate.

Both marriage certificates and wills have been used by courts to read the minds of dead people for centuries. Indeed, we have an entire probate system created precisely for the purpose of discerning the intent of dead people.

One doesn't have to even acknowledge the validity of gay marriage, to agree that a legal document signed and witnessed by two people and made a public record that has legal impact equivalent to a will where executed, is a reliable indicator of a decedent's intent.
2.5.2009 7:21pm
cognitis:
Blogger cited a case where a man married his niece; should federal courts permit such marriages completely, the courts would provide a means of evading estate tax; id est: the cited man could transfer his estate to the woman both his wife and his niece, and on his death the woman could marry her nephew and thereafter transfer her estate to the man both her husband and her nephew. Some sitcom, "Boston Law", proposed a similar use of homosexual marriage whereby a law partner would use spousal privilege as a means of evading forensic questions. Proponents of homosexual marriage should much more carefully examine the nature of marriage.
2.5.2009 8:29pm
Allan L. (mail):
All of these niceties could be eliminated with a 100% estate tax.
2.5.2009 8:30pm
Randy R. (mail):
Cognitis: "Proponents of homosexual marriage should much more carefully examine the nature of marriage."

Why should we? Seems that you heterosexuals are the ones playing fast and loose with the laws, not us gays. Now, if you had a case whereby a man marries his nephew, then I suppose you would have an argument.

But the sorts of things that you complain about happen where SSM is not legal.

I would not consider a sitcom to be particularly persuasive evidence on any subject matter.
2.5.2009 8:55pm
Mark E.Butler (mail):
"Distributees" in SCPA 1403 does not refer to beneficiaries named in the will, but to the persons who would take if the decedent had died intestate--as described in EPTL 4-1.1.

Thus, the question before the court was whether Leiby was a spouse under EPTL 4-1.1, and therefore entitled to receive process under SCPA 1403. And, presumably, the right to contest a proposed testamentary distribution that abrogated his rights as a "spouse".

It is surprising though that the court didn't decide the matter on natural law grounds. You state that "The judge didn't have to do his own philosophical "natural law" reasoning to decide whether same-sex marriages are "natural" or "unnatural"; he was just reading the existing precedents no more broadly than they required." But, since polygamous or incestuous marriages were the only kinds of marriages which might be considered "contrary to natural law" that were within the realm of contemplation by anybody until very recently, and since there has been virtually no time for foreign same-sex "marriages" to result in probate litigation, is it any wonder that neither the legislature or the courts of New York addressed the issue?
2.5.2009 9:18pm
Perplexed:
I thought that the federal government entered treaties with foreign countries w/r/t recognition of civil acts (marriages, divorces, etc.) so that the the states had to recognize foreign country marriages where the US had a treaty to that effect.
2.5.2009 9:20pm
cognitis:
Randy:

Let me clarify my use of "marriage": the institution of marriage, supported by ancient consuetudes as well as by ancient laws, excludes relations that cannot or should not produce the next generation; ancient consuetudes and ancient laws reflect a natural law that governs this producing of the next generation; the special rights conferred to spouses reflects this natural law. Spousal rights then don't adhere to grandfather-granddaughter relations, dog owner-bitch relations, shareholder-corporation relations, or homosexual relations. Proponents of such extending of spousal rights confuse disparate relations and thereby perturb the law.
2.5.2009 9:27pm
Syd Henderson:
cognitus: so you don't think the law allows for women to get married past the age of menopause, or men who have had vasectomies to get married?
2.5.2009 9:37pm
Mark E.Butler (mail):
I wonder, Prof. Volokh, if you read the same case as you linked to.

The first line of Surrogate Glen's decision reads:


In this proceeding for the probate of the will or H. Kenneth Ranftle . . ."


So, clearly there was a will presented for probate. Furthermore, the opinion ends "Probate decree signed." So Ranftle died leaving a will and it was admitted to probate.

To clarify my previous comment about the reference to natural law in the court's footnote--that note dodges the issue--why would one expect any cases to have addressed whether same-sex "marriages" are proscribed by natural law? Like it or not, until very recently the general consensus of courts and legislatures was that marriage was a relationship between two persons of the opposite sex. Therefore, case law is not likely to provide any help in determining whether same-sex "marriage" is contrary to natural law.

The court's further reference to an executive order of the governor regarding state agency's recognition of same-sex "marriages" at least raises the question of the court's view of where law making (as opposed to law enforcement) authority rests.
2.5.2009 9:37pm
Steve:
It's hard to argue that SSM contravenes the public policy of the state when the Governor has issued an executive order conferring rights on same-sex couples. That's a pretty straightforward point.
2.5.2009 9:47pm
Oren:

Let me clarify my use of "marriage": the institution of marriage, supported by ancient consuetudes as well as by ancient laws, excludes relations that cannot or should not produce the next generation

I don't know about your ancient laws, but my ancient religion does not forbid marriage to the infertile. In fact, I can't think of any religion that does -- please correct me if I'm wrong.
2.5.2009 9:55pm
Eugene Volokh (www):
Mark E. Butler: D'oh! Very sorry -- I misread the fact pattern in the opinion, but fortunately it doesn't affect the legal analysis. Corrected the post, and noted the change in the update.

As to the exceptions-to-recognition issue: The court was reading the past cases as limited to the situations they expressly discussed, without trying to broaden them by analogy. This reflects, I think, the background principle of preferring to recognize marriages that were valid where they were entered into. And it's reaffirmed by the reference to the Governor's position, which reinforces the conclusion that the exception for marriages that are "against public policy" or that are "offensive to the public sense of morality to a degree regarded generally with abhorrence" doesn't apply here.

Of course, if the legislature had said "don't recognize out-of-state same-sex marriages," the Governor couldn't undo that. Likewise if higher courts had expressly established "don't recognize out-of-state same-sex marriages" as a common-law rule. But in the absence of such binding law, it seems reasonable for the court to look to executive judgment to see if the presumption in favor of recognizing out-of-state marriages that were valid where they were contracted is rebutted.
2.5.2009 10:01pm
cognitis:
Syd:

Thanks for disputing. In ancient times, few women lived long after menopause, and surgeons only recently perfected vasectomies; so had such persons had petitioned spousal rights then, they could have impetrated such rights. In ancient times, not only were homosexuals excluded from marriage but also castrati and eunuchs. While spousal rights for menopausal women or neutered men are disputable, rights for homosexuals are not.
2.5.2009 10:09pm
Oren:

While spousal rights for menopausal women or neutered men are disputable, rights for homosexuals are not.

I'm not aware of any legal or religious authority for stripping the rights of marriage from any duly married couple whatsoever. Enlighten me ...
2.5.2009 10:13pm
Randy R. (mail):
"Proponents of such extending of spousal rights confuse disparate relations and thereby perturb the law."

Then the law is 'perturbed' in Massachusetts, Canada, The Netherlands, Belgium, Spain and S. Africa. Any problems arising there?

" In ancient times, few women lived long after menopause,"

Any basis for this statement? Or just an assumption on your part? And in case, such women were, as you admit, not probhited from marriage. In fact, women who became widows *often* remarried.
2.5.2009 11:09pm
cognitis:
Oren:

How did the ancients estimate fertility? The same recent science that that guides surgeons' hands perfecting vasectomies guides lab techs' eyes in measuring sperm motility and egg viability.
2.5.2009 11:11pm
Randy R. (mail):
cognitis: " the institution of marriage, supported by ancient consuetudes as well as by ancient laws, excludes relations that cannot or should not produce the next generation; "

And the fact remains that is almost all societies, we have completely abandoned this standard. We do not deny marriage to people who cannot have children, whether it be due to a handicap, age, status (like being in prison), infertility and so on. If there is no longer a basis to deny marriage to these people, then why do you apply it only to gay people?

And in fact, you may be unaware, but there are thousands of gay couples that DO have children. They either adopt them, or get them (in the case of lesbians) through artificial insemination. Do those children not have the right to the benefits and stability of having married parents?
2.5.2009 11:30pm
cognitis:
Randy:

Thanks for disputing. Your defensive tone as a homosexual signifies errantly my arguments to be attacks against homosexuals. The Law should deny spousal rights not only to homosexual relations but also to any relation incapable of producing the next generation; included examples above were grandfather-granddaughter relations and dog owner-bitch relations, etc. Should spousal rights be extended to homosexual relations, why not extend the rights to say controlling shareholder-corporation relations? Then, a controlling shareholder could communicate with any executive officer with such communications protected from Courts by spousal privilege. If rights be extended in such way, why not then permit polygamy? Then Governors like Blagojevich could marry lobbyists and regulators and contractors. The spur for considering special spousal rights necessarily came from considering the special producing of the next generation, and any mutation of spousal rights necessarily must consist with producing the next generation.
2.5.2009 11:55pm
ArthurKirkland:
Does or should the loyalty to ancient ways extend to medicine, physics, astronomy, freedom of expression, diet and the like, or do we rely on ancient ways solely when trying to determine how to deal with homosexuals? Modern arguments rarely champion adherence to Second Century standards; why is this particular element of ancient bigotry so resilient? Why reject similar wisdom of the ages with respect to treatment of the elderly, albinos, and people who look funny?
2.5.2009 11:56pm
Randy R. (mail):
Well, pardon me from taking this a bit personally. When someone says I can't get married because if I do, it will open the doors to all sorts of horrible things, it becomes a little personal,don't you think? When you compare my relationship with my boyfriend with dog-owner bitch relations, it's a little hard to remain unemotional. I hope you understand.

Here's an answer though. If it worries you so much that SSM will lead to dog-owner marriage, then pass a constitutional amendment prohibiting such. It wouldn't be that hard. The number of dog owners wishing to get married to their dogs would be necessarily very very small. That way, we are both satisified -- I can get married and you don't have to worry about your parade of horribles.

But you dodged all my questions:

1. Has SSM lead to polygamy or shareholder marriages in Massachusetts, Canada, Spain, S. Africa, The Netherland, or Belgium? Is there any movement at all there toward that direction?

2. Gays are already raising a whole lot of the next generation. Do those children deserve the right of having married parents or not?

3. Society has already abandoned the notion that ability to bear children is a necessary precondition to marriage. There is no state that asks for fertility exams before granting a license, for instance. If we don't require heterosexuals to have the ability to have children, why should we require it of gays?
2.6.2009 12:05am
ArthurKirkland:
Some might focus on the logical inconsistency of ostensibly restricting marriage to procreators while nevertheleess permitting the infertile to marry, but a bigger issue involves nuns and priests, who might be said to be acting unnaturally and establishing a horrible example that society aspiring to survive tolerates at its peril. Should they be banished? And what about an organization that promotes such reproduction-threatening practices?
2.6.2009 12:06am
Randy R. (mail):
Arthur: "Does or should the loyalty to ancient ways extend to medicine, physics, astronomy, freedom of expression, diet and the like, or do we rely on ancient ways solely when trying to determine how to deal with homosexuals? "

Indeed. Ancient ways,and even Biblical ways, approved of and even encouraged polygamy and slavery. Women always had no legal rights at all and were often treated as property, just a step above slave, and that held true until fairly recently. Interracial marriage was always taboo as well.

But I don't see anyone arguing for those traditional ways.
2.6.2009 12:10am
Gabriel McCall (mail):
I'm curious as to why polygamy is a violation of "natural law", given that it's historically been so widespread and popular. Were Abraham, Mohammed, Confucius, and Martin Luther all violators of natural law?
2.6.2009 12:45am
trad and anon:
Then the law is 'perturbed' in Massachusetts, Canada, The Netherlands, Belgium, Spain and S. Africa.
Also Connecticut. And Norway.
2.6.2009 12:47am
cognitis:
Many homosexuals here insist on rights without comprehending those rights' reasons. Answer this: what is the difference between "friendship" and "marriage"? Marriage from ancient times developed as an institution that provided for the producing of the next generation. So spousal rights such as exemption from estate tax developed as a means of providing for children unable to provide yet for themselves. Why should childless homosexuals get a tax exemption? Perhaps they don't like to pay taxes; gee, I don't like to pay taxes either; so what? Employers' health benefits extend to wives and children. Again, why should childless homosexuals get benefits from a partner's (friend's) employer? Wives are exempt from taxes on funds received from husband, since both share in raising children; again, why should funds transfers be tax exempt for homosexuals? Here's an example: suppose I owe a lawyer $200k for legal services; why would I not marry the lawyer, transfer the funds tax free to the lawyer (we could open a joint checking account), thus exempting the lawyer from paying income tax on $200k; thereafter, we could divorce. Homosexuals need to more carefully examine the nature of marriage.
2.6.2009 1:10am
Steve:
I don't know, cognitis, why wouldn't you do that? Lots of people have lawyers of the opposite sex, so surely such sham marriages must occur every day.
2.6.2009 1:17am
Randy R. (mail):
cognitis: " Answer this: what is the difference between "friendship" and "marriage"?"

Friendship is between two people who really really like each other. Romance is between two people who fall in love with each other. do you not know the difference? I certainly do, and all my gay friends do. In other words, gay people fall in love just as straight people do. Not terribly difficult to comprehend.

"Marriage from ancient times developed as an institution that provided for the producing of the next generation."

Yup. And marriage from ancient times had women as mere property to men. Why don't we continue that tradition?
Also, as I mentioned earlier, we don't require anyone to desire or have the ability to have children. I know several couples who cannot have children and are considering adopting. yet their marriage is legal. If ancient times are so important, why are those marriages legal?

"So spousal rights such as exemption from estate tax developed as a means of providing for children unable to provide yet for themselves. Why should childless homosexuals get a tax exemption? Perhaps they don't like to pay taxes; gee, I don't like to pay taxes either; so what? Employers' health benefits extend to wives and children. Again, why should childless homosexuals get benefits from a partner's (friend's) employer?

Well, why do childless straight couples get tax exemptions? Why do childless heterosexual couples get health benefits to their spouses?

Your use of parenthetical indicates that gay people are merely friends. We are not. We are just as capable, and often are, love between each other as a straight couple. Why do you have a problem with this?

"Wives are exempt from taxes on funds received from husband, since both share in raising children; again, why should funds transfers be tax exempt for homosexuals?" Why not? In cases where gays have children, they both share in the raising of children. I'm really dumbfounded why you can't believe that we should have the same rights as straight people!

"Here's an example: suppose I owe a lawyer $200k for legal services; why would I not marry the lawyer, transfer the funds tax free to the lawyer (we could open a joint checking account), thus exempting the lawyer from paying income tax on $200k; thereafter, we could divorce."

Yup. You can do that. And you can do that even before SSM ever existed. But I haven't seen many people doing that, and I don't see anyone doing that even where SSM exists. so what is your point?

" Homosexuals need to more carefully examine the nature of marriage."

We have. that's why we are fighting for that right.

AFter examining all your arguments, I still don't see what the problem is. Where gays get married, has any of your issues arisen? I haven't seen any problems of the sort.

And you still haven't answered my question: What about the children of gay couples. You know that they exist, by the thousands. Why shouldn't they get the same benefits as the children of straight couples?
2.6.2009 1:27am
trad and anon:
Marriage from ancient times developed as an institution that provided for the producing of the next generation.
As a historical statement, this seems rather inapt. Every culture, so far as I know, has some institution cognizable as 'marriage,' but childrearing patterns and the social function of marriage have varied dramatically across cultures.

Also, in our culture, until fairly recently, it was quite normal for the marriage to happen because it was clear the next generation was already under production.
2.6.2009 1:38am
Ricardo (mail):
Why should childless homosexuals get a tax exemption?

What's all this business about "childless" homosexuals? If a gay couple has children (and plenty do), are you implying you would extend them the same rights you extend to straight married couples? If not, it's subterfuge.
2.6.2009 3:09am
Houston Lawyer:
A far more interesting question will be what happens to the estate of a man who is "married" to another man who dies intestate in a jurisdiction whose laws expressly forbid the recognition of of that marriage. Same question arises with regard to divorce.

The former question can easily be dealt with by drawing up a will. The laws of intestate succession don't care about what the deceased intended and non-holographic wills that aren't properly witnessed aren't binding.
2.6.2009 9:16am
pluribus:
cognitis:

If rights be extended in such way, why not then permit polygamy? Then Governors like Blagojevich could marry lobbyists and regulators and contractors.

Your list of horribles would be comical if it weren't so troubling. So you would extend it so far as to prohibit the marriage of a governor (or in Blagojevich's case a former governor) to a lobbyist, regulator or contractor? Aren't governors, lobbyists, regulators and contractors all human beings? As Randy pointed out above, even prison inmates (which Blagojevich may be some day) are permitted to marry under our law--even, I think, to marry lobbyists, regulators or contractors. You compare the marriage of two human beings of the same sex to the marriage of human beings and dogs (or as you prefer to call them, bitches), and to the marriage of human beings (apparently of either sex) to corporations. I presume you would also prohibit the marriage of a tree and a shrub, or a vine and a rock. Revealing examples all. (These SSM discussions really do attract the most preposterous extremists.)
2.6.2009 9:23am
Oren:

Here's an example: suppose I owe a lawyer $200k for legal services; why would I not marry the lawyer, transfer the funds tax free to the lawyer (we could open a joint checking account), thus exempting the lawyer from paying income tax on $200k; thereafter, we could divorce.

First of all, my lawyer is a woman, we are both fertile and so there's nothing in your theory that would forbid such a thing.

Secondly, such a marriage is, in fact, illegal because it's not done in good faith. It's a species of fraud that is illegal whether the couple is hetero/homo/fertile/infertile/whatever.
2.6.2009 10:46am
jrose:
cognitis,

I couldn't tell from your posts, in your view should we provide civil marriage to infertile straight couples? If yes, how do you distinguish that case from not doing likewise for gay couples?
2.6.2009 12:47pm
Smallholder (mail) (www):

Blogger cited a case where a man married his niece; should federal courts permit such marriages completely, the courts would provide a means of evading estate tax; id est: the cited man could transfer his estate to the woman both his wife and his niece, and on his death the woman could marry her nephew and thereafter transfer her estate to the man both her husband and her nephew. Some sitcom, "Boston Law", proposed a similar use of homosexual marriage whereby a law partner would use spousal privilege as a means of evading forensic questions. Proponents of homosexual marriage should much more carefully examine the nature of marriage.


Really?

Dude, if you are using this hypothetical sitcom situation to justify discriminating against tens of thousands of people, you are going to lose. Not because your anti-gay ilk won't applaud your reasoning skills.

You'll lose because people who are genuinely on the fence will say: "If we let gay people marry, tens of thousands of people will get the same legal rights as straight people BUT the William Shatner sham incest marriage might become a documentary in one or two bizzarre cases. Alternatively, we can deny gays the right to marriage, which will legally inconvenience and penalize tens of thousands of people with the upside of avoiding a bad sitcom situation."

Weighing the pros and cons, the non-bigot will vote for gay marriage. Every. Single. Time.

As to your fertility argument, I call bull hockey. Ancient societies did NOT base marriage solely on fertility - marrying your brother's widow was not a reproduction issue - it was a social welfare system predating FDR. I also don't recall any Biblical injunctions against the marriage of the elderly - your women not generally surviving menopause is a rather non-convincing argument that all women who got married were young enough to have kids.

Furthermore, a more important issue in marriage was the establishment of property rights. Why do you object tio the establishment of property rights for gay people.

Finally, why do you care so much? How would YOUR marriage change if gays could get married too. I have never had a "defense of marriage" kind of guy explain in real terms how their individual marriage would suffer if gays got married too.

I for one, do not intend to divorce my wife and marry Randy R. when (not that I said "when" and not "if") the laws changed to allow that. I'm straight and love my wife. I fully support Randy's equality under the law and his moral equality as a human being, but I'm not romantically attracted to men. No amount of social or legal pressure is going to change my innate sexuality. I may choose to love my wife as an individual, but my heterosexuality is NOT a choice - it's hardwired.
2.6.2009 12:57pm
Randy R. (mail):
And to think I cooked your favorite meal this weekend!

But thanks for the encouraging words nonetheless. SSM is now legal in MA and CT. At some point -- it might be a few more years -- the opponents will lose their argument. Theire parade of horribles won't come to pass, and they will eventually have to concede that marriage rates didn't drop, people are not clamoring to marry their dog, and children are still be raised and loved and cared for. They will realize that the few thousand gay couples who are married are no threat to this age old institution.

At that point, their arguments will only be of the "but we think gay sex is still icky" sort.
2.6.2009 1:43pm
David Drake:
Smallholder:

Weighing the pros and cons, the non-bigot will vote for gay marriage. Every. Single. Time.


Then why not put it to a vote in every state rather than relying on executive orders, court cases, and legislative activity cooerced by courts? And why express outrage when the voters in one of the most "progressive" states in the country rejects same sex marriage?

Or is it your position that the majority of people in California are bigots?
2.6.2009 2:52pm
Smallholder (mail) (www):
Drake,

1) Even though gay marriage will win at the ballot box, minority rights are not subject to the whims of the majority. If you object to judges striking down popular laws, you misunderstand republican (little r) theory in a major way. The Judicial Branch is an essential check on the legislative branch and purposely set above popular opinion - Federal judges never have to face the voters.

2) Setting aside the historical idiocy of attacking the judicial courts' ability to strike down popular but unconstitutional laws (I don't see many VC commentators complaining about judges striking down the D.C. gun ban), playing the popular will card is stupid in the long term - public opinion is moving consistently towards acceptance of gays. When the public does vote to legalize marriage, I doubt the Christian Right will suddenly say "Well, now that the people have spoken, gay marriage is just fine with me."

I get a bit frustrated by the dishonesty of the anti-gay marriage crowd - not one of them would change their stance if the majority of public opinion supported gay rights, but they still make arguments based on their (temporary) majority. If they just admitted that their opposition was based on the Bible and their feeling that gay sex is icky, I could at least respect their belief. I'd still think they were wrong, but at least it would be an honest disagreement.

The logical underpinnings of the "slippery slope to bestiality" and "harm to traditional marriage" and "restrict one group who lack fertility but not the others" and "the gayness is contagious" arguments so many times, that I'm forced to conclude that the anti-equality side is so blinded by hatred that logic cannot penetrate or that they know their arguments are weak but tactically choose to lie because they know that "gay ickiness" won't convince anyone.

Randy R. - speaking of gay contagiousness, I'd love to take you up on that dinner, as long as you promise not to put the full-press conversion press on me and I can get my cooties shot. Oh wait - maybe you gay people only do that to kids under nine - I'd have to scroll back through the Cramer/Aubrey/Dangermouse posts to remember what the exact age cut-off is.
2.6.2009 3:26pm
Smallholder (mail) (www):
Drake,

I forgot one of your points.

Yes, I do think the majority of Californians - and Americans - are bigots.

Just as the majority of Americans were bigots in 1954 when Brown came out.

Thank goodness the Supreme Court wasn't subject to electoral pressures during desegregation.

I'd love to hear how you "courts should never overturn popular laws" people reconcile that belief with:

a) Brown v. Board
b) Heller v. District of Columbia.

I don't think you can without being a mental contortionist.
2.6.2009 3:32pm
Smallholder (mail) (www):
Just because people are bigots doesn't mean they can't change.

When I said that open-minded people would reject the Boston Public argument every single time, I was referring to that specific asinine argument.

There are other anti-gay marriage arguments out there that bigots accept uncritically because they conform to their pre-existing bigoted world view. But - and here's where your doom is sealed, when people start actually thinking about those anti-gay arguments in detail - as people are starting to do - many people will realize that the arguments don't hold water and will reflect on the logic of their bigotry.

Which, I suspect, is what the anti-gay forces fear. Now that gay marriage exists in some states and is accepted by others, it is becoming clear that the world hasn't ended and straight people aren't leaving each other to enter gay relationships.

Your problem isn't with bleeding hearts like me - your predictions of doom haven't matched up with reality.
2.6.2009 3:37pm
Putting Two and Two...:

cognitis: " Answer this: what is the difference between "friendship" and "marriage"?"


A duly performed marriage ceremony.
2.6.2009 3:59pm
Putting Two and Two...:

These SSM discussions really do attract the most preposterous extremists.


Imagine what would happen if they married!!!!
2.6.2009 4:02pm
Putting Two and Two...:
More seriously, as I am not a laywer, I'm not grasping what this ruling is about. The deceased left instructions in his will. What difference does it make if the (I assume primary, perhaps sole) beneficiary was his same-sex partner? Would the siblings have had some claim to disregard his wishes?

Is this ruling about taxation issues?
2.6.2009 4:10pm
cognitis:
Putting:

So now you want to invalidate my Friend Ceremony? Why must homosexuals discriminate against friends? Am I not entitled to privileged communication between me and my friend, my friend's employers' health benefits? You know, Hitler and Goebbels were both homosexual, so the widely-known homosexual rage must impel homosexuals to hate friends or deny rights to friends. Enough hate already!
2.6.2009 5:17pm
pluribus:
cognitis:

You know, Hitler and Goebbels were both homosexual, so the widely-known homosexual rage must impel homosexuals to hate friends or deny rights to friends.

I know nothing of the kind. You apparently are not aware of the internet convention (respected here for some time) that the first commenter to bring Hitler into the argument automatically loses. This tactic is really bad form, logically falacious, and unprincipled. Judging from your previous posts on this subject, I am not surprised that it was you who did this.
2.6.2009 7:36pm
Jesse Wendel:
I don't think the majority of people in California are bigots.

I think the majority of people in the Mormon Church are bigots. It was really sweet of them to come from Utah and mess with the election.
2.6.2009 8:05pm
Randy R. (mail):
ognitis: "So now you want to invalidate my Friend Ceremony? "

What I continually find shocking is that opponents of SSM really have no understanding of the difference of loving your sister and loving your wife and loving your female friend.

if you don't know the difference by now, I would strongly suggest some serious therapy. If you are merely joking, then it's a poor joke to feign stupidlty.
2.6.2009 8:58pm

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