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Gay marriage in the heartland:

The unanimous Iowa marriage decision is based on the state's equal protection clause. Applying those principles, the court held that:

(1) As a threshold matter, gay couples are "similarly situated" to heterosexual couples with respect to their relationship commitment and capacity to benefit from state recognition.

(2) The exclusion of same-sex couples from marriage is a form of sexual-orientation discrimination, because it "closely correlates" with being homosexual.

(3) Sexual-orientation discrimination merits heightened judicial scrutiny.

(4) The heightened scrutiny applied here is "intermediate," requiring that the statute at issue be substantially related to an important state objective. (The court reserved the possibility that it might apply strict scrutiny in a future case.)

(5) There were five objectives advanced by the government: (a) tradition, (b) promoting the optimal environment for children, (c) promoting procreation, (d) promoting stability in opposite-sex relationships, and (e) preservation of state resources.

(6) The state's five objectives were either not sufficiently important (e.g., maintaining a "tradition" for the sake of tradition alone is a circular objective) or were not substantially advanced by excluding same-sex couples from marriage (e.g., excluding gay couples from marriage does not encourage heterosexual procreation or stabilize heterosexual relationships).

(7) Religious objections to same-sex marriage cannot control the definition of marriage, which is a "civil contract" under Iowa statute.

This is the third pro-SSM state supreme court decision in the past year. In addition to the important marriage result, the decision is notable because it continues a growing trend among state courts to treat sexual-orientation classifications as suspect. If it continues, that trend will have consequences on gay-rights questions well beyond the marriage context. State judiciaries are beginning to follow a familiar pattern of hastening civil-rights progress for a group once that group's cause has achieved a measure of legislative success and cultural acceptance.

No other state in the Midwest even recognizes same-sex domestic partnerships, much less civil unions, or marriages. Same-sex marriages will actually begin in Iowa in about three weeks. The state has no residency requirement for marriage, meaning that gay couples elsewhere in the Midwest can easily travel there and get married, although their relationships will not be recognized when they return to their home states. I can see two simultaneous effects from this: (1) rising expectations among gay couples in the Midwest combined with more political pressure to enact domestic partnerships and civil unions, especially in Illinois, and (2) rising alarm and political organizing among gay-marriage opponents in those same states.

The Des Moines Register has more on how the state is reacting. Among other things, the paper estimates that unless the legislature acts very quickly, the state's demanding constitutional amendment process means there would be no possibility of passing a state constitutional amendment to ban gay marriage until 2012.

Either way, there's a large political battle ahead.

ChrisIowa (mail):

Among other things, the paper estimates that unless the legislature acts very quickly, the state's demanding constitutional amendment process means there would be no possibility of passing a state constitutional amendment to ban gay marriage until 2012. The fastest possible track would put it on the ballot in 2010.

Given the requirement of an intervening General election (the next being 2010) between the two sessions that pass the proposed amendment, what possible route gets the amendment on the ballot before 2011?

Even the next chance at calling a constitutional convention is not until the general election of 2010, which could not convene until 2012.

DC: You're probably right about that. I've changed the post, though I'd be interested in hearing from others with some expertise on Iowa's process if they believe there's a faster route.
4.3.2009 2:49pm
Charles Chapman (mail) (www):

The following Daily Kos diary is not mine, but I thought people might find it of interest:

Youtube Video

Daily Kos Diary: Gay Iowa Senator explains why Iowa marriage won't be reversed
4.3.2009 3:03pm
ChrisIowa (mail):
Except that the earliest is 2011 as follows:

1. Pass the 83rd General Assembly (the Current One) Convening in January 2010.
2. An intervening General Election, November 2010.
3. Pass By the 84th General Assembly, which takes office and convenes in January 2011.
4. Special election directed by the legislature in 2011.

This was the general outline of events when the legislature passed prohibition amendments in IIRC 1884-86 and again later in 1914-15.

It isn't likely, but it is possible.
4.3.2009 3:09pm
Losantiville:
gay couples are "similarly situated"

Only Mods could think that gay and straight couples were similarly situated.

Sex (meaning XX or YY) is so important for "persons of same sex affection" that they have risked prosecution, execution, social oppression, etc. over the years to satisfy their desires.

If the difference makes that much difference, gays cannot logically argue that sex differences don't make a difference.

Gay and straight couples are not similarly situated. They are in very different places.

Couples w/o husbands or w/o wives are simply different.

I don't like government intervention in marriage at all (we should have left dom rel to the churches as it used to be).

But you don't cure a mistake - state licensing of marriage - by doing more of it. Certainly not if you are a libertarian. Remember, we don't believe in licensing.

The downside of SS civil marriage is that it will promote nonsense like the "no difference" argument above and lead to the oppression of religious majorities.

The upside is that it may eventually force circa 40% of the population out of the government propaganda mills (schools) and weaken those sources of vice, ignorance, high property taxes.
4.3.2009 3:11pm
Gary Anderson (mail):
You wonder, in retrospect, why the legal academics rejected the Equal Protection argument when arguing/predicting before legislatures that things like DOMA say, were constitutional.

I think this is another case, perhaps, of the academics in the towers being too cautious and their "expertise" not as valuable as originally claimed. Seems to me, many "experts" (in many fields really) are following right now, and any claims of specialty insight into the legalities of sexual orientation may just be suspect.

For the record, I think this is good for democracy. It's too bad when we rely on too many self-proclaimed experts to get a job done, or not.
4.3.2009 3:13pm
Gary Anderson (mail):
Say GregQ, logically it seems to me your argument only flies if Iowa currently denies marriage licenses to those heterosexual people unfit to procreate. If they're lettng the 50 and 60 year olds have a second and third go round with no chance of producing offspring themselves, then you really can't claim the marraige license is all about procreation, can you?

You must think Iowans are just dumb bunnies, eh?
4.3.2009 3:18pm
Joshua Johanson (mail) (www):
It is one thing to say gay people should be able to marry whoever they want, and completely other thing to say they are incapable of a fulfilling relationship with a member of the opposite sex. The Supreme Court decision read "Under such a law, gay or lesbian individuals cannot simultaneously fulfill their deeply felt need for a committed personal relationship." I'm very happily married to a woman and very fulfilled even though I am primarily attracted to men. For Iowa to say I am incapable of such a relationship is discriminatory. I wish they could have just said that anyone should be able to marry anyone they chose rather than saying I am incapable of loving my wife.
4.3.2009 3:19pm
cookedchicken:
Did the Iowa SC do an analysis that will avoid SCOTUS review?
4.3.2009 3:20pm
common sense (www):
Gary,
Can you clarify why you think this is good for democracy? I can see why you might think it is good for society, but I am having trouble seeing why a judicial ruling creating (or recognizing) a right is good for democracy, as opposed to the legislature. Or are you referring to experts being incorrect?
4.3.2009 3:21pm
Robert West (mail) (www):
CookedChicken, the IA SCT is interpreting Iowa's constitution. In general - although not always - the US Supreme Court will not take cases appealing a state supreme court's interpretation of the state constitution.
4.3.2009 3:21pm
Hans Bader:
Gay small business owners pondering marriage (but hoping to preserve pre-marital assets and avoid costly property battles over ownership and control of their small business in the event of divorce) might keep the following in mind when deciding which state to get married in:

In Iowa, unlike Connecticut, pre-nups are generally not allowed as to alimony, I think.

With regard to alimony, Iowa is echoed by Massachusetts, where waivers of alimony often aren't enforced by the judiciary under the theory that doing so is not "fair and reasonable." (The Connecticut test is the less judicially-activist "unconscionability" standard. Prenups are thus much more likely to be held valid in Connecticut).

What is "fair and reasonable" to Massachusetts judges is often UNreasonable to commentators and members of the public (see Overlawyered's discussion of Massachusetts's bizarre family law and rulings on prenups -- Massachusetts and New York have bizarre family law, much worse overall than Iowa or Connecticut).
4.3.2009 3:24pm
cookedchicken:
Yes, but check out:

http://www.law.cornell.edu/supct/html/02-695.ZS.html

Respondents initially claim that the Iowa Supreme
Court’s decision rests independently upon state law. And
they argue that this state-law holding bars review of the
federal issue. We disagree. The Iowa Supreme Court’s
opinion, after setting forth the language of both State and
Federal Equal Protection Clauses, says that “Iowa courtsare to ‘apply the same analysis in considering the state
equal protection claims as . . . in considering the federal
equal protection claim.’ ” Id., at 558. We have previously
held that, in such circumstances, we shall consider a state court decision as resting upon federal grounds sufficient to
support this Court’s jurisdiction. See Pennsylvania v.
Muniz, 496 U. S. 582, 588, n. 4 (1990) (no adequate and
independent state ground where the court says that state
and federal constitutional protections are “ ‘identical’ ”). Cf.
Michigan v. Long, 463 U. S. 1032, 1041–1042 (1983) (jurisdiction exists where federal cases are not “being used
only for the purpose of guidance” and instead are “compel[
ling] the result”). We therefore find that this Court
has jurisdiction to review the Iowa Supreme Court’s
determination.

--- then in today's opinion, check out this footnote:

And while plaintiffs have urged us to adopt a balancing standard, the parties' application of equal protection principles to the facts of this case has focused on the tiered approach. We also conclude we are able to adequately fulfill our "constitutional obligation as the highest court of this sovereign state to determine whether the challenged classification violates Iowa's constitutional equality provision" by using the traditional approach in this case. Id. at 4. While we once again reaffirm our sovereign authority "to employ a different analytical framework under state constitutional provisions," RACI II, 675 N.W.2d at 5, we decline to adopt a new approach in this case.

----

So now can SCOTUS review the decision since they applied the traditional framework just like RACI 1, and tell the Iowa Supreme Court you applied the traditional analysis wrong just like they did in RACI 2.
4.3.2009 3:27pm
aaronM (mail):
@Losantiville: "Sex (meaning XX or YY) . . . ."

I believe it's "XX or XY." You are obviously a product of one of those "government propaganda mills."

@Greg Q: "Do you ever wish that you were a decent human being, rather than a fundamentally dishonest one?"

Decent human beings don't use this sort of rhetoric.
4.3.2009 3:27pm
Gary Anderson (mail):
common,
Good for democracy = when gay people don't accept the limitations that legal academics would put on them based on their specialty knowledge (ie, the idea that legally, the Equal Protection argument was a weak one, so said many self-proclaimed experts on this legal topic)

Of course, to the layperson, DOMA was unconstitutional all along based on Equal Protection = discriminating against gender. So democracy is helped when we don't let the "experts" define the argument, the playing field, and tell us why we're better off holding onto the quiet rules that allow privileges for more elite gays, while their similary situated brothers and sisters are denied the same benefits and recognitions because they are unable to contract privately and individually for those same benefits.
4.3.2009 3:27pm
Losantiville:
excluding gay couples from marriage does not encourage heterosexual procreation or stabilize heterosexual relationships

Counter evidence:

The Luv Guv - two daughters by two wives.

Victoria Imogene Robinson - two daughters by one wife.

If the Luv Guv had spent all his time cruising Jersey Turnpike rest areas, those children would not have been produced.
4.3.2009 3:29pm
theobromophile (www):
Prof. Carpenter: a quick question for you. You said.
State judiciaries are beginning to follow a familiar pattern of hastening civil-rights progress for a group once that group's cause has achieved a measure of legislative success and cultural acceptance.

While gay marriage has gained more cultural acceptance as time goes on (uniting libertarians, liberals, and the youth vote, although fought by African-Americans), it has gained little or no legislative acceptance. Perhaps you were referring to civil unions...? Every citizen-lead ballot measure, however, has prohibited same-sex unions (a 30-0 record, IIRC, although that may not count Prop 8, which would bring it to 31-0).

Some of the reason I ask is because death penalty opponents frequently point to small shifts in the numbers of states that have executions as proof that society disavows the death penalty, but, obviously, gay marriage advocates do not have that avenue available to them.

DC: Good question. By the "group's cause" I mean not just gay marriage but the full range of gay-equality measures. In numerous ways the legislative progress toward equality for gay people over the past five decades has been remarkable. Public acceptance of the morality of homosexuality is at an all-time high, and the public now strongly supports both employment protection and opposes the ban on gays in the military.

Even focusing just on the marriage issue, there is now considerable legislative and public momentum behind the recognition of gay relationships in some form. The California legislature twice voted for gay marriage. Most recently, the Vermont legislature overwhelmingly supported it -- almost enough to overcome a threatened veto. Other states have recognized gay families in other forms, have elmininated discrimination in adoption services, allowed second-parent adoptions and so on. A majority of the public now favors either gay marriage or a substitute like civil unions, which would have been considered radical not long ago.

Obviously there has been and will continue to be resistance to all of these developments and there is nothing inevitable about any of this. But if you measure where we were 50, 25, or even 10 years ago against where we are now, the trend line is clear.

My suggestion is not a new or original one: judges follow and are influenced by these political and cultural developments. The particular form of that influence in this case is not just the marriage decision, but the suspect-class ruling.
4.3.2009 3:34pm
gwinje:
Although I'm happy for and proud of my fellow Hawkeyes, this is the state that gave us Steve "Dumbest Man in Congress" King, so until the inevitable amendment is shot down for good, we'll have to:

[ ] "Fight! Fight! Fight! for IOWA,
Let every loyal Iowan sing;
The word is "Fight! Fight! Fight! for IOWA,"
Until the walls and rafters ring (Go Hawks!)
Come on and cheer, cheer, cheer, for IOWA
Come on and cheer until you hear the final gun.
The word is "Fight! Fight! Fight! for IOWA,"
Until the game is won
4.3.2009 3:35pm
Bob VB (mail):
I don't like government intervention in marriage at all (we should have left dom rel to the churches as it used to be).

Got it backwards, marriage has been an individual decision of the married couple and civil for much longer than its been coo-pted by religion. Until the Catholic church promoted themselves as the sole registrar of marriages in the 14th century most people married by choice and 'common law'.

Its time to get the churches out of the marriage business other than those that want to through that ritual.
4.3.2009 3:36pm
Losantiville:
logically it seems to me your argument only flies if Iowa currently denies marriage licenses to those heterosexual people unfit to procreate.

A social or legal arrangement can encourage something w/o having a universal effect.

For example, if smoking is discouraged (socially or legally) it will still be reduced even if some people smoke.

Effects on the margins.

In any case, marriage by mature persons serves to both encourage procreation (Strom Thurmond) and to model the behavior that is meant to be encouraged. Patterning don't you know.

Lewd cohabitation and/or sodomy (if widespread) encourage lewd cohabitation and sodomy to the detriment of the existence and upbringing of children.

Even those who believe that lewd cohabitation and/or sodomy are fabulous ways to organize society, cannot argue that such societies won't differ substantially from societies that discourage (either socially or legally) lewd cohabitation and/or sodomy.

If there's a difference then the court's claim that there is no difference is false.
4.3.2009 3:46pm
Robert West (mail) (www):
Every citizen-lead ballot measure, however, has prohibited same-sex unions

I think this is imprecise. Proposition 8, for example, prohibited gay marriages, but did not speak one way or another about the legislatively authorized domestic partnerships. Since the rhetoric of the supporters of Proposition 8, as demonstrated by their arguments in the ballot pamphlet, was that the measure would not undo domestic partnerships, it seems unlikely that a California court, or the executive, would agree that the measure prohibited same-sex unions. It just prohibited unions called marriages.
4.3.2009 3:48pm
Robert West (mail) (www):
ie, the idea that legally, the Equal Protection argument was a weak one, so said many self-proclaimed experts on this legal topic

It seems unlikely that the US Supreme Court would interpret the federal constitution this way.

Although who knows? I count 4-4 on it, to be honest, with Kennedy in the middle.
4.3.2009 3:50pm
zuch (mail) (www):
One has to wonder what the impetus is to try and "fix" this "travesty" ASAP. Surely the world won't collapse if teh gay aren't banned from marrying until 2012 ... or later.

It's kind of like the flag-burning amendments: A solution in search of a problem....

But for some strange reason, it's a burning issue of the utmost urgency for some people ... albeit not the people that such an amendment would actually affect.

Cheers,
4.3.2009 3:51pm
Ex parte McCardle:
Dale: thanks for putting Greg Q where "he" belongs, per the VC Comment Policy. His contribution served no purpose.
4.3.2009 3:52pm
Losantiville:
aaronM
@Losantiville: "Sex (meaning XX or YY) . . . ."


Sorry for the typo. You're right Sex (meaning XX or XY). These things happen in short form communications...

Or maybe it's because I'm XY and we bear the burden of numerous defects to support bisexual repro. I'm partially color blind for example.
4.3.2009 3:53pm
Bob VB (mail):
In any case, marriage by mature persons serves to both encourage procreation (Strom Thurmond) and to model the behavior that is meant to be encouraged. Patterning don't you know.

Argument FOR marriage equality - marriage is the gold universal standard regardless of your personal breeding potential and the tiny number of same gender couples in all areas is dwarfed by the number of non-breeding same gender couples.

Lewd cohabitation and/or sodomy (if widespread) encourage lewd cohabitation and sodomy to the detriment of the existence and upbringing of children.

Again, an argument FOR marriage equality - if you are going to have sex you should be married regardless of the couple's gender combination. (and since the vast of married couples are sodomous it is still an incremental difference at best.)
4.3.2009 3:55pm
Bob VB (mail):
sorry "non-breeding OPPOSITE gender couples"
4.3.2009 3:57pm
ruuffles (mail) (www):

In any case, marriage by mature persons serves to both encourage procreation (Strom Thurmond) and to model the behavior that is meant to be encouraged. Patterning don't you know.

Oh wow. Yeah, Strom Thurmond really was a model for procreation, even went the equal opportunity route for choosing the mother.
4.3.2009 3:59pm
Randy R. (mail):
"Sex (meaning XX or YY) is so important for "persons of same sex affection" that they have risked prosecution, execution, social oppression, etc. over the years to satisfy their desires. "

Yes, because I have such a burning desire for lewd sex and sodomy, I'm willing to risk my very life to satisfy such perverted desires. That's just how sick I really am!

zuch: "One has to wonder what the impetus is to try and "fix" this "travesty" ASAP. Surely the world won't collapse if teh gay aren't banned from marrying until 2012 ... or later."

Nope. The world won't collapse. But I suspect that if you decided to get married, (or had to get married, because you knocked up a girl), you would probably chaff at having to wait four years for the mere possibility.

Let's try this one: Let's see if the price of corn had dropped in Iowa now that SSM is legal. Or will divorce rise? Wife beatings increase?

Oh gosh. Some men might actually engage in sodomy now, because we all know that they would *never* have done it with SSM banned....
4.3.2009 4:02pm
Nano:

The exclusion of same-sex couples from marriage is a form of sexual-orientation discrimination

I think this is the wrong way to get there.

It is, IMHO, a gender discrimination issue, not a sexual-orientation issue.

If 2 people go to get a marriage license, and one is male, and the other is male, the license is denied based on gender of the applicant, not their sexual orientation. I personally know a woman, who is faithfully and completely lesbian, and has been all her life, who married a heterosexual male friend in a southern state, who was dying from cancer. Yes, it was for various legal reasons, but they were dear, close friends for many years, and it was out of that love and friendship that they did it.... not just taxes and benefits.

Plus, there is no question on the form about sexual orientation. If a man and a woman, who were both committed homosexuals, and announced it so, they would not be denied a license to marry each other.
4.3.2009 4:09pm
Steve P. (mail):
If 'lewd cohabitation' is undesirable, shouldn't those people lewdly cohabitating get married instead?

Also, I'm not sure that the sodomy argument holds much water. Knowing that two men are sleeping together doesn't make me want to have sex with a man. In fact, I'd even venture to say that a gay couple could have sex right in front of me, and I wouldn't want to join in. Do you feel differently, Losantiville?
4.3.2009 4:11pm
Perseus (mail):
Say GregQ, logically it seems to me your argument only flies if Iowa currently denies marriage licenses to those heterosexual people unfit to procreate.

Just because the policy is over-inclusive isn't much of an argument for making it more so (if that logic were rigorously applied, few, if any, policies would pass muster).

Again, an argument FOR marriage equality - if you are going to have sex you should be married regardless of the couple's gender combination.

Not when advocates of SSM (e.g., Andrew Sullivan) seem to think that "open relationships" are perfectly acceptable.
4.3.2009 4:13pm
Gary Anderson (mail):
Yes, because I have such a burning desire for lewd sex and sodomy, I'm willing to risk my very life to satisfy such perverted desires. That's just how sick I really am!

Say RandyR., although I'm not in Iowa, it is Friday night, and although you needent risk your life or anything ... are you by chance busy later tonight??

;-)
4.3.2009 4:18pm
Bob VB (mail):
Not when advocates of SSM (e.g., Andrew Sullivan) seem to think that "open relationships" are perfectly acceptable.

As opposed to all the heterosexual 'swingers' couples that are married and advocate open relationships by example? AS speaks for himself and is entitled to his opinion just as straight people are but as was pointed out

"A social or legal arrangement can encourage something w/o having a universal effect."
4.3.2009 4:19pm
Adam J:
Losantiville- I'm confused, how does pointing out McGreevy's proclivity to visit rest stops show that excluding gay couples from marriage stabilizes heterosexual relationships? Do you really think we're doing society any favors by encouraging procreation by sexually confused and gay men and women... I'm sure children just thrive in that kind of household.
4.3.2009 4:22pm
CMH:

So now can SCOTUS review the decision since they applied the traditional framework just like RACI 1, and tell the Iowa Supreme Court you applied the traditional analysis wrong just like they did in RACI 2.


Tough question, I think. There's statements in the opinion like the one you quoted above, but there's also statements like this one:


Plaintiffs' challenge to Iowa Code section 595.2 is based on the equal protection guarantee in the Iowa Constitution and does not implicate federal constitutional protections. Generally, we view the federal and state equal protection clauses as "identical in scope, import, and purpose." Callender, 591 N.W.2d at 187. At the same time, we have jealously guarded our right to "employ a different analytical framework" under the state equal protection clause as well as to independently apply the federally formulated principles. Racing Ass'n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 4--7 (Iowa 2004). Here again, we find federal precedent instructive in interpreting the Iowa Constitution, but we refuse to follow it blindly.



Frankly, for a state court decision that seems to me plainly intended to evade Supreme Court review, it looks like they did a pretty poor job.

That being said, as a practical matter, I'm not sure this case presents the right vehicle for SCOTUS review. They probably could (i.e., would have jurisdiction to do so), but it seems the likely result (assuming reversal) would be another decision by the Iowa court with the exact same result. If I'm sitting on the Supreme Court, I'm going to wait for a case that either challenges federal law or a decision from a state that doesn't have the same wiggle room with respect to state constitutional guarantees as Iowa has (or claims to have).

There's probably some parallels on the adequate and independent state ground issue here between this opinion and that of the Oregon Supreme Court in the tobacco punitive damage case that the Supreme Court just DIG'ed - But on a Friday afternoon, I'm not exactly sure what they are...
4.3.2009 4:23pm
Nano:

Every citizen-lead ballot measure, however, has prohibited same-sex unions (a 30-0 record, IIRC, although that may not count Prop 8, which would bring it to 31-0).


Oh yea... let's have mob rule. I remember the majority voting for segregation, yet the constitutional rights prevailed over the opposition of the "majority" of the people. Or how about that nativity scene at City Hall.... or the (pick one Skinheads, Communists, Klan, etc.) marching down main street...

Constitutional rights are there to protect the minority from mob rule.
4.3.2009 4:23pm
trad and anon (mail):

aaronM
@Losantiville: "Sex (meaning XX or YY) . . . ."

Sorry for the typo. You're right Sex (meaning XX or XY).


Wrong! As a general matter, sex is determined by the SRY gene. SRY is typically found on the Y chromosome but may not be and may also appear on the X chromosome, which means there are XY females and XX males, though they're generally infertile. And of course you have people who are neither XX nor XY: XXY (usually male), triple-X (usually female) and so forth. Mutations in the SRY gene can also produce androgen insensitivity syndrome, which typically results in a female external appearance.

Often people with these sorts of genotypes have various intersex characteristics (e.g., people with AIS often have undescended testes); I think intersex characteristics can be produced by other genes as well. The key point though is that female = XX, male = XY is a very poor definition.
4.3.2009 4:26pm
DangerMouse:
Meh. I have no doubt this ruling will be overturned by a Constitutional Amendment. It's really only a matter of time.

I hope people don't waste their time reading the opinion as if it were a legal argument. It isn't. It's just more grandstanding and moralizing from elitist lawyers who want to impose their views on the citizens.

The real problem is that the judges had the ability to force this upon the people in the first place. They should be subject to recall and removal from the bench. Additionally, the remedy is too onerous. States may want to consider revising their Constitutions to update them in response to threats to democracy from the judiciary. I'm from NJ and its constitution was adopted in 1947 - not entirely ancient. Some states might want to hold Constitutional Conventions or pass amendments to put checks on the Courts, which are the enemy of free people.
4.3.2009 4:27pm
Gary Anderson (mail):
DangerMouse = sore loser me thinks.
4.3.2009 4:33pm
trad and anon (mail):
Meh. I have no doubt this ruling will be overturned by a Constitutional Amendment. It's really only a matter of time.
I wouldn't be quite so sure of that; it's a somewhat onerous process. I do worry though.
I hope people don't waste their time reading the opinion as if it were a legal argument. It isn't. It's just more grandstanding and moralizing from elitist lawyers who want to impose their views on the citizens.
It sure reads like a legal argument to me.
The real problem is that the judges had the ability to force this upon the people in the first place.
Are you serious? You want to take away the power of judicial review from the courts and forbid them to overturn unconstitutional laws?

This isn't that complicated: the Iowa law in question was unconstitutional. The Iowa Supreme Court overturned it for that reason.
Additionally, the remedy is too onerous.
The remedy is too onerous? The state has to give out a marriage license to a fairly small number of people: it doesn't sound that onerous to me. What remedy would you prefer?
4.3.2009 4:38pm
Captain Obvious:
I'm a little confused how a capacity to benefit from a licensing procedure implies an entitlement to do so...
I definitely have a capacity to benefit by being bar-certified... will the state issue me such a license without taking the exam (or for that matter having any formal legal education)?
4.3.2009 4:40pm
Losantiville:
Footnote 26 "the traditional notion that children need a mother and a father to be raised into healthy, well adjusted adults is based more on stereotype than anything else."

I love these social experiments.

I know, mothers and fathers are utterly useless. They can be disposed of at will. In fact, you're probably better off in one of Obama's creches. That would really stimulate the economy, wouldn't it, to socialize child rearing.

Old notion among commies back in the 19th century. Didn't get too far back then.

Keeping a disorderly house is great for kids.
4.3.2009 4:40pm
trad and anon (mail):
I'm a little confused how a capacity to benefit from a licensing procedure implies an entitlement to do so...
It doesn't. But the state is not allowed to discriminate in offering the licenses without at least a rational basis, or, in the case of a suspect classification, a better reason than that. You can't hand out law licenses to "legitimately" conceived people but not to the illegitimate (i.e. those whose parents were not married) because legitimacy is a suspect classification. In this case, the Iowa court found that sexual orientation is a suspect classification entitled to at least intermediate scrutiny, and that there is no exceedingly persuasive justification for the distinction.

It's also worth pointing out that under our system of government there is a fundamental right to this particular license, though that was not the basis for the Iowa court's decision. See Loving v. Virginia, Zablocki v. Redhail, Turner v. Safley.
4.3.2009 4:50pm
Perseus (mail):
As opposed to all the heterosexual 'swingers' couples that are married and advocate open relationships by example?

Adding more people to the mix who are not wed to traditional notions of monogamy and fidelity only makes matters worse.
4.3.2009 4:51pm
aaronM (mail):
Losantiville:

You read more into that footnote than I (or, I think, most people) do. It says nothing about disposing of mothers or fathers. It simply points out what any person capable of observing reality knows. Two parents of the opposite sex are not the key ingredient in raising healthy, well-adjusted adults. Witness all of the non-healthy, poorly adjusted adults who come out of families with a mother and a father. Or the healthy, well-adjusted people who come out of single-parent households. I know that such Commie observations might not be popular in 'Merica, but in the real world, they can be quite helpful.
4.3.2009 4:52pm
DangerMouse:
Gary, you interpret a "meh" as me being a sore loser? Sheesh. I didn't use any exclamation points or all-caps or anything else. Methinks you're just upset that I'm very confident this will be overturned.

Trad,

By remedy, I mean the onorous requirements for a Constitutional Amendment. If they want a Constitutional Amendment, I don't see the need to wait for intervening elections, etc. Maybe they can get rid of that stuff with a supermajority requirement or something. The US Constitution doesn't require an intervening election, but it does have supermajority requirements.

Are you serious? You want to take away the power of judicial review from the courts and forbid them to overturn unconstitutional laws?

The court can be wrong, you know. The solution is to have in place a way to correct a court that declares something to be unconstitutional when it's obviously constitutional, or declares something constitutional when it's obviously unconstitutional. Either the amendment process can be streamlined so that it's easy for the people to overturn such decisions on a routine basis whenever it happens, or some other institutional practices can be designed so that the judges don't enforce their own personal views on the people through the cloak of constitutionality. Such other practices can be easy recall drives, for instance.

Institutionally speaking, the Constitution is of the people, by the people, and for the people. Not the of, by, and for the judges. The people are sovereign, not the judges. So I'm in favor of streamlining the amendment process to permit the people to overturn incorrect Court decisions. Or maybe court decisions of a constitutional nature could be put to the people for a vote for ratification.

It'd be nice if, once this decision is overturned with an amendment, the underlying problem of elitist judges is also fixed.
4.3.2009 4:53pm
Hans Bader:
I don't object to gay marriage. It's probably a good idea to allow it.

But there's lots of empty blather in the Varnum v. Brien decision, as Ed Whelan has noted, like this on pp. 16-17:

(1) "[E]qual protection can only be defined by the standards of each generation."

Meaning ad hoc standards made up the judges, presumably (not including the members of the present "generation" who adopted the statute the court struck down). And:

(2) "The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society's understanding of equal protection resistant to change."

Dense, impenetrable psychobabble.

It also contains some factually dubious statements, such as:

"The traditional notion that children need a mother and a father to be raised into healthy, well-adjusted adults is based more on stereotype than anything else."

Actually, there's a big benefit to having two parents rather than one, and a small additional benefit in terms of role-modeling to having parents of both sexes.

The California Supreme Court's decision was more defensible. It could point to prior state appellate decisions treating non-racial classifications as suspect (like its 1970 Sail'er Inn decision treating sex as suspect class, and intermediate appellate decisions in the 1990s treating sexual orientation the same way), which lent some support to its decision legalizing gay marriage. And the fact that the voters never overturned those decisions, although they could have done so simply through referendum.

But there was no such history of that in Iowa, at least none cited by the Iowa Supreme Court. It makes its opinion seem weaker.
4.3.2009 4:56pm
cmr:
Oh yea... let's have mob rule. I remember the majority voting for segregation, yet the constitutional rights prevailed over the opposition of the "majority" of the people. Or how about that nativity scene at City Hall.... or the (pick one Skinheads, Communists, Klan, etc.) marching down main street...

Constitutional rights are there to protect the minority from mob rule.


Why is the expectation that if you're to make changes to an age-old institution and assert that it doesn't mean, or should mean something different than what most people view it to mean, that you at least have some kind of popular consensus? I wonder how many times "tyranny of the majority" was uttered when discussing segregation. Gay marriage supporters say that phrase, on average, about a hundred times more than I've ever heard someone use it to describe the treatment of whites to blacks.

In this context, gays aren't the minority because they're gay. They're the minority because their policy beliefs aren't popular. In that light, straight people who agree with same-sex marriage are also in the minority. You actually don't have a "right" (see: entitlement) to win this issue.

It sure reads like a legal argument to me.


More like, "you agree with it, therefore it's a legal argument". I doubt you even read it.


It's also worth pointing out that under our system of government there is a fundamental right to this particular license, though that was not the basis for the Iowa court's decision. See Loving v. Virginia, Zablocki v. Redhail, Turner v. Safley.


It's also worth pointing out that under our system of government, this license has long-established restrictions, i.e. polygamy, beastiality, pedophilia, and homosexual relationships. Since none of the cases you mentioned dealt with same-sex couples (or any of the other couples I listed), I'd say you're being knowingly disingenuous.
4.3.2009 5:02pm
martinned (mail) (www):

That being said, as a practical matter, I'm not sure this case presents the right vehicle for SCOTUS review. They probably could (i.e., would have jurisdiction to do so), but it seems the likely result (assuming reversal) would be another decision by the Iowa court with the exact same result. If I'm sitting on the Supreme Court, I'm going to wait for a case that either challenges federal law or a decision from a state that doesn't have the same wiggle room with respect to state constitutional guarantees as Iowa has (or claims to have).

What's the legal basis for SCOTUS review in this kind of case anyway? I always assumed that the constitution required - explicitly (9A) or implicitly - that SCOTUS could only rule on federal law. So if the Iowa supreme court hands down a ruling based entirely on Iowa law, how could SCOTUS touch it?
4.3.2009 5:04pm
einhverfr (mail) (www):
Robert West:

It seems unlikely that the US Supreme Court would interpret the federal constitution this way.

Although who knows? I count 4-4 on it, to be honest, with Kennedy in the middle.


That is a tough one. By my count....

Thomas might be a hard one to convince (given the wording of his dissent in Lawrence) that rational basis review was met by such a ban. If anti-sodomy laws are "uncommonly silly" and a waste of valuable law enforcement resources.... Let's count him FOR an equal protection argument.

Certainly Scalia would seem to support such a ban. Count him against.....

The rest of the Lawrence court still sitting.... tough call... Lets assume Stevens voting against a gay marriage ban on the equal protection basis... Lets set them aside for a moment.

As for Roberts, my guess is he would come out against an equal protection argument if possible, same with Alito, but I am quite unsure of this.

Hence I count one solid vote against, at least one (Thomas) for, and the rest up in the air..... This is unless we assume that THomas doesn't agree with the need for rational basis review in this case. I would guess on a 6-3 vote for an equal protection argument, but this is just a wild guess.
4.3.2009 5:05pm
einhverfr (mail) (www):
Hans Bader:



(1) "[E]qual protection can only be defined by the standards of each generation."

Meaning ad hoc standards made up the judges, presumably (not including the members of the present "generation" who adopted the statute the court struck down).


Or maybe one can paraphrase this as "circumstances involving equal protection are subject to frequent change and so require frequent re-evaluation."

I think that changing circumstances are quite valid arguments for revising otherwise settled issues in court (for example, collateral estoppel, precedent, etc).
4.3.2009 5:08pm
zuch (mail) (www):
Hans Bader:
Actually, there's a big benefit to having two parents rather than one, and a small additional benefit in terms of role-modeling to having parents of both sexes.
Well, then, I guess the proper 'solution' is to 'correct' the cardinality and gender of the parents, surgically if necessary. While we're at it, we should consider other means to 'fix up' other state-defined types of non-optimal parents ... and who knows, maybe we'll find with sufficient research that fundie parents stifle the potential and the development of kids; it's not altogether inconceivable. Perhaps advances in brain surgery or stem cells will help. It's for the kids' sake, you know.

In the meanwhile, perhaps we ought not spend so much effort in thinly veiled homophobia and moralising, and concentrate on other means of making sure kids end up all they can be....

Cheers,
4.3.2009 5:10pm
cboldt (mail):
[so-called fundamental rights protected by the constitution] are subject to frequent change and so require frequent re-evaluation.
.
No sweat. All that needs to be done is correct the public understanding of "fundamental."
4.3.2009 5:12pm
Gary Anderson (mail):
DangerMouse:
Not the "meh", but the:

I hope people don't waste their time reading the opinion as if it were a legal argument. It isn't. It's just more grandstanding and moralizing from elitist lawyers who want to impose their views on the citizens.


That has "sore loser" written all over it.
4.3.2009 5:15pm
einhverfr (mail) (www):
Dangermouse:

The court can be wrong, you know. The solution is to have in place a way to correct a court that declares something to be unconstitutional when it's obviously constitutional, or declares something constitutional when it's obviously unconstitutional. Either the amendment process can be streamlined so that it's easy for the people to overturn such decisions on a routine basis whenever it happens, or some other institutional practices can be designed so that the judges don't enforce their own personal views on the people through the cloak of constitutionality. Such other practices can be easy recall drives, for instance.


The court can be wrong. Currently the solution is to convince them that they are wrong or pass a Constitutional Amendment by proper channels.

However, let's focus on your other two points: "Obvious" constitutionality and its relationship to the Amendment process and judges' personal views.

The first of these presupposes that it is patently obvious to everyone (including, from the likes of this, all outsiders such as Dangermouse who are probably unfamiliar with Iowa state law) what every state Constitution requires on this subject. I think if it was patently obvious, the court would have obviously ruled the other way. A court ruling you disagree with should be evidence that the issues are not as patently obvious as you think. If we open up the amendment process, then we risk having very few firm protections in the Constitution at all.

The second question involves judges' personal beliefs. Here I think it is a matter of separating personal policy beliefs from personal beliefs about judicial methodology. A good example of a US Supreme Court judge who does not seem to be able to make such a distinction is Scalia, and a good example of one who does seems to be Thomas (contrast their dissents on Lawrence v. Texas for a great example). It IS possible to keep personal beliefs about sound policy out of the judicial process, but it is FUNDAMENTALLY impossible to keep personal beliefs about judicial methodology out of the process.

So for example, in Lawrence, Thomas characterized the Texas law as "uncommonly silly," said he wouldn't have voted for it and thought it was a waste of law enforcement resources. It seemed from his dissent that issues of rational basis review weren't brought up but that if they were, he might have sided towards striking down the law on that basis. On the other hand, Scalia seemed to think that protecting society from gays was a good thing and therefore a compelling interest. In this regard, the ONLY opinion in that case that was activist in its tone or reasoning was Scalia's.
4.3.2009 5:25pm
trad and anon (mail):
The court can be wrong, you know.
It sure can. This time it isn't.
4.3.2009 5:26pm
Disintelligentsia (mail):
For everyone arguing that marriage does not equal sex, from a largely societal aspect I would say it was about sex. The historical sanctions against sex outside of marriage -- adultery, fornication, homosexual sex, prostitution, etc. can only be explained by the societal determination that sexual concourse was only protected and sanctioned in a marriage. The elimination of criminal sanction for sexual acts, the elimination of "for cause" divorce and Griswold and its legal progeny all lead necessarily to today's ruling in Iowa. The talk about homosexuals being a discrete and powerless population are somewhat besides the point. The question becomes one of, have we as a society concluded that sexual relations are outside the scope of state regulation? What manner of sexual relations can be regulated and how? That's a rather complex question that's better left to democratic institutions and not the courts.
4.3.2009 5:31pm
Gary Anderson (mail):
Say, how long do you folks think it will take Instapundit, the comprehensive law blogger, to deign to post an item on this ruling?

Maybe he still hasn't heard yet? I sure hope that's the reason for his delay...
4.3.2009 5:32pm
Owen Hutchins (mail):
Losantiville wrote:

Footnote 26 "the traditional notion that children need a mother and a father to be raised into healthy, well adjusted adults is based more on stereotype than anything else."

I love these social experiments.

I know, mothers and fathers are utterly useless. They can be disposed of at will. In fact, you're probably better off in one of Obama's creches. That would really stimulate the economy, wouldn't it, to socialize child rearing.

Old notion among commies back in the 19th century. Didn't get too far back then.

Keeping a disorderly house is great for kids.


Even if a Father/Mother couple is the best (I don't agree, kids raised by same-sex couples turn out just like most other kids), when did we mandate that children could only be raised in perfect, ideal circumstances?
4.3.2009 5:32pm
wooga:

(5) There were five objectives advanced by the government: (a) tradition, (b) promoting the optimal environment for children, (c) promoting procreation, (d) promoting stability in opposite-sex relationships, and (e) preservation of state resources.


I'm surprised the government did not advance "morality" as an objective. That's a fully proper and important governmental objective. It's one thing if the court had ruled that the 'equal protection' interests outweigh the 'preservation of morality' interest, but for the state to abandon morality as a legitimate governmental objective is very, very telling.

Next stop, declare laws against public nudity unconstitutional! I was born naked, and have every right to mow my lawn naked. After all, what legitimate governmental interest is there, but morality? (no pun intended)
4.3.2009 5:46pm
John D (mail):
Ah, the sodomy argument.

I want a dollar for every incident of heterosexual sodomy this weekend (in the place it happens, that's between 5 p.m. Friday and 5 a.m. Monday).

I'm writing this as clean as I can. Bear with me, or skip.
That means if a man receives fellatio from his female partner, I get a buck. If he then returns the favor, I get another buck. Rubbing the penis against portions of the body? Ka-ching!

If everyone sends their cash in quickly, I can retire before next weekend.
4.3.2009 5:47pm
Bob VB (mail):
Adding more people to the mix who are not wed to traditional notions of monogamy and fidelity only makes matters worse.

Hmmm you mentioned one additional, Andrew Sullivan. Or are you conveniently stereotyping that same gender married couples as open and opposite gender ones as closed?

Makes the discussion so much easier for you I'm sure but is it a valid stereotype?

when did we mandate that children could only be raised in perfect, ideal circumstances?

So true, the 3 most important factors for successful child rearing are:

stable home environment > wealth > 2 parents >> everything else.

If 2 same gender parents significantly effect child-rearing outcome I'd really be glad to hear it - all the studies so far can't find it so if there is one its way down in the 'everything else' category that we don't regulate either.
4.3.2009 5:48pm
Bob VB (mail):
Next stop, declare laws against public nudity unconstitutional! I was born naked, and have every right to mow my lawn naked. After all, what legitimate governmental interest is there, but morality? (no pun intended)

Well if you lived in a civilized part of the world you could like you can is Seattle if you just gotta do it.
4.3.2009 5:49pm
einhverfr (mail) (www):


Even if a Father/Mother couple is the best (I don't agree, kids raised by same-sex couples turn out just like most other kids), when did we mandate that children could only be raised in perfect, ideal circumstances?


Right. Would the state withold welfare benefits from single moms? What about single dads? Wouldn't it be better if a couple divorces to send the kids to 2-parent foster homes?
4.3.2009 5:50pm
wooga:

Oh yea... let's have mob rule. I remember the majority voting for segregation, yet the constitutional rights prevailed over the opposition of the "majority" of the people. Or how about that nativity scene at City Hall.... or the (pick one Skinheads, Communists, Klan, etc.) marching down main street...

Constitutional rights are there to protect the minority from mob rule.


Nano, the Constitution only exists because of mob rule. If the 'mob' amended the Constitution, slavery could be legalized, official state religions would flourish again, and the Klan and Communist Party could be outlawed.

"Judicial lords are there to protect the mob from their own inferior selves." Personally, I would prefer to be led by the mob than the entire faculty of Harvard Law.
4.3.2009 5:58pm
wooga:
The "quote" in my post above was supposed to be an example of what I thought Nano really meant.
4.3.2009 5:59pm
einhverfr (mail) (www):

Well if you lived in a civilized part of the world you could like you can is Seattle if you just gotta do it.


Learn something nude every day.....
4.3.2009 6:02pm
Randy R. (mail):
I'm at least glad to see the arguments against SSM are narrowing. Can't blame this one on east coast liberals. Can't blame it on gays, as it doesn't appear any of the judges are gay. Can't argue that SSM destroys anything, because so many places now have it.

I guess all that's left to argue is that gays are really, really bad people.
4.3.2009 6:11pm
John A (mail):

(7) Religious objections to same-sex marriage cannot control the definition of marriage, which is a "civil contract" under Iowa statute.


Despite calling it a "marriage" license, does any State actually currently define it as other than a "civil contract?" Like papers incorporating a company or business partnership?

And then there is the "religion" aspect. A couple of years back, despite being neither a lawyer nor [much of] a prospect for marriage, I looked up the law concerning the issuance of "marriage" licenses here in RI. I wonder how many people know that representatives of only six religions may apply to legally sign the license? Get married in a Buddhist ceremony, fine, but the State will not recognize the union unless a secular government employee (judge, Clerk of the Supreme Court, the Sherrif of one particular County) affixes a signature.
4.3.2009 6:11pm
Jack Twombly (mail):
If you look to how much the Supreme Court of Iowa relies on federal cases, scholarship discussing federal law, and federal principles of constitutionalism, it should be quite obvious that the decision may be properly appealed to SCOTUS. State Tax Commision v. Van Cott, at 306 US 511, makes that clear.
4.3.2009 6:14pm
einhverfr (mail) (www):

For everyone arguing that marriage does not equal sex, from a largely societal aspect I would say it was about sex. The historical sanctions against sex outside of marriage -- adultery, fornication, homosexual sex, prostitution, etc. can only be explained by the societal determination that sexual concourse was only protected and sanctioned in a marriage.


Most often, in traditional societies, this is because marriages tend to be about family alliances, cemented by joint new family relations (including the offspring of the marriage). There are still plenty of parts of the world where THIS is the fundamental social function of marriage. Heck, my wife is from Indonesia, and this sort of expectation (that marriage is about family alliance) is still very much alive there.

If you think about it, adultery ends up undermining this sort of social network, as can all of the other issues. Also, in my wife's culture (Chinese-Indonesian), widows/widowers don't usually remarry for the same reason: it complicates the family connections. I understand that among many classes in India, the same considerations occur.

Moving marriage from the "alliance of families" domain to the "individual choice" domain has resulted in a large number of predictable erosions in sexual behavior controls. In general, these erosions are mostly (not entirely, but mostly) socially innocuous. I don't see a problem.
4.3.2009 6:19pm
Randy R. (mail):
Gary: "Say RandyR., although I'm not in Iowa, it is Friday night, and although you needent risk your life or anything ... are you by chance busy later tonight??"

Sorry, I only have lewd sex with married men. Or my brother.

Nothing personal, you know......
4.3.2009 6:20pm
Gary Anderson (mail):
Lol. You're a baaaaaad boy, Randy R. There really should be a law against that ...
4.3.2009 6:23pm
martinned (mail) (www):

If you look to how much the Supreme Court of Iowa relies on federal cases, scholarship discussing federal law, and federal principles of constitutionalism, it should be quite obvious that the decision may be properly appealed to SCOTUS. State Tax Commision v. Van Cott, at 306 US 511, makes that clear.

I asked about that before, so thanks for the cite. Still, as a matter of policy, none of the federal law the Iowa court cite is controlling, so why should SCOTUS have a say?
4.3.2009 6:24pm
Randy R. (mail):
disintelligentsia: ":The question becomes one of, have we as a society concluded that sexual relations are outside the scope of state regulation? "

Since, Lawrence v. Texas, yes of course.

"What manner of sexual relations can be regulated and how? That's a rather complex question that's better left to democratic institutions and not the courts."

No, it isn't. Why would you want to regulate any sex between two consenting adults?

Now, of course, if they adults are not consenting, you can regulate that, and we do, with rape laws. If one is not an adult, it is prohibited via statutory rape laws. Except in Texas, most states have laws against bestiality.

No one is arguing that these laws be repealed. But otherwise, you really want to go back to pre-Lawerence, where some states made it illegal for you to get a blow job from your lawfully wedded wife? For what purpose?
4.3.2009 6:25pm
Randy R. (mail):
cmr: "It's also worth pointing out that under our system of government, this license has long-established restrictions, i.e. polygamy, beastiality, pedophilia, and homosexual relationships. Since none of the cases you mentioned dealt with same-sex couples (or any of the other couples I listed), I'd say you're being knowingly disingenuous."

And of course, if any of those cases DID meantion same sex couples, you would conclude that that isn't a 'legal' argument, and the case is invalid. So naturally, you are being disingenuous, because you have already made up your mind that gays shouldn't ever be able to get married, regardless of any argument of any kind.
4.3.2009 6:31pm
ShelbyC:

No, it isn't. Why would you want to regulate any sex between two consenting adults?



Dunno, but we do it all the time: prostitution, laws probhiting contact between doctors, patients, etc, time, place and manner restrictions.
4.3.2009 6:34pm
martinned (mail) (www):
@Jack Twombly: Having now read that Van Cott ruling, I don't think that case would control here. Today's ruling applies SCOTUS 14A case law by analogy, while retaining the freedom to deviate if and when the Iowa Supreme Court thinks this is necessary and proper.

The Van Cott case, on the other hand, was based jointly on a Utah (tax) statute and on the SCOTUS case law that required the rule at issue. The logic went as follows: SCOTUS rule says that a state can't tax income derived from the federal government --> Utah write its tax statute --> parties argue about whether that statute exempts income derived from the federal government.

I don't see how that precedent would allow SCOTUS to rule in this Iowa case.
4.3.2009 6:35pm
trad and anon (mail):
Also prosecuting people for battery for engaging in BDSM.
4.3.2009 6:36pm
ReaderY:
It all depends on what one means by "similarly situated". Are same-sex employers or single-gender schools similarly situated to sexually integrated ones? They would seem to have a better claim to be. They can the same economic functions much more similarly than a single-gender marriage can perform reproductive functions. And everything in the opinion applies -- they have a similar commitment level and self-respect, etc., etc. And denying persons of preference the opportunity to be employers denies them the ability to be economically mobile in society.

Moreover, of the three interests traditionally given for prohibiting sexual preference in education or employment -- preventing it from becoming so in-fashion that it denies people who wish to become employees or students in opposite-gender institutions an opportunity to do so, preventing an undue imbalance of power among the genders from arising by requiring them to integrate socially, and the moral idea that sexual preference in education or employment which denies people an opportunity to participate in an institution solely because of their gender is somehow bad or sinful, the only interest specifically endorsed by the U.S. Supreme Court, implementing morality (See Heart of Atlanta Hotel), is the only one mentioned and deemed inadequate.
4.3.2009 6:36pm
cookedchicken:
martinned

Check out: http://www.law.cornell.edu/supct/html/02-695.ZS.html

Technically the US Supreme Court can have jurisdiction in these types of cases if the State Court relies on the same kind of analysis done when interpreting the federal constitution when interpreting similar clauses of their State Constitution. In todays decision there is some references that the Iowa Supreme Ct was just using the typical federal analysis (although this is debatable). That would make SCOTUS review possible but highly unlikely.
4.3.2009 6:37pm
martinned (mail) (www):
@cookedchicken: Thanks. I assume, though, that they'd (almost) always send the case back to the state supreme court, or not?
4.3.2009 6:41pm
Randy R. (mail):
Shelby:"Dunno, but we do it all the time: prostitution, laws probhiting contact between doctors, patients, etc, time, place and manner restrictions."

You are correct. Anyone trying to overturn these laws?

It's rather interesting. We now have SSM legal in Massachusetts, Connecticut, Canada, Holland, Denmark, Belgium, Sweden, S. Africa and Spain.

If it's so threatening and horrible, how have those societies fared? I think they are doing pretty much as well as they did before SSM was implemented, and as well as other places.

Actually Canada escaped the banking debacle, so I guess that's an argument FOR SSM. Iceland is a basket case, and they don't allow SSM. There is no SSM allowed on Wall Street, and look how they are faring. Thailand allows prostitution*even gay prostition!( as does Holland, they are doing fine. Meanwhile, Michigan, which amended it's constitution to prohibit SSM is an economic basket case and getting worse all the time.

Those are pretty good arguments that SSM doesn't destroy a society, but greed and idiocy do. I'd prefer the former to the latter any day, but that's just me.
4.3.2009 6:45pm
ReaderY:
It would seem all the Iowa legislature would have to do would be to prohibit discrimination on the basis of gender in the choice of marriage partners, but permit an affirmative action program based on a premise that gender diversity is an important and legitimate interest in children's education.

In other words, make marriage law work exactly the same way as Federal education law, which does exactly this -- and by doing so limits federal funds to heterosexual education institutions, despite their being civil institutions which could be open to people with same-sex institutional preferences.

One can always read an anti-discrimination law as intended to prevent the people with the preference from participating in whatever activity the anti-discrimination law targets. Indeed, one can always interpret any law directed at preference as a status law intended to exclude people with that preference from some aspect of society.
4.3.2009 6:45pm
Desiderius:
"it's a burning issue of the utmost urgency for some people ... albeit not the people that such an amendment would actually affect."

I'd imagine that is because they are yet to be born, and perhaps, many will now never be. Guess we'll find out, or, more likely, won't, given the opacity of the consequences.

"when did we mandate that children could only be raised in perfect, ideal circumstances?"

Perfect, meet good. Good, perfect. Can't we all just get along?

Footnote 26 is yet another in a long line of twisted rationales that make Boomer selfishness less guilt-inducing.
4.3.2009 6:46pm
Bart (mail):

As a threshold matter, gay couples are "similarly situated" to heterosexual couples with respect to their relationship commitment and capacity to benefit from state recognition.

Citations from the opinion to support the holding that marriage and homosexual unions are similarly situated:

Baehr v. Lewin, 852 P.2d 44, 58 (Haw. 1993) (stating civil marriage is " 'a partnership to which both partners bring their financial resources as well as their individual energies and efforts' " (quoting Gussin v. Gussin, 836 P.2d 484, 491 (Haw. 1992))). These laws also serve to recognize the status of the parties' committed relationship. See Madison v. Colby, 348 N.W.2d 202, 206 (Iowa 1984) (stating " 'the marriage state is not one entered into for the purpose of labor and support alone,' " but also includes " 'the comfort and happiness of the parties to the marriage contract' " (quoting Price v. Price, 91 Iowa 693, 697--98, 60 N.W. 202, 203 (Iowa 1894)) (emphasis added)); Hamilton v. McNeill, 150 Iowa 470, 478, 129 N.W. 480, 482 (1911) ("The marriage to be dissolved is not a mere contract, but is a status."); Turner v. Hitchcock, 20 Iowa 310, 325 (1866) (Lowe, C.J., concurring) (observing that marriage changes the parties' "legal and social status").

In short, in order to get past the hurdle of similar situation, this court like the others dishonestly reduced marriage to a contract between any two people for the purposes of gaining societal status and government benefits.

Societal status and government benefits are not the benefits marriage provides to society, but rather the subsidy society provides to encourage a man and woman to enter into marriage so society will reap the benefits of marriage.

The benefits of marriage for which society provides subsidy are:

1) The procreation and rising of civilized children.

2) The protection and support a husband provides a wife.

3) The civilizing, health and support benefits a wife provides her husband.

A marriage of a man and woman unwilling or incapable of procreating still provide the the mother and father role models for children they adopt and provide each other with the final two benefits.

These benefits are limited to the state of marriage between a husband and wife.

1) Children born outside of wedlock to single or broken families suffer from far higher rates of anti-social behavior. Children need a mother and a father.

2) Boyfriends commit a far higher rate violence and provide less support toward their girlfriends than do a husband to a wife.

3) Husbands act more responsibly and are healthier than other men in other relationships.

Homosexual unions provide NONE of the benefits of marriage to society.

1) Homosexual unions cannot procreate. Any children they adopt are the products of heterosexual reproduction. Moreover, they cannot provide a father and mother figure for any adopted children.

2) There is no empirical evidence that a gay partner will provide his male lover with the benefits a husband provides his wife or that a lesbian partner will provide her female loves with the benefits a wife provides a husband.

Indeed, there is no empirical evidence that homosexual relationships provide ANY benefit to society providing society a reason to subsidize the relationship as it does marriage.

This is why Courts creating a right to same sex marriage through an EPC studiously ignore the benefits marriage provides to society and instead reduce marriage to a contract to gain the subsidy society provides to encourage marriage.
4.3.2009 6:47pm
martinned (mail) (www):

Fitzgerald v. Racing Association of Iowa

The Iowa Supreme Court's opinion, after setting forth the language of both State and Federal Equal Protection Clauses, says that "Iowa courts are to 'apply the same analysis in considering the state equal protection claims as … in considering the federal equal protection claim.' " Id., at 558. We have previously held that, in such circumstances, we shall consider a state-court decision as resting upon federal grounds sufficient to support this Court's jurisdiction. See Pennsylvania v. Muniz, 496 U.S. 582, 588, n. 4 (1990) (no adequate and independent state ground where the court says that state and federal constitutional protections are " 'identical' "). Cf. Michigan v. Long, 463 U.S. 1032, 1041—1042 (1983) (jurisdiction exists where federal cases are not "being used only for the purpose of guidance" and instead are "compel[ling] the result"). We therefore find that this Court has jurisdiction to review the Iowa Supreme Court's
determination.

Imho, it would be quite a stretch to say that today's ruling is compelled by federal precedent, but I guess I can see the argument the other way.
4.3.2009 6:47pm
cmr:
cmr: "It's also worth pointing out that under our system of government, this license has long-established restrictions, i.e. polygamy, beastiality, pedophilia, and homosexual relationships. Since none of the cases you mentioned dealt with same-sex couples (or any of the other couples I listed), I'd say you're being knowingly disingenuous."

And of course, if any of those cases DID meantion same sex couples, you would conclude that that isn't a 'legal' argument, and the case is invalid. So naturally, you are being disingenuous, because you have already made up your mind that gays shouldn't ever be able to get married, regardless of any argument of any kind.


You don't know what I'd conclude, but the fact is, they didn't mention same-sex marriage. But you are right: I have made up my mind. The best argument for SSM is that, you know, homosexuals want it to be so. The best argument against it is that it's wholly unnecessary.
4.3.2009 6:50pm
martinned (mail) (www):
@Bart: Wow, that must be some kind of record for ipse dixit. But I guess I shouldn't be surprised that you won't let the truth get in the way of a good story.
4.3.2009 6:51pm
Desiderius:
"Say, how long do you folks think it will take Instapundit, the comprehensive law blogger, to deign to post an item on this ruling?"

He's the comprehensive blogger, who is also a law professor on the side. He's on the record in favor of SSM, as am I, but I doubt he's real big on the sort of triumphalist ignorance and demonization found on this thread, given where he's from.

Likewise the House of Lords style policy implementation.
4.3.2009 6:52pm
ruuffles (mail) (www):

Moreover, they cannot provide a father and mother figure for any adopted children.

Why not require single mothers to give up their children for adoption? Or mandate that a married couple have a child or adopt within X number of years? Etc etc.

There is no empirical evidence that a gay partner will provide his male lover with the benefits a husband provides his wife or that a lesbian partner will provide her female loves with the benefits a wife provides a husband.

There's also no empirical evidence that marriage automatically causes such "benefits" to arise.
4.3.2009 6:56pm
Desiderius:
martinned,

"@Bart: Wow, that must be some kind of record for ipse dixit."

Is this in lieu or in anticipation of a refutation?
4.3.2009 6:57pm
ruuffles (mail) (www):

Children born outside of wedlock to single or broken families suffer from far higher rates of anti-social behavior. Children need a mother and a father.


Better yet, why not mandate marriage between the unmarried mother and father of a child? I'm thinking Bristol Palin here.
4.3.2009 6:59pm
trad and anon (mail):
Footnote 26 is yet another in a long line of twisted rationales that make Boomer selfishness less guilt-inducing.
Huh? From footnote 26:
The research appears to strongly support the conclusion that same-sex couples foster the same wholesome environment as opposite-sex couples and suggests that the traditional notion that children need a mother and a father to be raised into healthy, well-adjusted adults is based more on stereotype than anything else.
What's so "twisted" about this? From page 11:
The plaintiffs produced evidence to demonstrate sexual orientation and gender have no effect on children raised by same-sex couples, and same-sex couples can raise children as well as opposite-sex couples. They also submitted evidence to show that most scientific research has repudiated the commonly assumed notion that children need opposite-sex parents or biological parents to grow into well-adjusted adults. Many leading organizations, including [long list of relevant professional associations], weighed the available research and supported the conclusion that gay and lesbian parents are as effective as heterosexual parents in raising children.
Opposing this was the testimony of "two college professors" and "a retired pediatrician." The court acted appropriately in finding that the evidence does not support the notion that gay and lesbian parents are less effective than heterosexual parents; hence the conclusion that the belief that heterosexuals are better parents is based on stereotype. This is good reasoning, not a "twisted rationale."
4.3.2009 6:59pm
martinned (mail) (www):
@Desiderius: In lieu of, I'm afraid. Comments like Bart's just make me mad; I can't bring myself to take them apart. (I already went line-by-line on a Richard Aubrey comment about the laws of war today, and that's all I can handle for one day.)

It's not that Bart is a troll. He's just very, very wrong.
4.3.2009 7:00pm
Interested Party:
Gays want equal rights...given

but how does that get rectified with the anti church stance taken by most SSM Advocates?

What I mean is, you want the church out of marriage, dont believe in religion, opiate of the masses, I got it. Without religion you must be relying on evolution, but SSM doesnt mesh with evolution.

We can have SSM and ignore the cracks in its foundation, but Im genuinely curious, how does SSM fit into the "big picture?"
4.3.2009 7:04pm
Paper Nuncio:

but how does that get rectified with the anti church stance taken by most SSM Advocates?


It's not anti-church. I myself and pro-gay marriage and pro-church!

What I don't think is that "Church" is the final or even legal arbiter of the issue of marriage. I'm married to an Athiest. Does my marriage annul on those grounds? In fact, as a legal issue, it should be distanced from the issue. No one is prevented from practicing their religion. But the legal decision needs complete separation from dogma.
4.3.2009 7:12pm
Bob VB (mail):
Without religion you must be relying on evolution, but SSM doesnt mesh with evolution.

You have a unique understanding of evolution and its relationship to social animals since having a small % of the population that might not breed can be an evolutionary plus if that change also leads to better survival of the group.

how does SSM fit into the "big picture?"

It reinforces the natural marriage of same gender couples which benefits them, their families, the state and society in the same ways that it does for opposite gender married couples. Same biological attraction mechanisms at play, same long term result, same everything, the only thing they don't do is breed within the couple as many if not most opposite gender couples that marry don't. (many 2nd and 3rd marriages are childless).

Married couples and their families are cheaper for society than the same number of single people. They give more back to society, they take less from it, and that is regardless of the gender combination of the parents.

Marriage equality is just common sense.
4.3.2009 7:13pm
Paper Nuncio:
And are implying that homosexual activity is no found in biological activity or something metaphysical with this:


but SSM doesnt mesh with evolution.
4.3.2009 7:13pm
Paper Nuncio:
Here is a list of animals found to express homosexual behavior:

Wikipedia
4.3.2009 7:15pm
pluribus:
Dangermouse:

The court can be wrong, you know.

I never thought of that! Thank you for your brilliant observation. [Sarcasm off]

Have you ever considered the possibility that, on constitutional issues, the legislature may be wrong? Or that voters casting votes on a constitutional question may be wrong? Are courts the only falllible institutions in our constitutional system? Or does that fallibility extend to other branches of the government as well? (Think Brown v. Board of Education and all the legislatures and school boards and state executives and voters who approved racial segregation over almost a hundred years.)

As far as I am aware, the courts are the only institutions empowered by our constitutions, state and federal, with the duty and power of deciding cases and controversies and, in the process, stating what the law is. When the law in question is a constitution, the courts are empowered to decide what the constitution says or means. That is a peculiarly judicial function. Does that mean perfection? Hardly. But that does mean decision. And that is precisely what the Iowa Supreme Court has just done.
4.3.2009 7:32pm
Interested Party:
@Paper Nuncio
You must have missed the question either because it was written poorly or you didnt understand.

@Bob VB
Thank you, this was more along the lines of what I was aiming for in a response.



I'm not sure I have a unique understanding of evolution, just perhaps an uneducated one. Is there proof to suggest social animals benefit from others that do not breed? Other than the ipse dixit type pointed out above?

Is the "selection" of those who will not breed random, or is it an attempt to breed out an unwanted trait? I'm not sure if you personally are of this "homosexual" variety (this was supposed to be a silly sentence), but how does one deal with such a view that seems...bleak?
4.3.2009 7:37pm
einhverfr (mail) (www):
Bart:

In short, in order to get past the hurdle of similar situation, this court like the others dishonestly reduced marriage to a contract between any two people for the purposes of gaining societal status and government benefits.


I am not sure that follows at all. I think the argument is that it is a contract which offers benefits to stable families.


Societal status and government benefits are not the benefits marriage provides to society, but rather the subsidy society provides to encourage a man and woman to enter into marriage so society will reap the benefits of marriage.

The benefits of marriage for which society provides subsidy are:

1) The procreation and rising of civilized children.


Adoption? Why is that an exception for heterosexual couples, and yet not necessarily an exception for homosexual couples? What about adoption by single people?


2) The protection and support a husband provides a wife.


Because women are helpless without a husband? What about families where the husband takes care of the children (and maybe works from home) and the wife has a high-powered career? Should we deny benefits to them?


3) The civilizing, health and support benefits a wife provides her husband.


Hah! In both points #2 and #3 you assume that marriage is a fundamentally asymmetric relationship and this seems to be the basis of your point. I would argue, however, that the support, protection, civilization, and health benefits are actually quite symmetric benefits and go both ways on a basis which is not fundamentally unequal on any one of them.


A marriage of a man and woman unwilling or incapable of procreating still provide the the mother and father role models for children they adopt and provide each other with the final two benefits.


What about couples unwilling to procreate or adopt? I assume you think we should deny marriage to them?



These benefits are limited to the state of marriage between a husband and wife.

1) Children born outside of wedlock to single or broken families suffer from far higher rates of anti-social behavior. Children need a mother and a father.


Non sequitur. Children need stable families and role models of good relationships. I am not sure it absolutely follows that children need a "traditional" nuclear family as it is currently defined. Certainly wider-ranging anthropological studies might provide quite powerful counterexamples of this, particularly where family/tribal structures may be quite different.


2) Boyfriends commit a far higher rate violence and provide less support toward their girlfriends than do a husband to a wife.


Once again, your view is fundamentally bigoted. Most research I have seen suggests men are as frequently subject to physical abuse as women are, if not moreso, and are MORE likely to be threatened with weapons.

As a man who has been the victim of physical abuse, I will say your views are based almost entirely on stereotypes. Also this gender equality here throws in doubt whether gay couples would necessarily be less likely to benefit from marriage in this way.


3) Husbands act more responsibly and are healthier than other men in other relationships.


Define other relationships? If you mean friendships, business partnerships, etc. then wouldn't that follow from having someone else to help you look after your interests? Why would gay couples be different?



Homosexual unions provide NONE of the benefits of marriage to society.

1) Homosexual unions cannot procreate. Any children they adopt are the products of heterosexual reproduction. Moreover, they cannot provide a father and mother figure for any adopted children.

2) There is no empirical evidence that a gay partner will provide his male lover with the benefits a husband provides his wife or that a lesbian partner will provide her female loves with the benefits a wife provides a husband.

Indeed, there is no empirical evidence that homosexual relationships provide ANY benefit to society providing society a reason to subsidize the relationship as it does marriage.


So.... your view is then a circular one. Because gay couples can't get married, we have no empirical data suggesting that there is a net benefit to society, so we should not provide such benefits.

If we did, we might find empirical benefits to the contrary, and we can't let that happen.....



This is why Courts creating a right to same sex marriage through an EPC studiously ignore the benefits marriage provides to society and instead reduce marriage to a contract to gain the subsidy society provides to encourage marriage.


The second problem here is that you presume to tell us what equal protection means as it relates to the Iowa State Constitution. There is no reason why Iowa can't have a legal tradition which imposes stronger equal protection requirements and looser categorization rules than the US Constitution does. Remember that this was a state which ruled that slavery violated its Constitution well before the civil war.

Each state has a right define individual rights more broadly than the US Constitution defines them. For example, the right to keep and bear arms is far more broadly defined in Washington State than in the 2nd Amendment. At most the US Constitution may define a bare minimum for state interpretations. It does not compel states to limit their interpretations of rights to the level they are in the US Constitution. Do you disagree with me on this legal point?
4.3.2009 7:37pm
Jack Twombly (mail):
martinned,

Your analysis of Van Cott is simply wrong. The point is that when state and federal issues are intertwined so much so that the state supreme court has to rely on federal concepts to render its decision, its claim that there is an ADEQUATE and INDEPENDENT basis in state law for the decision precluding judicial review by SCOTUS is suspect. Van Cott is such an example, and so is Fitzgerald.
4.3.2009 7:44pm
sonicfrog (mail) (www):
2) Boyfriends commit a far higher rate violence and provide less support toward their girlfriends than do a husband to a wife.


Well, Duh!!! No one wants to marry those boyfriends, so they remain boyfriends! :-)
4.3.2009 7:49pm
Oren:

I'd imagine that is because they are yet to be born, and perhaps, many will now never be. Guess we'll find out, or, more likely, won't, given the opacity of the consequences.

Are you seriously suggesting that hypothetically-existing future people have substantial rights commensurate with the rights of the living?
4.3.2009 8:05pm
Bob VB (mail):
Is there proof to suggest social animals benefit from others that do not breed?

Ah 'proof' - well we know how that word works in a discussion where people might have personal agendas - one man's proof is another man's outrageous lie.

So lets just use some 'common sense':

The ability of men being able to be varying degrees attracted to other men will increase cooperation between men allowing complex social structures that include men. Examine non-social mammals and how often sexual mature males have any social interaction for why men liking men would be a good thing for a social animal's society.

Having members of the society that are not immediately concerned personally with their own offspring gives the society a buffer for all sorts of non-offspring related duties and additional help for those raising offspring as needed. A male or female member that isn't sexual competition to their own gender and will help their own gender achieve their goals without the cost of breeding is beneficial to the individuals and again the larger group.

Couple that with the biological evidence that male same gender attraction in particular is highly influenced by epigenetic factors and genetic factors that will not be 'bred out' of a population, i.e. there is no evidence of a 'gay gene' that directly causes subsequent generations of same gender attraction members. Rather for males it is just factors that allow the base human phenotype qualities to remain or resist the overlaying of those moderated by the SRY gene on the 'Y' 'male' chromosome.

That same gender attraction is NOT cleared by simple inheritance would indicate that has survived might very well survive because it has beneficial qualities as speculated above. That modern statistical analysis shows its prevalence is pretty rock solid regardless of the accepting or persecutory nature of the overall society supports that it is a natural variant that has been doing 'that magic it does' for quite some time in human society.

So we have a society based on the premise of citizens with innate rights that derive from 'Nature's God', i.e. or very biological natures. If those who naturally marry men or women are allowed to license their marriage with their spouse with the state if that spouse happens to be of the opposite gender, what rationale consistent with our founding principles could justify saying that other citizens who naturally marry men or women shouldn't have the same ability merely because their spouse is of the same gender?
4.3.2009 8:05pm
jrose:
Bart says marriage is for opposite sex couples because of "[t]he protection and support a husband provides a wife" and "[t]he civilizing, health and support benefits a wife provides her husband." Isn't it demeaning to gay people to say their relationships don't have similar effects?

But, let's accept your argument. We would rightly conclude that the scope of the fundamental right of marriage does not include gay couples. But, this ruling wasn't based on fundamental rights analysis. It was based on gays being a quasi-suspect classification. Thus, you still have to demonstrate how discriminating against gays substantially advances the societal benefits of opposite-sex marriage.
4.3.2009 8:08pm
Oren:



The ability of men being able to be varying degrees attracted to other men will increase cooperation between men allowing complex social structures that include men. Examine non-social mammals and how often sexual mature males have any social interaction for why men liking men would be a good thing for a social animal's society.

Actually, in primates most like humans, the alpha males do not allow the rest of the males access to females. So they have sex not to bond, but because they have no other outlet for their sexual energies.

Biology is not nearly as noble as liberals make it out to be.
4.3.2009 8:16pm
sonicfrog (mail) (www):
Dale:

I see more than a few people who are against the courts deciding the SSM issue, are using Baker v. Nelson, which was dismissed for want of a substantial federal question, to justify the notion that the courts have no right to decide this case, and it should be left up to the legislatures. What is the chance that a challenge to today's decision would be accepted by the SCOTUS, and thus nullifying the Baker v Nelson argument?
4.3.2009 8:22pm
Bob VB (mail):
Actually, in primates most like humans, the alpha males do not allow the rest of the males access to females. So they have sex not to bond, but because they have no other outlet for their sexual energies.

Actually among primates the % of polygyny is proportional to the size difference between the males and females, that's why bonobos where the males and females are largely the same size do not see the establishment of large harems as you see with the mountain gorillas and the like.

Regardless as you observe, the other males do interact where in non-social animals they would not - big win for same gender attractions. ;)
4.3.2009 8:23pm
einhverfr (mail) (www):

I'd imagine that is because they are yet to be born, and perhaps, many will now never be. Guess we'll find out, or, more likely, won't, given the opacity of the consequences.


I love this reasoning. Those who think that life begins at conception are liberal fascists. We ALL KNOW that life begins WAY BEFORE conception. This is why abortion is not just murder but MASS murder. One is killing not just the fetus but all of the fetus's descendants!
4.3.2009 8:24pm
PC:
DangerMouse:

You should be happy. Same sex marriage will insure no gay, married couples will have an abortion. I'd put the possibility of a married lesbian couple having an abortion at a very, very low percentage.
4.3.2009 8:25pm
jrose:
Jack Twombly,

As I read it, the Iowa court only relied on federal precedent to establish a framework and basic rationale to determine what classifications are suspect. The specific application of the framework's basic rationale to gays seems to be beyond the reach of federal courts.

What is the case that the court erred in determining the framework's basic rationale?
4.3.2009 8:44pm
Oren:

Regardless as you observe, the other males do interact where in non-social animals they would not - big win for same gender attractions.

I don't know if it's a win -- the males would prefer to boink the females but are (quite violently) prevented from doing so. I'm sure the neo-Marxists can run with the ball on this one -- something about oppression and class structure and how it perverts the lower class.

My only serious point is that I'm loath to assign normative value to the behaviors observed in animals. The naturalistic fallacy creates serious confusion.
4.3.2009 8:45pm
Michael Ejercito (mail) (www):

(1) "[E]qual protection can only be defined by the standards of each generation."

Meaning ad hoc standards made up the judges, presumably (not including the members of the present "generation" who adopted the statute the court struck down). And:


This implies that legal protections exist entirely by judicial whim.
4.3.2009 8:56pm
Jack Twombly (mail):

As I read it, the Iowa court only relied on federal precedent to establish a framework and basic rationale to determine what classifications are suspect. The specific application of the framework's basic rationale to gays...



is clearly erroneous. What you wish to downplay as "only relied on federal precedent" is sufficient to warrant SCOTUS review.
4.3.2009 9:01pm
Mistereks:
1) Homosexual unions cannot procreate. Any children they adopt are the products of heterosexual reproduction. Moreover, they cannot provide a father and mother figure for any adopted children.

Here's my question: how does denying marriage equality increase the number of children growing up in mother/father households?

Indeed, there is no empirical evidence that homosexual relationships provide ANY benefit to society providing society a reason to subsidize the relationship as it does marriage.

Personally, I think one of the key benefits to society of marriage is that of shared responsibility for debt. If my husband runs up credit card debt or takes out a big marker at a casino, I am as responsible to pay that back as he is. This encourages both of us to support the other in making wise decisions, which means we are less likely to require support by the state or to declare bankruptcy -- which seems like a pretty solid societal benefit to me.
4.3.2009 9:02pm
Brett Bellmore:
Not much chance of this being reversed; If Iowa were one of those states with citizen initiated constitutional amendments, sure, but elite opinion is in favor of this. While the legislature would never have enacted it themselves for fear of the backlash, they'll feel safe enough about making sure the public never gets a chance to vote on reversing it.

If I were a homosexual, one thing would really have me sweating: A movement which NEVER prevails except in the courts, and loses every last time it goes to the voting booth, hasn't exactly won the hearts and minds of the people.
4.3.2009 9:04pm
cmr:
Here's my question: how does denying marriage equality increase the number of children growing up in mother/father households?


My question is, how does "marriage equality" actually strengthen the institution of marriage or any of its vestiges, i.e. child-rearing?
4.3.2009 9:06pm
CDR D (mail):
>(1) "[E]qual protection can only be defined by the standards of each generation."


<

IOW, constitutions are nothing more than a supercharged version of the old common law, changed by judges sticking their fingers in the air and guessing what those standards are, or what the judge thinks they ought to be...

...why even have them?
4.3.2009 9:14pm
jrose:
What you wish to downplay as "only relied on federal precedent" is sufficient to warrant SCOTUS review

I didn't argues otherwise. But, what is the scope of that review? Where did the Iowa court err in applying federal precedent?
4.3.2009 9:23pm
einhverfr (mail) (www):
CDR D:

It is generally accepted that various things can be re-litigated when facts on the ground change. I personally think that was horrible wording on the part of the court, but I think the overall principle is solid: that the equal protection guarantee as far as Iowa is concerned, is concerned with the institutionalization of discriminatory social conventions, and that these can change with each generation.

Hence when facts on the ground change, they can be relitigated. Furthermore the justices cite a great number of cases where the Iowa Supreme Court held that equal protection was quite a bit more broad than it was in the US Constitution. For example, ruling that women had a right to practice law three years before SCOTUS upheld an Illinois ban on women practicing law. So it seems to me that, for all the lousy wording of that one sentence, the Iowa Supreme Court articulated a clear methodology for interpreting the State Constitution as has been consistent for over a hundred years.
4.3.2009 9:39pm
einhverfr (mail) (www):

My question is, how does "marriage equality" actually strengthen the institution of marriage or any of its vestiges, i.e. child-rearing?


Yes. For example, in Washington State, there have been custody battles between non-married gay couples who have kids (either natural or adopted), and the courts have had to settle these as effectively common-law marriages, absent of formal recognition.
4.3.2009 9:41pm
Jack Twombly (mail):

I didn't argues otherwise.



Then we agree that SCOTUS has jurisdiction to hear an appeal of this case if the IOWA AG petitions for cert. I imagine the arguments would involve courts v. legislatures, rational-basis scrutiny, the Ninth/Tenth Amendments ("Our Federalism"), and Congress' power to leave the "gay marriage" question to state legislatures when it passed DOMA. If every single state court acted as Iowa's did, then Congress' DOMA would mean nothing, and the Supremacy Clause fails to apply to state courts.
4.3.2009 9:43pm
BDD (mail):
For those who have complained that several decisions have come from the judicial branches of state government rather than legislative, if you have gone to law school (or studied it at all), you learn very quickly that legislative silence on an issue means much. Massachusetts and Connecticut both allowed gay marriage through judicial decisions, but both states' legislatures have since remained silent on the issue, have not challenged it (or if they have, have not won). The judicial branch gives an interpretation of the state constitution but the legislature can speak, or not speak, after that decision to change it. Simply because MA and CT won marriage equality through "judicial fiat" does not mean the legislature has not spoken. It has...by being silent on changing that decision. Oh and nearly five years later, Boston is still standing, society here in Massachusetts has not fallen apart and to date, no heterosexuals seem to be greatly impacted by the decision.
4.3.2009 9:58pm
Perseus (mail):
So we have a society based on the premise of citizens with innate rights that derive from 'Nature's God', i.e. or very biological natures. If those who naturally marry men or women are allowed to license their marriage with their spouse with the state if that spouse happens to be of the opposite gender, what rationale consistent with our founding principles could justify saying that other citizens who naturally marry men or women shouldn't have the same ability merely because their spouse is of the same gender?

You obviously fail to grasp how the Founders understood "the laws of nature and of nature's God." Unlike modern science, the Founders embraced a basically teleological view of nature, which would regard same sex coupling as unnatural.

It reinforces the natural marriage of same gender couples which benefits them, their families, the state and society in the same ways that it does for opposite gender married couples. Same biological attraction mechanisms at play, same long term result, same everything, the only thing they don't do is breed within the couple as many if not most opposite gender couples that marry don't.


Here we have abstract egalitarian thinking at its worst. But your little admission about breeding within the couple drives a big hole in your argument. As Richard Posner (Sex and Reason) put it:

Homosexual marriage is not the answer. A pair of men is inherently less likely to form a companionate marriage-type relationship than a man and a woman. This is not a proposition about male psychology or about the supposedly narcissistic character of homosexuality. It is a proposition about the biology of sex and reproduction. ...the average homosexual marriage would have fewer children than the average heterosexual marriage. Children are the strongest cement of marriage...But there is more. The male taste for variety in sexual partners makes the prospects for sexual fidelity worse in a homosexual than in a heterosexual marriage. ...And the less stable the marriage, the fewer the children it is likely to produce--which will make marriage still less stable.

(While the prospects appear better for lesbian couples due to less sexual tension, Posner cites a study indicating that their relationships are less durable than their gay male counterparts. This is further confirmed by more recent evidence indicating higher divorce rates in Norway and Sweden among same sex couples--and highest among lesbian couples--than opposite sex couples).

This means that the long term result of SSM is NOT likely to be the same at all.
4.3.2009 10:03pm
Randy R. (mail):
Brett: "If I were a homosexual, one thing would really have me sweating: A movement which NEVER prevails except in the courts, and loses every last time it goes to the voting booth, hasn't exactly won the hearts and minds of the people."

Well, I'm a homosexual, and I'm not sweating at all. Here's why:

In the 1970s, several local legislatures voted to extend protection against discrimination against gays in employment and housing. Then "the people" in the form of Anita Bryant and others, put these on the ballot, and every single one of them was reversed, and so protections were eliminated by popular vote.

Today, in every single one of those jurisdictions, gays are protected against discrimination in housing and employment, and in many others as well.

So, yeah, it took about 20 years, but we got exactly what we wanted. I would give SSM about 10, maybe 15 years, before we have it in most states.

cmr: "My question is, how does "marriage equality" actually strengthen the institution of marriage or any of its vestiges, i.e. child-rearing?"

Well, I know this is futile because it's so clear that you really dislike gays (but *of course* you aren't bigoted -- you just think we are all worthless. Anyhoo). A gay couple get married. They adopt a child that is currently in foster care. They provide a good and loving home.

Or how about this one: a lesbian couple get married. One gets pregnat through artificial insemination. They raise the child in a good and loving home.

Doesn't that strenghten marriage? Or would you prefer that these parents raising children be prohibited from getting married? You would argue that keeping the parents unmarried strengthens marriage and helps them in their child rearing? How?

(eh -- I'mnot holding my breath. You will just refuse to answer....)
4.3.2009 10:04pm
cboldt (mail):
-- Simply because MA and CT won marriage equality through "judicial fiat" does not mean the legislature has not spoken. --
.
As Arlen Specter calls it, the legislature enjoys punting "hot" social issues to the courts. It's a political decision to remain silent, or to claim that legislative action would be futile, faced against the overwhelming power of Con law.
.
The public roughly buys into the meme that one can't reasonably hold the legislature accountable for decisions that are beyond its control.
4.3.2009 10:06pm
ChrisTS (mail):
Let's see:

We have both Losantiville and Desiderius telling us that SSM will reduce procreation rates to the 'detriment' of society and, of course, to the never-to-be-conceived --but-theoretically-possible-children of the future. Then we have Bart implying that homosexual couples ought not be allowed to adopt, whereas non-procreating heterosexual couples can adopt, thus fulfilling their role in society. And we have all these folks and more desperately worried about whatever children are born not having 2 parents, one of each of the purportedly only two existing sexes.

So, clearly, all heterosexuals should be forced to marry during their reproductive years and to have some number of children. Those defective straight folks who cannot reproduce will be forced to marry one another (don't want to waste any fertility possibilities) and to adopt.

But, shoot, that still leaves those pesky homosexuals who will not reproduce, left to their own devices. So, we could force them to marry heterosexuals, have sex, and reproduce. Some might think this would involve the State a bit too directly in what could characterize as 'rape.' But that unpleasantness can be compensated for in the case of lesbians being required to have sex with their male spouses, as they will at least have the benefit, noted by Bart, of being protected by a man. Hard to see how there is any compensating benefit, on Bart's view, for the gay men forced to have sex with their female partners; after all, as gay men, they are not 'real' men and probably do not need the civilizing touch of a woman.

And yet, there are still problems. One, we just do not have enough men to go around in monogamous relationships. Two, what on earth will we do with those intersexed people? Three, some people fear that there are already too many humans on the planet and that westerners, who use disproportionate amounts of natural resources per capita, are not the ones who should be breeding like rabbits.

But, then, if we don't breed like rabbits, we do not deserve to be married and are failing in our social duties. What are we to do? I suppose we could just let people live their lives as they wish so long as they harm no one else (living) and decide what their marriages mean for themselves. Too simple?
4.3.2009 10:08pm
Randy R. (mail):
Uh, Perseus: Surely you know that we all have access to the internet. Posner actually favors gay marriage. This is from his blog:

"Once the innate character of homosexual orientation is accepted, the way is paved for analogizing, as a number of the comments do, the claim of equality for homosexuals to the claim of equality for members of racial minorities--the latter a claim almost universally accepted in this society. I accept the analogy, and of course also accept that the Supreme Court in Loving v. Virginia held that it is unconstitutonal for government to forbid interracial marriage. Although I don't think that courts should force gay marriage on the society, the arguments against gay marriage do not strike me as compelling. For example, it is true that the institution of marriage is oriented toward the production and rearing of children, but there are so many childless marriages, including second or third marriages of divorcees or widows or widowers, that it would be arbitrary to forbid gay marriage on the ground that, on average, such marriages produce fewer children. And indeed, if it is correct that most gay marriages will be between lesbians, the average number of children in gay marriages may not be significantly below the norm, since most lesbians, like other women, I imagine want to have children. Nor am I aware of evidence that children raised in homosexual households are on average more maladjusted, unhappy, antisocial, etc. than the rest of us; the evidence I reviewed in Sex and Reasondid not support such a hypothesis, though the book was published a decade ago and perhaps there is now some evidence to support it. Finally, it is unclear to me that marriage is any longer heavily subsidized--there is after all the "marriage tax" to consider."

So although he doesn't believe the courts should decide on gay marriage, he has no problem at all with gay marriage as a concept.
4.3.2009 10:13pm
Oren:

A movement which NEVER prevails except in the courts, and loses every last time it goes to the voting booth, hasn't exactly won the hearts and minds of the people.

You do realize that overturning the SSM ban can't even pass the Mass General Court (legislature) with 25% of the vote, right? That's before it goes to the ballot ....
4.3.2009 10:14pm
jrose:
I imagine the arguments would involve courts v. legislatures, rational-basis scrutiny, the Ninth/Tenth Amendments ("Our Federalism"), and Congress' power to leave the "gay marriage" question to state legislatures when it passed DOMA. If every single state court acted as Iowa's did, then Congress' DOMA would mean nothing, and the Supremacy Clause fails to apply to state courts.

Wouldn't all of the above also apply to the court rulings in Massachusetts and Connecticut? So unlike your original post which implied the Iowa court improperly applied federal precedent, isn't your true argument that any state court which overrules its legislature on this issue - even based solely on the state constitution - has violated the federal constitution?
4.3.2009 10:21pm
Randy R. (mail):
Perseus, Perseus, Perseus -- it's like shooting ducks in a barrell. Here's another howler from you:

(While the prospects appear better for lesbian couples due to less sexual tension, Posner cites a study indicating that their relationships are less durable than their gay male counterparts. This is further confirmed by more recent evidence indicating higher divorce rates in Norway and Sweden among same sex couples--and highest among lesbian couples--than opposite sex couples).
This means that the long term result of SSM is NOT likely to be the same at all."

The Bible belt has a much higher rate of divorce and domestic violence than the rest of the country. Based on your rationale, then, we should prohibit people in the bible belt from getting married, as the long term results are not good. They are at least on par with SSM, no?

But of course, you really don't like your analogies turned against you, I'm sure.
4.3.2009 10:27pm
Randy R. (mail):
perseus: "You obviously fail to grasp how the Founders understood "the laws of nature and of nature's God." Unlike modern science, the Founders embraced a basically teleological view of nature, which would regard same sex coupling as unnatural."

So I guess that means evolution should be declared unconstitutional? It goes against the laws of nature's God, and violates their teleological view of nature.

I guess that would make atheism unconstitutional, since that violates God's law. Oh yeah, eating pork violates God's law, and shellfish, and -- oh I could go on, but even you must find your argument pretty silly at some point.
4.3.2009 10:31pm
cmr:
cmr: "My question is, how does "marriage equality" actually strengthen the institution of marriage or any of its vestiges, i.e. child-rearing?"

Well, I know this is futile because it's so clear that you really dislike gays (but *of course* you aren't bigoted -- you just think we are all worthless. Anyhoo). A gay couple get married. They adopt a child that is currently in foster care. They provide a good and loving home.

Or how about this one: a lesbian couple get married. One gets pregnat through artificial insemination. They raise the child in a good and loving home.


Randy, how old are you? I'm seriously curious. You're very obsessed with who doesn't like you. Everything reduces to whether someone likes gay people or not. As I've suggested to you before, just because your internal cues are simplistic doesn't make everyone's equally simple.

Everything is a matter of like and dislike, and especially not based on whether you like boys or girls.

At any rate, those two examples don't prove that allowing same-sex couples to marry will strengthen marriage or improve child-rearing. It's still up for debate as to whether two men or two women should raise children in the first place, and no, they don't automatically make good parents because there are two of them.

Doesn't that strenghten marriage? Or would you prefer that these parents raising children be prohibited from getting married? You would argue that keeping the parents unmarried strengthens marriage and helps them in their child rearing? How?

(eh -- I'mnot holding my breath. You will just refuse to answer....)


Randy, I've yet to refuse to answer one of your questions, no matter how silly or ridiculous they are.

I'd argue that same-sex couples being married or unmarried really don't affect their ability to have or raise children. Children deserve their mother and their father, who ideally will use their marital status to provide for the children they created. Same-sex couples may or may not use their marital status to provide for the children they get, but the fact remains, there's nothing inherent in their same-sex union other than their feelings for one another. Thus, they're not deserving of any benefits other than the ones they qualify for based on their Dependent status.
4.3.2009 11:04pm
LibertyCowboy:
This whole thing got me thinking, under DOMA the federal government won't recognize their marriage, but given this ruling the state government will.

Give the marriage tax penalty provides a strong incentive not to have ones marriage federally recognized, but the day to day situations (from family gym discounts to hospital visitation) having state recognition is quite convenient.

Ironically, this seems to give same-sex couples a huge advantage over traditional ones. However, I guess they can't invite new immigrants into the country so there are still some disadvantages.
4.3.2009 11:22pm
Owen Hutchins (mail):
cmr-

Last I checked, we don't debate whether or not any particular couple would be good parents before letting them marry or have children.

Now, I can speak from experience here; our laws and society make it harder for a couple to raise children if they aren't married, regardless of orientation. My partner and I recently decided that, despite our misgivings, we should marry to provide better protection for our children, as that was potentially at risk without that legal status. And we are a HETERO couple. Remaining unmarried was making it more difficult, and we are a couple that society (as envisioned by you) finds "normal". Our experience alone shows how wrong you are, and why same-sex couples MUST be granted the same rights to marry the rest of us enjoy.
4.3.2009 11:29pm
Interested Party:
SSM really cant be blamed for problems with traditional marriage. Marriage as an institution must be on shaky ground for people to even consider SSM.


@ChrisTS

Having everyone decide for themselves what marriage is, or anything else for that matter just leads to nothing. Heidegger 101. I think that might be the problem the traditional marriage types have with SSM (whether they know it or not).

The reality is marriage was in decline way before SSM ever made its way to the table. No one thing is ever at fault (unfortunate right? otherwise we could fix it easily).

I wasnt around then, but what I've read, religion was used to try and combat equal rights for women.

Personally, I tend to believe the problem is people hear legal equality and think social equality. Its a problem both sides struggle with.
4.3.2009 11:30pm
J. Aldridge:
"Laws by their nature must discriminate to one degree or another. To say no law may not discriminate would lay the foundation for a lawless society where public mortality would be replaced with the vice of the wicked." John A. Bingham, August 14, 1872
4.3.2009 11:39pm
Randy R. (mail):
Cmr: Thanks for proving my point. No argument is good enough for you, and you no, you didn't answer my questions. You merely dismissed them as irrelevant. (I'm 47).

"It's still up for debate as to whether two men or two women should raise children in the first place, "

No, it isn't. There are thousands of gay couples currently raising children. Don't like that? Too bad. They are.

"and no, they don't automatically make good parents because there are two of them."

True. But it doesn't automatically make them bad parents, an assumption you will will not let go. Why not? Well, because you assume gays are just bad and 'unnatural.' Forgive me if I interpret that as 'not liking' people who have same sex attractions.

"I'd argue that same-sex couples being married or unmarried really don't affect their ability to have or raise children."

Okay. I'll buy that. But then you say: " Children deserve their mother and their father, who ideally will use their marital status to provide for the children they created."

So it's ideal for a mother and father to be married for their children, but not ideal for the two fathers to be married. I guess that means it's ideal that the two fathers remain *unmarried* for their children? That makes sense only if you dislike gays so much that you insist they must remain unmarried regardless of the cost to their children.

But no, you of course state that "Everything is a matter of like and dislike, and especially not based on whether you like boys or girls." But you want to deny my rights and the rights of all people especially AND explicity based on whether I like boys or girls. Sheesh -- you really think we are all that stupid?
4.3.2009 11:47pm
Randy R. (mail):
J. Aldridge: "Laws by their nature must discriminate to one degree or another. "

I totally agree. So if we have a law that denies the right to marriage to any person with the last name of Aldridge, you will have no complaints. Because afterall, to allow otherwise would just allow the vice of the wicked. Just like what has happened in Canada and Massachusetts, right?
4.3.2009 11:50pm
Alan K. Henderson (mail) (www):
Where do courts get the authority to alter the definition of marriage?
4.3.2009 11:51pm
einhverfr (mail) (www):
Perseus:

You obviously fail to grasp how the Founders understood "the laws of nature and of nature's God." Unlike modern science, the Founders embraced a basically teleological view of nature, which would regard same sex coupling as unnatural.


Which founders are we talking about and what do they have to do with the interpretation of a document which is only 150 years old?


Here we have abstract egalitarian thinking at its worst.


Hmm... I think egalitarian thinking as it relates to law is a good thing.

You seem to be suggesting that all State constitutions, whenever enacted, should be viewed through the original intent that existed in 1789. Furthermore, even the Equal Protection clause wasn't passed until AFTER the current Iowa State Constitution, which was the subject here, so the extent to which 14th amendment jurisprudence enters into this is actually fairly limited.
4.4.2009 12:07am
Desiderius:
trad,

"the traditional notion that children need a mother and a father to be raised into healthy, well-adjusted adults is based more on stereotype than anything else."

I'm saying that this is the typical perfect-as-enemy-of-the-good strawman that provides plausible deniability for the powerful to pursue their good at the expense of that of the powerless.

The traditional notion is not that every child needs a mother and a father (or will presumably wind up a blithering idiot, as if the question was either/or) - we all know counterexamples - but that on balance they benefit therefrom, compared to the alternative. Which is why the elites take such pains to so provide for their own children, no matter what they say in such high-sounding pronouncements meant for common consumption.

Look, the elites have always said one thing and done another - what is bizarre is that presently they choose to do the good and advocate the less. If hypocrisy is the tribute vice pays to virtue, what is the tribute virtue pays to vice?
4.4.2009 12:17am
einhverfr (mail) (www):
cmr:

At any rate, those two examples don't prove that allowing same-sex couples to marry will strengthen marriage or improve child-rearing. It's still up for debate as to whether two men or two women should raise children in the first place, and no, they don't automatically make good parents because there are two of them.


Of course not. It isn't as if all married hetero couples are good parents either.


I'd argue that same-sex couples being married or unmarried really don't affect their ability to have or raise children. Children deserve their mother and their father, who ideally will use their marital status to provide for the children they created. Same-sex couples may or may not use their marital status to provide for the children they get, but the fact remains, there's nothing inherent in their same-sex union other than their feelings for one another. Thus, they're not deserving of any benefits other than the ones they qualify for based on their Dependent status.


You may argue this, but the simple dynamics I would suggest would be at odds with your view.

Children need role models of good stable relationships as well as the support structure which comes from being in a stable family. Just as it would be better for children to live in a home where both the mother and father are married as opposed to merely cohabitating, the same would be the case where the adoptive parents are of the same sex. The benefits to the children include:

1) An improved support structure, esp. if all finances are joint.
2) More predictable legal handling of unforeseen circumstances, guardianship, etc.
3) Arguably improved relationship role models.

Now, you could argue that non-marriage options are possible to secure all these benefits. You could argue that common-law marriages (available in many states. For example, Washington State recognizes common-law same sex marriage) and/or civil contracts would be sufficient to guarantee these benefits. And I would even agree with you on that limited point.

However, the fact is that the same calculus would apply to hetero couples too. Certainly if my wife and I simply replaced our legal marriage with a set of binding contracts, power of attourney assignment, joint financial arrangements, etc. this would provide the same benefits to our children. Doesn't this then situate gay couples similarly to heterosexual couples in this regard?
4.4.2009 12:18am
Desiderius:
Which is not ultimately to say the SSM is a bad idea, given the alternatives. It is to say that many of the arguments employed in its advocacy are seriously toxic to that which has upheld our common civilization.

As for Bristol Palin - absolutely, and there are millions like her. Is there nothing to say about the choices she has made and the impact they will have on her child, or do we throw future generations to the alpha males?
4.4.2009 12:21am
einhverfr (mail) (www):
Desiderius:

Are children better off being adopted by stable same-sex couples or staying in foster homes where the foster-parents are of different genders?

Do you have any problem with gay couples adopting children from foster homes?
4.4.2009 12:22am
Desiderius:
martinned,

"He's just very, very wrong."

So its just ipse dixit, ipse dixit, then. I'm sorry, but those arguments need making. Unfortunately repeatedly, if you have something better in mind than what Bart has articulated.
4.4.2009 12:23am
Elais:
I had understood there is an ongoing study being done on lesbian couples with children, and the evidence showed that children of lesbian couples had much less risk (or zero risk ) of incest occuring than with heterosexual couples. So lesbian couples are better for children in some respects than an opposite-sex couple.
4.4.2009 12:23am
grendel (mail):
This is further confirmed by more recent evidence indicating higher divorce rates in Norway and Sweden among same sex couples—and highest among lesbian couples


Just how recent is this evidence. Norway didn't get same-sex marriage until January 1, 2009. And Sweden got it what, a week ago? I'm not even sure if the law there is in effect yet. Just how reliable is the so-called evidence? Something is fishy here.
4.4.2009 12:24am
einhverfr (mail) (www):
Desiderius:
<blockquote>
Which is not ultimately to say the SSM is a bad idea, given the alternatives. It is to say that many of the arguments employed in its advocacy are seriously toxic to that which has upheld our common civilization.
</blockquote>

Out of curiosity, would you say that gay marriage or nationalistic neopaganism (Celtic Reconstrictive Paganism, Asatru, etc) is more toxic to that which has upheld our common society?
4.4.2009 12:25am
Desiderius:
Oren,

"Are you seriously suggesting that hypothetically-existing future people have substantial rights commensurate with the rights of the living?"

Given the amounts we're currently running up on their credit cards, perhaps they should. My sense is that previous generations of our civilization took it for granted that the interests of succeeding generations were to come before their own. If that's to end, a rights regime might not be out of place.
4.4.2009 12:26am
einhverfr (mail) (www):
See, now someone named Grendel was EXTREMELY toxic to everything that has upheld our common civilization. He should go back to the fens and feast on carrion rather than raiding Heorot every night.....
4.4.2009 12:27am
theobromophile (www):
Thank you for answering, Prof. Carpenter.

I imagine that the response of gay-marriage opponents would be that marriage is the bedrock foundation of our society (and many others). From a conservative perspective, the family unit serves many purposes, which are undermined when the definition of "marriage" is expanded to include everything and everyone. Therefore, giving benefits to same-sex couples, or ensuring that gays aren't discriminated against, is fundamentally different from allowing them to marry. Ergo, the argument would go, using the existence of DP benefits/non-discrimination laws to impose SSM (via the judiciary) is a misapplication and an illogical extension of the legislation that has been passed.

(Likewise, opposition to DADT in the general public may be different from opposition to it within the military, and it is the latter, IMHO, that ought to matter more for any relevant analysis.)

That all said, I do agree with you both about the existence of the general trend, and, of course, the righteousness of that trend. My concern is for the methodology used to obtain the ends, and the ultimate result. Loving v. Virginia was decided about 50 years ago (IIRC), but interracial dating and marriages are still somewhere between rare and taboo. I wonder if this is, in part, because a society on the cusp of acceptance never wrestled with the issue in the legislative process.
4.4.2009 12:30am
Desiderius:
"Are children better off being adopted by stable same-sex couples or staying in foster homes where the foster-parents are of different genders?

Do you have any problem with gay couples adopting children from foster homes?"

I'm all for adoption of existing children by good parents, gay, straight, and otherwise. I'm talking about how children are brought into the world. We've got de facto polygamy running rampant in large swathes of our society. Gay marriage and adoption may play a crucial role in the triage, but it seems to me prudent to look at what is driving the problem in the first place.

Arguments like "kids don't really need moms and dads" don't exactly help.

"Out of curiosity, would you say that gay marriage or nationalistic neopaganism (Celtic Reconstrictive Paganism, Asatru, etc) is more toxic to that which has upheld our common society?"

Neither. Knock yourself out. I'm against alpha males spreading their seed far and wide with Uncle Sam picking up the tab and making excuses for them, pretending that our (and not just our) civilization is not predicated on being better than that.
4.4.2009 12:39am
einhverfr (mail) (www):
Theobromophile:

Loving v. Virginia was decided about 50 years ago (IIRC), but interracial dating and marriages are still somewhere between rare and taboo.


Is this specific to white/black intermarriage? My wife is Chinese-Indonesian, and I am white, so..... But yes, there was resistance from her family to the idea.
4.4.2009 12:39am
einhverfr (mail) (www):
Desiderius:

Arguments like "kids don't really need moms and dads" don't exactly help.


Of course, I think there have been plenty of times I have heard that outside of the gay marriage debate too....

BTW, I think that we should be looking at the issue on the merits, and we should be trying to engage in a shared search for truth. I work in a very hype-driven industry and I have learned to tune out most arguments I hear for/against products, so I probably expand that to the realm of policy arguments.....

I think we can agree that the perfect environment for raising children is in a stable and loving heterosexual family. I would even go further and say that older traditional models where grandmothers may live with the parents, for example, are even better.

But the question becomes, does recognizing gay marriage, absent all the hype and rhetoric, advance positive social interests? It seems that we agree that the answer is "yes" and similarly reject at least the most militant advocacy of the topic.
4.4.2009 12:45am
cmr:
cmr-

Last I checked, we don't debate whether or not any particular couple would be good parents before letting them marry or have children.

Now, I can speak from experience here; our laws and society make it harder for a couple to raise children if they aren't married, regardless of orientation. My partner and I recently decided that, despite our misgivings, we should marry to provide better protection for our children, as that was potentially at risk without that legal status. And we are a HETERO couple. Remaining unmarried was making it more difficult, and we are a couple that society (as envisioned by you) finds "normal". Our experience alone shows how wrong you are, and why same-sex couples MUST be granted the same rights to marry the rest of us enjoy.


How do you know I find you "normal"? You being in a heterosexual relationship makes you typical, not normal.

And your experience proves nothing. You didn't prove anything; all you did was say that you and your "partner" decided to stop shacking up and got married. For some couples, being married is a plus (i.e., if you're the breadwinner and your wife doesn't work, and you've got three kids). That isn't infinitely true under marriage policy.

So you didn't prove anything. You just stumped for gay marriage.
4.4.2009 12:49am
Perseus (mail):
So I guess that means evolution should be declared unconstitutional? It goes against the laws of nature's God, and violates their teleological view of nature.I guess that would make atheism unconstitutional, since that violates God's law. Oh yeah, eating pork violates God's law, and shellfish, and -- oh I could go on, but even you must find your argument pretty silly at some point.

What's silly is your failure to understand natural law, which does not rely on revealed religion (and even Catholics don't see any inherent conflict between evolution and teleological natural law). But based on previous conversations, moral and political philosophy isn't your strong suit.

Based on your rationale, then, we should prohibit people in the bible belt from getting married, as the long term results are not good. They are at least on par with SSM, no?

My argument was simply that same sex couples are very different from opposite sex couples (and that this difference is based on biology, which makes it even less amenable to change). And Posner's current (tepid) endorsement of SSM in no way changes his analysis about the inherent instability of same sex unions (Posner also agrees with me that "the main reason for homosexuals' support of gay marriage is simply their desire to be treated equally with heterosexuals.") As I have said numerous times, I believe that the government's main interest in marriage is procreation, and that there isn't a compelling government interest in further extending the benefits of marriage to couples who cannot procreate.
4.4.2009 1:00am
einhverfr (mail) (www):
Perseus:

As I have said numerous times, I believe that the government's main interest in marriage is procreation, and that there isn't a compelling government interest in further extending the benefits of marriage to couples who cannot procreate.


So let's talk about better meeting what you see as the main interest. Would you support a Strengthen Marriage Act which would annul all marriage where the spouses within 5 years of getting married fail to conceive or adopt?
4.4.2009 1:06am
Cornellian (mail):
I have said numerous times, I believe that the government's main interest in marriage is procreation, and that there isn't a compelling government interest in further extending the benefits of marriage to couples who cannot procreate.

How about a swap then? Gay people will be allowed to get married in return for straight, infertile people being prohibited from getting married. Deal?
4.4.2009 1:09am
cmr:
Cmr: Thanks for proving my point. No argument is good enough for you, and you no, you didn't answer my questions. You merely dismissed them as irrelevant. (I'm 47).

"It's still up for debate as to whether two men or two women should raise children in the first place, "

No, it isn't. There are thousands of gay couples currently raising children. Don't like that? Too bad. They are.


Oh, I'm sorry I dismissed your obviously loaded questions. It wasn't intentional. I just thought you were asking based first on the assumption that your assumptions were true.

And you're 47? I'm naturally skeptical, but...that's quite sad. You seem awfully insecure and ignorant of this issue you care so much about to be 47.


"and no, they don't automatically make good parents because there are two of them."

True. But it doesn't automatically make them bad parents, an assumption you will will not let go. Why not? Well, because you assume gays are just bad and 'unnatural.' Forgive me if I interpret that as 'not liking' people who have same sex attractions.


Where did I say they automatically make bad parents? No seriously, where did I say that? If I didn't, if you can't show where I did, admit you're lying.

Where did I say gays are just bad and "unnatural"?

I'll forgive you for being a liar, once you cop to being nothing but a liar.

"I'd argue that same-sex couples being married or unmarried really don't affect their ability to have or raise children."

Okay. I'll buy that. But then you say: " Children deserve their mother and their father, who ideally will use their marital status to provide for the children they created."

So it's ideal for a mother and father to be married for their children, but not ideal for the two fathers to be married. I guess that means it's ideal that the two fathers remain *unmarried* for their children? That makes sense only if you dislike gays so much that you insist they must remain unmarried regardless of the cost to their children.


What's wrong with you? Are you on medication or something?

You left this part out:

Same-sex couples may or may not use their marital status to provide for the children they get, but the fact remains, there's nothing inherent in their same-sex union other than their feelings for one another. Thus, they're not deserving of any benefits other than the ones they qualify for based on their Dependent status.


My point was, children deserve their mother and father. If they don't have them, and instead have two fathers or two mothers, it doesn't matter if those who are raising them are married or not, because "marriage" is supposed to strengthen the bond of parents for their children. Considering they need one of both, obviously two men or two women don't fulfill this. If they're being raised by two men or two women, the natural bond isn't there, and the "fundamental" (because you SSM supporters love that word) function of marriage isn't inherently necessary for them. It's only necessity is to make the participants in that relationship feel better about their romantic involvement.


But no, you of course state that "Everything is a matter of like and dislike, and especially not based on whether you like boys or girls." But you want to deny my rights and the rights of all people especially AND explicity based on whether I like boys or girls. Sheesh -- you really think we are all that stupid?


I'll restrain myself from making a joke right now.

I don't want to deny you rights. I don't want there to be a law that says "gay people can't marry" or "homosexuals shall be thrown in jail if caught living with one another". The right you want, you already have. To the extent that you want it? I have no problem speaking against that. What you meant to say was you want special rights based on whether you like boys or girls. I don't think that should be a criteria for "rights", and just because you do, and thus there's a disagreement between us, doesn't automatically make me the aggressor who is denying you rights.
4.4.2009 1:10am
einhverfr (mail) (www):
cmr: I am going to ask you the same thing I asked Desiderius...

Is it better for children to grow up cared for by a stable (and legally stabilized) same-sex family or is it better for them to grow up in the foster-home system with 2 foster-parents of different genders?

Do you have any problem with gay couples adopting kids out of the foster-home system?

(not expecting an answer, but...)
4.4.2009 1:15am
cmr:
cmr:


At any rate, those two examples don't prove that allowing same-sex couples to marry will strengthen marriage or improve child-rearing. It's still up for debate as to whether two men or two women should raise children in the first place, and no, they don't automatically make good parents because there are two of them.



Of course not. It isn't as if all married hetero couples are good parents either.


Be--cause I said they were?


I'd argue that same-sex couples being married or unmarried really don't affect their ability to have or raise children. Children deserve their mother and their father, who ideally will use their marital status to provide for the children they created. Same-sex couples may or may not use their marital status to provide for the children they get, but the fact remains, there's nothing inherent in their same-sex union other than their feelings for one another. Thus, they're not deserving of any benefits other than the ones they qualify for based on their Dependent status.



You may argue this, but the simple dynamics I would suggest would be at odds with your view.

Children need role models of good stable relationships as well as the support structure which comes from being in a stable family. Just as it would be better for children to live in a home where both the mother and father are married as opposed to merely cohabitating,


Explain that.

the same would be the case where the adoptive parents are of the same sex. The benefits to the children include:


How do you figure? You're making assumptions.

1) An improved support structure, esp. if all finances are joint.
2) More predictable legal handling of unforeseen circumstances, guardianship, etc.
3) Arguably improved relationship role models.


1) Unmarried individuals can have joint finances, too. In fact, small-claims court wouldn't be as congested as it is now if cohabiting couples on principle didn't merge finances.
2) "More predictable"? They couldn't go and draw up custody papers with a lawyer and file them with a court? What does "more predictable" mean? And why should I care if it's more, or less, predictable? Are we entitled to predictability?
3) This makes no sense.

Now, you could argue that non-marriage options are possible to secure all these benefits. You could argue that common-law marriages (available in many states. For example, Washington State recognizes common-law same sex marriage) and/or civil contracts would be sufficient to guarantee these benefits. And I would even agree with you on that limited point.


It's not a limited point; it's makes your list illegitimate.

However, the fact is that the same calculus would apply to hetero couples too. Certainly if my wife and I simply replaced our legal marriage with a set of binding contracts, power of attourney assignment, joint financial arrangements, etc. this would provide the same benefits to our children. Doesn't this then situate gay couples similarly to heterosexual couples in this regard?


No.

What it does is show that the rights gay couples claim to need so badly can be received without a marriage license. It doesn't "similarly situate" them because, with a heterosexual couple, their children are the product of that union. The same isn't true for same-sex couples.

I do believe marriage is important, my comments about your list above aside. But like I said to Randy, it's important when referring to a man and a woman. When it's not referring to them -- when it's simply referring to the child's guardians -- it's not as important, IMO. It's certainly not fundamental. Studies have shown that children do best in low-impact homes with their mother and father. This is in comparison to children with heterosexual adoptive parents and even children with step-parents. Somehow, I doubt gay adoptive parents would be more ideal than the child's biological married parents, though some people believe that.

And lastly, even if they are similarly situated, similar doesn't mean same. It means two entities that have some like properties, but are not identical.

Now, I have no problem with civil unions for same-sex couples. Not on principle, at least. Seeing how civil unions tend to lead to gay marriage decisions by activist judges gives me considerable pause, but I'm not against civil unions. They are similar to marriage, but not the same. Same sex couples are similar to married couples, or rather, heterosexual couples, but they're not same.
4.4.2009 1:29am
Perseus (mail):
Which founders are we talking about and what do they have to do with the interpretation of a document which is only 150 years old?

I was merely responding to a claim that "the laws of nature and of nature's God" somehow require SSM.

You seem to be suggesting that all State constitutions, whenever enacted, should be viewed through the original intent that existed in 1789.

That wasn't what I was suggesting. But I am an originalist and thus reject the Supreme Court of Iowa's view that "equal protection can only be defined by the standards of each generation." (p. 16)
4.4.2009 1:30am
cmr:

cmr: I am going to ask you the same thing I asked Desiderius...

Is it better for children to grow up cared for by a stable (and legally stabilized) same-sex family or is it better for them to grow up in the foster-home system with 2 foster-parents of different genders?

Do you have any problem with gay couples adopting kids out of the foster-home system?

(not expecting an answer, but...)


Well, I'd answer your question, but since you're not expecting one...I wont disappoint you ;)
4.4.2009 1:30am
ChrisTS (mail):
Interested party:
Having everyone decide for themselves what marriage is, or anything else for that matter just leads to nothing. Heidegger 101. I think that might be the problem the traditional marriage types have with SSM (whether they know it or not).

I'm not at all sure one can fairly read Heidegger into this. Leaving that point aside, I take it that your point illuminates this claim:

theobromophile (www):
I imagine that the response of gay-marriage opponents would be that marriage is the bedrock foundation of our society (and many others). From a conservative perspective, the family unit serves many purposes, which are undermined when the definition of "marriage" is expanded to include everything and everyone.

Whatever purposes 'the family unit serves,' it is ludicrous to claim that SSM 'undermines' them. My 'family unit' is very healthy and might well be strengthened by the marriage of our gay/lesbian family members to those whom they love [subject to the usual familial concerns about the specific loved one].

Perseus:
There is no single teleological view ;(the Catholic view is one of many. Furthermore, Catholic teleology is based in Greek teleologies -- specifically, Aristotelianism. Aristotle, like all ancient Greeks (bad films notwithstanding), was perfectly accepting of homosexuality. Indeed, the Greeks were particularly committed to homosexual relationships as the only possibilities for love between equals. It was obvious to the ancient Greeks, as it seems to be obvious to some commenters, here , that men could only be equals to other men and women could only be equals to other women. Marriage, they thought, was for the business of procreation. Love was an entirely different matter.
4.4.2009 1:38am
sonicfrog (mail) (www):
4.4.2009 1:39am
Perseus (mail):
How about a swap then? Gay people will be allowed to get married in return for straight, infertile people being prohibited from getting married. Deal?

No deal. But:

Would you support a Strengthen Marriage Act which would annul all marriage where the spouses within 5 years of getting married fail to conceive or adopt?

Deal.
4.4.2009 1:47am
Perseus (mail):
There is no single teleological view ;(the Catholic view is one of many. Furthermore, Catholic teleology is based in Greek teleologies -- specifically, Aristotelianism. Aristotle, like all ancient Greeks (bad films notwithstanding), was perfectly accepting of homosexuality.

I am well aware that there is no single teleological view. As for Aristotle, see Nicomachean Ethics (1148b25-31). Compare Plato's Laws (636c).

Marriage, they thought, was for the business of procreation. Love was an entirely different matter.

Which is why they would have regarded SSM (with its emphasis companionate marriage) as frivolous.
4.4.2009 2:09am
Oren:

Is there nothing to say about the choices [Bristol Palin]has made and the impact they will have on her child, or do we throw future generations to the alpha males?

Future generation will be composed, largely, of the offspring of this todays's alpha males. That's sort of how it works.


What's silly is your failure to understand natural law, which does not rely on revealed religion

Insofar as you want to argue natural law distinct from religious tradition, one has to go back and justify basic proposition without recourse to precedent.
4.4.2009 3:16am
Brett Bellmore:

You do realize that overturning the SSM ban can't even pass the Mass General Court (legislature) with 25% of the vote, right? That's before it goes to the ballot ....


Of course I understand that, Oren. That was why I said this ruling wouldn't be reversed.

Elite opinion is in favor of SSM. General opinion is against it. Legislatures are supposed to represent general opinion, but the governing class has become insular, and actually represents elite opinion. But in a cowardly fashion, since general opinion can bite them in the next election.

So legislatures don't enact SSM, but if the courts enact it, legislatures will make disapproving sounds, and then make sure to not quite manage to do anything about it. Because they calculate they can get away with that much.

We're on our way to a crazy patchwork quilt, where every state that doesn't have amendment by ballot initiative is going to end up with SSM, and pretty much no state that does let the people act directly will. Rather like term limits, except that out of state marriages will let the unrepresentative states impose the policy on the more democratic ones.
4.4.2009 7:40am
Owen Hutchins (mail):
How about Cat Cora and her wife, Jennifer? They are both pregnant, and already have biological children. They used a sperm donor, but so do many hetero couples trying to conceive. Doesn't that show that gays should in fact be allowed to marry, because they can in fact have children? Some straight couples use surrogate mothers as well, so there we go for the gay men, too. That's leaving aside all the gays that already have custody of their own biological children.

And, and why is no one mentioning Vermont, where same-sex marriage has been passed by the legislature (although it faces a veto from the Republican governor)? Isn't that being enacted legislatively? And isn't that veto threat over-ruling the will of the elected representatives of the people (damned activist Governor!)?
4.4.2009 7:54am
jrose:
sonicfrog,

Baker doesn't stand for the notion that courts have no right to hear these cases. It stands for the notion that the 14th Amendment does not require same-sex marriage.

Since this case did not involve the 14th Amendment, an (unlikely) appeal and grant of certiorari by SCOTUS(*) would have no impact on Baker.

(*) The appeal would be limited to addressing the Iowa court's use of federal precedent, which in turn was limited to establishing the framework and rationale for determining a suspect classification.
4.4.2009 8:00am
jrose:
Desiderius,

My reply to Bart.
4.4.2009 8:02am
Desiderius:
Oren,

"Future generation will be composed, largely, of the offspring of this todays's alpha males. That's sort of how it works."

Good God. How exactly did you miss that whole civilization thing again? It's all about getting beta males in on the action. Do you really want to return to our Simian heritage?

As for the "allowing gays to marry" idea, or the idea that there are vast homophobic hordes out there against such an allowance - that framing begs the question entirely. The debate is over what marriage is, not about who should be allowed to participate. Good faith arguments should focus on why we should change the definition, or acknowledge a change already achieved.
4.4.2009 8:13am
seadrive:

So legislatures don't enact SSM, but if the courts enact it,...


Courts don't enact anything....

In this case, the Court ruled that SSM is the consequence of living by the standards of fairness set up long ago.
4.4.2009 8:53am
Brett Bellmore:
No, that's HOW courts enact things, by claiming that the rules somebody else enacted demand what the court wants. It's a bit less honest than the way legislatures enact things, but no less effective.
4.4.2009 9:14am
Pragmaticist:
Hater of Homosexuality: "Sure I believe in equality under the law, but that doesn't imply that same-sex couples must be allowed to marry. Look, the law applies to everyone equally -- no person can marry another person of the same sex, regardless of sexual orientation, so, the law treats everyone equally and banning same-sex marriage is constitutional."

Defender of Equality: "So then, on your view it would be constitutional to ban opposite-sex marriage, and allow only same-sex marriage, as the law would apply equally to all opposite-sex couples regardless of their sexual orientation?"
4.4.2009 9:29am
Cornellian (mail):
Legislatures are supposed to represent general opinion, but the
governing class has become insular, and actually represents elite
opinion. But in a cowardly fashion, since general opinion can bite
them in the next election.

So legislatures don't enact SSM, but if the courts enact it,
legislatures will make disapproving sounds, and then make sure to not
quite manage to do anything about it. Because they calculate they can
get away with that much.


If legislatures can "get away" with doing nothing to get rid of SSM,
perhaps "general opinion" isn't as opposed as you think.

We're on our way to a crazy patchwork quilt, where every state that
doesn't have amendment by ballot initiative is going to end up with
SSM, and pretty much no state that does let the people act directly
will.


We already have a "crazy patchwork quilt" in which each state can decide
the minimum age for marriage, whether cousins can marry etc. It's
called "federalism."
4.4.2009 9:30am
Cornellian (mail):
Some interesting number crunching of marriage ban initiatives at FiveThirtyEight.com. An excerpt:


So what does this mean for Iowa? The state has roughly average levels of religiosity, including a fair number of white evangelicals, and the model predicts that if Iowans voted on a marriage ban today, it would pass with 56.0 percent of the vote. By 2012, however, the model projects a toss-up: 50.4 percent of Iowans voting to approve the ban, and 49.6 percent opposed. In 2013 and all subsequent years, the model thinks the marriage ban would fail.
4.4.2009 9:39am
Desiderius:
jrose,

"Bart says marriage is for opposite sex couples because of "[t]he protection and support a husband provides a wife" and "[t]he civilizing, health and support benefits a wife provides her husband." Isn't it demeaning to gay people to say their relationships don't have similar effects?"

He says no such thing and it wouldn't be demeaning if he did any more than it would be demening to note that gays are human beings and not eagles, and thus cannot flap their wings and fly, no matter how much they have their hearts set on it. They're welcome to jet-packs or to board a plane, but doing so still does not make them eagles.

Some of the effects are similar, some not so much. What they are not is identical.

"But, let's accept your argument. We would rightly conclude that the scope of the fundamental right of marriage does not include gay couples. But, this ruling wasn't based on fundamental rights analysis. It was based on gays being a quasi-suspect classification."

What are you suspecting them of? I'd say it is based on a relationship between two men or two women being different than a comblination of the two, for reasons obvious and subtle.

"Thus, you still have to demonstrate how discriminating against gays substantially advances the societal benefits of opposite-sex marriage."

Begging the question. People have gotten so used to fighting discrimination (and enjoying the warm fuzzies there gained) that now every disagreement looks like discrimination.

SSM is the Battle of New Orleans of the Gay Rights movement.
4.4.2009 9:43am
pluribus:
When I first became aware of the issue of same sex marriage (ten or perhaps fifteen years ago), I couldn't understand its importance. After all, gays were still subject to a host of legal discriminations which seemed to bite so much deeper than the marriage issue--discrimination in housing, employment, taxation, Social Security benefits, military service, etc. Gay marriage seemed somehow to be putting the cart before the horse. First, change the laws so people can't be fired because of their sexual orientation; or denied the right to rental housing because of their sexual orientation; or denied the right to serve their country in the military because of their sexual orientation; or denied equal tax treatment because of their sexual orientation. Then I began to think about the issue of equality, which after all is one of the core values of the American system (enrhsined in both the Declaration of Independence and the U.S. Constitution), and I asked myself what equality really means. The answer I came up with was pretty simple: people are treated equally when they are treated the same. Applying this reasoning to the issue of marriage made it clear to me that the answer to the same sex marriage debate is simple and straight forward: the law should treat gays and straights the same. Their legal right to marry should be the same. Now I hear a hundred and one convoluted and in some cases very ingenious arguments why this is wrong--why people of the same sex should never be allowed to get married, why civilization itself would topple if gays were given equal marriage rights, why it would be better to totally abolish the legal recognition of marriage than to permit gays to be admitted to it. But none is convincing. Equality is a majestic prinicple, but not a terribly complicated one. I don't need elaborate syllogisms, or complicated philosophical or religious constructs, or inflammatory appeals to raw emotion (gays should never be allowed to marry because judges are "facists in black robes"--what about the Vermont legislators who just approved same sex marriage by overhwleming majorities--are they "facists" in business suits and dresses?). It's pretty simple. Treat people the same and you treat then equally. Treat people the same in considering their legal rights to marry, and the law will recognize same sex marriage. Treat people the same and we will live up to one of the core values of the American system, one that we like to hold up as an example to the rest of the world.
4.4.2009 9:52am
Brett Bellmore:

If legislatures can "get away" with doing nothing to get rid of SSM,
perhaps "general opinion" isn't as opposed as you think.


I might agree with that, if the ballot initiatives weren't running 31-0 against. If you lose a liberal social issue in California, that's pretty telling.
4.4.2009 9:55am
pluribus:
Desiderius:

[G]ays are human beings and not eagles, and thus cannot flap their wings and fly, no matter how much they have their hearts set on it. They're welcome to jet-packs or to board a plane, but doing so still does not make them eagles.

This is the kind of sophistical, self-consciously "clever" argument that I find so common and yet so distasteful in this debate. Think of some kind of irrelevant truism, state it with panache, smile with self-satisfied contentment as you do so, and others will be thereby persuaded that it is after all OK to discriminate against a class of your fellow Americans. Forget the fact that there are millions of Americans in that class. Forget that they have emotions and hopes and fears and passions, the same as other Americans. Foprget that they are trying to find some small measure of happiness and acceptance in their lives, against sometimes overwhelming social and legal obstacles. Forget that they work, and vote, and serve on juries, and pay their taxes, and even risk their lives to defend their country on the battlefield, the same as other Americans. Spin an argument like this and discrimination somehow becomes palatable, acceptable, even praiseworthy. The whole thing saddens me deeply.
4.4.2009 10:08am
Cornellian (mail):


I might agree with that, if the ballot initiatives weren't running 31-0 against. If you lose a liberal social issue in California, that's pretty telling.


I think it's also a pretty telling sign about how the California public feels on the issue that, despite that ballot result, and the California legislature enacting SSM, not a single legislator lost his or her seat over the issue.

In any event, those ballot initiatives are passing by thinner and thinner margins every year. It barely passed in California after an incredibly incompetent campaign by the No side. FiveThirtyEight has an interesting look at the numbers. He predicts such a ban would pass in Iowa if voted on today, but will fail if voted on in 2013 or later. Public support for such bans is falling by about 2% per year. The writing is on the demographic wall for the anti-SSM side and even the Republicans can see that.
4.4.2009 10:24am
Cornellian (mail):
"Bart says marriage is for opposite sex couples because of "[t]he protection and support a husband provides a wife" and "[t]he civilizing, health and support benefits a wife provides her husband." Isn't it demeaning to gay people to say their relationships don't have similar effects?"

Is Bart really claiming that same sex couples don't support each other? Don't protect each other?

I don't know what he means about providing "health benefits" but presumably that would depend on which spouse has the better health care plan.
4.4.2009 10:27am
Desiderius:
pluribus,

I'm really curious. Why do you speak as if it were a settled issue that two persons of the same gender could "marry" any more than you could marry a rock? When did that change happen, when was the issue settled, in your estimation?

ChrisTS,

"We have both Losantiville and Desiderius telling us that SSM will reduce procreation rates"

I have no interest in rates per se, although European style self-eunuchization seems unpromising. What I'd like to see are less little Federlines and more little geeks, nerds, and the socially not-so-adept of all varities raised by those who created them. That does require some active support, in contrast to the state of nature.

What draconian new laws do I advocate to inaugurate my need-breeding utopia? None - merely a more charitable examination of laws extant as to their original and continuing function. I'd also like to see such decisions taken by the people themslves rather than the Iowa House of Lords, particularly when the class from which the Lords ar drawn benefits from the practice of traditional morality while allowing its supports to lapse among those who might more need such supports.
4.4.2009 10:29am
Desiderius:
Cornellian,

"Is Bart really claiming that same sex couples don't support each other? Don't protect each other?

I don't know what he means about providing "health benefits" but presumably that would depend on which spouse has the better health care plan."

Do you really suppose that such obtuseness suports your goal? Or is it just a power play? Time is indeed on the side of SSM, to what end it is not clear.

Pluribus,

"self-satisfied contentment"

What makes you think that I'm satisfied with the status quo, let alone myself? Dale Carpenter convinced me to support SSM months ago. What I'm trying to communicate is that:

(a) you're arguments don't help the cause
(b) they're apt to do collateral damage in their own right (which is my primary concern)

Note: "need-breeding" above should be "nerd-breeding". Ultimately human capital does require some humans...
4.4.2009 10:42am
Cornellian (mail):
I'd also like to see such decisions taken by the people themslves rather than the Iowa House of Lord

The people of Iowa elect the governor who appoints the judges. If you don't like the judges, elect a different governor.
4.4.2009 10:54am
Cornellian (mail):
"Is Bart really claiming that same sex couples don't support each other? Don't protect each other?

I don't know what he means about providing "health benefits" but presumably that would depend on which spouse has the better health care plan."

Do you really suppose that such obtuseness suports your goal? Or is it just a power play? Time is indeed on the side of SSM, to what end it is not clear.


The term "health benefits" in common parlance is generally taken to refer to health insurance coverage. If Bart has some kind of hazy, misty, metaphysical meaning in mind, it's his job to explain it, not my job to try to read his mind.
4.4.2009 10:56am
Gary Anderson (mail):
Desi
It's intruiging that you think your support for equality on this issue involves telling people they'll never fly as eagles because they are not, so sit back and be happy with what you have because your rights must be granted by a majority of voters.

I know for a fact that attitudes like your have already caused plenty of collateral damage, and will continue if unchallenged, and that is my primary concern.

Good day. And thanks for your support.
4.4.2009 10:59am
Brett Bellmore:

I think it's also a pretty telling sign about how the California public feels on the issue that, despite that ballot result, and the California legislature enacting SSM, not a single legislator lost his or her seat over the issue.


I think that's more telling about how secure incumbents have made themselves against challengers.
4.4.2009 11:20am
Desiderius:
Gary,

"It's intruiging that you think your support for equality on this issue involves telling people they'll never fly as eagles because they are not, so sit back and be happy with what you have because your rights must be granted by a majority of voters."

I said nothing about sitting back and being happy. I also said that they will never be eagles, but that should not stop them from flying to their heart's content. I'm merely pointing out the need to make the arguments rather than assuming that reality can be wantonly ignored.

I don't support SSM out of a concern for "equality." That has largely already been achieved, and to the extent it hasn't SSM has little to do with it, due to physiological differences outside the ambit of the law. I support it for practical reasons Dale Carpenter has already outlined far more capably than I might hope to. Best of a bad situation. Perhaps also once it is implemented, the toxic rationalizations involved in its advocacy might subside.
4.4.2009 11:21am
cmr:
I think it's also a pretty telling sign about how the California public feels on the issue that, despite that ballot result, and the California legislature enacting SSM, not a single legislator lost his or her seat over the issue.


That's actually not very telling at all. I doubt anyone votes solely, or even primarily, on gay marriage.

In any event, those ballot initiatives are passing by thinner and thinner margins every year. It barely passed in California after an incredibly incompetent campaign by the No side. FiveThirtyEight has an interesting look at the numbers. He predicts such a ban would pass in Iowa if voted on today, but will fail if voted on in 2013 or later. Public support for such bans is falling by about 2% per year. The writing is on the demographic wall for the anti-SSM side and even the Republicans can see that.



Funny how you worded that. Even if the No on 8 campaign was incompetent, they still had some $43 million dollars to make their point. They had more money than the Yes on 8 campaign. And when you factor in the fact that most of the state's major politicians were against Prop 8, all the mainstream media support, all the celebrity support, the "thin margin" response doesn't work. They threw everything they had into winning and they closed the gap to around 4-5%.
4.4.2009 11:23am
Bart (mail):
einhverfr:

Bart: Societal status and government benefits are not the benefits marriage provides to society, but rather the subsidy society provides to encourage a man and woman to enter into marriage so society will reap the benefits of marriage.

The benefits of marriage for which society provides subsidy are:

1) The procreation and rising of civilized children.

e: Adoption? Why is that an exception for heterosexual couples, and yet not necessarily an exception for homosexual couples? What about adoption by single people?

I am not quite sure what you are getting at. Adoption is not a product of either marriage or homosexual unions. As you pointed out, single folks can adopt.

2) BD: The protection and support a husband provides a wife.

Because women are helpless without a husband?

Against a predatory male, generally yes, unless she is armed.

What about families where the husband takes care of the children (and maybe works from home) and the wife has a high-powered career? Should we deny benefits to them?

I listed support as a mutual benefit given by both a husband of wife. However, your scenario is by far the exception. No matter how much feminism rails against "societal gender roles," we are genetically wired for mothers to care for children. To make this possible, the father has the greater need to support the family.

BD: 3) The civilizing, health and support benefits a wife provides her husband.

Hah! In both points #2 and #3 you assume that marriage is a fundamentally asymmetric relationship and this seems to be the basis of your point. I would argue, however, that the support, protection, civilization, and health benefits are actually quite symmetric benefits and go both ways on a basis which is not fundamentally unequal on any one of them.

The benefits husbands and wives provide one another, outside of maybe income from a job, are not the same. Marriage involves complementary, not identical, roles. I will leave it to others to determine whether a husband or a wife personally gains the most from marriage. My purpose here is limited to identifying the benefits marriage provides society.

BD:A marriage of a man and woman unwilling or incapable of procreating still provide the the mother and father role models for children they adopt and provide each other with the final two benefits.

What about couples unwilling to procreate or adopt? I assume you think we should deny marriage to them?

Childless marriages provide my last two societal benefits.

BD: These benefits are limited to the state of marriage between a husband and wife.

1) Children born outside of wedlock to single or broken families suffer from far higher rates of anti-social behavior. Children need a mother and a father.

e: Non sequitur. Children need stable families and role models of good relationships. I am not sure it absolutely follows that children need a "traditional" nuclear family as it is currently defined. Certainly wider-ranging anthropological studies might provide quite powerful counterexamples of this, particularly where family/tribal structures may be quite different

You are welcome to provide empirical evidence to support your argument. There are libraries filled with data showing that children raised by a married mother and a father are far less likely to have educational problems or engage in anti social activity than other combinations of care givers. One of the more accessible social historians examining this phenomenon is Gertrude Himmelfarb.

2) Boyfriends commit a far higher rate violence and provide less support toward their girlfriends than do a husband to a wife.

Once again, your view is fundamentally bigoted. Most research I have seen suggests men are as frequently subject to physical abuse as women are, if not moreso, and are MORE likely to be threatened with weapons.

As a man who has been the victim of physical abuse, I will say your views are based almost entirely on stereotypes...

Inconvenient realties that confront your personal world view are not "bigoted."

I prosecuted dozens of domestic violence cases over the five years I served as a prosecutor and they were all male on female violence, with the substantial majority involving unmarried couples. My experience as a defense attorney is the same.

Your personal situation is classic exception that proves the rule.

This is really basic common sense. The average man is larger, stronger and more aggressive than the average female.

BD: 3) Husbands act more responsibly and are healthier than other men in other relationships.

Define other relationships?

Any other male/female relationship you care to name.

Why would gay couples be different?

Because the relationships are different: MF v. MM v. FF. Unless you subscribe to the nonsensical notion that men and women are the same, by necessity you will obtain different results based upon the combination of the relationship. Homosexual unions are not only fundamentally dissimilar to marriage, but are also dissimilar to one another (gay v. lesbian)

BD:Indeed, there is no empirical evidence that homosexual relationships provide ANY benefit to society providing society a reason to subsidize the relationship as it does marriage.

So.... your view is then a circular one. Because gay couples can't get married, we have no empirical data suggesting that there is a net benefit to society, so we should not provide such benefits.

Marriage has been redefined in Massachusetts and some of the EU to include homosexual unions. However, same sex advocates have only offered self serving anecdotes posing as empirical evidence to demonstrate societal benefits.

Advocates of same sex marriage are the ones seeking to redefine a foundation of civilization. The burden is on them to prove similar or indeed any societal benefits arising from homosexual unions.

Each state has a right define individual rights more broadly than the US Constitution defines them.

I do not disagree. However, the Iowa Supremes used the same EPC principles applied to the Constitution.
4.4.2009 12:06pm
Bart (mail):
jrose:

Bart says marriage is for opposite sex couples because of "[t]he protection and support a husband provides a wife" and "[t]he civilizing, health and support benefits a wife provides her husband." Isn't it demeaning to gay people to say their relationships don't have similar effects?

Reality is not "demeaning."

We are actually discussing three different relationships here: male/female, male/male and female/female. Given that men and women are fundamentally different human beings, why should one assume without evidence that these different relationships will produce the same outcomes?

But, let's accept your argument. We would rightly conclude that the scope of the fundamental right of marriage does not include gay couples. But, this ruling wasn't based on fundamental rights analysis. It was based on gays being a quasi-suspect classification. Thus, you still have to demonstrate how discriminating against gays substantially advances the societal benefits of opposite-sex marriage.

My argument is that the EPC analysis fails at the outset because homosexual unions are not similarly situated. We do not even get to the level of scrutiny. However, the traditional marriage definition should easily pass even a strict scrutiny examination given that there is not a more fundamental relationship to civilization than marriage.
4.4.2009 12:14pm
Bart (mail):
Cornellian:

"Bart says marriage is for opposite sex couples because of "[t]he protection and support a husband provides a wife" and "[t]he civilizing, health and support benefits a wife provides her husband."

Is Bart really claiming that same sex couples don't support each other? Don't protect each other?

Husbands protect their wives against the predations of other males.

This would appear to be unnecessary in a relationship of two males and impossible in a relationship of two females.

I don't know what he means about providing "health benefits" but presumably that would depend on which spouse has the better health care plan.

My point has nothing to do with insurance coverage. Husbands are less likely than other males to engage in aggressive and self destructive behaviors. It is well documented that husbands live longer than other males.
4.4.2009 12:19pm
Bob VB (mail):
[b]You obviously fail to grasp how the Founders understood "the laws of nature and of nature's God." Unlike modern science, the Founders embraced a basically teleological view of nature, which would regard same sex coupling as unnatural.[/b]

No, I just know that the understanding of what 'Nature's God' wants changes as our knowledge of nature changes. I would no more use the knowledge base of the 18th century than I would think that 'nature' intended us to bleed to treat fevers. The holy writs of 'Nature's God' are our text books on physics, math, biology, medicine and psychology of today.

Our current understanding of nature identifies same gender attractions as a totally expectable normal variant of expression of universal genetic information.
4.4.2009 12:37pm
ChrisTS (mail):
Perseus:

Plato and Aristotle would not/did not think SSM 'frivolous' so much as beside the point. For the Greeks, marriage was merely a social device for reproduction and family advancement. (Hence, the very conscious insult delivered to Plato's own family by his refusal to marry.) Many of us believe, now, that marriage is not simply a contractual arrangement that serves social and familial purposes; we like to think of it, and live it, as a relationship chosen by individuals who love one another and who want to embark on the difficult endeavor of crafting a shared life.

I am very glad we do not share the ancient Greek view of marriage. It was even more clinical than their religious observance. I find the arguments advanced by several commenters on this thread to the effect that marriage is about nothing but breeding for the civil society pretty unattractive -- scary, even. Why not follow Plato's lead in Republic and have eugenics policies to ensure the best reproductive outcomes for the State, if that is what marrying and mating are all about?

By the way, be very careful about interpreting the works of Plato and Aristotle -- especially the latter -- from snippets. The Catholic reading of Aristotle, in particular, distorts his view, as a whole.
4.4.2009 12:38pm
ChrisTS (mail):
Desiderius
The debate is over what marriage is, not about who should be allowed to participate. Good faith arguments should focus on why we should change the definition, or acknowledge a change already achieved.

But, marriage 'is' what we define it as being in our polity. And to suggest that this definition does not extend to limits on 'participation' is, at best, disingenuous. At worst, it is self-defeating with respect to your own position; for, if the class of 'participants' in marriage is not at issue, then there must be no limits on who is allowed to marry.

A great many good faith arguments for recognizing SSM have been offered in this thread and elsewhere. The counter-arguments seem to be that marriage is only for/about procreation, and this has been answered both by arguments that this is not the sole meaning/purpose of marriage and others showing that same-sex couples can and do procreate through varied means.

Finally, for those who are concerned that SSM will reduce population rates (and who apparently are not worried about over-population), I would note that there are unlikely to be so many SSMs that our rates are dramatically reduced. Indeed, since homosexuals will not procreate through heterosexual reproduction [should they be exclusively homosexual], their getting married will not affect population growth one way or another.

How's that for good faith argumentation?
4.4.2009 12:53pm
pluribus:
Desiderius:

Why do you speak as if it were a settled issue that two persons of the same gender could "marry" any more than you could marry a rock? When did that change happen, when was the issue settled, in your estimation?

I don't regard the issue as settled. Proposition 8 certainly did not make it settled. Nor did DOMA. It is a contentious and controversial issue. In my own mind, human beings are entitled to be treated equally by the law. I regard equality as a bedrock of the constitutional system in our country. Enunciated in the Declaration of Independence. I do not regard it as extending to rocks. Only to human beings. Yours is the kind of argument I find so distasteful. You smugly suggest (although you are careful not to explicitly state) that same sex marriage is no different than marriage between people and rocks. This is like your argument that gays are not eagles and cannot flap their wings. Why do you make such outrageous arguments? Does it please you to so confound the issue of real human beings trying to find a measure of real happiness in a difficult world? Do you realize the pain and the anguish that such comparisons engender? By the way, who are the people who are clamoring for the right to marry rocks? I have yet to encounter any, though there may be some lurking on the net. I hope none go by the name of Desiderius.
4.4.2009 1:08pm
Desiderius:
ChrisTS,

"I find the arguments advanced by several commenters on this thread to the effect that marriage is about nothing but breeding for the civil society pretty unattractive -- scary, even."

Nothing but? Merely contesting a view of marriage that pretends breeding entirely out of the picture is claiming that marriage is nothing but breeding? The minds reels.

"Why not follow Plato's lead in Republic and have eugenics policies to ensure the best reproductive outcomes for the State, if that is what marrying and mating are all about?"

Because the Brave New World implied by placing personal fulfillment above all other values in considering marriage would likely lead straight to eugenics, and worse, itself? The state is not the society, and taking into account the interests of the powerless new members of that society against powerful mature interests is not mere utilitarian calculus.

I support SSM for the same reason I would have supported my country in the Battle of New Orleans, even if I had an inkling that the Treaty of Ghent had already been signed. Many liberals whom I hold in great esteem, such as DC, deem it a step forward, or at least a measure mandated by the traditions we commonly hold dear.

That doesn't mean I now should countenance the majority of my fellow citizens being slandered with charges of discrimination or arguments that ignore physiological or cultural reality or attack the institutions that make our liberal civilization viable.
4.4.2009 1:16pm
Desiderius:
pluribus,

"You smugly suggest (although you are careful not to explicitly state) that same sex marriage is no different than marriage between people and rocks."

I do no such thing, and I certainly do not do anything smugly. I'm asking you where you consider that the line lies, and when you suggest that it changed to human-human from the traditional MF understanding (which supplanted an older tradition of MFFFFFF... traditions being merely collections of innovations that worked). I'm assuming it also doesn't apply to a 50-year-old human and a 5-year-old, so merely saying two human beings also doesn't qualify. What criteria decide what does? Why?

BTW, reading sordid motivations and inflated self-regard into my arguments might make you feel more righteous in your advocacy, but I fail to see any other warrant therefor. Could also just be habit, of course.

"I don't regard the issue as settled."

Then why do you argue as if is?

"Do you realize the pain and the anguish that such comparisons engender?"

Sticks and stones, man. They're only words, and about as unhateful as words get. Take some ownership of your own reactions.
4.4.2009 1:50pm
Gary Anderson (mail):
*That has largely already been achieved*

Desi:
I disagree. Equality has already largely been achieved perhaps in circles where people can privately contract for them. Those relationships who cannot afford to draw up and sign private contracts are not equal, as they cannot merely pay the license fee as heterosexuals do and have those benefits granted.

I'm glad Prof. Carpenter has you convinced that things are peachy keen for homosexuals in all locations and income groups though. Separate proceedures and extra hurdles, and disparate treatment based on gender simply is not equal.
4.4.2009 2:12pm
Gary Anderson (mail):
*Sticks and stones, man. They're only words*

It's not the word marriage that makes the couple fly. It's the benefits and status that go with the word. Civil unions are not everywhere, nor are they the same as marriage.

You don't want to see homosexuals be treated equally as hetrosexuals, some of whom in each group have children, some of whom don't.

The argument by Bart that males are needed in a marraige to physically protect females is simply laughable in this day of metrosexual men who aren't physical protectors, and the great numbers of physically large women in lesbian subgroups. Marriage is not about physical protection in civilized circles and to make that argument shows the same desperation as the homosexual eagles analogy.



Really -- that's all you got?
4.4.2009 2:22pm
einhverfr (mail) (www):
CMR:

What it does is show that the rights gay couples claim to need so badly can be received without a marriage license. It doesn't "similarly situate" them because, with a heterosexual couple, their children are the product of that union. The same isn't true for same-sex couples.


Ok. Then let's get rid of state-sanctioned marriage, except in Louisiana[1] and rely exclusively on all of the benefits I mentioned to support childrearing. Perhaps Louisiana is the one state in the union for which these sorts of benefits are fundamentally unavailable to gay couples, but that is another matter.

[1] Louisiana is the one state I know of that does NOT recognize common-law marriage as such (though if a couple has a valid common-law marriage in another state, it continues to be valid in Louisiana). In fact Louisiana doesn't recognize common law at all.

Would you support the idea that couples don't need to get married to provide all these benefits to society and their children? Why should we offer a streamlined process at all for couples which just seek to adopt?
4.4.2009 2:33pm
pluribus:
Desiderius, you protest that you do not suggest that same sex marriage is no different than marriage between people and rocks. And yet you ask me this:

Why do you speak as if it were a settled issue that two persons of the same gender could "marry" any more than you could marry a rock?

Those are your own words, Desiderius. You introduced rocks into the discussion, not me. Maybe you should "take some ownership" of your own words. BTW, smugness and anger aren't a good combination. Up to now you have been smug, but I do detect some anger in your last post. Can you cool it?

I find it a sad commentary that people who have so long enjoyed a privilege become rightously outraged when it is suggested that the same privilege should be extended to others. Marriage has long been the exclusive privilege of heterosexuals; now some people in society (including many heterosexuals) believe it should be extended to homosexuals, and the reaction is outrage.
4.4.2009 2:33pm
Cornellian (mail):
The argument by Bart that males are needed in a marraige to physically protect females is simply laughable in this day of metrosexual men who aren't physical protectors, and the great numbers of physically large women

I would have said it's laughable in this day of widely available handguns.
4.4.2009 2:36pm
ChrisTS (mail):
Chris: "Why not follow Plato's lead in Republic and have eugenics policies to ensure the best reproductive outcomes for the State, if that is what marrying and mating are all about?"

Desiderius: "Because the Brave New World implied by placing personal fulfillment above all other values in considering marriage would likely lead straight to eugenics, and worse, itself?"

What? My meaning was that one who thinks marriage is only or primarily about reproduction for the sake of the State might want to consider providing the best reporductive results for the State. A bit hyperbolic, to be sure, but I was inspired by a comment (yours?) that someone wants to see more nerds born and raised than 'federlines.'

Note that your assuming I advocate placing personal fulfillment 'above all other values' is far more unfair a reading of my words as my 'marriage is about nothing but breeding' than my reading of the comments of others on this thread. My impression was that some posters were seriously claiming that homosexuals' inability [according to these posters] to procreate left them with no reason to marry. Interpreting that as thinking marriage is about reproduction does not strike me as a leap.

" The state is not the society, and taking into account the interests of the powerless new members of that society against powerful mature interests is not mere utilitarian calculus."

By 'new members,' do you mean the as-yet-to-be-conceived? I do believe that we - the living - should consider future generations in our choices. I cannot see that an interest in [possibly] being heterosexaully conceived by people whose sexual orientation would not lead them to heterosexually conceive trumps the interest of those living persons who are not inclined to so reproduce.

Unless, of course, the hidden premise in these future geerations arguments is that SSM will somehow lead heterosexuals to cease reproducing?

The fact of the matter is that SSM, in itself, cannot harm children [exsting or future]. So, there really is no question of weighing the interests of the yet-to-be-conceived against those of 'mature,' living persons. At any rate, I have yet to read a plausible argument evincing any such conflict of interests.
4.4.2009 2:41pm
einhverfr (mail) (www):
Desiderius and Perseus:

I think there is a more basic objection to looking to Plato's Republic for any basis in public policy whatsoever (and indeed the country that seems to do the best job of copying Plato's Republic is Iran, though not in the area of marriage).

Plato was looking specifically at the questions of how we can define virtue and justice in a person in Republic, and in so doing defined these in society to a point of the absence of liberty. In fact, marriage as such doesn't even exist in Republic, with the idea that procreational unions are arranged PER SEXUAL ENCOUNTER by the Guardians, and the idea was structured so that no male would know for sure who his children were. The fact that such a system is used for the Republic thought experiment fatally dooms looking to Plato's corpus because it shows that even looking to Laws requires that we pick and choose from Plato's writings as a whole on the matter based on what we want to conclude from them. Arguing this is sort of like using the Bible to argue that homosexuality is bad, but wearing clothes woven from multiple kinds of material is ok (any argument that I have seen to that affect fails basic constructionist analysis of the original sources, and the analysis is so basic that it can be reliably done by any amateur that knows Greek and Hebrew).

I think that looking to someone who argued in one work that the ideal society would have all women held in common is probably not the best choice of a thinker to base arguments as to the nature of marriage from.

So we would probably all be better leaving Plato out of the debate. There is as much reason to see Plato as the basis of the Oneida concept of group marriage as it is a view on traditional marriage.
4.4.2009 2:45pm
ChrisTS (mail):
Sorry:

"is far more unfair a reading of my words as my 'marriage is about nothing but breeding' than my reading of the comments of others on this thread"
should read
is a far more unfair reading of my 'marriage is about nothing but breeding' than
4.4.2009 2:45pm
Alec:
Did anyone else find the remedy portion pretty slim? They suggested that civil unions would be constitutionally insufficient, but I suspect civil unions would have a much better shot if subjected to intermediate scrutiny. On the other hand I do think civil unions are an inappropriate judicial remedy that raise separation of powers issues easily avoided by an order to issue marriage licenses.

Dear God in heaven why would anyone cite the ancient Greeks? That culture is about as alien to us as a culture can get. Institutionalized pederasty and slavery, religious beliefs permeating everyday life and law....not that they didn't produce great things, but I much prefer our modern society.
4.4.2009 2:52pm
trad and anon (mail):
Husbands protect their wives against the predations of other males.

This would appear to be unnecessary in a relationship of two males and impossible in a relationship of two females.
This argument doesn't make any sense to me. A man can "protect" a woman against physical attack only if he is physically around, which husbands often are not. Nor is a husband better situated to protect his wife when she *is* in danger: if she is walking through a dark alley in a dangerous neighborhood at night, a boyfriend, male business partner, or male friend will do as well as a husband.

And of course your generalization about the degree of the sexes, while accurate on average, is not remotely universal. Lots of men have little ability to protect either a woman or themselves from attack: the frail, the weak, the elderly, the temporarily or permanently disabled. Nor is it true that an average able-bodied man will not benefit from protection from attack, since male attackers are on average larger, stronger, younger, and better-armed than the average man. Conversely a woman may be better situated to protect another woman than is an average man (though this is less common): say if she has a high degree of skill in martial arts, or is carrying. Even if she is not as good as the average man, she is still considerably better nothing.

In other words, your supposed "benefit" of marriage (a) has little to do with marriage (b) is based on a generalization with an enormous multitude of exceptions and (c) to the extent that it applies, also applies to many same-sex couples.
4.4.2009 2:56pm
GB5000:
Professor Carpenter,

While EP may be the easiest, most intelligible route for establishing same-sex rights, does relying on this clause harm less well-established minority interests?

Assuming they defeated the medical concerns, wouldn't pro-incest groups have to establish that they represent a "discrete and insular minority" to get EP heightened scrutiny?

Isn't Lawrence style DP a more equitable framework since it discards "morality" as a legitimate state interest and forces the state to justify its moral-animus laws on nonmoral grounds, an admonition that presumably applies to rational basis as well? Iowa clearly meet its burden here, but does sending these kinds of decisions down the EP path tell courts to only look more closely at the trumped up nonmoral reasons behind moral animus laws when that group is a discrete and insular minority? Does that give a pass to a whole host of other purely moral laws in facially "neutral" statutes that don't affect relatively well-established minority interests?

The EP in the Iowa analysis implies that groups can only invoked Constitutional protection against purely majoritarian morality once they have achieved a critical mass like the homosexuality movement. Convenient here, but not so consonant with the "morality alone is not legitimate state interest" stuff from Lawrence.

Ninth Amendment!
4.4.2009 2:57pm
Gary Anderson (mail):
I would have said it's laughable in this day of widely available handguns.

Somebody else already made that argument upthread. Plus handguns aren't available everywhere, so I thought I'd focus on refuting the "men = strong" "women = weak" argument. Lots of big farm girls out here and the metrosexual male population appears to be on the rise.
4.4.2009 2:58pm
trad and anon (mail):
Did anyone else find the remedy portion pretty slim? They suggested that civil unions would be constitutionally insufficient, but I suspect civil unions would have a much better shot if subjected to intermediate scrutiny. On the other hand I do think civil unions are an inappropriate judicial remedy that raise separation of powers issues easily avoided by an order to issue marriage licenses.
That's what I think too. There is no such thing as a 'civil union' in Iowa and it is not appropriate for the court to create them out of thin air. The time for consideration of the adequacy of a civil union law is when such a law is enacted and challenged. If the court has the power to issue advisory opinions, it would also be appropriate when such a law is proposed and an advisory opinion requested (this is what happened on MA).
4.4.2009 2:59pm
jrose:
it wouldn't be demeaning if he did any more than it would be demeaning to note that gays are human beings and not eagles, and thus cannot flap their wings and fly, no matter how much they have their hearts set on it

When Bart and you argue that gay relationships are as fundamentally different as people are from eagles, of course that is demeaning.

For one of the core elements of marriage - two lifetime, romantic lovers providing comfort and support so that both will be happy, productive citizens - the gender combination is not relevant.
4.4.2009 3:02pm
einhverfr (mail) (www):
Desiderius:

First, I appreciate what has been some intelligent discussion from you thus far on this issue. So I want to propose a couple of points for your discussion of polygamy and age limits.

As noted in another thread, the Quakers believe in a very early age of majority, to the point where a five-year-old is allowed both full membership in a meeting AND a veto right over any meeting decision (anything from deep positional statements to what color the meeting house should be painted). Consequently where Quakers have set ages of majority for the purpose of marriage, they have set the age rediculously low (5-7). This wasn't about a desire for older men to marry younger women but rather a deep-seated conviction that children are capable of responsible decision-making, and the community would be capable of applying pressure on individuals who might seek to abuse this policy. After all, such people were regarded as ADULT members of the Meeting. I am not aware of any Quaker marriages where this age limit was abused even by modern standards, but if 2 seven-year-olds want to assemble their friends together and say "We are married" I would expect even modern Quakers to challenge them on this but if they were able to defend it to the adults, would probably recognize it even if it didn't have legal force at that point. I believe the Pennsylvania statute establishing the early age was repealed after a teenage couple used it to get married against their parents' wishes.

So on the age issue, I would propose a simple objective standard of protecting the weak. I would further argue that the court should be willing to challenge ANY marriages where there was a fundamental and substantial difference in power. We need not limit this to an age issue, and if one could prove that one party was substantively and unconscionably taking advantage of the other party (including but not limited to age), I think there ought to be a combination of annulment, civil damages, and criminal sanctions available.

However, on the issue of age of majority for the purpose of marriage, there are no bright lines that can be drawn Constitutionally. There are only legal mandates to protect children from abuse and exploitation. These can and should be a matter of statutory law.

On the polygamy issue, I think you mischaracterize the issue in a couple of ways. De facto polygamy has not been entirely absent even relatively recent Western history either. Rich folks might have mistresses, etc. So the questions there would be limited to legal arrangement. At the same time, those questions are quite profound and it would be extremely disruptive to try to include such changes. Given this I think there is nothing FUNDAMENTALLY wrong with a couple deciding together that monogamy need not be a part of their marriage, provided that this decision is mutual (I am not willing to condemn open marriages categorically). Also unlike the gay marriage question, which arguably affects only a small percentage of the population, a polygamy question could conceivably have very widespread effects. Thus I think it is far easier to argue a rational basis there.

Now one may argue a series of innovations might lead us to the polygamy issue, and that we don't want to go there, but that isn't an argument per se against same sex marriage any more than "kids dont need a mom and a dad" is an argument for it.
4.4.2009 3:06pm
einhverfr (mail) (www):
BTW, "kids don't need a mom and a dad" is an argument for gay marriage in a legal sense. Kids don't legally need a mom and a dad, and we don't withold tax benefits of kids from single parents of either gender, for example. I think that does get to the core of rational basis regarding procreation interests, but shouldn't be a social argument divorced from public policy.
4.4.2009 3:09pm
einhverfr (mail) (www):
IOW, the argument is "public policy doesnt otherwise state that kids need both a mom and a dad" not that society isn't better off with extended-family households (mom, dad, kids, grandma, etc) living together.
4.4.2009 3:12pm
Alec:
@trad and anon: Agreed.

Actually, there are some unanswered questions now that we have this patchwork of judicial decisions, civil unions and marriage equality. Doesn't anyone else think, for example, that the restriction on domestic partnerships and civil unions in California and Connectcut to same-sex couples presents some problems if sexual orientation legislation is subject to strict scrutiny? Note that Prop 8 did not change the standard of review for sexual orientation, so I think there's a damn good argument that CA's domestic partnership law (and CT's civil unions statute) discriminates unfairly against heterosexual couples. The DP statute is a bit more complex, as unmarried heterosexual partners at the age of social security retirement are eligible, but still...
4.4.2009 3:16pm
trad and anon (mail):
"I find the arguments advanced by several commenters on this thread to the effect that marriage is about nothing but breeding for the civil society pretty unattractive -- scary, even."

Nothing but? Merely contesting a view of marriage that pretends breeding entirely out of the picture is claiming that marriage is nothing but breeding? The minds reels.
Perhaps "nothing but breeding" is an overstatement but it is quite common (including on this board) to argue that procreation is the principal purpose of marriage. As I see it, procreation is but one of many purposes, and not remotely as important as others like the happiness and well-being of the couple (who are members of society) and the provision of a stable environment for child-rearing (vastly more important than procreation which all-too-often comes without marriage). Even assuming, arguendo, that same-sex parents are not quite as good as comparably situated different-sex parents they are still vastly better than the all-too-frequent alternative of leaving the kids in the foster care system. I believe same-sex parents are also considerably more likely to take on hard-to-place kids rather than the easily placed healthy white newborns.

It's also worth pointing out that the procreation argument is going to be abolished by science in ten years, at least for women. Men will still need a surrogate mother to bear the child, though taking an ovum and replacing its DNA with the combined DNA of two men may well be possible.
4.4.2009 3:25pm
Alec:
@ einhverfr

I did not know that, about the age of majority issue among Friends. Obviously, it has no legal impact. However, I do NOT agree with any alteration in the marriage laws for some lukewarm "protecting the weak" standard. The unconscionability standard for voiding contracts is already very complicated, and I don't see any reason to introduce those problems into marriage laws (although it is an issue with premarital agreements, at least in California, and presumably other states).

As far as minors getting hitched….the law on this varies from state to state, and usually involves parental consent. It is worth noting that progressive reformers were responsible for raising the age of consent laws from the unbelievably low age of 12 (under the so-called "English rule") to 16-18 in the mid to late 1800s. I cannot for the life of me imagine a scenario in which marriage of an 18+ year old to a 12-15 year old would be desirable or appropriate, even with parental consent (and as far as sex goes, very hard to imagine that being appropriate even if I don't support criminalization if, say, all parties are in high school).

As far as polygamy…marriage is entirely premised on the concept of "two." Polygamy would represent the "radical" change in the law so feared by opponents of marriage equality. While we can be creative and imagine alternative legal arrangements for polygamous or polyamorous unions, that's definitely the prerogative of the legislature.
4.4.2009 3:32pm
Jack Twombly (mail):

Simply because MA and CT won marriage equality through "judicial fiat" does not mean the legislature has not spoken. It has...by being silent on changing that decision.



By that logic, the legislative silence prior to the judicial opinion should be determinative. Any pro-gay marriage court opinion thus is self-negating.
4.4.2009 3:34pm
Perseus (mail):
we like to think of it, and live it, as a relationship chosen by individuals who love one another and who want to embark on the difficult endeavor of crafting a shared life.

That may be true (though not necessarily a good thing), but it doesn't strike me as an especially compelling interest for the government to be much involved in marriage (i.e., if it's simply a matter of lovers, then let their unions/marriages remain a basically private affair).

By the way, be very careful about interpreting the works of Plato and Aristotle -- especially the latter -- from snippets.

I'm a political theorist so reading texts carefully is part of my job description.
4.4.2009 3:41pm
theobromophile (www):
<blockquote>This argument doesn't make any sense to me. A man can "protect" a woman against physical attack only if he is physically around, which husbands often are not. Nor is a husband better situated to protect his wife when she *is* in danger: if she is walking through a dark alley in a dangerous neighborhood at night, a boyfriend, male business partner, or male friend will do as well as a husband. </blockquote>
The argument about a husband protecting a wife doesn't make much sense because you take a very narrow, physical view of "protection."

Your assumption is that protection is limited to death match situations in which a woman's safety is endangered. You're forgetting that it's not always a fight for a woman's life, and her husband need not be there in order to provide a protective influence. One can come up with plenty of scenarios - men at parties, in an office, or in an academic environment, who prey on women. That she has a husband who may break the bones of this jerk is enough of a deterrent for men, who seek an easy victim, rather than to fight to the death for any particular victim.

Predators also seek out women who live alone, because it's easier to take on one woman rather than her husband. Some really screwed up men prey on single mothers, believing (often rightly) that they are easy targets. IIRC, children are more likely to be abused by their stepfathers than anyone else in the family - by a very wide margin. (Some people believe that there's something about a man's lack of genetic code that triggers aggression. IMHO, it's a self-selecting sample.)

But one example: I was talking to a mechanic today who told me that if I needed help with my car anytime, give him a call. Said something about not wanting a young, single woman without a way to get her car repaired or jumped if she needed it.

Reality is that sexual dimorphism cannot be legislated nor wished away. I'm taller than almost 95% of women, strong, and trained in self-defence, but a lot of men could probably kick my butt. It's often not a matter of whether or not they <i>could</i> hurt me, but about how much they would suffer in the process (or later).
4.4.2009 3:42pm
Alec:

Your assumption is that protection is limited to death match situations in which a woman's safety is endangered. You're forgetting that it's not always a fight for a woman's life, and her husband need not be there in order to provide a protective influence. One can come up with plenty of scenarios - men at parties, in an office, or in an academic environment, who prey on women. That she has a husband who may break the bones of this jerk is enough of a deterrent for men, who seek an easy victim, rather than to fight to the death for any particular victim.


There's only a deterrent effect if they know or assume she has a male partner and, further, that the cost of assaulting her outweighs the benefits.

Or we could just skip the sociobiology/faux economics question and get to the heart of the matter: Most people are not going to assault her.

What any of this has to do with same-sex marriage is beyond me.
4.4.2009 3:49pm
trad and anon (mail):
Your assumption is that protection is limited to death match situations in which a woman's safety is endangered. You're forgetting that it's not always a fight for a woman's life, and her husband need not be there in order to provide a protective influence. One can come up with plenty of scenarios - men at parties, in an office, or in an academic environment, who prey on women. That she has a husband who may break the bones of this jerk is enough of a deterrent for men, who seek an easy victim, rather than to fight to the death for any particular victim.
What exactly are these men who "prey" on women at the office or an academic environment doing? How many women get raped in the office? Very few. I suspect that what you really mean by "prey" is something like "have consensual sex with," in which case this protection against being "preyed" on is really about protecting the man's exclusive right to "his women." The only other thing I can think of is sexual harassment in the form of explicit or implied demands for sex; are married women really more likely than women with boyfriends to be subjected to this form of sexual harassment? If so, a gay marriage would presumably also protect men who are subjected to such harassment (whether from a male or female superior--less common than male-to-female demands for sex but it happens).

I guess there are some men who would slip a date rape drug in a woman's drink at a party but a boyfriend is as good as a husband for protecting against this.
4.4.2009 3:54pm
Batman:
"marriage is entirely premised on the concept of 'two.'"

Not quite. Marriage is entirely premised on the union of a man and a woman. Gay marriage annihilates that concept. Therefore, it destroys our common understanding of marriage and replaces it with yours (i.e., two people).

Problem with that thinking: it's based on tradition. But so was the traditional definition. Therefore, your new definition is flawed.

You could argue that the "two" concept is based in nature. That is, each sex organ can only accommodate one sexual act at a time. (A man has only one sword, a woman only one sheath.) Thus, you could claim that the bodily structure implies the "two" concept.

Problem for you with that: once you open the door to nature, you close the door on gay marriage. The male sex organ is incomplete without the female, and vice versa. The male releases seed that has no purpose without the female's egg. Hence, nature implies that only heterosexual sexual acts are legitimate uses of our sexual organs.
4.4.2009 3:58pm
Alec:
@Batman

Marriage has nothing to do with sexual acts or gender, really. I mean that only as a legal matter, which is the only point I am addressing.

Your teleological understanding of "nature" is flawed in so any respects it is difficult to know where to begin. If nature is your guide, you shouldn't have much of a problem with homosexuality, incest, polygamy, heterosexuality, pedophilia, murder, etc. All such acts occur in "nature." "Nature" is as indifferent to your traditions and sexual habits as the most unrepentent nihilist.

My argument is a legal one. Marriage is not limited to couples who reproduce, it isn't even limited to couples who are monogamous. I concede that, if you are applying true rational basis, it is difficult to sustain the underinclusive and overinclusive arguments, but I don't think sexual orientation should be subject to rational basis review.

"Marriage" as defined between a "man and a woman" is a definition only. It has been detached from procreation for some time now. There is no functional difference between a same-sex couple and an opposite sex couple that does not, for whaever reason, procreate through "natural" methods. There is a functional difference between those couples and polygamous couples, as the law has rules predicated on the concept of "two."
4.4.2009 4:10pm
pluribus:
Apparently Bart believes that husbands should march through the jungle, clubs in hand, ready to fend off all of those predator males who want to get at their women. And wives should be small, weak, barefoot, and pregnant. And this is advanced as some sort of a constitutional argument, and a justification for denying rights to millions of Americans? Little wonder no court has yet adopted it.
4.4.2009 4:46pm
Bart (mail):
Gary Anderson (mail):

Marriage is not about physical protection in civilized circles...

Translation: So long as you have alpha males around to protect you and yours, metrosexual men do not need to bother to do so.

The argument by Bart that males are needed in a marraige to physically protect females is simply laughable in this day of metrosexual men who aren't physical protectors...

The fact that certain groups in our society do not teach their men to stay physically fit and to defend themselves and their families is a failure of socialization and not of marriage.

...and the great numbers of physically large women in lesbian subgroups.

That is a rather bigoted stereotype. Lesbians are no more big and hairy than gay men are all slight and feminine. Homosexuals come in the usual range of human shapes and sizes.
4.4.2009 5:11pm
einhverfr (mail) (www):
@Alec:

Actually in Pennsylvania, the low age of majority was recognized legally for some time (up until a few decades ago).

However, my point isn't that courts should say "we evaluate every case independently" but rather that age of majority rules are 1) arbitrary but 2) serve a compelling interest.

There is no reason that courts can't give reasonable deference to state legislatures for general legislation intended to "protect the weak." In fact, I would be in favor of expanding such protections rather than making them case-by-case.
4.4.2009 5:19pm
Bart (mail):
trad and anon:

BD: Husbands protect their wives against the predations of other males.

This would appear to be unnecessary in a relationship of two males and impossible in a relationship of two females.

t&a: This argument doesn't make any sense to me. A man can "protect" a woman against physical attack only if he is physically around, which husbands often are not.

Spend more time together.

Nor is a husband better situated to protect his wife when she *is* in danger: if she is walking through a dark alley in a dangerous neighborhood at night, a boyfriend, male business partner, or male friend will do as well as a husband.

The man has to be willing to risk death, maiming or an old fashioned ass whupping in the protection of the woman. A husband who has already made a life commitment to his mate is far more likely to do so than a date or business colleague.

Nor is it true that an average able-bodied man will not benefit from protection from attack, since male attackers are on average larger, stronger, younger, and better-armed than the average man.

Get in shape, learn to defend yourself and if necessary get armed.

We are getting side tracked from a discussion of marriage to the failure of modern men to defend themselves and their families.
4.4.2009 5:20pm
Gary Anderson (mail):
Oh Bart. Don't get out much I see...

Yes, there are great numbers of large women in lesbian subgroups. Big butches. With big brothers, bigness in the genes, and farm fresh feedings and breedings that made em that way. It's not stereotyping if it's true: plenty of big lesbians out there.

Ditto the metrosexual men. As less and less work is physical, and less and less people eat heartily, you see more and more small men in their 20s and 30s. Generally, they work desk jobs and make good money.

So both this is true:

The argument by Bart that males are needed in a marraige to physically protect females is simply laughable in this day of metrosexual men who aren't physical protectors

and this

Marriage is not about physical protection in civilized circles...


No don't get me wrong, plenty of lesbians and gays LOVE our alpha males. But generally, it's not the Alphas getting their panties in an uproar over gay marriage. They're not threatened, you see. Now a little weenie who maybe thinks women get a better deal by society so much that maybe he'd like to be one ... we've all seen commenters like that. Usually bemoaning the fact that men are mostly victims these days. I never bought it myself, because I know plenty of happy, healthy free men -- big and small. I wonder if you know many Alpha's Bart, or many gays or lesbians, or married people at all for that matter.

Because if you straightfacedly believe marriage primarily is for men to protect women from physical threats, you probably watch too much t.v.
4.4.2009 5:24pm
Bart (mail):
jrose:

For one of the core elements of marriage - two lifetime, romantic lovers providing comfort and support so that both will be happy, productive citizens - the gender combination is not relevant.

Romance, while an western ideal, is not a requirement for marriage nor does it provide any societal benefit such as making you a more productive citizen.
4.4.2009 5:24pm
Gary Anderson (mail):
The man has to be willing to risk death, maiming or an old fashioned ass whupping in the protection of the woman. A husband who has already made a life commitment to his mate is far more likely to do so than a date or business colleague.

So cute. That must be some woman you're showing off there, that other men come up and challenge you physically for her. Or are these just unfounded fears you have?

Have you been reading too much Bambi again, and are confusing modern married men with rutting animals? I think I smell a lot of fear in your responses: are you insecure in general, always feeling like you and your kind are under attack and everyone's out to get you? Policially, that can be suicide in the long run; personally, I bet it doesn't lead to many healthy relationships with other adult men and women. Kinda sad for ya.
4.4.2009 5:28pm
einhverfr (mail) (www):
@Batman:

I would be careful about limiting facts on the ground regarding social institutions to questions of nature. Social institutions are by definition social constructs. Nature has a role to play but even that is far more complex than you suggest.

I think there is a fundamental problem here though, and this is that marriage has traditionally been exclusively a part of what we might call "ethnic culture" or culture related to reproductive customs. As all elements of culture, there are many models that various different cultures have set up to address this sort of question and they range on one extreme from the collective marriages of the Oneida group to arranged polygamous marriages based on family alliances on the other extreme.

However, placing marriage exclusively as part of reproductive/ethnic culture is dangerously misleading. In reality, the customs relating to reproduction are generally determined fundamentally by other cultural aspects, particularly the "ethical culture" of ideology. In fact, I would argue that most cultures place most aspects of culture as based on religious models (a sub set of ethical/ideological culture). Orgiastic rites of some cargo cults, for example, Eliade has shown to be closely connected with eschetological models. However, as long as we are determined to be religiously pluralistic as a society, we run into serious problems trying to build social and legal institutions on a religious foundation.

What has replaced that foundation in the US is a foundation which might be seen as secular but classicist humanist (not necessarily atheist, but rather religiously agnostic or at least an equal opportunity offender). The idea has been to look back to models such as those offered by Aristotle and Cicero for ideas for what the state and society should be and allow religion to play a formative role in peoples' lives in other ways. During the last hundred and fifty years, we have seen a dramatic change in lifestyle where extended cohabiting families (i.e. where the grandparents would live with the married couple) have been replaced by nuclear families with the grandparents eventually living in assisted living facilities rather than with their kids. We have also seen other erosions of the larger extended-family support structures. In fact, marriages which damage extended-family support structures are actually quite common today (for example, 2 divorcees with children getting married to eachother without extraordinary effort to bring their existing families together).

So I think the question of how marriage functions in society needs to be looked at beyond mere reproductive restrictions as those no longer coincide with marriage restrictions at all, and the inquiry needs to be broader. I think it is reasonable to say that gay couples who adopt kids, for example, from the foster home environment, should have all the same support structures in place that heterosexual couples do. The trend is not towards polygamy or other large groups at the moment so I think that question as far as legal arrangements are concerned, needs to be left out of the discussion.

So I will ask two sets of questions to SSM proponents and opponents in another set of posts.
4.4.2009 5:40pm
einhverfr (mail) (www):
Questions for SSM opponents:

1) Is it better for kids to stay in foster homes with two foster parents of different genders or be adopted by stable gay couples?

2) Is there any reason why heterosexual couples who adopt children should have legal protections and benefits that gay couples shoud be denied?

3) Does equal protection under the law demand that we treat same-sex couples who adopt equally to opposite sex couples who adopt because one or both of them are infertile?

4) Would you be OK with providing an equal set of benefits (including federal benefits) which might be called something other than marriage?
4.4.2009 5:43pm
einhverfr (mail) (www):
Questions for SSM Proponents:

1) Do you agree that the ideal child-raising environment would include a stable family with role models of both genders as well as role models of positive relationships generally?

2) Would you be willing to forego same-sex marriage if similar benefits were denied to sterile heterosexual couples and marriage was reserved for those willing and able to procreate together?

3) If an entirely equal set of benefits was available for same-sex couples similarly situated to heterosexual couples, (including federal benefits) would this be a reasonable step forward? Note that if homosexuality is subject to intermediate scrutiny (the same as gender) that separate but equal would seem to me to be ok legally in the same way we allow separate but equal restrooms on the basis of gender.
4.4.2009 5:51pm
trad and anon (mail):
Do you agree that the ideal child-raising environment would include a stable family with role models of both genders as well as role models of positive relationships generally?
The "ideal" child-raising environment would consist of a rich family, with one parent staying home and the other working at most a very short work schedule (no biglaw partners). The parents should have an egalitarian relationship with a minimum of living out socially prescribed gender roles. There should be frequent contact with extended family and friends who are willing and eager to assist in childrearing. The parents should be extremely healthy (including mental health) and nobody should ever come into significant conflict with each other. The parents should believe in a morally sound value system and the correct religion according to my view of morality and religion. The people the children come into contact with should be diverse so that the children learn the value of diversity, so yes, that would include role models of both genders.

Parents of different sexes might be marginally better than parents of the same sex, but on the other hand parents of the same sex would tend to produce a more morally sound upbringing since the children would be less likely to grab large degrees of homophobia from society.
4.4.2009 6:10pm
jrose:
einhverfr:

1) Yes, ideal but not the only good one. It would be abusive for the government to tell a gay person she can't raise her biological child with her lover.

2) No. Any couple raising a child should have access to marriage. Moreover, I'll wager that a sterile, straight couple will successfully sue for their right to marry.

3) Yes, a step forward, but not the final step. What legal precedent established that gender-specific bathrooms are constitutionally permissible separate-but-equal arrangements under intermediate scrutiny, but would not have been under strict scrutiny?
4.4.2009 6:18pm
CDR D (mail):
einhverfr sez:

>It is generally accepted that various things can be re-litigated when facts on the ground change.


<

Okay, but how does a judge determine if "facts on the ground" have changed, and how does the judge decide just what they have "changed" into?

What/who does he consult to make such determinations? Blowtoads on TV and radio? Newspapers?
Public opinion polls? His own gut feelings?

Hell of a way to be governed, I'd say.

Really neat, though, because there's no interference from those pesky people.
4.4.2009 6:58pm
einhverfr (mail) (www):
trad and anon:

So the idea society would exist entirely of rich folk having kids, and poor folk should not seems to square nicely with the way polygamy is executed in some societies. Therefore, we might conclude that wealthy men OUGHT to marry up all the eligable women, and the underclasses should not have that opportunity, correct? This seems to be a perfect argument for polygamy as a public policy measure as well as forced sterlization for the underclasses..... Certainly your concept of the ideal family (rich with a support structure) would be furthered by a lack of reproduction by poor males, and polyagamous rich households.

BTW, I am not saying that the only valid childrearing environment is the mom+dad one. I am saying that the ideal environment is. Of course no environment is idea. In fact, I would say the ideal childrearing environment has grandma and grampa living in the same house too. The fact is however that I don't think we should deny gay couples who, for example, want to adopt kids from foster homes the same rights and protections that hetero couples receive from marriage. Note I am an advocate FOR SSM. I just think some of the rhetoric can lead to dangerous places.
4.4.2009 7:44pm
einhverfr (mail) (www):
CDR-D


Okay, but how does a judge determine if "facts on the ground" have changed, and how does the judge decide just what they have "changed" into?


That is the purpose of a trial, is it not? To try to prove what the facts are, correct? Basically it means one has the burden of proving that circumstances have legally changed, and that they have changed in a way that supports your case. The other side gets to try to put enough holes in your case to cause it to collapse.

Adversarial and transparent legal processes are designed to find out what the facts on the ground are.
4.4.2009 7:47pm
einhverfr (mail) (www):
Bart:

Spend more time together.


Are you serious? I thought the original point is that "protection" depends on physical presence, and if the man is out of the house 8-6 (9-5 + 1 hr commute), then most of the waking hours the woman is entirely unprotected.

Are you saying both parents should stay at home all the time so that the woman is properly protected? For the life of me, I can't see what your point is.
4.4.2009 8:38pm
einhverfr (mail) (www):
Gary Anderson:

Of course, to the layperson, DOMA was unconstitutional all along based on Equal Protection = discriminating against gender


I am a layperson and I never saw DOMA as unconstitutional on that basis. Now, on the idea that a marriage officiated in one state should be invalidated on an arbitrary basis in another seems to be basically outside our concept of Constitutional.

Even Louisiana, which doesn't otherwise recognize common law (or hence common-law marriage) will recognize common law as governing a common-law marriage if it existed in another state prior to the couple moving to Louisiana.
4.4.2009 8:41pm
Gary Anderson (mail):
Now you're getting into conflict of laws, einhverfr. I think actually states do have the rights to pick and choose what they recognize, just most recognize the "courtesy" of respecting a sister state's rulings. But family law is state by state, like you note w/Lousiana.

You look at what happened with divorce in Nevada and New York, say, and think of practicalities, incentives and human nature, and it's easy to see why neighboring states of Iowa now might begin to wonder about recognition policies and potential impacts in their own. (ie/ for insurance purposes, will IL employers recognize the marriages? or, how do you update policies and procedures to recognize new families, if you do recognize them differently based on an Iowa marriage.) I think this potentially impacts a different crowd than those who previously might have contracted privately for such things.
4.4.2009 9:30pm
einhverfr (mail) (www):
Gary Anderson:

In the case of Louisiana and common law marriage, though, it is a matter of the state respecting a legal arrangement entered into in another state which is has no parallel in Louisiana family law. For truly bizarre reasons (which probably truly offend originalists[1]), Louisiana looks to the Napoleonic Code instead of English Common Law, which leads to a very different approach to family law, and the like.

[1] The Napoleonic Code was adopted by France AFTER the Louisiana purchase was complete. Also no statute, of course, provides for common law marriage recognition in Louisiana, so this is by Judicial decision as to the state's recognition of previously existing and valid contracts.

In short the idea seems to be that states do not invalidate re-existing legal arrangements just because both parties move into their state. Either the arrangements are valid FROM THE BEGINNING or they are not. This is naturally not limited to questions like marriage and can affect informal contracts (like common law marriage) just as much as formal ones.

If states are free to pick and choose what marriages they consider, then a heterosexual couple moving from Las Vegas to New Hampshire would need to find out whether their marriage would still be legal after they move. I don't think states have that much leeway. Otherwise Connecticut could enact a law which states that no couple moving in which does not have a marriage which would not be valid if it had occurred in Connecticut would be recognized. If you don't go through the proper waiting period in Nevada (though it is not required there) and you move to Connecticut, your marriage is effectively annulled. Is that within state rights?
4.4.2009 10:02pm
Jack Twombly (mail):
The idea that DOMA is unconstitutional seems a bit ridiculous, especially when it is likelier than this Iowa Supreme Court decision violates DOMA. Take a look at some of the text of DOMA:


Powers reserved to the states:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.




In my view, "under the laws of" requires a legislative enactment, because Congress was expressly reaffirming the powers reserved to the states and retained by the people under the Ninth and Tenth Amendments of the Constitution. In other words, in "Our Federalism", a state legislature may pass a gay marriage law and a state court may uphold it or adjudicate a matter pursuant to it, but that does not obligate any other state to recognize the effect of such a proceeding or a legislative enactment under principles of comity or the Full Faith and Credit Clause. If DOMA is valid federal law, then a state court certainly may not avoid it by striking down state legislation by interpreting its own state constitution in light of federal principles, federal law, federal legal scholarship, and federal cases, and then claiming there is an adequate and independent state ground for it to evade SCOTUS review. If state courts could do that to DOMA, then nullification is a valid argument. For a good discussion of the implications of nullification, see the following: http://encyclopedia2.thefreedictionary.com/Seccession

You pro-gay marriage partisans can promote the idea of limiting states' rights all you want, but you are really making the slaveholders' arguments, only dressed up in fancy legalistic liberalism. You ought to be ashamed.
4.4.2009 10:16pm
ChrisTS (mail):
(A man has only one sword, a woman only one sheath.) Thus, you could claim that the bodily structure implies the "two" concept.

I'm … aghast.
4.4.2009 10:19pm
ChrisTS (mail):
Because if you straightfacedly believe marriage primarily is for men to protect women from physical threats, you probably watch too much t.v.

Bart is a big '21' fan and seems to have some difficulty distinguishing between reality and entertainment.
4.4.2009 10:20pm
ChrisTS (mail):
Questions for SSM Proponents:

1) Do you agree that the ideal child-raising environment would include a stable family with role models of both genders as well as role models of positive relationships generally?
Probably an ideal situation if we also include elders and non-human companion animals.

2) Would you be willing to forego same-sex marriage if similar benefits were denied to sterile heterosexual couples and marriage was reserved for those willing and able to procreate together?
No, because two legal wrongs do not make a moral right.

3) If an entirely equal set of benefits was available for same-sex couples similarly situated to heterosexual couples, (including federal benefits) would this be a reasonable step forward? Note that if homosexuality is subject to intermediate scrutiny (the same as gender) that separate but equal would seem to me to be ok legally in the same way we allow separate but equal restrooms on the basis of gender.
So, the only distinction would be that some of these couples are officially described as 'married' and the others are not? What is the point -- just to let the bigots rule the language?
4.4.2009 10:21pm
Gary Anderson (mail):
Is that within state rights?

I think it is, though states definitely defer to recognizing what happens in the sister states. Like your Louisiana example. That's kind of how the divorce laws became genericized right, it just is more practical to recognize your citizens' situation as you take them, although if CT wanted to refuse recognition and ignore the practicalities, that would be their right. Something about courtesy.
4.4.2009 10:28pm
Gary Anderson (mail):
If DOMA is valid federal law, then a state court certainly may not avoid it by striking down state legislation by interpreting its own state constitution in light of federal principles, federal law, federal legal scholarship, and federal cases, and then claiming there is an adequate and independent state ground for it to evade SCOTUS review.

Why assume the if?

you are really making the slaveholders' arguments, only dressed up in fancy legalistic liberalism. You ought to be ashamed.

Jim, would you like some crow to eat? (Two can play that game, but why?)
4.4.2009 10:31pm
Gary Anderson (mail):
einhverf:
FYI background on conflict of laws -- In 1993, the Hawaii Supreme Court determined--in a decision that was later overruled through a popular referendum--that the state's constitution enshrined a right to same-sex marriage.

Immediately, fears arose that sister states might have to recognize Hawaii's same-sex marriages under Article IV, Section 1, of the Constitution, which commands that "Full Faith and Credit shall be given in each state to the public Acts, Records, and Judicial Proceedings of every other state." The second sentence of that section authorizes Congress to prescribe by general laws the manner in which sister-state acts "shall be proved, and the Effect thereof."

While the meaning of the Full Faith and Credit Clause is anything but clear, the historical practice concerning marriage has been relatively straightforward. As a general rule, states recognize marriages concluded in other states.[3] In all states, however, courts have consistently recognized an exception for out-of-state marriages that violate the strong public policy of the forum state. For example, states will generally refuse to recognize a sister-state marriage where the partners chose that state for the transparent purpose of evading the laws of the state in which they are domiciled. (The point of this rule is to protect against a "race to the bottom," meaning Nevada.) Similarly, the public policy exception has traditionally covered cases of bigamy, polygamy, consanguinity, and, in an earlier age, miscegenation.

When the Hawaii Supreme Court legalized homosexual marriage, it seemed unclear whether the public policy exception would extend to such unions. To avert the possibility that the courts of a single state might drag the entire country into recognizing same-sex marriage, Congress in 1996 enacted the Defense of Marriage Act (DOMA), which provides that no state shall be required to give effect to same-sex marriages recognized in a sister state. (DOMA also provides that for purposes of federal law, "marriage" shall mean exclusively the union of one man and one woman.) The act was passed by overwhelming majorities in both houses and signed into law by President Clinton. Thirty-five states promptly responded by enacting "little DOMAs"--that is, statutes that affirmatively bar state courts from recognizing other states' same-sex marriages.

The central, eminently sensible recognition behind DOMA was that federalism's advantages--choice, diversification, and experimentation--presuppose that states make their own deliberate policy choices. A viable federalist solution therefore requires a reliable mechanism to prevent same-sex marriages migrating willy-nilly from one state into another. To be sure, the legislators who enacted DOMA probably lacked a fully developed theory of federalism. Many may have welcomed DOMA as a punt that would let them avoid a difficult vote on the merits. But so what? The desire to avoid a knock-down, drag-out, national fight over homosexual marriage very likely reflected the preferences of a vast majority of citizens--and, at some level, the prudential federalism considerations rehearsed above.

The attraction of the federalist solution has remained undiminished. Vice President Cheney articulated it in the 2000 presidential campaign. While Mr. Cheney has now seconded the president's endorsement of the Musgrave amendment, leading politicians of both parties--including presidential aspirant John Kerry--have rushed to identify themselves with his earlier position. But the institutional context of that position has now changed, courtesy of the courts. States no longer have a defense against forced imports of same-sex marriages.

DOMA Is Dead

Some leading scholars of Conflicts of Law-the discipline that attempts to explain whether courts must apply their own or a sister state's law in cases of conflict--continue to insist that all is in good order at the Full Faith and Credit front.[4] Same-sex marriages, they say, fall squarely under the public policy exception, meaning that state courts can refuse to recognize them with or without DOMA, which merely codified the existing general arrangement.

The law reviews tell a different story. "Dumb and DOMA," the title of one much-cited article, reflects the general tenor of an anti-DOMA tsunami. Yes, scholars explain, DOMA affirms the traditional public policy exception--but that exception is unconstitutional, and therefore so is DOMA. Others (prominently, Laurence Tribe) have argued that DOMA violates the Full Faith and Credit Clause. Congress, they say, may prescribe what effect state acts shall have in sister states. It may not put the clause out of operation by prescribing that certain public acts--same-sex marriages--shall have no effect in sister states.[5] All this, mind you, was before the Supreme Court's discovery, in last year's Lawrence v. Texas decision, of a constitutional "liberty" that prohibits many forms of discrimination against homosexuals.

In short, the ground has been paved for DOMA's judicial invalidation. The courts may hold that DOMA violates the liberty interest recognized in Lawrence. They may hold--more in keeping with the Massachusetts Supreme Judicial Court's Goodridge decision and the U.S. Supreme Court's 1996 ruling in Romer v. Evans[6]--that a statute that singles out same-sex marriages for non-recognition has no basis other than an impermissible animus against homosexuals, thereby violating equal protection. They may find that DOMA violates the Full Faith and Credit Clause or perhaps the Privileges and Immunities Clause (because it imposes a burden on same-sex couples' right to interstate travel). One way or the other, DOMA is a dead letter. The same, of course, goes for the states' little DOMAs.
4.4.2009 10:41pm
Desiderius:
trad,

"Parents of different sexes might be marginally better than parents of the same sex"

The different sexes isn't as important as the fact that the the parents created the child together out of themselves, giving them a greater stake in the success of the endeavor. Children appreciate the difference, especially children with step-parents who have friends/relatives with regular ones - not to mention the millions who lack any father at all.

If indeed science bridges this gap soon (allowing any two adults, regardless of sex, to create new life together), the question will of course then be moot. Faster please. Until then, arguments ignoring this reality will not find the purchase those advancing them hope for.

As for eagles and rocks, oh my! They were merely an illustration of the category error of assuming that marriage is commonly understood to be between two adults rather than a male and a female. Perhaps this should be the common understanding, but it isn't yet, and arguing as if it were is more likely to get one's arguments dismissed than sympathetically heard.

Finally, when I refer to alpha males, I'm speaking of the ones who actually get there in the sperm game, not the ones one might hope would get there or the Mr. Bigs who get there among the elites and evidently cause such heartburn thereabouts.

Out here in the heartland, this is distressingly often some cad in his mid-20's knocking up several impressionable young women of a certain age significantly less than his own. Believe it or not, these women choose not to take advantage of the copious contraceptives and/or abortions available to them even in hopelessly backward flyover country. Only slightly better is the sordid Levi Johnston scenario replayed hundreds of thousands times over.

Bottom line: its the issue of such furtive unions who get royally screwed. That society is also screwed by delegating the reproductive management to teenage women (as opposed to the elites who sensibly still delegate it to women in their late twenties and early thirties) is of secondary importance.

Either way, this is why so many are so concerned about the question of "marriage" and what it means and how it can be strengthened. There is an argument to be made that SSM can assist in that cause. That argument does not take the form of "kids don't need moms and dads" or "the interests of the adults take primacy over those of the kids."

"In your love you see only your two selves in the world, but in marriage you are a link in the chain of the generations"

- Dietrich Bonhoeffer
4.4.2009 11:06pm
ChrisTS (mail):
Perseus: I'm sorry, I overlooked your reply to me.

I'm a political theorist so reading texts carefully is part of my job description.

Good. I'm a philosopher, and knowing that reading selected lines from one text -particularly ones originally composed in Attic Greek - can produce distorted interpretations of the views expressed.

In particular, note that the passage you cite in the Nic. Eth. is only interpreted as a condemnation of homosexuality by Aquinas and other christians. Actually, that is not even fair to Aquinas, who simply ignored the part of the text that did not meet the requirements of the Church in his Summa; he correctly annotated Aristotle's text in his earlier Latin translation and commentary on the same.

As for Plato, his purpose in the Laws in the passage you cite is complex and only interpretable as a condemantion of homosexuality, in itself, if one ignores (a)the rest of the work and (b) the rest of the dialogues.

More to the point, as someone else has noted, here, why should we look to the ancient Greeks for our views on marriage? As I have suggested, above, I find those views pretty unappealing - especially from the perspective of a woman.
4.4.2009 11:24pm
Desiderius:
einverhr,

Thank you for the kind comment.

"1) Do you agree that the ideal child-raising environment would include a stable family with role models of both genders as well as role models of positive relationships generally?"

I'm not much concerned with gendered role modeling. I'm more concerned that both parents have genetic skin in the game and that society encourages arrangements that give the most people opportunities to play. As for general role modeling, I agree with previous commenters on the importance of extended families.

"2) Would you be willing to forego same-sex marriage if similar benefits were denied to sterile heterosexual couples and marriage was reserved for those willing and able to procreate together?"

Hell no. Don't let the perfect be the enemy of the good the other way. I just don't think that procreation should be trashed to make people who chose otherwise feel better about their choice, or in a misguided attempt to make SSM seem less controversial. SSM arguments that embrace traditional monogamous marriage, including its procreative function, seem more promising than those that pretend that function is secondary. If one can't have the function, at least embrace the form.

"3) If an entirely equal set of benefits was available for same-sex couples similarly situated to heterosexual couples, (including federal benefits) would this be a reasonable step forward? Note that if homosexuality is subject to intermediate scrutiny (the same as gender) that separate but equal would seem to me to be ok legally in the same way we allow separate but equal restrooms on the basis of gender."

I think the status arguments have merit. Same-sex couples who honor the form of marriage should not suffer any lesser status than opposite-sex couples, any more than childless couples do. I'm not real hot personally on bringing children into the world intentionally bereft of half of their genetic tie, but this is already widespread. What concerns me is arguments, and, more importantly, legal findings, that pretend that doing so isn't suboptimal for such children, and thus that the state and/or society has no interest in encouraging better alternatives.

I'm convinced that those alternatives do not include denying marriage to same-sex couples.
4.4.2009 11:28pm
Jack Twombly (mail):
Gary,

We disagree on DOMA. I think appealing this decision is the perfect vehicle to confirm the constitutionality of DOMA.
4.4.2009 11:56pm
einhverfr (mail) (www):
Jack Twombly:

What effect does the full faith and credit clause have, then?

It seems to me that two fundamental arguments could be made against DOMA:

1) That it improperly allows states to disregard matters of public record affected in other states (marriage, divorce, etc). For example:

Gay couple gets married in Massacheussets. Later moves to Iowa. Iowa decides to recognize the marriage. They get divorced in Iowa. One moves back to Massacheussets and claims with the state they are still legally married because, under DOMA, Massacheussets doesn't need to recognize his divorce..... If he files for a divorce in Massacheussets, DOMA could be argued to then move the previous divorce proceedings out of res judicata considerations.

2) It is discriminatory against a suspect class that SCOTUS has already acknowledged is due intermediate scrutiny. The fact that only marriages, divorces, custody arrangements, etc. regarding same-sex couples are involved would seem to run amok with various existing supreme court precedent. Even if you don't hold that the US Constitution requires gay marriage be recognized by every state, equal protection would seem to run amok with DOMA.
4.5.2009 12:06am
einhverfr (mail) (www):
Jack Twombly:

We disagree on DOMA. I think appealing this decision is the perfect vehicle to confirm the constitutionality of DOMA.


You mean the Iowa decision?

Why would that force the court to rule on DOMA?

Or maybe I was wrong about the idea that usually courts try to rule on cases using the smallest and most specific criteria possible.
4.5.2009 12:09am
Jack Twombly (mail):
I already explained why I think this decision violates DOMA. Your broadside on DOMA is really irrelevant to that.
4.5.2009 12:20am
einhverfr (mail) (www):
Jack Twombly:

How does this decision rest on federal law or scholarship, given that the court cites numerous examples of the Iowa Constitution being far stricter than the US Constitution?
4.5.2009 1:12am
Perseus (mail):
As for Plato, his purpose in the Laws in the passage you cite is complex and only interpretable as a condemantion of homosexuality, in itself, if one ignores (a)the rest of the work and (b) the rest of the dialogues.

I chose Plato's Laws precisely because it is the most political dialogue in a practical sense (the Republic is utopian or perhaps ironic while the Symposium's topic of love by its very nature depreciates nomos), and my basic point stands that from the political perspective of producing citizens, SSM would be silly.

More to the point, as someone else has noted, here, why should we look to the ancient Greeks for our views on marriage?

Because they may have something to teach us. Specifically, I bring them up to emphasis procreation as the primary reason for the government's interest in marriage. As Cathy Young put it:

Unless children are an issue, why should the government take an interest in whether we settle down with a steady partner in a sexual relationship? Yes, there is evidence that married people are happier and healthier than singles, but that doesn't necessarily justify government involvement; there is also plenty of evidence that people who have a network of close friends are happier and healthier than loners, but we don't have special legally mandated benefits for friendships.
4.5.2009 1:42am
jrose:
Gay couple gets married in Massacheussets. Later moves to Iowa. Iowa decides to recognize the marriage. They get divorced in Iowa. One moves back to Massacheussets and claims with the state they are still legally married because, under DOMA, Massacheussets doesn't need to recognize his divorce

That aspect of DOMA is likely to fall because a divorce is a final judgment. But I don't believe there is an FFC requirement to recognize the marriage [Hyatt]:

The full faith and credit command "is exacting" with respect to a final judgment rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, but is less demanding with respect to choice of laws. The Clause does not compel a State to substitute the statutes of other States for its own statues dealing with a subject matter concerning which it is competent to legislate.

It is discriminatory against a suspect class that SCOTUS has already acknowledged is due intermediate scrutiny

Sexuality is not a federal suspect classification.
4.5.2009 7:53am
jrose:
In my view, "under the laws of" requires a legislative enactment ... If DOMA is valid federal law, then a state court certainly may not avoid it by striking down state legislation by interpreting its own state constitution in light of federal principles, federal law, federal legal scholarship, and federal cases, and then claiming there is an adequate and independent state ground for it to evade SCOTUS review

1) What is the precedential basis that the statutory interpretation of DOMA's "under the laws of" is limited to legislative enactments?

2) If your statutory interpretation is correct, the national government is able to dictate to the states how their branches of government interact to determine what their own laws are. That's not Federalism.

3) If you are correct, then it makes no difference whether the state court appealed in any manner to federal priniciples, law, etc. Even if they confined themselves completely to state principles, law, etc., they would still have unconstitutionally undercut DOMA under the Supremacy Clause. So, why haven't the Masschusetts nor Connecticut decisions been appealed to federal courts?
4.5.2009 8:13am
Waldo (mail):
This is admittedly late in the thread, but having posted in opposition to same-sex marriage, I can answer einhverfr's questions. For the first two:

1) No, if the children are moved through multiple foster homes. Stability is a more important consideration than sexual orientation. However, I also believe that it's better for children to be adopted by stable single people, than to continue to bounce around in the foster care system. I know several single people (divorced or widowed) who would make excellent parents. Of course, anyone who adopts should have the financial means to support a child as well as pass a reasonable background check (i.e.- to prevent a 50-yr old Fundamentalist Latter-Day Saint from adopting a 10-yr old girl).

2) Only in regards to adoption. Therefore, we shouldn't limit an adoption tax credit to heterosexual couples, or couples at all. However, the reason that heterosexual couples should have legal protections and benefits that gay couples are denied is that most of those couples can have children biologically without regard to financial means or stability. Since we don't regulate reproduction (and, IMO, the very idea of requiring state approval to have children is abhorrent), society has a reasonable interest in treating heterosexual relationships differently.
4.5.2009 12:04pm
Waldo (mail):
einhverfr: For the second two:

3) Once again, only in regards to adoption law. For example, outright bans on adoptions by same-sex couples would be a violation of equal protection. However, state adoption agencies already give preference to couples of the same race in placing children for adoption, and race is subject to strict scrutiny at both the federal and state levels. States, therefore, might have an interest in giving preference to an otherwise equal opposite sex couple for the same reasons.

4) Yes, because marriage is more than a set of benefits. It is also a set of social norms, one function of which is to legitimize fatherhood. What marriage once did is allow men to invest resources in their families with the reasonable expectation that the children are theirs as well. Beginning with no-fault divorce that expectation has eroded, and with same-sex marriage, it is no longer even reasonable.

Also, this raises the question of what benefits we should provide people, just because they claim to be in a committed relationship (remember, no-fault divorce). Does it make sense for a person making 100k married to a non-working spouse to pay less in taxes than a single parent of one child making the same? Should a person married for a year be able to inherit millions tax-free, but the person supporting the deceased's child not? Why should single people be forced to subsidize someone's committed relationship?
4.5.2009 12:40pm
John D (mail):
Answers of a SSM Proponent*:

1) Do you agree that the ideal child-raising environment would include a stable family with role models of both genders as well as role models of positive relationships generally?
No. There is no evidence to support this. The evidence does support that children do well in two-parent households. On the other hand, I'm not going to insist that the divorced or widowed remarry "for the sake of the children." On the other hand, role models of positive relationships are doubtless a good thing.

2) Would you be willing to forego same-sex marriage if similar benefits were denied to sterile heterosexual couples and marriage was reserved for those willing and able to procreate together?
Maggie Gallagher calls testing opposite-sex couples for fertility "intrusive," and here I have to reluctantly agree with her (while heading off to a different conclusion). Tell you what, implement the profoundly unjust and unconstitutional move of making procreation mandatory and then we'll talk.

It's a standard to which we are unable to hold opposite-sex couples.

3) If an entirely equal set of benefits was available for same-sex couples similarly situated to heterosexual couples, (including federal benefits) would this be a reasonable step forward? Note that if homosexuality is subject to intermediate scrutiny (the same as gender) that separate but equal would seem to me to be ok legally in the same way we allow separate but equal restrooms on the basis of gender.

"Similarly"? Ah, separate and unequal. Well, that dream is over. Actually, restrooms aren't "separate but equal." No urinals in the women's restroom. More stalls available for women. Sounds sensible, but not equal, to me.

If we want to create a special status, equal in all respects to marriage, just for same-sex couples, why do we need another name for it? Should we create a vehicle, equal in all respects, for gay people, but not call it "an automobile"?



* Nothing written here is to be taken as indicative of the views of other proponents of same-sex marriage.
4.5.2009 1:03pm
Desiderius:
Parting shot:

Should Harvey Milk have to right to roger any rooster that catches his fancy? Absolutely. Should he have the right to settle down with one and play hen (as if, affectionately, but OT)? If that's their thing, can't hurt. If I'd like to have 3.2 Harvey Jrs. and 13.5 Harvey III's running around making the world a funnier and juster place, should I and my fellow citizens be able to encourage such things without running afoul of EP?

Convince me why not.
4.5.2009 1:23pm
cmr:
No. There is no evidence to support this. The evidence does support that children do well in two-parent households. On the other hand, I'm not going to insist that the divorced or widowed remarry "for the sake of the children." On the other hand, role models of positive relationships are doubtless a good thing.


In keeping with intellectual honesty: how many of those studies are talking about any two-parent household, versus how many are specifically referring to heterosexual households?
4.5.2009 2:25pm