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The Impact of Judicial Power on Gay Marriage Revisited:

Legal scholars such as Jeffrey Rosen and Gerald Rosenberg have argued that judicial decisions striking down state bans on gay marriage have ultimately set back the cause of gay equality by stimulating an anti-gay marriage political backlash. Back in November, I wrote a post criticizing this view, noting that judicial decisions have led to much faster adoption of gay marriage than would have occurred otherwise. Since November, three more states - Iowa, Maine, and Vermont, have legalized gay marriage and New Hampshire is likely to do so soon, despite some delays. Three of those four states (all but Iowa) have adopted gay marriage through the legislative process (or almost done so, in the case of NH), which suggests that the power of the anti-gay marriage backlash is waning.

These developments provide additional support for my argument that judicial review has been a net plus for the gay marriage movement. It is unlikely that either these four states or the two that adopted gay marriage earlier would have done so as quickly were it not for the momentum generated by the Massachusetts Supreme Judicial Court's 2003 Goodridge decision mandating gay marriage equality in that state. Until that point, gay marriage seemed a very distant prospect in virtually every state, even the more liberal ones.

Rosen, Rosenberg, and others point out that the post-Goodridge backlash led to the enactment of anti-gay marriage state constitutional amendments in some 30 states. However, as I explained in my November post, these states did not have gay marriage previously and were unlikely to enact it anytime soon. When and if public opinion in those states shifts in favor of gay marriage, the state constitutional amendments banning it will not be much of an obstacle. Most of the state constitutions in question are relatively easy to amend (which is one of the reasons why gay marriage opponents were able to push through their own amendments so quickly after 2003). Meanwhile, six states now have gay marriage, which is probably six more than would have had it at this point in the absence of the Massachusetts decision. A seventh state, California, would have gay marriage now as well, if not for a very narrow referendum defeat in November.

To say that pro-gay marriage judicial review has been effective in advancing cause of gay rights is not to say that it was legally correct. I myself have serious doubts about the legal justifications for some of the state pro-gay marriage rulings. It also doesn't mean that judicial review is so powerful that judges can get away with doing anything they want. Obviously, the pro-gay marriage judicial decisions would not have occurred were it not for the general liberalization of societal attitudes towards gays over the last several decades. By 2003, the majority of the public wasn't yet ready to support gay marriage; but they were much less hostile to it than even a decade earlier. And elite opinion was even more favorable. Judges do not operate in a vacuum, and their power is limited by political constraints. Even so, it is now increasingly clear that judicial intervention has been a major net benefit for the cause of gay rights.

happy (mail):
hello,
These developments provide additional support for my argument that judicial review has been a net plus for the gay marriage movement. It is unlikely that either these four states or the two that adopted gay marriage earlier would have done so as quickly were it not for the momentum generated by the Massachusetts Supreme Judicial Court's 2003 Goodridge decision mandating gay marriage equality in that state. Up until that point, gay marriage seemed a very distant prospect in virtually every state, even the more liberal ones.



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5.25.2009 6:54pm
MatthewM (mail):
Which is why judicial supremacy is so dangerous to democracy and so tempting to elites -- it provides a gigantic thumb on the scale of public policy, not subject to democratic control, which can be used to advance certain interests held dear by a particular subset of the population.

What liberals should ask themselves is this -- what happens if that same power is put into the hands of right-wing culture warriors?
5.25.2009 7:13pm
Andrew Maier:
Prof Somin addressed that point, MatthewM:


"It also doesn't mean that judicial review is so powerful that judges can get away with doing anything they want. Obviously, the pro-gay marriage judicial decisions would not have occurred were it not for the general liberalization of societal attitudes towards gays over the last several decades. By 2003, the majority of the public wasn't yet ready to support gay marriage; but they were much less hostile to it than even a decade earlier. And elite opinion was even more favorable. Judges do not operate in a vacuum, and their power is limited by political constraints."


Judges can't really act to sway public opinion the way you credit them until public opinion has largely swayed anyway.
5.25.2009 7:25pm
rfg:
In the past, the power has been in the hands of both sides at different times, and has arguably been misused by both sides.

Unfortunately, there are policy issues that should not be decided by democratic means, such as gun control and free speech, to name one on each side. We thus avoid the "tyranny of the majority".

Is there a better way? I don't know. Do you?
5.25.2009 7:31pm
MatthewM (mail):
The judges aren't swaying public opinion as such on the merits or the substance of these issues; they are swaying it with regard to the political possibilities of opposing particular policies. Court decisions such as Goodrich demoralize political opponents; they make it much more difficult as a practical political matter for them to promote their policies or oppose those of the elite; this is the "thumb on the scale" I was referring to. And it's why such power can be so dangerous, and so tempting.
5.25.2009 7:38pm
merevaudevillian:
which suggests that the power of the anti-gay marriage backlash is waning


I'm not entirely certain you can draw that conclusion from your premise. Gay marriage has been outlawed by constitutional amendment in a whopping 30 states. That leaves 20 left. Of those, 5 (potentially 6) have enacted it by judicial fiat or by the legislative process. Which leaves 14 (or 15) states left. Of those, most have a cumbersome, non-populist referendum process, which was the impetus for most anti-gay marriage constitutional amendment attempts.

That, to me, suggests that anti-gay marriage proponents are simply running out of room for legislative achievements. To be sure, there are 20 states that haven't outlawed gay marriage. But they're the more difficult states to achieve referendum success. So I wouldn't say the power is "waning." I'd just say that the remaining jurisdictions aren't as easy to achieve victory, when 3/5 of the country has already been won.
5.25.2009 7:44pm
JB:
I think that the constitutional amendments, on both sides, are a net plus for whichever side ultimately wins. They force the activists on both sides to come out of the closet, as it were, and make arguments that appeal to everyone. Losing a referendum is a crushing blow, as is losing a court case, so if you are facing one you have to work to move public opinion.

Insofar as judicial power is restrainable by public opinion, it is a plus for forcing these referenda. For this reason, even though I support gay marriage, I hope the California courts uphold the Prop. 8 decision.
5.25.2009 7:46pm
Roger Schlafly (www):
California, would have gay marriage now as well, if not for a very narrow referendum defeat in November.
Not that narrow. Calif Prop 8 passed by about same margin as the Presidential election. I don't hear people say that Obama won by a very narrow vote.
5.25.2009 8:06pm
Contrarian (mail):
I don't buy this argument. That legislatures are passing gay marriage laws could just as easily show states realize judicial activism is wrong. In other words, the passed laws are further evidence of the backlash.
5.25.2009 8:39pm
jrose:
Calif Prop 8 passed by about same margin as the Presidential election. I don't hear people say that Obama won by a very narrow vote.

Huh?

Obama: 8,274,473 (67%)
McCain: 5,011,781 (31%)

Yes: 7,001,084 (52%)
No: 6,401,482 (48%)
5.25.2009 9:01pm
Jason F:
Proposition 8 passed by about four and a hal points. President Obama defeated Senator McCain by 24 points in California and by more than 7 points nationwide. That's only "about [the] same margin" under a very loose definition of "about the same margin."
5.25.2009 9:01pm
Some dude:
I don't understand these judicial decisions, it just defies common sense.

All this time these state constitutions have mandated SSM and nobody noticed before? Swallowing that requires a willful suspension of disbelief.
5.25.2009 9:03pm
ArthurKirkland:
Brown v. Board of Education must have been tough to swallow, an affront to common sense, by that standard. Same with Heller, Miranda and a number of others.
5.25.2009 9:16pm
BooBerry (mail):
The anti-SSM crowd will likely continue to lose in state courts because their legal arguments are just, at bottom, not very persuasive when it comes to civil marriage. Equal protection analysis for SSM is very easy to understand and very common-sense, Some dude and others. Let me know if you need a primer.
5.25.2009 9:17pm
Steve P. (mail):
Huh?

Obama: 8,274,473 (67%)
McCain: 5,011,781 (31%)

jrose, where are you getting your numbers? According to the Federal Election Commission report, the popular vote was about 69.5 million votes for Obama, and about 60 million votes for McCain. When taken with all the other votes, the percentages were 52.92% to 45.66%.
5.25.2009 9:28pm
jrose:
The anti-SSM crowd will likely continue to lose in state courts because their legal arguments are just, at bottom, not very persuasive when it comes to civil marriage. Equal protection analysis for SSM is very easy to understand and very common-sense

It can't be that easy. SSM court victories: Hawaii, Massachusetts, Connecticut, Iowa. SSM court defeats: Vermont, New York, New Jersey, Washington
5.25.2009 9:29pm
nostradamus (mail):
when the republic falls in fifty years, the gay movement will be to blame. There is no such thing as gay marriage.
5.25.2009 9:32pm
BooBerry (mail):
jrose:

Also add California. And Vermont's was mostly a victory - the VT Supreme Court mandated that the same rights and privileges be given to same-sex couples, just not use of the word "marriage."
5.25.2009 9:33pm
jrose:
My numbers are from California.

Regarding the national popular vote, 1) Obama's margin was about 60% greater than Prop 8's margin (7.2/4.5), and 2) the total number of votes makes a difference. A 4%-point win maybe narrow on a base of 13 million, but not on a base of 130 million.
5.25.2009 9:38pm
CrazyTrain (mail):
Obama beat McCain nationally by over seven points.

Prop 8 won by 4 points.

Not comparable.
5.25.2009 9:51pm
Soronel Haetir (mail):
I would figure the CA reversal would be one of the more painful for the SSM activists. Lots of the states that have passed anti-SSM amendments are likely places such couples wouldn't want to live in for the most part anyway. When you already face social pressure just for being perceived as being different how much worse do most people want to make such situations?
5.25.2009 9:51pm
Roger Schlafly (www):
Obama got 52.9% of the popular vote. Prop 8 got 52.2% of the Calif. vote.
5.25.2009 10:04pm
scattergood:
The problem is that there is no such thing as the Gay Marriage Movement. It is the Same Sex Marriage movement. While people would like to say they are the same, they are not.

There is no requirement to engage in homosexual acts in order to marry a person of the same sex in any of the jurisdictions where SSM is legal.

This giant hole of logic is what devalues the notion of marriage on a societal level. By making marriage basically mean anything, it means nothing.
5.25.2009 10:07pm
Harold1995:

A seventh state, California, would have gay marriage now as well, if not for a very narrow referendum defeat in November.


Please decide whether or not 52.5% is a landslide or a "very narrow" victory.

If it's a landslide (as leftists claim with Obama) then the same applies to Prop 8.

If it's "very narrow” then the same applies to Obama's victory.

You can't have it both ways.

Either 52.5% is a landslide or it's a "narrow victory." It can't be both.
5.25.2009 10:18pm
corneille1640 (mail):

when the republic falls in fifty years, the gay movement will be to blame. There is no such thing as gay marriage.

It's certainly possible that the Republic will fall in c. 50 years, but I think that a large national debt, crumbling infrastructure, disparities b/w rich and poor, invasion from without, or other factors might have at least something to contribute to its downfall.
5.25.2009 10:20pm
Mike S.:
I object to the phrase "gay marriage" as sloppy. At least here in MA, the town clerks do not inquire about your sex life before issuing a license. You do not have to be a homosexual to enter into a same sex marriage, nor do you now or did you ever have to be heterosexual to enter into an opposite sex marriage. While the desire to be sexually attracted to your spouse is too obvious to need comment, the institution of marriage is broader than just sex. I know of at least one married couple of straight women (health insurance being the motive) and one gay man married to a lesbian (bringing up a child with both biological parents being the motive.)
5.25.2009 10:20pm
corneille1640 (mail):

There is no requirement to engage in homosexual acts in order to marry a person of the same sex in any of the jurisdictions where SSM is legal.

Does traditional marriage entail a legal requirement that the couple engage in heterosexual acts? Perhaps such used to be the case, but is it so now? Can a man and a woman marry and yet, legally, agree never to have sex?
5.25.2009 10:23pm
Harold1995:

The anti-SSM crowd will likely continue to lose in state courts because their legal arguments are just, at bottom, not very persuasive when it comes to civil marriage. Equal protection analysis for SSM is very easy to understand and very common-sense, Some dude and others. Let me know if you need a primer.


Anderson v. King County.
Conaway v. Deane.
Hernandez v. Robles.
Standhardt v Superior Ct.

And the big one:

BAKER v. NELSON 409 U.S. 810 (1972)
5.25.2009 10:24pm
Harold1995:

Obama beat McCain nationally by over seven points.

Prop 8 won by 4 points.

Not comparable.


You name suits you, you are Crazy.

Either 52.5% is a narrow victory, or it is a landslide. You can't move the line when it suits your agenda.

The fact that other individuals were on the ballot with McCain and Obama doesn't change the fact that Obama only obtained 52.5% of the popular vote.

Again, 52.5% is either a landslide or a narrow victory.

One or the other.

It can't be both.
5.25.2009 10:29pm
Some dude:
I think the marriage can be legally annulled if the couple does not have sex.
5.25.2009 10:32pm
Harold1995:
Let's help the delusional lefties out.

52.87% of the nation voted for Obama.
47.13% of the nation voted for Someone else.

52.24% of Californians voted for Prop 8.
47.76% of Californians voted against Prop 8.

The margins are virtually identical.

Either both are a Landslide or both are narrow victories. They can't be both.
5.25.2009 10:34pm
Some dude:
Speaking of annulment, under what conditions could a SSM be legally annulled?
5.25.2009 10:37pm
Michael Ejercito (mail) (www):

Unfortunately, there are policy issues that should not be decided by democratic means, such as gun control and free speech, to name one on each side. We thus avoid the "tyranny of the majority".

Perhaps there would be less controversy over these judicial decisions if there were an explicit provision in the respective constitutions protecting the right to enter into a same-sex "marriage", similar to explicit protections of the freedom of speech and the freedom to keep and bear arms.
5.25.2009 10:50pm
jrose:
Harold1995,

The ballots did not read "Obama" and "not Obama". The best guestimate of what the results would have been in such a case is Obama's 7.2%-point margin over McCain.

Even if the percent margins had been the same, Obama's win would correctly been characterized as larger because of the 10 times greater base (just like a 60-40 result is larger than a 6-4 result).
5.25.2009 10:53pm
Some dude:
Unfortunately, there are policy issues that should not be decided by democratic means, such as gun control and free speech, to name one on each side. We thus avoid the "tyranny of the majority".


One on each side of what? Both those things are explicitly protected.
5.25.2009 10:54pm
jrose:
Michael,

Is there controversy over Loving or Zablocki? I don't think so, and therefore it can't be the lack of explicit language at the heart of the controversy.
5.25.2009 10:55pm
Psalm91 (mail):
"What liberals should ask themselves is this -- what happens if that same power is put into the hands of right-wing culture warriors?"

But hasn't this been a conservative project, with substantial success in many circuits, since the 1980's? It is all a matter of where your empathies lie.
5.25.2009 10:57pm
James Moylan (mail) (www):
nostradamus said:

when the republic falls in fifty years, the gay movement will be to blame. There is no such thing as gay marriage.


then corneille1640 said

It's certainly possible that the Republic will fall in c. 50 years, but I think that a large national debt, crumbling infrastructure, disparities b/w rich and poor, invasion from without, or other factors might have at least something to contribute to its downfall.


And then I said - well said.
You took the words straight out of my .... (fingers?)

By God but you Americans are a repressed bunch!
Anyone would think that these various States were trying to impose enforced gay marriage on everyone.
Marriage is not a 'natural' institution. It is a creation of our societies and as such is entirely mutable.
Is 'marriage' in Islamic countries where it is quite legal to have many wives a 'natural' institution?

But it is immensely enjoyable watching repressed rightwing loony tunes getting their knickers in a knot.

"If gay marriage is allowed it will be the end of CIVILISATION AS WE KNOW IT - aaaaarrrrrggggghhhhh - we'll all be killed I tells ya. We'll all be kiiillllleeeeedd."
5.25.2009 10:59pm
Harold1995:


The ballots did not read "Obama" and "not Obama". The best guestimate of what the results would have been in such a case is Obama's 7.2%-point margin over McCain.

Even if the percent margins had been the same, Obama's win would correctly been characterized as larger because of the 10 times greater base (just like a 60-40 result is larger than a 6-4 result).


Again,

52.87% of the nation voted for Obama.
47.13% of the nation voted for Someone else.

52.24% of Californians voted for Prop 8.
47.76% of Californians voted against Prop 8.

The margins are virtually identical.
5.25.2009 10:59pm
jrose:
Harold1955,

Repeating your numbers does not address my critique.
5.25.2009 11:02pm
Harold1995:


Is there controversy over Loving or Zablocki? I don't think so, and therefore it can't be the lack of explicit language at the heart of the controversy.


BAKER v. NELSON IS THE APPROPRIATE PRECEDENT!!!

It's amazing that so many people like to pretend that it doesn't even exist.

Even the most radical pro-homosexual judges recognize it:

"[I]ndeed, there is a decision of the United States Supreme Court, binding on all other courts and public officials, that a state law restricting marriage to opposite-sex couples does not violate the federal Constitution’s guarantees of equal protection and due process of law. After the Minnesota Supreme Court held that Minnesota laws preventing marriages between persons of the same sex did not violate the equal protection or due process clauses of the United States Constitution (Baker v. Nelson (Minn. 1971) 191 N.W.2d 185), the decision was appealed to the United States Supreme Court, as federal law then permitted (see 28 U.S.C. former § 1257(2), 62 Stat. 929 as amended by 84 Stat. 590). The high court later dismissed that appeal “for want of substantial federal question.” (Baker v. Nelson (1972) 409 U.S. 810.) As the United States Supreme Court has explained, a dismissal on the ground that an appeal presents no substantial federal question is a decision on the merits of the case, establishing that the lower court’s decision on the issues of federal law was correct. (Mandel v. Bradley (1977) 432 U.S. 173, 176; Hicks v. Miranda (1975) 422 U.S. 332, 344.) Summary decisions of this kind “prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” (Mandel v. Bradley, supra, at p. 176.) Thus, the high court’s summary decision in Baker v. Nelson, supra, 409 U.S. 810, prevents lower courts and public officials from coming to the conclusion that a state law barring marriage between persons of the same sex violates the equal protection or due process guarantees of the United States Constitution. The binding force of a summary decision on the merits continues until the high court instructs otherwise. (Hicks v. Miranda, supra, 422 U.S. at p. 344.) That court may release lower courts from the binding effect of one of its decisions on the merits either by expressly overruling that decision or through “ ‘doctrinal developments’ ” that are necessarily incompatible with that decision. (Id. at p. 344.) The United States Supreme Court has not expressly overruled Baker v. Nelson, supra, 409 U.S. 810, nor do any of its later decisions contain doctrinal developments that are necessarily incompatible with that decision... Until the United States Supreme Court says otherwise, which it has not yet done, Baker v. Nelson defines federal constitutional law on the question whether a state may deny same-sex couples the right to marry."
5.25.2009 11:03pm
Danny (mail):

I think the marriage can be legally annulled if the couple does not have sex.


It depends on the jurisdiction. Some states consider the sexual content of a marriage crucial to its legal validity, so one of the partners does not have the capacity to have sex (usually the man) the marriage is on shakier legal ground. For example, if a married man has an accident and ends up with mutilated genitals or in a wheelchair, his marriage could be voidable in some states. In other states, it does not matter. In practice, the state almost never investigates the sexual content of marriages.
Source

Consummation is I think historically tied to the importance of a woman's virginity in order to marry (in some places the marriage could be annulled if she was discovered not to be a virgin). I don't think much of this applies to gay and lesbian couples (remember lesbians comprise over 50% of same-sex marriages)
5.25.2009 11:07pm
James Moylan (mail) (www):
Psalm91 posted


"What liberals should ask themselves is this -- what happens if that same power is put into the hands of right-wing culture warriors?"

But hasn't this been a conservative project, with substantial success in many circuits, since the 1980's? It is all a matter of where your empathies lie.


I was also a bit taken aback by the same sentence. It immediately prompts the reply:
"So you are trying to tell me that America hasn't been in the hands of 'right-wing culture warriors' for most of the last thirty years?"
5.25.2009 11:07pm
Harold1995:

Repeating your numbers does not address my critique.


That's because your "critique" is a bunch of nonsense. You can't magically take the other people off the national ballot and put them in Obama's totals. The fact is, no matter how much you try to spin otherwise, that Obama managed to get 52.5% of the vote. Prop 8 did the same.

Again, the margins are virtually identical.

52.5% is 52.5% there is no other way around it. Pretending otherwise is the epitome of leftist hypocrisy.

You need to pick a definition and stick with it. Landslide or narrow victory, one or the other. Whatever you pick applies to BOTH Obama and Prop 8.

BTW: Why don't we do something truly informative. Why don't we tally up the margins for the States that have held referendums on marriage and average them?

Care to have a go at it?
5.25.2009 11:08pm
Some dude:
Reading on annulment, I found this gem:


If you were legally married at the time of the marriage, it is eligible for annulment, even if that first marriage was later annulled. It doesn't change the fact that you were married to someone else at the time of marriage.



That can't be true, can it? "It doesn't change the fact that you were married to someone else at the time of marriage." Yes it does exactly that, doesn't it? Isn't that exactly what an annulment is?
5.25.2009 11:09pm
Ricardo (mail):
When people talk about Obama's "landslide" victory over McCain, they are referring to the votes that actually matter: those of the Electoral College. The results were:

Obama: 365
McCain: 173

The popular vote was a narrow margin in 2008, as it was in 2004 and 2000, with the 2000 popular vote actually favoring Gore.
5.25.2009 11:13pm
jrose:
Harold1955,

I didn't bring up Loving or Zablocki to argue that Baker wasn't the prevailing federal precedent. I cited them to make the point that a lack of explicit constituional language can't be why the various court-imposed pro-SSM rulings have been controversial.
5.25.2009 11:13pm
jrose:
You can't magically take the other people off the national ballot and put them in Obama's totals.

I didn't. I assumed half of them would have voted "Obama Yes"and half "Obama No" had the ballot had only those two choices (or equivalently, all of them would have refused to vote).

I can play that fallacious game too:

45.7% of the nation voted to retain Republican power
54.3% of the nation voted for Some other party - change.

47.8% of Californians voted to retain SSM as is.
52.2% of Californians voted for change.

Wow, its 8.6%-points versus 4.4%-points.

And my other point (the size of the base)?
5.25.2009 11:25pm
Danny (mail):
Well there is an interesting variety of ways in which gays and lesbians have achieved rights around the world.

Parliamentary vote: UK, Spain, Norway, Sweden, Hungary, numerous European countries, New Zealand, Vermont, Uruguay
Court decision, confirmed by parliamentary vote: Canada,
Popular vote: Switzerland
Court decision: Netherlands, Israel, Columbia, several US states, Brazil
Gays and lesbians protected in new constitution: South Africa, Portugal, Ecuador

Civil unions and sui generis marital institutions for gay and lesbian couples tend to be elaborated as specific laws and voted on, but interestingly courts in Columbia and Israel bestowed a generous "laundry list" of rights similar to a civil union on same-sex couples without their being an actual formal institution. Ecuador put this "laundry list" in the new constitution.
5.25.2009 11:27pm
Danny (mail):
I might also add a sixth type:

Some countries and states started recognizing same-sex marriages performed in other jurisdictions: New York, New Mexico, Israel, Japan
These places have gay marriage, although you cannot legally get married to someone of the same sex within these jurisdictions. You can marry abroad, return with the foreign marriage certificate and then register the marriage, so you have the same legal result (you are legally married to someone of the same sex) as if you had had the ceremony there.
5.25.2009 11:34pm
/:
Anyone would think that these various States were trying to impose enforced gay marriage on everyone.


Yeah. It's not like the government is prosecuting businesses and churches for refusing to serve and marry homosexuals, right?

Oh, that's a good thing? Ok.

Fucking fascists. You may not discriminate against people for who they are. You own property at the pleasure of the feds.
5.25.2009 11:59pm
Borris (mail):

California, would have gay marriage now as well, if not for a very narrow referendum defeat in November.

Not that narrow. Calif Prop 8 passed by about same margin as the Presidential election. I don't hear people say that Obama won by a very narrow vote.


That is because it would be racist to say such a thing.
5.26.2009 12:27am
geokstr (mail):

/:
You own property at the pleasure of the feds.

Which is precisely how our freedoms will continue to be eroded, by the Marxist attitude that our "property" is only such at the pleasure of the feds.
5.26.2009 12:27am
Robert West (mail) (www):
While I take your point about the binding nature of precedent, I also think that both Romer and Lawrence suggest that Baker v. Nelson may no longer be good law, and I would expect to see that argument brought before the US Supreme Court within the next decade.
5.26.2009 12:32am
Cornellian (mail):
If you were legally married at the time of the marriage, it is eligible for annulment, even if that first marriage was later annulled. It doesn't change the fact that you were married to someone else at the time of marriage.

That can't be true, can it? "It doesn't change the fact that you were married to someone else at the time of marriage." Yes it does exactly that, doesn't it? Isn't that exactly what an annulment is?


Sounds like a void/voidable distinction. Hard to tell whether that's correct or not. The page you link to doesn't give much in the way of facts about really happened, and doesn't tell you the jurisdiction where all this occurred.
5.26.2009 12:36am
Downfall:
"It also doesn't mean that judicial review is so powerful that judges can get away with doing anything they want. Obviously, the pro-gay marriage judicial decisions would not have occurred were it not for the general liberalization of societal attitudes towards gays over the last several decades. By 2003, the majority of the public wasn't yet ready to support gay marriage; but they were much less hostile to it than even a decade earlier.

Never trust anybody who tries to sneak a premise past you with an 'Obviously.'
5.26.2009 12:45am
Ricardo (mail):
Not that narrow. Calif Prop 8 passed by about same margin as the Presidential election. I don't hear people say that Obama won by a very narrow vote.


That is because it would be racist to say such a thing.

Not racist, just ignorant of the basics of American government. A California referendum becomes law if the number of "Yes" votes is greater than the number of "No" votes -- people who cast a ballot but do not make a choice are not counted. The Presidential election is decided, by contrast, by the votes of the Electoral College. Obama beat McCain by 192 electoral votes or a margin of 35.6% of total electoral votes. Obama needed 270 electoral votes to become President and he beat that requirement by a margin of 95 electoral votes.
5.26.2009 1:02am
James Moylan (mail) (www):

/:

Anyone would think that these various States were trying to impose enforced gay marriage on everyone.



Yeah. It's not like the government is prosecuting businesses and churches for refusing to serve and marry homosexuals, right?

Oh, that's a good thing? Ok.

Fucking fascists. You may not discriminate against people for who they are. You own property at the pleasure of the feds.


geokstr:


/:
You own property at the pleasure of the feds.


Which is precisely how our freedoms will continue to be eroded, by the Marxist attitude that our "property" is only such at the pleasure of the feds.


You own property at the pleasure of the feds because that is the way it has always been!
What sort of blockhead would ever assert otherwise?
If the Government decides that you own, or don't own, something then that is the way it is bub. And it certainly is not a Marxist attitude (I should know because I am a Marxist theoretician).

Obviously you guys are members of the same Club. Probably called the 'Ludicrous Labelling Club'. Somehow the American Government was described as 'fucking fascist' and 'Marxist' within two postings that were supposedly agreeing with each other?

I might comment 'fucking ignorant'.

PS - And yes - of course it is a good thing that businesses that discriminate illegally are prosecuted for doing so. You seem to be advocating breaking the law which I would never do. (Apparently rightwingers believe that laws that they disagree with are optional!)
5.26.2009 1:13am
James Moylan (mail) (www):
envoi

oops.
I may have mischaracterised the two postings I refer to above.

It may have been moi that was being called a 'f ing fascist' who supports a 'Marxist' government.

(sorry - it's a bit difficult to disentangle the obviously brilliant critique contained within the postings.)
5.26.2009 1:18am
Nick056:
Nobody here has commented yet that Obama's margin is discussed as wide and Prop 8 is discussed (by some) as narrow because other statistics are being taken into consideration. Obama's win was the strongest electoral victory for an incoming Democrat since Johnson, whereas Prop 8 represented an erosion of public opposition to SSM, as the same question was a ballot referendum in 2000, and this result is quite different.

This apparent change over time may make Prop 8 seem a narrow decision, just as it makes Obama's victory seem decisive. For myself, I have no problem describing both as "clear majorities." But it's also a reasonable conclusion, given these additional facts, that Obama's vote represents an unusally high margin for a Democratic president, while Prop 8 represents a decreased majority for preserving marriage as exclusive to heterosexuals. Obama's margin is also higher in than Bush's (of course, Bush had a negative margin of victory in 2000) which adds to the impression that his victory was especially decisive.

All these things are worth considering when discussing the impressions left by these raw vote percents.
5.26.2009 1:36am
scattergood:

Does traditional marriage entail a legal requirement that the couple engage in heterosexual acts? Perhaps such used to be the case, but is it so now? Can a man and a woman marry and yet, legally, agree never to have sex?


Yes, traditional marriage does require that the couple engage in heterosexual acts.

I base this on the traditional Halacha which states clearly that:

1) A woman may demand a divorce if their husbands do not have enough sex with them.

2) A woman may demand a divorce if their husbands become repulsive physically to them.

3) Man may divorce a woman if after 7 years they are unable to conceive.

All examples, from traditional legal texts, require that heterosexual sex be conducted and that if it unable to be conducted that the individual in the couple may demand a divorce.
5.26.2009 2:17am
scattergood:

Is there controversy over Loving...?


Yes there is. The quote that most SSM advocates rely on in Loving is:

Marriage is one of the "basic civil rights of man,"

But in truth the FULL quote is:

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

The selective quotation of the SSM crowd misses the entire point. Marriage is necessary for out existence and continued survial because of the procreative nature of marriage.
5.26.2009 2:21am
Danny (mail):

2) A woman may demand a divorce if their husbands become repulsive physically to them.


(!) Wow whatever happened to "love is not love which alters when it alteration finds" ?
What is the Halacha?
Why are you basing legal considerations on the above (I presume religious) principle when the question is about American law? If you really want to follow American traditions, many Native American tribes have always had same-sex marriage (and theirs are legally valid even in states where white people don't have SSM)

I believe that in at least some American states, a paralyzed man can obtain a civil marriage license. People like Christopher Reeve and his wife would stay legally married if they so chose to. So your legal opinion is not accurate
5.26.2009 2:40am
Mike S.:
Scattergood:

Your point about the halacha establishes that one party (the wife) has a right to have her sexual needs met. it does not establish that she cannot waive that right.

Harold:

While we might not call someone who won an election 52%-48% winning a landslide, surely if he beat 4 opponents each of whom got 12% we would call it a landslide. It is the margin that matters.

jrose:

While there is no Constitutional language directly about interracial marriage, the 14th Amendment was passed explicitly to prevent states from discriminating against blacks. There is not parallel for homosexuals.
5.26.2009 6:58am
David Schwartz (mail):
All this time these state constitutions have mandated SSM and nobody noticed before? Swallowing that requires a willful suspension of disbelief.
Why is that so unreasonable? Would you argue that the Federal Constitution's due process guarantee doesn't include a right to test DNA evidence? Or would you argue that Freedom of the Press cannot include digital media?

What requires a willful suspension of disbelief is to believe that if we asked one of the framers of the Constitution if "due process" included a right to DNA evidence (once you explained to them what it was) they would say, "well, we didn't consider that part of due process at the time, so that can't be what we were guaranteeing".

Clauses such as freedom of speech, due process, equal protection, and others mean that showing that something is speech, or is due, or is equal protection is sufficient to show that you are entitled to that thing. It is a process for establishing rights, not a fixed bundle.
5.26.2009 7:10am
jrose:
While there is no Constitutional language directly about interracial marriage, the 14th Amendment was passed explicitly to prevent states from discriminating against blacks. There is not parallel for homosexuals

As an explanation for why Loving is not controversial, I buy it (without getting into a discussion of the substance of that viewpoint). However, Zablocki didn't involve race, and yet is not controversial. Is either the 14th Amendment right to contraception, or gender as a quasi-suspect classification controversial?.
5.26.2009 7:49am
martinned (mail) (www):

Well there is an interesting variety of ways in which gays and lesbians have achieved rights around the world.

Parliamentary vote: UK, Spain, Norway, Sweden, Hungary, numerous European countries, New Zealand, Vermont, Uruguay
Court decision, confirmed by parliamentary vote: Canada,
Popular vote: Switzerland
Court decision: Netherlands, Israel, Columbia, several US states, Brazil
Gays and lesbians protected in new constitution: South Africa, Portugal, Ecuador

I'm not sure why the Netherlands is in the Court Decision column here. Dutch Courts do not have the power of judicial review, and are generally reluctant to use their normal power to tell the legislature what to do. (You can't sue in tort to get a certain law enacted.) SSM was enacted here in the only way that it could have been, which is through parliament.
5.26.2009 8:32am
scattergood:

(!) Wow whatever happened to "love is not love which alters when it alteration finds" ?
What is the Halacha?
Why are you basing legal considerations on the above (I presume religious) principle when the question is about American law? If you really want to follow American traditions, many Native American tribes have always had same-sex marriage (and theirs are legally valid even in states where white people don't have SSM)



Here was the question asked: Does traditional marriage entail a legal requirement that the couple engage in heterosexual acts

The question was not about American law. The question was aobut 'traditional law'. As such, Halacha or Jewish law seemed a good place to turn since it is the basis for Judeo - Christian morals and ethics.

Western society and the US specificially do not base their morality and legal system on Lakota law, they reference the Judeo Christian thoughs.


Your point about the halacha establishes that one party (the wife) has a right to have her sexual needs met. it does not establish that she cannot waive that right.


The question was not whether one party can waive the right for heterosexual sex. The question was whether heterosexual sex was a requirement in 'traditional marriage'.

I believe that 'traditional marriage' did require heterosexual acts. Whether both parties exercised their rights to heterosexual acts is another issue entirely.

As to other, related questions like whether the requirment for heterosexual acts are currently required, I would submit they are. Adultery and maritial consumation (or lack thereof) as grounds for the destruction of the maritial bonds assume that sexual acts are being conducted between the spouses. Why would adultry be a grounds for divorce if the parties wheren't having sex with each other? Why would the lack of consumation be grounds for annulling a divorce if there weren't a requirment to have intercourse. Why would the INS when investigating the propriety of a marriage to determine citizenship weigh whether the marriage included sexual activity if such activity weren't a requirment?
5.26.2009 9:03am
Tammy Cravit (mail):
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival


So, procreation without marriage is impossible? If this is so, marriage involving parties who cannot procreate -- such as those involving infertile spouses -- should not be recognized. Right?

The trouble I have with the anti-SSM position, as I understand it, is that it assumes, with much handwaving and strong rhetoric, that restricting marriage solely to heterosexuals is "fundamental to our very existence and survival" but doesn't actually articulate a tangible reason why (a) this is necessarily so, or (b) how, given that a majority of children in the United States are now being raised by some family unit other than a married husband and wife raising their own children, restricting marriage to heterosexual couples actually furthers that goal in the real world. (source; I can't find the actual Census report at the moment, but I'll keep looking)

If restricting marriage to heterosexual couples furthered the goal of procreation, I'd expect a clear majority of children to be growing up in married heterosexual couples. But this does not seem to be the case. Why not?
5.26.2009 9:26am
geokstr (mail):

James Moylan:

(I should know because I am a Marxist theoretician).

Well, that certainly explains a lot.

Are you one of the guys who theoretically tries to justify that "breaking (lots of) eggs to make omelettes" policy that always seems to accompany your preferred form of government?
5.26.2009 9:47am
Some dude:

David Schwartz (mail):


All this time these state constitutions have mandated SSM and nobody noticed before? Swallowing that requires a willful suspension of disbelief.



Why is that so unreasonable? Would you argue that the Federal Constitution's due process guarantee doesn't include a right to test DNA evidence? Or would you argue that Freedom of the Press cannot include digital media?


They had gays all along. They didn't have DNA or digital media.
5.26.2009 10:08am
Danny (mail):

SSM was enacted here in the only way that it could have been, which is through parliament.



You're right, my mistake!


I believe that 'traditional marriage' did require heterosexual acts. Whether both parties exercised their rights to heterosexual acts is another issue entirely.

As to other, related questions like whether the requirment for heterosexual acts are currently required, I would submit they are.


I agree, except for the very marginal cases I already mentioned
5.26.2009 10:17am
cmr:
Re: Prop 8.

It passed by six percent, and that was after a $60M mass media campaign to defeat it, as well as massive systemic opposition. I'd say six percent is pretty good considering the push to defeat it, and the fact that CA is the most liberal state in the union.

Regarding the post, I think judicial fiat has fit right in with the narrative a lot of pro-SSM proponents have, which is that gay marriage is so self-evident and good, that the people shouldn't even be able to vote on it. So they're not too particularly bothered when the system simply legalizes it.

It seems to me gay marriage has been legalized largely on, as one of the Dissenting Justices on the CA state Supreme Court said, "legal jujitsu". Because at the heart of this is the EPC, but the EPC doesn't mandate that the state subsidize any and all of our relationships with little discretion. What it does stipulate is, in this case, the state cannot make DOMAs simultaneously criminal statutes to any couple that gets married in a different state, or lives together, or tries to apply for a marriage license. They can't take away someone's life, liberty, or property in a court of law. But that doesn't mean the state simply must treat all relationships the same. The state objectively has an interest in incentivizing marriage between men and women. There is no impetus for them to generally conclude that there is an equally compelling interest to incentivize same-sex unions, even if some of them are similar to heterosexual unions.
5.26.2009 10:19am
Batman!!!!:

When people talk about Obama's "landslide" victory over McCain, they are referring to the votes that actually matter: those of the Electoral College. The results were:

That's retarded. You can't compare the Electoral College to a popular vote. It's apples and oranges. Several of those electoral votes were decided by mere thousands of votes.

The only valid comparison is the total popular vote, which as some have pointed out was virtually identical in margin to Prop 8's victory.

Me thinks lefties want to have it both ways.
5.26.2009 12:54pm
scattergood:

So, procreation without marriage is impossible? If this is so, marriage involving parties who cannot procreate -- such as those involving infertile spouses -- should not be recognized. Right?

The trouble I have with the anti-SSM position, as I understand it, is that it assumes, with much handwaving and strong rhetoric, that restricting marriage solely to heterosexuals is "fundamental to our very existence and survival" but doesn't actually articulate a tangible reason why (a) this is necessarily so, or (b) how, given that a majority of children in the United States are now being raised by some family unit other than a married husband and wife raising their own children, restricting marriage to heterosexual couples actually furthers that goal in the real world. (source; I can't find the actual Census report at the moment, but I'll keep looking)

If restricting marriage to heterosexual couples furthered the goal of procreation, I'd expect a clear majority of children to be growing up in married heterosexual couples. But this does not seem to be the case. Why not?



You are avoiding the issue that I bring up. Namely that reliance on Loving as justification for SSM as a 'basic civil right' is essentially logical fraud.

Further, you compound the illogic by jumping to 'all infertile couples shouldn't be allowed to marry'. A same sex couple, by definition, cannot procreate without significant outside, non marital help. This is just not true for an opposite sex couple. Plus, who defines what 'infertile' is? You, the state, the 'fertility commission'?
5.26.2009 1:31pm
Randy R. (mail):
cmr: "The state objectively has an interest in incentivizing marriage between men and women. There is no impetus for them to generally conclude that there is an equally compelling interest to incentivize same-sex unions, even if some of them are similar to heterosexual unions."

Does the state objectively have an interest in incentivizing marriage between two men when they already have children? Doesn't the state have an interest in making sure that the children obtain the benefits of having married parents, whomever they may be? Or do you think that the state should officialy not give a damn about those kids?
5.26.2009 1:35pm
Randy R. (mail):
scattergood:" A same sex couple, by definition, cannot procreate without significant outside, non marital help. This is just not true for an opposite sex couple. "

So what? Even if you are correct, how does granting SSM frustrate that purpose? In other words, if the the state has an interest in helping continue civilization by encouraging married couples to have children, how does recognizing SSM affect that in any way?
5.26.2009 1:41pm
/:
Somehow the American Government was described as 'fucking fascist' and 'Marxist' within two postings that were supposedly agreeing with each other?


Yeah, it's not like they're both forms of government based on socialism leveraging compulsory collectivism by tyrants or anything.
5.26.2009 2:02pm
Perseus (mail):
So what? Even if you are correct, how does granting SSM frustrate that purpose?

It does not directly serve that purpose, which makes the policy even more over-inclusive, and, a result, further divorces the policy from its main purpose.
5.26.2009 3:35pm
cmr:
Does the state objectively have an interest in incentivizing marriage between two men when they already have children? Doesn't the state have an interest in making sure that the children obtain the benefits of having married parents, whomever they may be? Or do you think that the state should officialy not give a damn about those kids?


If what is ultimately important is benefits, then they need to campaign for civil unions.
5.26.2009 5:18pm
David Schwartz (mail):
Some dude: That doesn't address my argument. If you think it does, you don't understand the argument.

These clauses don't protect a particular envisaged bundle of rights. They protect a recipe for protecting rights. Show that something is the government respecting an establishment of religion and you have shown that the Constitution prohibits it, whether or not anyone has seen or thought about your argument before. Show that something constitutes process that is due and it violates your rights to deprive you of it, whether or not it was considered due previously.

The argument "you've convinced me that this right is logically part of equal protection under the laws, but you don't get that right anyway because your argument is novel and has been rejected in the past" is utterly absurd. Not even the "original intent" argument saves it, because the intent of these clauses was not that they exclude some things that do in fact constitute equal protection, due process, establishment of religion, and so on.

A right to free speech means that if you show something is free speech, you have a right to it. A right to due process means that if you show something is process that is due, you have a right to it.

So, yes, it is entirely reasonable to argue that Constitutions protected all process that is due, whether or not anyone recognized (or even rejected) that process as due. The same goes for all the fundamental rights.
5.26.2009 6:23pm
Oren:

If what is ultimately important is benefits, then they need to campaign for civil unions.

And for a strict law mandating that all nonreligious institutions treat civil unions equivalently to marriages. Mainly, I'm thinking hospitals, which have long relegated CUs to a lower status than than marriages for the purposes of visitation.
5.27.2009 1:28pm
cmr:
I wasn't aware hospitals had a hierarchy of how they treat civil unions.
5.27.2009 10:48pm

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