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Federal challenge to Prop 8:

It's apparently been filed by David Boies and, interestingly, Bush SG Ted Olson:

"For a long time I've personally felt that we are doing a grave injustice for people throughout this country by denying equality to gay and lesbian individuals," Olson said in an interview with The Advocate. "The individuals that we represent and will be representing in this case feel they're being denied their rights. And they're entitled to have a court vindicate those rights."

When pressed about his service with the Bush administration, which in 2004 endorsed an amendment to the U.S. constitution that would prohibit same-sex marriage, Olson said he was personally against the amendment at the time, though he made no public statements on the matter.

As for the timing of the suit, Olson said that recent decisions by the U.S. Supreme Court "make it clear that individuals are entitled to be treated equally under the Constitution. I'm reasonably confident that this is the right time for these [injustices] to be vindicated."

I doubt Olson is right about the timing, but no doubt this ups the ante on any future Supreme Court vacancies for Obama. (There's already a challenge to the federal DOMA in the First Circuit.)

(HT: Chris Geidner.)

Related Posts (on one page):

  1. More on Ted Olson's federal lawsuit for gay marriage:
  2. Federal challenge to Prop 8:
Skyler (mail) (www):
Of course the problem with Olson's logic is that allowing homosexual marriage is not treating them equally. They already have an equal right to marry someone of the opposite sex. What they want is to be treated differently.
5.26.2009 10:29pm
BooBerry (mail):
Skyler: Thanks for that incisive legal analysis. Too bad there's nothing "legal" or "analysis" about it. I suggest learning about something called "equal protection." It may help you in your quest to understand how our legal system works.
5.26.2009 10:31pm
ruuffles (mail) (www):
Wouldn't Baker v. Nelson be an obstacle, having "dismissed for want of a federal question"?
5.26.2009 10:31pm
jab:
Skyler,

Of course the problem with Olson's logic is that allowing interracial marriage is not treating them equally. They already have an equal right to marry someone of the same race. What they want is to be treated differently.
5.26.2009 10:38pm
cmr:
I can see them being successful. The SCOCA allowing the 18,000 marriages to stand creates quite the conundrum in terms of EPC. This is it. This is where it becomes legalized.
5.26.2009 10:38pm
J. Aldridge:
"The gentleman inquires, what does this [equal protection of the laws] mean? The gentleman, if he had consulted Magna Charta, which England's brilliant and profound constitutional historian, [Henry] Hallam, has well said is the keystone of English liberty, fortieth, these words: 'We will sell to no man, we will not deny or delay to any man right or Justice.'” (Bingham, March 31, 1871)

"No State may deny to any person within its jurisdiction the equal protection--not of its laws, but of the laws." (Bingham, December 20, 1870)
5.26.2009 10:40pm
Interesting tidbit (mail):
There is a federal challenge to Prop 8 already proceeding in the 9th Circuit. I imagine the two cases will be consolidated.
5.26.2009 10:41pm
Chad:
I want to thank BooBerry for the witty example of an ad hominem reply. Would you care to actually provide an intellectual answer along the lines of how someone with the same rights is disenfranchised? I mean if heterosexual men could marry each other and homosexual men couldn't then I see a clear case for disenfranchisement - but what Skyler is saying is more the law being consistent in the older fashion. If that's unacceptable, a simple ballot measure can resolve it - as evidenced from last year.

The sooner we all get this "rights" balderdash dropped and realize it's time to update the definition of marriage the better.
5.26.2009 10:46pm
Thales (mail) (www):
Chad:

I think what BooBerry and jab have pointed out is that Skyler's statement does nothing to advance the substance or merits of an argument against gay marriage--it merely draws the line in an arbitrary place and then claims that everyone has an equal liberty to that arbitrarily circumscribed right. What heterosexuals and homosexuals do not possess an equal right to in California and in most U.S jurisdictions is: the right to marry an adult single person of their choosing. To claim that heterosexuals and homosexuals have an equal right to marry a person of the opposite sex is true, but not an adequate or interesting analysis under either the equal protection clause or any state analogue to it. It is a dodge of the central issue, and all those that make such a cute but empty argument know it.

That, I believe, should be an adequate answer for you.
5.26.2009 10:53pm
Chad:
Tidbit, as Prof. Volokh points out here: http://volokh.com/posts/1243372444.shtml there's likely not much to be done in the courts.
5.26.2009 10:54pm
David Schwartz (mail):
An interesting way to challenge this would be to argue that if California permits a majority of the moment to withdraw rights from a suspect class, it's a Democracy and not a Republic, as required by Section 4 of the Federal Constitution.

Anyone know if there has even been any lawsuits implicating section 4? I bet there has been.

Skyler: So a law prohibiting the creation of temples for the practice of Judaism wouldn't discriminate against Jews? After all, it would apply to Jews and Christians in equal measure.
5.26.2009 10:55pm
Terrivus:
Conspiracy theory #274: Olson is encouraging and assisting with this lawsuit because he knows if it reaches the Supreme Court in the next 2-3 years, the gay marriage side is more likely to lose than it would if it took another 7-8 years to get there. And once the Court establishes the precedent, it will be that much harder to overturn it.

Alternatively, even if gay marriage proponents were to win, it might very well be a Roe v. Wade point--both in terms of the outcome and the process--that galvanizes the right and leads to another conservative revolution at the polls and in jurisprudence.

Or maybe Olson's son just came out. It could be that, too. (NB: strictly a fanciful jest!)
5.26.2009 10:56pm
einhverfr (mail) (www):
It will be interesting to see whether this falls more under Baker v. Nelson or under Romer......
5.26.2009 11:04pm
Oren:

'We will sell to no man, we will not deny or delay to any man right or Justice.'

Certainly the right to marry the spouse can't be among them!
5.26.2009 11:05pm
BooBerry (mail):
Be happy to. The principle of equal protection commands a state to treat alike those similarly situated with respect to the purpose of a law. Same-sex couples and opposite-sex couples are similarly situated with respect to the state's purposes of granting recognition of civil marriage. Both sets of couples want the state to recognize their love and commitment; both can and want to raise children; both cannot and do not want to raise children.

That is how someone with the same rights is disenfranchised. For further evidence, see Lawrence v. Texas, which also powerfully states how giving gay men the same "right" to engage in heterosexual sex as heterosexual men while banning the sexual activity that is characteristic of gay men demeans and cheapens their existence.
5.26.2009 11:06pm
Danny (mail):
No, gays and lesbians should stay away from the Supreme Court..
We should go state by state
If you have serious problems that can only be resolved federally (like I did with immigration issues) then the best option is to emigrate.. go to Canada or Europe and give the US time to get through its culture war
5.26.2009 11:06pm
John Karbin (mail):

Tidbit, as Prof. Volokh points out here: http://volokh.com/posts/1243372444.shtml there's likely not much to be done in the courts.



The preexisting lawsuit I linked to involves an explicit federal claim. I expressed no opinion on the merits of the case or its likelihood of success.
5.26.2009 11:08pm
newscaper (mail):
Skipping the wider discussion on the 'normality' of homosexuality (which BTW is not a monolithic phenomenon)...

The objective historical purpose of marriage is to formalize, in one go, issues of paternity, child support and inheritance in conjunction with a presumption of sexual exclusivity (admittedly somewhat lopsided in practice), with related benefits of best supporting the transmission of culture and reducing, somewhat, intra-tribe male on male violence.

In other words its about raising families.

And whatever sort of 'government' there may be always takes some sort of interest.

The separate though related issue of *how* people choose spouses (unfettered romantic love, parental veto/blessing, or outright arranged marriages) is a red herring in the argument about what marriage itself is.

Hetero couples have to take extraordinary measures to *not* have children. H/L couples have to resort to extraordinary measures to have children. Civil marriage for the latter smacks of playing house.

Govt marriage licenses for G/L make almost as little sense as redefining the meaning of drivers licenses so blind people can have them too in the name of 'equal rights'. ('A is A' in Objectivist terms.)
5.26.2009 11:11pm
second history:
Chad:

Prof. Volokh's comments per your link address only the case decided today, which only considered the amendment v. revision challenge, and not a federal equal protection challenge. Tidbit's link is to a new challenge in federal district court based on equal protection grounds, and is totally separate (the case is Smelt v. US.)
5.26.2009 11:13pm
Bored Lawyer:
The right to marry an adult single person of their choosing.

The real answer is that such a right has never been recognized in American jurisprudence (can one marry one's adult sister, i.e. adult incest? two adults of the opposite sex -- i.e. bigamy? For that matter, since this is a Constituional right, what is an adult? 16, 17, 18?), and would have been viewed as absurd or obscene at the time of the passage of the 14th Amendment. In fact, at the time sodomy was probably criminal in most jurisdictions -- so the notion that the United States intended to enact a Constitutional amendment protecting the right to such marriage is laughable.
5.26.2009 11:13pm
jab:

H/L couples have to resort to extraordinary measures to have children. Civil marriage for the latter smacks of playing house.


Do you know how ridiculous that sounds? On the one hand, you readily admit that gay couples have to seriously, truly want to have children (though, easier for lesbian couples than male couples), and in some cases, go to great lengths to do so... and then you cavalierly proclaim they are "playing house"??
5.26.2009 11:15pm
cmr:
It is playing house...sort of. Same-sex marriage assumes that, back when I had a roommate, that our "relationship" no matter how platonic and non-sexual it was, should be subsidized just like a man with a wife and three kids should be subsidized. That doesn't ring fair to me.
5.26.2009 11:19pm
Putting Two and Two...:

Conspiracy theory #274


Yeah, nothing suspicious about Ted Olson being paid by a "civil rights organization" no one has ever heard about. I'm sure they tried to get Ken Starr, but he's, you know, already engaged in the fight.

Mark my words, it'll turn out the money guys are LCRs.
5.26.2009 11:21pm
jab:
cmr,

Read the post more carefully. I was referring specifically to gay couples with children as "just playing house."

On the other hand, what you are arguing then, is that neither should we subsidize childless heterosexual marriages either.
5.26.2009 11:22pm
Danny (mail):
Go to hell cmr.. there is nothing platonic about SSM
5.26.2009 11:22pm
einhverfr (mail) (www):
Danny:

No, gays and lesbians should stay away from the Supreme Court..


Would you object to the Supreme Court overruling Prop 8 on the same grounds as Romer v. Evans was decided (i.e. leaving DOMA, etc. intact and ruling that this amendment is designed to be prejudicial against gays and therefore at odds with the EPC)?
5.26.2009 11:26pm
Danny (mail):
I think going to the SC is like playing with fire... especially nowadays it is very right-wing. No no I would stay away from it under all circumstances. DOMA is the worst thing affecting the daily lives of most gays and lesbians. It would be better to have a civil union with no DOMA than to have a SSM with DOMA
5.26.2009 11:30pm
Thales (mail) (www):
"The real answer is that such a right has never been recognized in American jurisprudence." Oh but it has:

Skinner v. Oklahoma ex rel. Williamson
Zablocki v. Redhail
Turner v. Safley
Loving v. Virginia ("The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.")
Goodridge v. Massachusetts Dept. of Public Health

[to name a few]

"would have been viewed as absurd or obscene at the time of the passage of the 14th Amendment. In fact, at the time sodomy was probably criminal in most jurisdictions -- so the notion that the United States intended to enact a Constitutional amendment protecting the right to such marriage is laughable."

The argument that the framers of a provision did not foresee all of its applications does not necessarily invalidate those applications. Some in 1868 no doubt would have not dreamed of the result of Brown v. Board of Education--this does not make it any less a rational application of the 14th Amendment. For the same reason, the fact that contemporaries of the First Amendment may also have voted for the Alien and Sedition Acts does not make them constitutional.

Note that I did not add "plural" marriage to my classification of the right, but I inadvertently left out "nonconsanguinous." I doubt its addition would satisfy you, however.
5.26.2009 11:30pm
max_fischer (mail):
You can find the complaint here:

http://archive.salon. com/politics/war_room/2009/05/26/boies_olson/boiesolson.pdf

i dont know how to link on this stinkin' thing so just make it salon.com instead of salon. com
5.26.2009 11:30pm
t. simeon (mail):
No, gays and lesbians should stay away from the Supreme Court..
We should go state by state


George Wallace is with you!
5.26.2009 11:34pm
jmoon (mail):
If a federal court does decide to hear the case under the Equal Protection Clause, it seems that the challengers of Prop 8 will have problems showing that they are a suspect class. Based on Romer v. Evans and Cleburne it seems like the highest scrutiny they are entitled to is the intermediate scrutiny associated with quasi-suspect classes, and that would still require quite a bit of luck. But Romer also suggests that even if the court only applies rational review Prop 8 could still be struck down. Justice Kennedy wrote the majority in Romer, and it would be interesting to see how he comes down in this case, since the restrictions in Prop 8 only deal with marriage and aren't nearly as sweeping as the restrictions in the Colorado statute in that case. Any thoughts?

I apologize if this was brought up in another thread and I am re-hashing old conversation.
5.26.2009 11:35pm
mgh (mail):
this makes me literally ill. we will lose this lawsuit, and gay rights will be set back years and years and years, just so olson and boies -- who've so far done diddly for the gay rights movement and suddenly know what's what -- can make a name for themselves. someone tell me how to make it all okay...
5.26.2009 11:40pm
Danny (mail):
No really it would be an epic disaster.. if you want real equal rights the best thing you can do is go to Canada or Europe. I admire the people who stay and fight but if you are serious about justice and freedom in your own life, forget about the US..
5.26.2009 11:47pm
Trees, meet Forest:
It's still about normalization of homosexuality. There are very few people whose opinions on gay marriage diverge from their true opinion on whether homosexuality is normal.

Aside from the odd purist defending federalism, or the intellectually dishonest, if gay is OK then gay marriage is OK, but if gay sex is deviant and perverse, then gay marriage is bad.
5.26.2009 11:49pm
jab:
Danny,

No. We stay and fight and win the hearts and minds of neighbors and the people we come in contact with daily. I know that I have already convinced a number of people who were "queasy" about gay issues to come out on our side... convinced not so much by words, but just by living a "normal" life: going to work, paying taxes, getting involved in my community, etc. Despite the media, I don't believe most people are polarized on the issue... I think there are many people in the middle who are convincible.
5.26.2009 11:53pm
Dave N (mail):
I guess I should change my nom de blog to "Odd Purist Defending Federalism," or just "Odd Purist" for short.
5.27.2009 12:07am
Ben S. (mail):
Serious question for any of you who are homosexual (whether you meant to or not, several of you have said "we" when referring to homosexuals) or are in favor of the gay rights movement:

If California reserved "marriage" to a man and a woman but permitted a domestic partnership in which any two adults could elect to choose each other as their partners and thereby gain all the rights and privileges that spouses have with respect to each other, would you be satisfied?

Often the argument made against proponents of Prop 8 is to ask, "What's in a name?" I have always thought this question could go both ways. My personal opinion is that most if not all homosexuals and SSM proponents would still fight on until the term "marriage" is used without distinction, begging the question, What's in a name?

I think the name game is based solely on societal acceptance of SSM. It is not enough that homosexuals are not treated differently, society---via the government---must accept homosexuals with open arms. But is it not enough to have the privileges of marriage without being celebrated? Is it possible that homosexuality is something to be tolerated but not encouraged?

Reliance on Loving and Lawrence is misplaced in my mind, because those cases dealt with criminal punishment.
5.27.2009 12:14am
mgh (mail):
except, Ben S., that it is criminally punishable in some states (Delaware and Wisconsin) to get a same-sex marriage and then return.
5.27.2009 12:15am
jab:
Ben,

Speaking ONLY for myself,

Sure... let's call it "narriage" and it is IDENTICAL in every may to marriage, except for the same sex part. I'll accept that... somehow, I don't think opponents to same-sex marriage will go for that however.
5.27.2009 12:20am
mgh (mail):
oh, and ben:

I'll accept your compromise as long as we put in water fountains in every building. one can say "whites only" and the other will say, simply "everyone else."

it's not about racism, it's about social approval of non-whites....
5.27.2009 12:24am
Danny (mail):
@ BenS

I can't speak for all gay people, but for me I don't care about the name, I am interested in the right and benefits. The problem is that "marriage" is a legal term, and whenever you change the name, you end up that you don't have the same rights.
I grew up in an area where the local (Protestant) religion has SSM, of course it is not recognized by the state. So the societal acceptance is already there, it's just the legal benefits that are lacking
Some people want to get married at some point in their lives, with the word "married" and their parents want that too.. so it's very personal. For me I am OK with "marriage" being a religious term and "civil unions" being equivalent to marriage, but you will never get all of the US and Western countries to go along with civil unions especially now that marriage equality has started
5.27.2009 12:24am
CMH:

Anyone know if there has even been any lawsuits implicating section 4? I bet there has been.


Indeed there has been:

"We premise by saying that, while the controversy which this record presents is of much importance, it is not novel. It is important, since it calls upon us to decide whether it is the duty of the courts or the province of Congress to determine when a State has ceased to be republican in form and to enforce the guarantee of the Constitution on that subject. It is not novel, as that question has long since been determined by this court conformably to the practise of the Government from the beginning to be political in character, and therefore not cognizable by the judicial power, but solely committed by the Constitution to the judgment of Congress." Pacific States Tel. &Tel. Co. v. Oregon, 223 U.S. 118 (1912)
5.27.2009 12:28am
Anitra Freeman (mail) (www):
Trees-meet-Forest: There are multiple arguments for those with moral objections to homosexuality to support the rights of homosexuals to marry each other. 1) Self protection: protecting your own rights from people who would forbid you from doing what they find objectionable -- like preaching the Bible; 2) Harm reduction: at least two deviants are confining their activities to one bedroom; 3) Increased possibilities for persuasion: people who are openly gay, who know that you cannot and do not want to harm them, are more likely (although not certain) to listen to arguments for "mending their ways."

It is true that I do not consider homosexuality to be "deviant and perverse," nor do I believe it an offense to God, and I support equal marital rights for both heterosexual and homosexual men and women.

But I think that most drug use -- including tobacco -- is "deviant and perverse" and still oppose legal prohibition, because the history of both alcohol prohibition and the current Drug War demonstrate that prohibition does not work and does a great deal of harm. I would rather fund treatment than fund jails. I support harm reduction models. And I do not want any future power bloc of health food fanatics to outlaw my chocolate. :)
5.27.2009 12:31am
tvk:
Most of the response to skyler has been in the variety of the "equal right to sleep under the bridges of Paris" variety, and the debate is pretty old (with no right answer). But skyler is unambiguously wrong about one thing: gays are not asking to be treated "differently" under any definition of that word. Gays are asking for everyone to have the right to marry someone of their own sex. No one is suggesting that gays be legally allowed to marry anyone of any sex, but hetrosexuals are only allowed to legally marry people of the opposite sex.
5.27.2009 12:36am
Ben S. (mail):
I appreciate the responses to my question and the candor of the responders. I would personally support an initiative that granted such rights but did not identify it as marriage. I am not sure whether your views reflect the majority of SSM proponents or not.


oh, and ben:

I'll accept your compromise as long as we put in water fountains in every building. one can say "whites only" and the other will say, simply "everyone else."

it's not about racism, it's about social approval of non-whites....


As you say this, I doubt you kept in mind that we already have such a system in place: Today I got up from my desk at the firm to use the restroom. When I got to the lobby, I saw two doors: one marked "women" and the other marked "men." I had to use the one marked "men."

Such distinctions mean nothing without the harsh stigma attached to it. The separate water fountains meant something only because African-Americans were being lynched, threatened, beat, fired, harassed, and so forth. But without that background, how are we to know whether the fountain marked "whites" and "everyone else" is meant to disfavor whites? Perhaps it is "everyone else" who is disfavored; after all, whites have their very own fountain. (As an example, take car poolers and highway lanes.) If all that was left were the fountains, I doubt MLK would have marched.

The point I'm making is that when you take anyway the outward antagonism of a group, accommodations and privileges that truly are separate but equal (an admittedly rare occurrence) largely lose their meaning.
5.27.2009 12:38am
cmr:
Has the U.S. ever signed a treaty that defines marriage?
5.27.2009 12:45am
mgh (mail):
ben: your point is well taken, and that's why some of us think we should not gender-segregate bathrooms -- because, as we've learn, they often do reflect societal inequality (see the work of Mary Ann Case on this point).

I mean, we could get postmodern and Derridian here and talk about difference and differance but I don't think we want to go there.

Look, this is obviously a problem w/r/t identity politics in general, viz., our current debate today over affirmative action.

What I'd guess I'd say is: it's government that's doing the dividing, and government as voted on by a majority. How is the antagonism going to simply disappear? What you're saying really negates any meaningful concept of "equal protection" because you're saying, inequality allowed only if it's meant to be mean...
5.27.2009 12:47am
mgh (mail):
correction, sorry, disallowed.
5.27.2009 12:48am
Prosecutorial Indiscretion:
I'm strongly in favor of gay marriage, but this is not an issue to be solved through litigation and doing so will cause tremendous harm to the Supreme Court as an institution no matter which way it goes. We'll get another litmus test, all sorts of special interest money pouring into confirmation battles, and an American public with a tremendously reductive understanding of what the Court does. The California decision is a resounding triumph of popular sovereignty; its message is clear, and efforts to wield the Constitution as a blunt instrument against those whose assent gives it legitimacy will weaken its protections for everyone.
5.27.2009 1:03am
Pender:

The point I'm making is that when you take anyway the outward antagonism of a group, accommodations and privileges that truly are separate but equal (an admittedly rare occurrence) largely lose their meaning.

I actually agree with this in principle -- but if you don't take away the outward antagonism of a group, then even a purely symbolic categorization imposed by the state is intolerable. There's no reason that a seat toward the front of the bus is any more desirable than a seat toward the back of the bus; they both reach the destination at the same time, neither is less convenient than the other (setting aside the marginally longer walk from the door -- but lots of people prefer the back); both are typically upholstered in the same way, etc. But at the same time, nearly everyone in society today would agree that reimposing racial segregation in the buses would be absolutely intolerable and far beyond the pale of any reasonable debate -- even as they accept male and female bathrooms without a pause.

So, as between the two examples -- front/back of the bus, male/female bathrooms -- the difference really is the history of persecution. No one doubts that gay people have put up with a lot of historical persecution; how can anyone doubt that separate-but-equal in the realm of marriage is more like buses than like bathrooms -- that is to say, intolerable?
5.27.2009 1:03am
Skyler (mail) (www):
tvk wrote:


But skyler is unambiguously wrong about one thing: gays are not asking to be treated "differently" under any definition of that word. Gays are asking for everyone to have the right to marry someone of their own sex.


At last, someone who is honest in the argument. So what is being asked is to redefine marriage into something it has never before meant. That hardly seems a Constitutional right. And it seems to be of no advantage to non-homosexuals. What is being asked is that a cultural practice that has been in place for the known history of mankind be jettisoned to force people to accept behavior that has been condemned by most societies -- again since all known history.

No gain, all loss. So what's in it for everyone else?
5.27.2009 1:05am
2cents (mail):
The issue is, can the government deny homosexuals the right to marriage?

I see no basis for the denial based on EP. Whether people like it or not is immaterial, imho.

Government has decided to sanction marriage. In doing so, it needs to grant EP. It would be similarly odious to deny races or particular religious orientations the right to marry. Of course, my view assumes that homosexuality is a suspect class. This really boils down to the question if homosexuality is an imutable trait. This is incredibly difficult to "prove", but I think that the resolution depends on the question of homosexuality as conduct versus a
trait. Once you cede that it is an immutable trait, I think the logical conclusion is that homosexuality requires suspect classification treatment. The SCOCA decision granting marriage to homosexuals in the first place extended suspect classification to homosexuals. I will admit to not having read todays decision. Still, it seems to me that they are saying that under CA law, voters could declare blacks or
Jews disqualified from marriage. It would only be the Federal Constitution that would override such a ill-conceived notion.

If you look at opinion polling, younger people tend to support "gay rights." I fear that it will take a generation for the political process to propel the legal status of homosexuals to suspect classification. That is, the political will will do the right thing sooner than the courts will. This bothers me, because I believe the role of the courts is to protect the rights of unpopular groups. If it takes political process to do what the courts ought to, then what is the point of having courts in the first place?

For any bigots intent on questioning my position based on my identity, I am a happily married heterosexual attorney and a Veteran (I also believe DADT is a stupid law and unconstitutional to boot). Anyone else marrying has no impact on the strength or validity of my marriage.
5.27.2009 1:25am
Danny (mail):
Thank you very much 2cents
5.27.2009 1:34am
Perseus (mail):
I eagerly anticipate Justice Scalia's evisceration of EP claims when the Court gets around to deciding such a case. Of course, the ruling will probably hinge on whether Justice Kennedy wakes up on the side of the bed that would make SSM part of defining "one’s own concept of existence."
5.27.2009 2:04am
Ricardo (mail):
Would you care to actually provide an intellectual answer along the lines of how someone with the same rights is disenfranchised?

Rights don't exist in a vacuum. If freedom of speech was strictly interpreted only to include the freedom to speak, then it would be a meaningless right for people who are physically incapable of speaking and must use sign language. The right ought to be expanded in such a way that it is meaningful to more people.

I don't want to get into the debate over whether homosexuality (particularly, male homosexuality) is a choice or not. Let me just point out the fact that a) there are many anecdotes of awkward and embarrassing attempts by men who now realize they are gay to have sex with their then girlfriends but being unable to physically perform and b) research by J. Michael Bailey lends credibility to these anecdotes.

So for those of you who claim the purpose of marriage is reproduction, you have to admit that traditional straight marriage is a useless right for gay men as many would not actually be able to impregnate a woman through traditional means. If a gay man were to marry a woman, the marriage could probably be ended under traditional divorce rules that allow for divorce or annulment in cases of impotence, failure to conceive, or failure to consummate the marriage.
5.27.2009 2:17am
zerlesen:
2cents: I am 100% on your side here, but I suspect you'll take some flak for this line:

"If it takes political process to do what the courts ought to, then what is the point of having courts in the first place?"

This is just crazy-talk here, but what if the political process resolved itself to do something bad? Like outlaw gay marriage?
5.27.2009 2:23am
jmoon (mail):
2cents,

I think I understand what you are saying about why homosexuals should be considered a suspect class, assuming homosexuality is an immutable trait. However, I wonder if that will be a factor at all for SCOTUS. While it was dicta, the majority in City of Cleburne gave an interesting definition of what falls into the suspect, quasi-suspect, and non-suspect classes. Check out part II of the opinion here.

To summarize, the only two "suspect" classes currently recognized by the court are classifications based on race and alienage, and essentially the reason for this is that these groups have been the subject of deep-seated prejudice, even persecution, and have historically been without any kind of political recourse (i.e., they had no right to vote). Compare this to gender, a quasi-suspect class: while women were generally disenfranchised until the 20th century, gender discrimination can be legitimately based on actual differences rather than prejudicial feelings. Therefore, gender discrimination does not get strict scrutiny.

It seems to me that homosexuals do have a remedy--they can vote. Homosexuals have never been denied this right historically, either by the founding fathers or in more modern times. Simply being in the political minority does not seem sufficient to warrant suspect class status in SCOTUS's mind.

Also, I think that those like 2cents who have taken the reductio ad absurdum approach in speculating that voters could eliminate marriage for other minorities fail to recognize that there are other protections for such enactments (such as the 1st and 14th Amendments).
5.27.2009 2:30am
advisory opinion:
Both the 8th and 11th Circuits have declined to treat sexual orientation as a suspect class for equal protection purposes under federal law, and have applied only rational basis review to laws challenged on that basis. While traditional marriage is a fundamental right under federal law, same-sex marriage is not a fundamental right under current precedent (see Baker v. Nelson, and Wilson v. Ake). Since there is neither a suspect class nor a fundamental right at issue, there is ample leeway for a federal court to find that marriage laws pass constitutional muster -- one need only find some rationale -- or any conceivable basis, however tenuous -- for upholding the law. One Kennedy, J., has especially on point remarks in Heller v. Doe, 509 U.S. 312, 319-321 (1993) ("a classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity. . . . [a] classification does not fail rational-basis review because it 'is not made with mathematical nicety or because in practice it results in some inequality.'").
5.27.2009 2:43am
zerlesen:
Ricardo: "If a gay man were to marry a woman, the marriage could probably be ended under traditional divorce rules that allow for divorce or annulment in cases of impotence, failure to conceive..."

Yes, clearly.
5.27.2009 2:44am
2cents (mail):
zerlesen:

Forgive me if I am being thick, given the hour, I will take my lumps if I am missing irony. But, that is exactly my point. If the political process does wrong, the courts should step in to do right. If they do not, then what is their purpose?

jmoon:

This part of Cleburne seems to support my view (so long as you buy into the immutable trait aspect of homosexuality):

"The general rule gives way, however, when a statute classifies by race, alienage, or national origin. These factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy -- a view that those in the burdened class are not as worthy or deserving as others."

Seems to me that this dicta brings you back to an analysis of whether homosexuality is like race, alienage, or national origin, or is more like gender or age. My view is that the same sex preference is not sufficiently relevant to any legitimate state interest to overcome the fact that the distinction of sexual preference (as immutable trait) is grounded in prejudice and antipathy. Of course, this is the crux of the disagreement (for those who actually care what the jurisprudence states). But, I do appreciate a discussion grounded in the law. I also freely admit that my response is based solely on the cited case, there may be better cases that make for a better analysis (on either side).
5.27.2009 3:22am
2cents (mail):
zerlesen:

Of course, my previous point applies when the courts find a constitutional violation. As the debate over the role of the judiciary will cover in the coming weeks or months of Judge Sotomayor's confirmation process, this is an essential question. My view is that, of course, the court's role is not to legislate, but rather to protect against constitutional violations.
5.27.2009 3:38am
advisory opinion:

But, that is exactly my point. If the political process does wrong, the courts should step in to do right. If they do not, then what is their purpose?

That view does not appear to be shared by the Court, at least doctrinally. "We many times have said, and but weeks ago repeated, that rational-basis review in equal protection analysis 'is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.' . . . Nor does it authorize 'the judiciary [to] sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.'" Heller, at 319 (internal citations omitted).
5.27.2009 3:42am
2cents (mail):
jmoon:

"Also, I think that those like 2cents who have taken the reductio ad absurdum approach in speculating that voters could eliminate marriage for other minorities fail to recognize that there are other protections for such enactments (such as the 1st and 14th Amendments)."

Please recognize my distinction between state law and US Constitutional law. What I was saying is that SCOCA seems to allow for ballot deprivation of rights that would clearly be in violation of US Constitution. Thankfully, if this is so, the US Constitution would still provide protections.
5.27.2009 3:43am
advisory opinion:

Of course, my previous point applies when the courts find a constitutional violation.

Fair enough, but no one disagrees that if the courts find a constitutional violation, then it should right the legal wrong. Marbury etc. But it is not clear that there is a "constitutional violation" here, so you merely beg the question.
5.27.2009 3:45am
2cents (mail):
advisory opinion:

I think you likely replied before I hit "submit" on my clarification. Your reply clearly hits the point I was making. If it is a fundamental right being regulated or it is based on suspect classification, then it will almost certainly be unconstitutional. In those cases, that is where I think the courts are obligated to act. Absent that, then I agree, that is not the proper role for the courts.
5.27.2009 3:50am
2cents (mail):
advisory opinion:

Yes, that is the question. I must "beg the question" because that is the threshold issue. I think that the original SCOCA opinion got it right. Marriage is a fundamental right and homosexuals are a suspect class. I freely admit that this is not the current state of SCOTUS jurisprudence. But I think it will be, sooner or later.
5.27.2009 3:54am
zerlesen:
2c: "If the political process does wrong, the courts should step in to do right. If they do not, then what is their purpose?"

Heh, given the hour, I will take my lumps for failing to adequately convey irony. The point of my original quote was to mention the pro-Prop 8 line, which is to say that a large number of people in CA voted against the notion of gay marriage quite recently. And then we're back to square one, in terms of arguing "wrong" and "ought".

(I'm not a lawyer - or an American - but I basically agree with Nick Gillespie on this.)
5.27.2009 3:54am
tvk:
Skyler, I am puzzled you seem to find my comment as supportive. Yes, marriage has traditionally been an opposite-sex affair. But so too the Army and Navy were traditionally surface-based military units. To say that because something is very old its change cannot be constitutional is a super-restrictive form of originalism that few (if any) endorse. I happen to think that equal protection arguments for gays are weak, but it is not simply based on the fact that it seeks to change the status quo.
5.27.2009 4:26am
BGates:
This is just crazy-talk here, but what if the political process resolved itself to do something bad?

Good point. Let's abolish the political process, and live under the rule of the wise and benevolent judiciary.
5.27.2009 5:38am
Smallholder (mail) (www):
Actually, BGates, what we have is a balance of powers. Your 8th grade civics teacher might have mentioned checks and balances, no?

If the majority passes laws that violate the Constitution, then the courts are bound - and ought - to overturn the law. If discrimination is unconstitutional, it matters not how popular that discrimination is.

In 1971, 90% of White Americans agreed with Skyler - anti-miscegenation laws weren't discriminatory because whites and blacks were equally free to marry within their race. In Loving, the court rightly overturned the discrimination.

The same could be said of Brown. I have yet to hear an anti-gay bigot explain how their adoration of majority will can be squared with support for Brown. Of course, they also aren't honest enough to admit that they would have opposed Brown for the same reasons. I think if we Venn diagrammed Americans who were born earlier than 1936 (making them 18 at the time of Brown), if circle A = people who opposed Brown's judicial activism and circle B = people who oppose gay marriage, the two circles would be almost exactly coterminous.

2cents is exactly right: the point of the Courts is to protect minorities against the tyranny of the majority.
5.27.2009 7:49am
Smallholder (mail) (www):
Additionally,

I don't believe for a second that the anti-gay bigots are really that concerned about majority rule vs. the courts. It's simply a convenient way to score (temporary - very temporary) points in a debate. When majorities have enacted laws allowing gay marriage, suddenly the majorities don't count.

As Trees noted:


Aside from the odd purist defending federalism, or the intellectually dishonest, if gay is OK then gay marriage is OK, but if gay sex is deviant and perverse, then gay marriage is bad.



Everything else is tactical.

This is why debating legal analysis with folks who say "marriage has never been a right" is meaningless. They don't care what the legal principles are.

Their Jesus says gays are icky.

Well, my Jesus doesn't. My Jesus says we ought to treat our fellow humans with compassion - first and foremost.

There is a singular lack of compassion in the anti-gay bigot crows. Example: cmr says SSM is "playing house." Example: The desire to equate SSM with bestiality.

Dudes, find your humanity.

Those of you who have seen my participation in the SSM debate here at Volokh have probably noted that I am mincing words less and less. I've just come to realize that folks like cmr aren't really interested in what the law says: they just see that the tide is turning against their bigoted ideas and are using everything but the kitchen sink to bolster their dying creed. At a certain point, when people are so dismissive of the humanity of others, they lose my sympathy.

We've reached the tipping point. If you are actually following the legal debate and keep coming back to statements that:


"They already have an equal right to marry someone of the opposite sex."
- Skyler


After the Loving precedent has been mentioned, then you aren't really engaged intellectually. You're simply a bigot arguing for bigotry.

(Waiting for the invariable parade of folks who will try to flip the tables and call me a bigot because I oppose their bigotry. Each one of them will fail to mention that I don't want to use the state to enforce my bigotry. And that's the difference. The anti-gay bigots want to use the state to impose their particular world view and deny thousands of marriage-associated rights to homosexuals. I don't want to deny a single right to the bigots. I just want to answer their bad speech with better speech.)
5.27.2009 8:03am
Callipygous:
As for Equal Protection, sure he is right on the law, but the Court will not go there today. Maybe in 10 years... maybe not for 30.

If they did go there today, there will be backlash like you will not believe. An amendment to the Constitution will pass out of Congress quite quickly. Can you count 13 states that will turn down such an amendment? I can only count 8. Once that amendment is ratified, it will be 2 generations, minimum, before it will be undone.

Now is not the time Mr. Boise.... you will do more harm than good. Even if you win, you lose.
5.27.2009 8:29am
Hitcher:

As for Equal Protection, sure he is right on the law, but the Court will not go there today. Maybe in 10 years... maybe not for 30.

If they did go there today, there will be backlash like you will not believe. An amendment to the Constitution will pass out of Congress quite quickly. Can you count 13 states that will turn down such an amendment? I can only count 8. Once that amendment is ratified, it will be 2 generations, minimum, before it will be undone.

Now is not the time Mr. Boise.... you will do more harm than good. Even if you win, you lose.


Correct. This is profoundly stupid. Up until this point the homosexual activists have been picking and choosing their battles in a very careful and strategic manner.

Prop 8 has apparently caused everyone to take leave of their senses.

This is exactly like Robert E. Lee getting drawn into a battle on ground that he didn't choose at Gettysburg.

The outcome here will be similar.
5.27.2009 8:55am
Danny (mail):
These two are mad criminals. This is probably pure Rovian manipulation. Who is going to believe for a second that an old Bushista is doing these because he cares about minority rights? A SC case?? These people have to be stopped. Under the guise of defending our rights, they're going to set us back a generation or two, so we'll get marriage equality right after Iran and Ghana.

I wouldn't be surprised if the timing a clever plot to push Americans gays and lesbians to emigrate
5.27.2009 9:11am
Hoosier:
Danny

Yeah. To where they came from: Homoslavia.
5.27.2009 9:16am
Danny (mail):
I read this comment under the Advocate article:
"Amazing how The Advocate felt the need to question the sincerity of Theodore Olsen because he worked for the Bush administration, but seemingly has no qualms with David Boies, even though he did quite a bit of work for an administration that not only signed the Defense of Marriage Act but also instituted "Don't Ask, Don't Tell"."

I smell TWO rats
5.27.2009 9:17am
Skyler (mail) (www):

After the Loving precedent has been mentioned, then you aren't really engaged intellectually. You're simply a bigot arguing for bigotry.



Nonsense. Loving has nothing to do with this except in the minds of those who think that behavior is the same as skin color.

Equal protection does not apply to homosexuality the same way it applies race. This has been law for quite some time. What is being attempted is to pervert the law once again.
5.27.2009 9:23am
newscaper (mail):
My comment about "smacks of playing house" was directed to to homosexual marriage in general, not specifically to those with kids -- nice distortion of my comments. And believe it or not, I perfectly well see the 'gays with families' angle as the weak flank of the argument. FWIW I am not adamantly opposed but rather 'substantively' opposed.

I simply resist the attempt to redefine marriage for political reasons. This is a divisive issue that would be much better handled legislatively as attitudes change -- if they do that far -- than thru the courts (see federal handling of abortion for a toxic example.)

Your typical cultural anthropologists (who overly focus on surface differences and lose sight of the near-universals which suggest such a thing as 'human nature' does exist, has *evolved*) can point to isolated cases of older cultures who allow some form of gay marriage, but *nowhere* does it exist as a thing in and of itself -- rather it always shadows/mimics the real thing, and is not treated as the bedrock institution of the tribe/village/etc like the real variety.

As to the objection about het couples who don't want children (who have to be on guard against their biology), and those who *can't* -- in both cases they support at least the *form* of marriage as the preferred adult relationship between the sexes in a deeper way that SSM does not.

As to the common objection about the [lack of]] success rate of het marriage -- well that's merely pointing to the earlier 70s liberal "Me" generation and feminists getting their way WRT to both divorce law and weakening the social stigma that formerly acted as a bit of a brake, swinging the pendulum too far toward making it somewhat too easy. So exactly how is that a point in your favor again on the subject of meddling with longstanding social norms?

FWIW, I think homosexuality (meaning same-sex only, rather than bi as a simply... looser sexuality) exists in a very broad spectrum of 'innateness', and *some* is clearly more 'psychological' at the margin. FWIW my older sister with 3 decades of social work experience is struck by the large number of lesbian women she has encounterd who were victims of sexual abuse at some point. (BTW, for the G/L lobby to jump 100% on the 'it's not a choice' has really painted them into a corner on some biomedical ethical issues likely to come up in the next few decades.) And, in purely evolutionary terms it is clearly maladaptive for the individual as behavioral sterility -- the often cited animal examples (however sometimes not quite true apples-to-apples) clearly support this view more than their citers'.

I'm for tolerance -- but what we'll get with SSM is turning loose the PC thought police even more than now. Sorry, but I don't want my son's school to indoctrinate him, as a kid just hitting puberty, into being gullible prey for homosexual exploitation by some older teen or an adult, in the name of 'its natural' 'exploration.' Neither do I want to be labeled a bigot, as I have, for simply expressing the preference that he ends up straight and married with a natural (biological) family of his own. I don't wish to empower those people.

My final earlier comment "Govt marriage licenses for G/L make almost as little sense as redefining the meaning of drivers licenses so blind people can have them too in the name of 'equal rights'." was admittedly flip, but I see it nowhere directly addressed.
5.27.2009 9:31am
Danny (mail):

Nonsense. Loving has nothing to do with this except in the minds of those who think that behavior is the same as skin color.


It is just heterosexism to equate homosexuality with behavior. We are not heteros until we lose our virginity LOL


FWIW, I think homosexuality (meaning same-sex only, rather than bi as a simply... looser sexuality) exists in a very broad spectrum of 'innateness', and *some* is clearly more 'psychological' at the margin.


So, Doctor, you must think the same about heterosexuality. To what degree is your innate, or are you just surpressing your attraction to men (I assume you are male) for political reasons?


Sorry, but I don't want my son's school to indoctrinate him, as a kid just hitting puberty, into being gullible prey for homosexual exploitation by some older teen or an adult, in the name of 'its natural' 'exploration.' Neither do I want to be labeled a bigot, as I have, for simply expressing the preference that he ends up straight and married with a natural (biological) family of his own. I don't wish to empower those people.


LOL. In other words, I'm not a bigot, I just believe in the Protocols of the Elders of the Homosexualists and the pedophile libel.
I am gay, and if I had a son I would also prefer that he be straight with a biological family (it's easier and grandkids are a good thing!) although of course I would support him whichever way he turned out
5.27.2009 9:48am
cmr:
I do too, Danny. But I'm glad, if they're trying to push this issue into the federal courts.

So for those of you who claim the purpose of marriage is reproduction, you have to admit that traditional straight marriage is a useless right for gay men as many would not actually be able to impregnate a woman through traditional means. If a gay man were to marry a woman, the marriage could probably be ended under traditional divorce rules that allow for divorce or annulment in cases of impotence, failure to conceive, or failure to consummate the marriage.


I don't understand why people figure "equality under the law" necessitates the law to pat everyone on the back. Everyone's treated equally under traditional marriage policy. Because some people might not want to do it, doesn't mean the law is then unequal. Because it doesn't affect everyone to the same exact extent doesn't mean people are being treated unequally under the law.
5.27.2009 9:58am
mooglar (mail) (www):
I think it's easy to point out the inequality in not allowing SSM. It is gender-based discrimination, pure and simple: Under a regime only allowing opposite-sex marriage, men and women have different rights. Men have the right to marry a woman. Women have the right to marry a man. Thus, men do not have the same rights as women, since they lack a right -- to marry a man -- that a woman has. And, conversely, women lack a right -- to marry a woman -- that a man has.

Saying "everyone has the equal right to marry someone of the opposite sex" is a way of trying to paper over the different rights men and women get when only opposite-sex marriage is allowed. Just like saying "everyone has the right to marry someone of their own race" is a way to try to paper over the different rights that gives people of different races. Under that racial regime, a black person has the right to marry a black person but not an Asian person, while an Asian person has the right to marry an Asian but not a black person. It's clear they are actually being treated differently, not the same when you go down a level and are more explicit. Making the argument more abstract, as opponents of SSM do, is just a way of obfuscating the differences in treatment.

The way to see if there is a discriminatory difference is simple. Suppose we have a given random person, Person X. If anyone who wishes to marry Person X, given that they are not a close relative, can marry Person X, then there is no discrimination. But, if some people can't marry Person X because of what group they belong to, such as gender or race, and other people in another group can marry Person X, there is clearly discrimination.

But if we can say, "everyone has the equal right to marry someone of the opposite sex," then is everyone treated equally when we say that people can only marry someone of their own social or economic class? Or that people can only marry someone from their own home towns? It's easy to come up with a bunch of examples of rules where "everyone can do X" that are "equal" in that it applies to everyone, but actually gives people different rights.

For instance, we could say claim it wouldn't violate equal treatment to decide everyone has to eat a handful of peanuts every morning. Everyone has to do it, so it's equal, right? But, of course, it's not so equal when eating peanuts will kill some people while for others it's just a nice snack. But, by the "everyone can marry the opposite sex" logic, there is no equal protection problem with the peanut law.

That is to say, the "everyone can marry the opposite sex" argument is a way to gut the whole idea of equality under the law with a bit of clever misdirection.
5.27.2009 10:04am
DennisN (mail):
The behaviour vs. skin color argument fails, because there is no effort in SSM marriage legislation to control behaviour. No one is either required or prohibited from engaging in intercourse, whether it is reproductional coitus, or any other form of rubbing bits together.

It's not about behaviour. It's not even about sexual preference. The legislation is blind and dumb as to whether the SSM partners are homosexuals, heterosexuals, or asexuals.

SSM legislation regulates who is able to enter into a particular type of civil contract, one that confers many social benefits on the participants by the simple invocation of the name "marriage."

It is the prohibition of a couple from entering a contract solely because of the shape of their nether bits that is discriminatory.
5.27.2009 10:08am
Danny (mail):

Everyone's treated equally under traditional marriage policy.


Everyone is equal in Saudi Arabia too - Christians and Jews also have the right to practice Islam
5.27.2009 10:15am
jrose:
Everyone's treated equally under traditional marriage policy

Gays aren't treated the same in that they are limited to sham marriages. Whether or not that constitutes unequal treatment as a legal matter is debatable.
5.27.2009 10:17am
jrose:
mooglar,

Courts have generally rejected the argument that current marriage law discriminates on the basis of gender, and rightly so in my view.

As to the race analogy, anti-miscegenation laws discriminated against blacks because they were motivated by White Supremacy. Which gender is disfavored by current marriage law?

If you are correct, then it must follow that the sodomy statute in Lawrence, and the Romeo and Juliet statute in Limon would also be examples of gender discrimination. Does that seem correct to you?
5.27.2009 10:27am
Anderson (mail):
Ted Olson.

Wow.

I seem to be the only person surprised here.

I eagerly anticipate Justice Scalia's evisceration of EP claims

Yes, that will be quite a dissent to read.
5.27.2009 10:28am
cmr:
No, it's not debatable. Marriage is between one man and one woman. PERIOD. The happiness of married couples, their sexual satisfaction, and how it appears to their friends has nothing to do with the law or state-sanctioned marriage incentives.

The law requires that people are treated equally under the law. In my view, that means that gay and lesbian individuals aren't expressly precluded from entering into the kind of marriage the law proscribes. Even if I were to take the liberal view and say that gay and lesbian couples deserve all these same benefits, that can be a good reason for the Legislature to pass comprehensive civil union/domestic partnership legislation. Equality under the law means that we as individuals are treated equally. That, as far as I know, doesn't extend to any type of relationship we get ourselves into.
5.27.2009 10:28am
Danny (mail):
Also, how dare these two a**holes usurp the place of our historic gay rights organizations? Some conservative heteros suing for gay marriage for altruistic reasons. Give me a break. We need to expose these criminals
5.27.2009 10:38am
cmr:
Maybe they plan on marrying one of their straight male friends for the tax breaks. Seems like that's a perfectly legitimate reason to marry...the benefits.
5.27.2009 10:46am
Thales (mail) (www):
"Nonsense. Loving has nothing to do with this except in the minds of those who think that behavior is the same as skin color."

That depends on how you read the rule of Loving. I read it as applicable to traits that one cannot *or should not have to* change. [Textualist note: Section 1 of the 14th amendment, of course, does not mention race.] One can imagine a world in which one could change one's race (by phenotype, through skin-pigment altering drugs, or by genotype, through gene therapy (to the extent the phenomenon we call "race" is associated with genes, which is only very loosely--race is not what scientists and philosophers would call a natural kind). In that world, would you repeal all of the Court's race-related equal protection jurisprudence, since non-whites could simply alter their status to that of the majority if they chose? I think that you would not. What we very simplistically refer to as homosexuality, the best science indicates, exists on a spectrum in the population at large, and there is a strong innate component, which predominates what you refer to simply as behavior or opportunity. More to the point, though, even if it were a pure matter of a simple decision (again, to engage in science fiction), why should gays and lesbians have to change?
5.27.2009 10:58am
sad_day:

My final earlier comment "Govt marriage licenses for G/L make almost as little sense as redefining the meaning of drivers licenses so blind people can have them too in the name of 'equal rights'." was admittedly flip, but I see it nowhere directly addressed.


Your analogy implies that same sex couples are incapable of dispensing the obligations of legal marriage, which was specifically addressed by SCOCA in their original ruling. They disagreed with you.
5.27.2009 11:06am
pluribus:
Ben S.:

I would personally support an initiative that granted such rights but did not identify it as marriage.

With respect, your position seems to me to be an objection to the use of the word "marriage" and nothing more. You are willing to exend equality to gays and lesbians, except for the equal use of the word "marriage." Why do you draw the line at this word? I used to have much the same opinion as you. Then I asked myself, if a group of people are entitled to equal protection of the law, how do you grant that equal protection? The answer is by treating them the same, unless there is a compelling reason not to. That some people are offended by calling a same sex relationship a marriage is not a compelling reason not to call it that. In the case of marriage, "same" means the same name as well as the same rights that heterosexuals now enjoy. You argue that gays and lesbians are hung up on the name. I say it is you who are hung up on the name. How would you feel if the law permitted interracial couples to have all of the rights of same race couples, but not to call their relationship marriage? They could call it a civil union but not a marriage, because some people have deep personal (or religious) objections to interracial "marriages"? This would not quality as equality.
5.27.2009 11:11am
einhverfr (mail) (www):
CMR wrote:

It is playing house...sort of. Same-sex marriage assumes that, back when I had a roommate, that our "relationship" no matter how platonic and non-sexual it was, should be subsidized just like a man with a wife and three kids should be subsidized. That doesn't ring fair to me.


Proposal: We reserve the rights, title, and benefits to marriage to heterosexual couples with children. Heterosexual couples can enter into a probationary marriage sans community property (though community property is recognized to the beginning of the probationary period of children result) which is automatically annulled after 5 years if the couple remains childless.

I trust you will support such a proposal....
5.27.2009 11:23am
Stephen Clark (mail):
So, newscaper, are infertile straight couples just "playing house" too? No matter how many paragraphs you devote to some tortured justification for it, that belittling characterization remains highly offensive. But, please, keep on using that kind of language. All you do is alienate fair-minded people and increase support for same-sex marriage.
5.27.2009 11:25am
Danny (mail):
From the CT marriage equality sentence:
STATUS OF GAY PERSONS AS A QUASI-SUSPECT CLASS
For the reasons that follow, we agree with the plaintiffs’
claim that sexual orientation meets all of the
requirements of a quasi-suspect classification. Gay persons
have been subjected to and stigmatized by a long
history of purposeful and invidious discrimination that
continues to manifest itself in society. The characteristic
that defines the members of this group—attraction
to persons of the same sex—bears no logical relationship
to their ability to perform in society, either in
familial relations or otherwise as productive citizens.
Because sexual orientation is such an essential component
of personhood, even if there is some possibility
that a person’s sexual preference can be altered, it
would be wholly unacceptable for the state to require
anyone to do so. Gay persons also represent a distinct
minority of the population ... laws singling them out for
disparate treatment are subject to heightened judicial
scrutiny to ensure that those laws are not the product
of such historical prejudice and stereotyping.

Indeed, it is indisputable that sexual orientation ‘‘forms a significant part of a person’s identity.’’ Able v. United States, 968 F. Sup. 850, 863 (E.D.N.Y. 1997), rev’d on other grounds, 155 F.3d 628 (2d Cir. 1998); see also L. Tribe, supra, § 16-33, p. 1616 (sexual orientation, whether homosexual or heterosexual, is central to personality of individual). It is equally apparent that, ‘‘[b]ecause a person’s sexual orientation is so integral an aspect of one’s identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.’’ In re Marriage Cases, supra, 43 Cal. 4th 842; see also Hernandez-Montiel v. Immigration &Naturalization Service, 225 F.3d 1084, 1093 (9th Cir.2000) (‘‘[s]exual orientation and sexual identity . . .are so fundamental to one’s identity that a person should not be required to abandon them’’); Watkins v.
United States Army, supra, 875 F.2d 726 (Norris, J.,
concurring in the judgment) (‘‘Scientific proof aside, it
[also] seems appropriate to ask whether heterosexuals
feel capable of changing their sexual orientation. Would
heterosexuals living in a city that passed an ordinance
burdening those who engaged in or desired to engage
in sex with persons of the opposite sex find it easy not
only to abstain from heterosexual activity but also to
shift the object of their sexual desires to persons of the
same sex? . . . [T]he possibility of such a difficult and
traumatic change does not make sexual orientation
‘mutable’ for equal protection purposes.’’ [Citations
omitted; emphasis in original.]); Jantz v. Muci, supra,
759 F. Sup. 1548 (‘‘to discriminate against individuals
who accept their given sexual orientation and refuse
to alter that orientation to conform to societal norms
does significant violence to a central and defining character
of those individuals’’).
In view of the central role that sexual orientation
plays in a person’s fundamental right to self-determination,
we fully agree with the plaintiffs that their sexual
orientation represents the kind of distinguishing characteristic that defines them as a discrete group for purposes of determining whether that group should be
afforded heightened protection under the equal protection
provisions of the state constitution. This prong of
the suspectness inquiry surely is satisfied when, as in
the present case, the identifying trait is ‘‘so central to
a person’s identity that it would be abhorrent for government to penalize a person for refusing to change [it]
. . . .’’ Watkins v. United States Army, supra, 875 F.2d
726

***

You can also change your sex, through a complicated and traumatic process: I guess that would eliminate the need to forbid sex-based discrimination in cmr's book
5.27.2009 11:29am
nutbump (mail):

Danny (mail):

Everyone is equal in Saudi Arabia too - Christians and Jews also have the right to practice Islam


Bad analogy. Chirstian have a right to go to Church Jews have a right to go to temple, Muslims have a right to go to Mosque.
However!
Christians have no right to demand that muslim place of worship should to be called Church.
Jews have no right to demand celebration of Hanukkah in Mosque.
Muslims have no right to be in the Temple during the Ramadan.
5.27.2009 11:36am
nutbump (mail):
Danny (mail):

Everyone is equal in Saudi Arabia too - Christians and Jews also have the right to practice Islam



Bad analogy. Chirstian have a right to go to Church Jews have a right to go to Temple, Muslims have a right to go to Mosque.
However!
Christians have no right to demand that muslim place of worship should to be called Church.
Jews have no right to demand celebration of Hanukkah in Mosque.
Muslims have no right to be in the Temple during the Ramadan.
5.27.2009 11:37am
Anderson (mail):
No, it's not debatable. Marriage is between one man and one woman. PERIOD.

Oh! I hadn't realized. But now you've persuaded me!
5.27.2009 11:40am
nutbump (mail):

Gay persons also represent a distinct
minority of the population

This is outright lie. No one can distinguish gay from not-gay objectively.
5.27.2009 11:41am
ShelbyC:

Everyone is equal in Saudi Arabia too - Christians and Jews also have the right to practice Islam


Which, of course, is why we have a Free Exercise clause in addition to the Equal Protection clause. We don't have a "personal liberty clause" that protectes homosexual preference, which is why the gays have to strech the Equal Protection Clause to meet their needs.
5.27.2009 11:52am
Michael Ejercito (mail) (www):


After the Loving precedent has been mentioned, then you aren't really engaged intellectually. You're simply a bigot arguing for bigotry.

What about the Baker precedent?
5.27.2009 11:54am
Danny (mail):

Christians have no right to demand that muslim place of worship should to be called Church.




Bad analogy. If it's just a name game, then we can get into a philosophical discussion. But we are talking about a legal status that everyone sort of expected to consider (at least until they come out). So forgive me if I doubt the sincerity of these bleeding heart anthropologists who can't sleep at night because lesbians are using the m-word. The anti-SSM side has never been serious about civil unions. For 99% of the dedicated ideological anti-SSM crowd the reasoning simply like this: SSM = something related to homosexuality = we want to repress it. It's motivated by genuine animus. Most of them like cmr would probably be secretly happy if lesbians and gays were put in some internment camp. Of course I don't think this of the "casual" non-ideological anti-SSM people, i.e. the older generation, or even most people who would vote "Yes" on Prop 8 etc.
5.27.2009 12:12pm
DennisN (mail):
Ben S.:

I would personally support an initiative that granted such rights but did not identify it as marriage.


Its identity as "marriage," is what invokes the legal status that many SSM proponents are seeking. There is a whole body of law and precedent that is invoked once you are married. It is an unambiguous status.
5.27.2009 12:56pm
nutbump (mail):

Danny (mail):
Bad analogy. If it's just a name game, then we can get into a philosophical discussion. But we are talking about a legal status that everyone sort of expected to consider (at least until they come out).


It is not a game, it is very serious business. Once you oficially equalize long term homosexual relationship with marriage, politicians (gey-supremacists) will aqciure tremedous power to prosecute religious institutions.
5.27.2009 1:02pm
scattergood:
After reading the posts here I think it is clear that the various sides are arguing from fundamentally different facts / assumptions. So let's get into them:

1) IMHO, those who think that engaging in homosexual acts is innate / deterministic / genetic compare doing so as the same or similar to being Black or Asian. As such, they see the restrictions of marriage to people of the opposite sex in the exactly the same light as racial restrictions for marriage which were vitiated by Loving.

2) Those who thing that engaging in homosexual acts is NOT innate / deterministic / genetic see doing so as a choice. As such they see restrictions of marriage to two people of opposite sexes as totally reasonable for just as you can chose who to engage in sexual acts with, so can you chose who to engage in marital relationships with.

3) A third group accepts that engaging in homosexual acts is NOT innate / deterministic / genetic but liken it to religion in that one can chose to practice Catholicism, Judaism, Buddism, etc. and do so with the expectation of anti-discrimination laws.

So there are really two questions:

A) Is engaging in homosexual acts innate / deterministic / genetic or not? For if it is, then again IMHO it should be likened to race and people who are compelled to engage in such sexual acts should have anti-discrimination protections just as Blacks and Asians, etc. are compelled to be Black and Asian and receive anti-discrimination measures.

B) If engaging in homosexual acts is NOT innate / deterministic / genetic should people who do so receive similar protections that members of religious groups get? And if so, why, and if not, why not?

I think on the scientific front engaging in homosexual acts is clearly not innate / deterministic / genetic. Let's look at what the American Psychological Association has to say on the matter:

What causes a person to have a particular sexual orientation?

There is no consensus among scientists about the exact reasons that an individual develops a heterosexual, bisexual, gay, or lesbian orientation. Although much research has examined the possible genetic, hormonal, developmental, social, and cultural influences on sexual orientation, no findings have emerged that permit scientists to conclude that sexual orientation is determined by any particular factor or factors. Many think that nature and nurture both play complex roles; most people experience little or no sense of choice about their sexual orientation.


So there seems to be no consensus on what causes people to engage in homosexual acts, but that people 'experience' no choice in the matter.

Thus really the question is, should people who engage in homosexual acts have similar protections to people who engage in certain religions? At best, this seems to be an issue for the voters and legislatures not one for the judiciary. And so far, the people in the vast majority of cases have said no.

I conclude that this argument isn't about marriage equality, equal rights, etc. it is about societal acceptance of people who engage in homosexual acts. Justifying it on deterministic causes a la race don't seem to have much to stand on. So it is by fiat through the judiciary that it must be done. And by doing so a whole host of unintended consequences will be unleashed, many of which would be best to be avoided.
5.27.2009 1:12pm
Joseph Slater (mail):
Scattergood:

(1) Assuming you are heterosexual, do you feel that you "chose" that status?

(2) as to the "whole host of unintended consequences" that gay marriage will unleash, "many of which would be best to be avoided," could you point to specific examples of those in the countries and states that have already adopted SSM?
5.27.2009 1:33pm
Hoosier:
Where's Randy? Did someone kill him?

I don't believe that he's sitting this one out.
5.27.2009 1:41pm
David Schwartz (mail):
Whether one's sexuality is genetic, chosen, or emergent doesn't make any difference at all. Race is genetic. Religion is chosen for some, emergent for others. Age isn't quite any of these things. It makes no difference.
5.27.2009 1:55pm
ShelbyC:
Choice, Schmoice. People never choose what they prefer, be it chocolate vs. vanilla or men vs. women. But they do choose to act based on those preferences.

We have strong constitutional prohibitions against states acting against people based on charactaristics like race, religion, etc. But we don't have the same protections for people based on behavoiral preferences, even when the ability to act on those preferences fundamentally affects someone's existance and the behavior in question is of a personal nature that doesn't affect others.

Presumably, this is because regulating behavior is fundamental to what a state is required to do, and we don't have a clear line between what behavior should be regulated and what behavior shouldn't be regulated.

So gays are forced to shoehorn themselves into other protections that don't quite fit, like the equal protection clause protections against descrimination by race, and other folks raise valid questions about them doing so.
5.27.2009 1:57pm
mooglar (mail):
jrose:


Courts have generally rejected the argument that current marriage law discriminates on the basis of gender, and rightly so in my view.


Well, of course, I would point out that the law and courts' opinions of it in this area is changing, and thus while courts have "generally rejected" this argument in the past they may or may not in the future. However, I was arguing back against the rhetorical argument for prohibiting SSM and not necessarily making a legal argument. Certainly, history shows us that many things that have been legally ruled non-discriminatory that, in hindsight, are clearly so. I would argue this is one of those cases.


As to the race analogy, anti-miscegenation laws discriminated against blacks because they were motivated by White Supremacy. Which gender is disfavored by current marriage law?


Both.

Or do you believe that before Loving only the black people who couldn't marry whites were victims of unequal and discriminatory treatment? That may have been the intent of such laws, but only from a racist point of view can a white person who couldn't marry a black person he or she was in love with be any less affected by anti-miscegenation laws than a black person who can't marry a white he or she wishes to. The intent may have been to "favor" whites and "disfavor" blacks, but only if we accept that it is more favorable to marry a white person and less to marry a black is that correct.

But your question is a bit of misdirection. While the discrimination itself may be race- or gender-based, those "favored" and "disfavored" in the scheme are in all races and both genders. But that doesn't make it any less discrimination, that some people, whose desires happen to coincide with the law, feel the law is okay while other members of their group don't. That is to say, because in the group of all men some men feel "favored" by anti-SSM laws and some men feel "disfavored" by it doesn't mean it isn't gender-based discrimination, any more than the fact that lots of people do want to marry within their own race doesn't mean there's no racial discimination in laws that forbid them to marry outside it.

And your question is also an attempt to reintroduce the obfuscation I was pointing out. When only opposite sex marriage is allowed, men are discriminated against because they lack a right -- to marry a man -- that women have. Women are discriminated against because they lack a right -- to marry a woman -- that men have. Both can be discriminated against by having unequal rights even though we can't necessarily say that one side has it better. Because they are separate -- while symmetrical -- forms of discrimination. Just because both groups are denied a symmetrical, but not identical, right does not mean neither are discriminated against.

To further point out that the anti-miscegenation example is apt, I will make it explicit that all races are similarly discriminated against:

Blacks are discriminated against because they are forbidden a right -- to marry a white, asian, latino, etc. -- that whites, latinos, asians, etc. have.

Whites are discriminated against because they are forbidden a right -- to marry a black, asian, latino, etc. -- that blacks, asians, latinos, etc. have.

Asians are discriminated against because they are forbidden a right -- to marry a white, black, latino, etc. -- that whites, blacks, latinos, etc. have.

Just because all races are discriminated against in a similar -- but not identical -- fashion does not mean they aren't discriminated against. Each is a separate case. When black person is forbidden to marry a white person when a white person is allowed to do so, it is discrimination regardless of whether the reciprocal discrimination -- that whites also can't marry blacks -- is in place. Because the discrimination is in that a white person can marry a white person but that black person can't. It isn't about whether the white person can marry a black person or not from the point of view of whether a black person is being discriminated against by anti-miscegenation laws. It only matters if others, who aren't black, can do something the black person can't do. And, in this case, since anti-miscegenation laws allow whites to marry whites but forbid blacks from marrying whites, it is discriminatory, even though the converse, whites marrying blacks, is also forbidden.

The test for discrimination is that, when you break out what a person of Group A can do and is forbidden to do and compare it with what a person of group B can do and is forbidden to do, are they different? When you try to combine the groups and talk about the rights across the groups, as you do when you say, "Everyone can marry someone of the opposite sex," you confuse the issue by acting like there is no distinction in what that actually allows one group and the other group to do. But there is a distinction: if SSM is illegal, and you are man, you can't marry a man, but you can marry a man if you are a woman. That means that men and women get different rights even though the same basic policy is applied to each.


If you are correct, then it must follow that the sodomy statute in Lawrence, and the Romeo and Juliet statute in Limon would also be examples of gender discrimination. Does that seem correct to you?


Yes. In fact, the opinion in Lawrence comes close to touching on this. It notes that sodomy laws, and other laws regulating private, often sexual, behavior are rarely enforced. But, further, I would point out that on the rare cases they are enforced it is almost always against those engaging in homosexual sex rather than than those engaging in heterosexual sex. Thus, the law does discriminate based on gender, to whit: Women can engage in sodomy (in the legal sense of sex that isn't intercourse) with men without fear of prosecution, but will be prosecuted for engaging in sodomy with a woman. While men can engage in sodomy with a woman but will be punished if he engages in sodomy with a man. Thus each is given different rights based on gender, and each is denied a right held by the other gender. That is to say, a man is de facto forbidden from engaging in sodomy with another man while it's fine for a woman to do so. And, conversely, a woman is allowed to engage in sodomy with a man but is de facto forbidden to engage in sodomy with another woman, though a man is allowed to. See? No different.

When you distill things down to what each group (race, gender, whatever) is allowed and not allowed to do, it is obvious that they are being treated differently, even in the cases you brought up. By introducing talk that lumps groups together with terms like "disfavor" and such, it obfuscates, as I pointed out, the discrimination, and further, I believe, is intended to do so.
5.27.2009 2:14pm
wolfefan (mail):
It doesn't surprise me that Randy is sitting this one out (assuming he's not ill or something!) Indeed, I'm a little surprised that more folks aren't sitting it out. With great respect to all the posters, many of whom I agree with and hold in high regard (and some of whom I disagree with and still hold in high regard) there really isn't much new in the comments here. (I do not pretend to have carefully read all of them - apologies if I missed something important or novel.) The only thing that I found noteworthy in the post was the involvement of Ted Olson. And I agree with JHA that Olson's probably wrong in his statement about the timing. Whether that means he's being duplicitous, as some commenters suggest, I have no idea.
5.27.2009 2:28pm
ShelbyC:
@mooglar:

The problem with the anti-miscegenation analogy is that anti-miscegenation laws are grounded in race bias, the belief that certain people are inferior to others. This makes it a easy equal-protection case. The anti-SSM laws are grounded in the belief that certain behavior is inheriantly inferior. Since most of our laws depend on the fact that it's OK to descriminate against people because of their behavior, that makes the anti-SSM laws much easier to justify from a constituational perspective, even though in effect they're about the same as the anti-miscegenation laws.
5.27.2009 2:42pm
frankregan (mail):
What Skyler doesn't understand: we are fighting for his right to marry another heterosexual man if he wants to. We already have a right to marry his daughter even though we have no sexual interest in her. It is a meaningless right for us. We demand that Skyler have meaningless rights so that we all have equality.
5.27.2009 2:42pm
Hoosier:
wolfefan

There has been anything new in Randy's posts? After all, that is why I proclaimed the "Hoosier Doctrine."

And Randy, if you're out there, you know exactly what I mean. If you are sick, get well soon.
5.27.2009 2:47pm
mooglar (mail):
John Rawls, the late philosopher, pointed out that, when considering societal structures and policies, one should ask whether, not knowing ones place in society, would one favor that structure or policy. That is to say, not knowing if one would be rich or poor, straight or gay, asian or hispanic or latino or white etc., how would you want things to be set up? The idea being that, once one knows one's place in society, it is difficult to remove that bias -- the desire to protect one's own station -- from one's thinking.

Let's apply that to the debate on SSM. You, not knowing whether you will be male or female, straight or gay or bi- or what have you, not knowing if you'll be a Christian or an Jew or a Buddhist or an atheist or whatever, are shown a person. For argument's sake, this person is a female. Now, you are told that this is the person you will want to marry in your future in your life. Given this, what sort of marriages would you allow?

For the sake of argument, I am going to assume that whether it comes about genetically or through environment or (as is almost certainly true) some combination of those factors, that most people do not simply pick their sexual orientation, but rather, it is how they feel they are. For those heterosexuals (of which I am one) who wish to argue this point, unless you personally had to "choose" to be a heterosexual rather than a homosexual because both seemed just as appealing, I say that I will give you the benefit of the doubt that you aren't just one wink from having a gay fling and that there is therefore no reason not to think that gays and lesbians didn't choose to be attracted to their own sex any more than you chose to be attracted to the opposite sex.

Well, let's see. If we decide that only so-called "traditional" heterosexual marriages should be allowed, the we are fine if we turn out to be a straight man. But what if we end up being a gay woman? Not so good. We'd wouldn't be able to marry the person we love. Big argument against allowing only "traditional" marriage. (Obviously, if we turn out to be a gay man or a straight woman, our problems aren't with the law).

Okay. So, what if we only allow SSM? Well, now, same problem. If we end up a gay woman, things are good, but if we end up a straight man, not so much. On balance, there isn't really much reason to pick SSM over "traditional" marriage or vice-versa, since both give us about the same chance of being denied the chance to marry our mate.

However, what if we allow both heterosexual and SSM? That would seem wisest, since we then can ensure that we won't be forbidden to marry who we choose. And what are the compelling arguments to choose only heterosexual or SSM? It's hard to imagine, outside the security of knowing one will be heterosexual, that one would think it wise or fair to outlaw SSM. The same would be true of heterosexual marriage. Generally, the people most convinced that homosexuality and homosexual acts are "deviant" or "unnatural" are heterosexuals who find the idea of sex with someone of their own gender distasteful. I doubt, however, that without already knowing one's sexual orientation that one would have such strong feelings for or against either type of marriage. Certainly, I can't see most of the arguments generally used being very persuasive to someone who doesn't know if they are going to be on the business end of laws restricting marriage or not.

I think it is easy for humans to look at other people and be okay with things happening to them, because we can't imagine them happening to us. The old "first they came for the Jews" kind of thing. It's easy, when you are heterosexual, have always been heterosexual, and can't really imagine being otherwise, to give in to one's objections to homosexuality -- that it's distasteful to you, or against your religion, whatever -- and support anti-gay measures and be against SSM, because you aren't interested in SSM, don't want to marry someone of the same sex, and so it isn't going to be any skin off your back. But what if you didn't know where you would end up? I think things would be a lot different then. It's easy to take away someone else's rights. Not so easy to have yours taken away.
5.27.2009 2:56pm
Putting Two and Two...:

FWIW my older sister with 3 decades of social work experience is struck by the large number of lesbian women she has encounterd who were victims of sexual abuse at some point.


I would expect a disproportionately large number of women needing the assistance of social workers to have experienced sexual abuse at some point, regardless of their orientation. Wouldn't you?


Sorry, but I don't want my son's school to indoctrinate him, as a kid just hitting puberty, into being gullible prey for homosexual exploitation by some older teen or an adult, in the name of 'its natural' 'exploration.'


Nonsense. Of course you want him to be indoctrinated. You just want that indoctrination to be strictly heterosexual. And you want it so much, you want it applied to ALL children.

As to your concerns about his being "gullible prey", I hope you're making clear to him the dangers of staring at the older, more developed girls at school, lest he communicate to them his vulnerability.
5.27.2009 3:08pm
wolfefan (mail):
Hoosier!!

welcome back!!
5.27.2009 3:23pm
mooglar (mail):
ShelbyC:

I see what you are saying. But that is also kind of my point. While issues of sex are involved in marriage, as a legal question, they aren't the whole of the issue. I think conflating "gay sex" and SSM is part of the problem. Not allowing SSM does not stop homosexuals from having sex, nor does allowing SSM cause homosexuals to have sex. And SSM isn't a license to have gay sex, either, any more than heterosexual marriage is a license to have heterosexual sex (in a legal sense, at least).

The question of SSM isn't a question of who can have sex with whom, but a question of who can marry whom, have certain legal rights and responsibilities in regard to whom, who can and can't have the legal protections afforded to families by marriage, etc. If marriage, be it heterosexual or homosexual, were entirely about sex and/or reproduction, then couples no longer having sex should not be considered "married," infertile couples should not be considered "married," couples where one is paralyzed or otherwise infirm and unable to have sex should not be considered "married," while the guy banging his live-in girlfriend should be considered "married."

If it is the intent of opponents of SSM to oppose the behavior of homosexuals having sex, then that's what they should be trying to legislate. (Some are, certainly). But homosexuality isn't a behavior, unless heterosexuality is also a behavior, in which case in between actual sex acts none of us has a sexual orientation and all the other heterosexuals here truly believe that they could just as easily feel like having homosexual sex next time as heterosexual sex. (I know I don't feel that way). But, since there seems to be little debate that there people who are heterosexual in their orientation, the idea that there aren't people who are homosexual and aren't just making a "choice" is disingenuous and just a weasely way to try make homosexuals "the other," alien and different, to make it easier to target them with discrimination.

So, if homosexuality isn't, in and of itself, a "behavior," and if homosexual sex is not itself illegal anyway, then by what right can we sort of 2nd-order legislate against homosexual sex by outlwaing SSM (but not homosexual relationships and sex) and say we're not discriminating against people but behavior? That by stopping a man from marrying another man we aren't really stopping him from exercising the same right a woman has, but stopping bad underlying -- but legal -- behavior like homosexual sex? Is that really an appropriate reason to tell someone they can't have the same legal rights to form families and visit their mates in the hospital? Because we aren't legislating against you, as a person, by keeping you from visiting your loved on in the hospital, no, we're legislating against gay sex -- a behavior you weren't really planning to engage in when you're in the emergency room anyway?

Further, I also have to say that the anti-miscegenation laws are still an apt comparison because they weren't just about abstract theories of racial superiority and inferiority either: they were also about keeping black men from having sex with white women. So, if we believe it is okay to legislate behavior, and that engaging in homosexual sex is just a "behavior" like spitting on the sidewalk, and should be outlawed, then would it be okay to start passing anti-miscegenation laws as long as they weren't about whites being superior and blacks inferior but only about stopping behavior -- sex between whites and blacks?

So, ShelbyC, I see what you are saying, but I think those who argue that anti-miscegenation laws are different than anti-SSM laws because anti-SSM laws are targeted against a "behavior" that homosexuals "choose" to engage in are just trying to muddy the water yet again. Because there's not much, if any, difference between saying, "gay people don't have to have gay sex and gay sex is just a behavior and it's wrong so let's outlaw SSM" and saying "black people don't have to have sex with white people, that's just a behavior and it's wrong so let's pass some anti-miscegenation laws." The argument that "it's okay to be a gay man but not okay to act on it by having sex with another man" is pretty much the same as "it's okay to be black but not okay to act against it by having sex with a white person." After all, just like opponents of SSM like to say no one has to have gay sex, no black person has to have sex with a white person, right? That's just a behavior, after all.

It's a smokescreen.
5.27.2009 3:28pm
first history:
There is precedent for overturning state constitutional amendments that take away protections previously established. A historical analogue in California to Prop 8 could be 1964's Proposition 14, which was designed to overturn the Rumford Fair Housing Act. The Act provided that landlords could not deny people housing because of ethnicity, religion, sex, marital status, physical handicap, or familial status.

The California Real Estate Association sponsored Prop 14, which would have overturned the Act. Prop. 14 passed nearly 2 to 1. However, the California Supreme Court (and subsequently the US Supreme Court) ruled in Reitman v. Mulkey 387 U.S. 369 (1967). The California Supreme Court argued that not only did Prop. 14 repeal the Rumford Act, but involved the state in affirmatively in discrimination. The US Supreme Court agreed:


The judgment of the California court is . . . that (Prop 14) unconstitutionally involves the State in racial discriminations and is therefore invalid under the Fourteenth Amendment.

. . . (The California Supreme Court) held the intent of (Prop 14) was to authorize private racial discriminations in the housing market, to repeal the Unruh and Rumford Acts and to create a constitutional right to discriminate on racial grounds in the sale and leasing of real property. Hence, the court dealt with (Prop 14) as though it expressly authorized and constitutionalized the private right to discriminate. . . . [T]he court assessed the ultimate impact of (Prop 14) in the California environment and concluded that the section would encourage and significantly involve the State in private racial discrimination contrary to the Fourteenth Amendment.
(see footnote 2 of the opinon for the text of Prop 14, renumbered as Article 1, Sec. 26 of the California Constitution).


Of course the current federal challenge will not go through the California Supreme Court, but the principle is the same. Prop. 8 involves the state in affirmatively supporting discrimination of a right previously established by the state.
5.27.2009 3:30pm
Danny (mail):

It is not a game, it is very serious business. Once you oficially equalize long term homosexual relationship with marriage, politicians (gey-supremacists) will aqciure tremedous power to prosecute religious institutions.


You are either lying or ignorant if you say so. No one can prosecute religious institutions in the US. And if they could, it would make no difference whether SSM is legally valid or not.
The cases of conflicts between "religious freedom" and SSM (for example the Ocean Grove, NJ church group case) have all sprung up from COMMITMENT CEREMONIES with no legal value. They have to do with laws concerning discrimination in the provision of goods and services and have absolutely no conneciton to civil marriage laws
5.27.2009 3:39pm
Danny (mail):
In case the difference isn't clear between providing services and marriage, let's take another example

In some European countries, it is not illegal to discriminate in providing goods and services on the basis of nationality. What does this mean?

It means that in country X it is legal to refuse to participate in, photograph, cater or advertise a wedding for example between two Turks, for religious reason, because you don't like that nationality, or because you are in a bad mood that day. It is legal for a hotel owner to refuse to give a room to a Turkish person. A landlord can refuse to rent an apartment to Turkish people. No reason necessary. However, two Turkish people are legally allowed to marry each other in country X.

Is the difference clear for you?
Now try replacing the word "Turkish" with "gay" and "country X" with "United States"
5.27.2009 3:58pm
Crackmonkeyjr (www):
jmoon: Actually gays have been denied a right to vote. Prior to 1962, sodomy was a felony in every state in the union. If you were convicted of a felony, you lost your right to vote.
5.27.2009 4:08pm
Danny (mail):
@ ShelbyC

You've painted yourself into a corner by saying that being straight or gay is just a question of behavior. It is an identity. A person is gay even if he has never had sex before
(I have met several out gay virgins in the 25-30 age range). Aside from behavior, it is part of our identity. We have a shared historical and family experience, a shared history of discrimination and interaction with the hetero majority, regardless of our behavior, so if you talk about behavior you are only scratching the surface of the gay and lesbian experience. We are oppressed based on our identities not based on our behavior
5.27.2009 4:31pm
Danny (mail):
Ack, that sounds so repetitive.. I need to stop cutting and pasting my sentences while "editing" my posts..
5.27.2009 4:40pm
Down from the Ivory Tower:
A SCOTUS decision recognizing equal marriage rights would provoke nowhere near the backlash as Roe v. Wade. Abortion, as opponents see it, is about killing babies. Gay marriage is about people who just want to live their lives like everyone else. Big deal. Any initial backlash would quickly wane.
5.27.2009 5:01pm
Perseus (mail):
John Rawls, the late philosopher, pointed out that, when considering societal structures and policies, one should ask whether, not knowing ones place in society, would one favor that structure or policy.

Ah yes, the infamous "Veil of Ignorance." I'll be counting blades of grass this summer, so I expect you to send me large quantities of money for my efforts.
5.27.2009 5:09pm
Leo Marvin (mail):
Terrivus:

Olson is encouraging and assisting with this lawsuit because he knows if it reaches the Supreme Court in the next 2-3 years, the gay marriage side is more likely to lose than it would if it took another 7-8 years to get there.

Ah yes. Turning into the path of the torpedo before it has a chance to arm. Ramius would approve.
5.27.2009 5:39pm
scattergood:

(1) Assuming you are heterosexual, do you feel that you "chose" that status?


This is not a balanced question. The primary force of the reproduction of life makes heterosexuality normative in the sense that it is a) conducted by the vast majority of individuals and b) necessary for satisfying the intrinsic need to reproduce. As I have shown, there is no intrinsic need to engage in homosexual acts with people of the same sex.

Further, the Loving decision recognizes this as it stated that marriage "is one of the 'basic civil rights of man,' fundamental to our very existence and survival"

To use Loving, as many do, to support SSM is like calling the full moon the sun because it lights the night sky. It is a half truth and a total misrepresentation of what was intended.

(2) as to the "whole host of unintended consequences" that gay marriage will unleash, "many of which would be best to be avoided," could you point to specific examples of those in the countries and states that have already adopted SSM?


That certain unintended consequences have not been experienced yet doesn't mean they won't be in the future. Limiting the issue to states that 'have already adopted SSM' is a unreasonable restriction and canard.

It is like asking about teenage parental consent issues and abortion in 1974. This is clearly not an intended affect of the Roe decision yet is something we live with today.

I would predict however that we are starting to see and will continue to see the following issues come up or be exacerbated:

Polygamy, the destruction of anti-consanguinity laws, lowering of age of consent for sex and marriage, criminals using spousal privilege under SSM, immigration abuse of SSM, insurance abuse of SSM, religious discrimination (a la Boy Scouts, NM photographer, NJ church land), significant alterations to 'fault' in separation proceedings regarding alimony and child support (what is cheating or adultery in the context of SSM?), just to name a few.

Would you bet that we won't see polygamy in the next 20 years? We already are in the UK and Canada, so I would happily take that bet. Now you may say that you aren't bothered by polygamy, but don't be be coy to say that it isn't an unintended consequence of SSM.
5.27.2009 7:24pm
coyote (www):
What is being asked is that a cultural practice that has been in place for the known history of mankind be jettisoned [...]


I am so sick of people saying that marriage has been the same for the entire history of mankind. (Yes, I'm looking at you, Skyler.) That's either ignorant or a blatant lie.

During biblical times, polygamy was the norm and still is in many middle eastern countries. Polyandry (multiple husbands) has been practiced at various times in Tibetan, African, and mormon cultures. Native americans and chinese would take male 'wives' and concubines. The medieval catholic church would marry men in elaborate ceremonies. It's all well-documented.

If you don't like same-sex marriage because your particular religious sect is squeamish with it, fine. But marriage has changed throughout history, and it will continue to do so.

Personally, I love our religious freedom in the United States, and it scares the crap out of me that a particular religious sect is taking over our country and trying to impost religious law. My church (the Unitarian Universalists) has been forbidden from conducting same-sex marriages, and that's wrong.
5.27.2009 8:33pm
cmr:
The fallacy of appealing to novelty ("marriage has changed, and it will continue to do so") is compounded by the fact that this particular change is pretty unprecedented. All those changes have kept the idea of marriage being intrinsically heterosexual intact.
5.28.2009 3:21am
Joseph Slater (mail):
Scattergood:

I noticed that you answered neither of my questions.

First, I asked if you felt that you "chose" heterosexuality. Instead of answering that, you told me that we need heterosexual sex to continue the species. That's obvious but non-responsive. I assume you dodged the question because you feel that you didn't make some sort of free choice to be heterosexual. And of the many gays and lesbians I know, that's exactly how they feel.

Second, I asked about the parade of horribles you predicted would happen if SSM was allowed. You admitted they hadn't happened yet.

So, given that SSM will be the law in various states and jurisdictions, how long will it have to exist before you will admit that the various horribles you predict are not an "unintended consequence" of SSM? I plan to live for another 20 years, so I'll be willing to bet you polygamy won't be legal in the U.S. at that point.
5.28.2009 9:27am
scattergood:

I noticed that you answered neither of my questions.

First, I asked if you felt that you "chose" heterosexuality. Instead of answering that, you told me that we need heterosexual sex to continue the species. That's obvious but non-responsive. I assume you dodged the question because you feel that you didn't make some sort of free choice to be heterosexual. And of the many gays and lesbians I know, that's exactly how they feel.


This is an obvious lie. That you don't like my answers doesn't mean I didn't address your points.

You believe that one can either chose engaging in homosexual acts or to engage in heterosexual acts. I don't.

So because I don't share how you look at the issue, I didn't answer your question? Sorry I don't play by your rules, but your assertion is false.


Second, I asked about the parade of horribles you predicted would happen if SSM was allowed. You admitted they hadn't happened yet.

So, given that SSM will be the law in various states and jurisdictions, how long will it have to exist before you will admit that the various horribles you predict are not an "unintended consequence" of SSM? I plan to live for another 20 years, so I'll be willing to bet you polygamy won't be legal in the U.S. at that point.


I have pointed to a number that have started to happen, polygamy and anti-Christian activity. I have also stated that your question is an obviously fraudulent one. Abortion was a noted and forecasted unintended consequence of SCOTUS ruling on contraception. Parental notification was an uninteded consequence of Roe. But to ask if these thing have happened before they happened is just intellectual fraud.

You are basically saying to 'hey don't complain about heading off the cliff, because it hasn't happened yet, you should wait until we have!'
5.28.2009 9:52am
Joseph Slater (mail):
Scattergood:

I don't believe people "choose" to be straight or gay. I believe that at least in the vast majority of cases, sexual orientation is innate. My understanding is that you were arguing the opposite -- that people "choose" to be gay -- so I asked you if you "chose" to be hetero. You did not anser that question.

As to the second question, no, you haven't shown that gay marriage caused any of those things to happen. There is no polygamy in Massachusetts, and I'm not aware of any "anti-Christian" activity caused by gay marriage there either.

You are basically saying, "hey we're heading off the cliff" when, in the jurisdictions that have adopted gay marriage, there is no cliff in sight. Lots of people predicted bad stuff would come from allowing inter-racial marriage too.
5.28.2009 10:07am
scattergood:

I assume you dodged the question because you feel that you didn't make some sort of free choice to be heterosexual. And of the many gays and lesbians I know, that's exactly how they feel.


This is the crux of the issue frankly. People who engage in homosexual acts may feel like they don't have a choice, but there is zero, let me repeat, zero scientific evidence that this is the case.

Let's start with twin studies. They objectively show that engaging in homosexual acts is NOT a shared trait among twins.

Then let's start with brain structure studies. They are inconclusive at best. While SOME people who engage in homosexual acts have differing brain structures that those who don't there is no link as to cause and effect, nor is there a universality for these brain structure differences.

And let's look into the issues of bisexuality or changing sexual behavior of people who go from heterosexual acts, to bi or homosexual acts, and then back to heterosexual acts. Clearly they don't feel 'forced' to engaging in one set of sexual acts.

Let's move on to dna studies, which are totally inconclusive and not repeatable. I'll just quote Simon LeVay who has conducted DNA and brain structure studies:


It’s important to stress what I didn’t find. I did not prove that homosexuality is genetic, or find a genetic cause for being gay. I didn’t show that gay men are born that way, the most common mistake people make in interpreting my work.


So basically, you are arguing that because some people FEEL like they don't have a choice about engaging in homosexual acts despite overwhelming evidence to the contrary.

The false logic is so thick that the Iowa SC basically stated 'we don't know the causes that influence people to engage in homosexual acts, but they FEEL discriminated against so we have to give them protection'. How do you legislate feelings?

What do you do about the person who 'feels' like they need to walk around naked?
5.28.2009 10:53am
scattergood:

I don't believe people "choose" to be straight or gay. I believe that at least in the vast majority of cases, sexual orientation is innate. My understanding is that you were arguing the opposite -- that people "choose" to be gay -- so I asked you if you "chose" to be hetero. You did not anser that question.


See my previous posting about how your assumption is completely false.



As to the second question, no, you haven't shown that gay marriage caused any of those things to happen. There is no polygamy in Massachusetts, and I'm not aware of any "anti-Christian" activity caused by gay marriage there either.


Please see Canada and the UK where polygamy is recognized by the state for purposes of gov't benefits. It's coming.

Please see the NM photographers case, the suit brought against the B&B owners in Whales, the myriad of issues the Boy Scouts have faced, and the NJ church property case. Or let's look at the forced indoctrination of homosexuality to elementary school children in MA against the wishes of their Christian parents. Nah, there's nothing to worry about here.

That you aren't aware of them really isn't my problem. It just shows the willful blind eye that you are turning.


You are basically saying, "hey we're heading off the cliff" when, in the jurisdictions that have adopted gay marriage, there is no cliff in sight. Lots of people predicted bad stuff would come from allowing inter-racial marriage too.


Again with the illogic? Just because some problems didn't manifest in situation A, doesn't mean that all problems won't manifest in situation B.

And I am not saying we are heading of a clif. What I am saying is that there are a TON of unintended consequences in enacting SSM. Some people will agree with, some they won't. But let's at least think through the issue before jumping off the bridge.
5.28.2009 11:00am
jrose:
This is the crux of the issue frankly. People who engage in homosexual acts may feel like they don't have a choice, but there is zero, let me repeat, zero scientific evidence that this is the case.

I agree this is the crux of the constitutional law issue. If sexuality is not a choice, SSM ought to be constitutionally mandated. If sexuality is a choice, SSM ought not be mandated.

However even if sexuality is a choice, SSM still might be good public policy depending on your opinion on issues such as whether homosexuality is immoral.

As to the scientific evidence, a 100% genetic link to sexuality would establish it is not a choice, but a lack of a 100% link is not sufficient to establish that it is not a choice.

What fraction of people go back and forth between heterosexual and homosexual desires?
5.28.2009 12:07pm
scattergood:

I agree this is the crux of the constitutional law issue. If sexuality is not a choice, SSM ought to be constitutionally mandated. If sexuality is a choice, SSM ought not be mandated.


I agree that this is the constitutional issue. Given that this thread is about a federal suit regarding Prop 8, I thought is was pertinent.


However even if sexuality is a choice, SSM still might be good public policy depending on your opinion on issues such as whether homosexuality is immoral.


Again I agree. However the problem / issue is twofold here:

1) The public policy is coming from the bench, in direct contravention of the voters will. I don't think it is good public policy for public policy to be fashioned in this way.

2) The judiciary is declaring that morality has NO place in the state determining SSM issues. The fact that morality is being removed as a consideration here will mean that morality can and likely will be removed as a consideration in nearly any state action.


As to the scientific evidence, a 100% genetic link to sexuality would establish it is not a choice, but a lack of a 100% link is not sufficient to establish that it is not a choice.


Again I agree. My position would be vastly different it engaging in homosexual acts were 100% deterministic. However it is not, regardless of what pro SSM posit.



What fraction of people go back and forth between heterosexual and homosexual desires?


I can't say. The usual number of 'gays' is quoted as 10% but this includes those who have engaged in homosexual behavior regardless if they have engaged in heterosexual behavior. Thus it includes those that have engaged in bisexual behavior.
5.28.2009 1:23pm
jrose:
My position would be vastly different it engaging in homosexual acts were 100% deterministic. However it is not, regardless of what pro SSM posit

That's a strawman. The claim isn't that sexuality is genetically determined, but rather it is not a choice.

I can't say [what fraction of people go back and forth between heterosexual and homosexual desires]

Then how can you know whether sexuality is, or is not, a choice?
5.28.2009 2:06pm
scattergood:

That's a strawman. The claim isn't that sexuality is genetically determined, but rather it is not a choice.


Please provide an analagous trait or behavior that is not a choice but isn't determined by DNA.

My position is not a strawman, and calling it one doesn't make it so.


Then how can you know whether sexuality is, or is not, a choice?


Your frame is an incorrect one. The issue isn't whether SEXUALITY is a choice, but whether engaging in homosexual behavior is not a choice.
5.28.2009 2:25pm
cmr:
I agree this is the crux of the constitutional law issue. If sexuality is not a choice, SSM ought to be constitutionally mandated. If sexuality is a choice, SSM ought not be mandated.


That's a completely erroneous statement. Irrespective of how we feel about homosexuality, the argument for legal SSM has to be made on its merits. SSM isn't of the legal; we're not talking about overturning criminal statutes and penalties against people who want to live with other and marry.

Under standard marriage policy, homosexuals can marry. There is no law that says gays and lesbians caught married to a person of the opposite sex shall be prosecuted to the fullest extent of the law; it's not like straight people can enter same-sex unions but homosexuals cannot; and, marriage is affirmatively defined as a heterosexual monogamous relationship. It's not defined based on antagonism for other forms of marriage. We've simply decided this is the ideal policy for marriage. The state isn't threatening anyone of any other type of marriage (except pedophilia) to live as they wish, but they are not entitled to a state benefit, subsidy, or incentive just for being in a relationship.
5.28.2009 2:27pm
jrose:
Please provide an analagous trait or behavior that is not a choice but isn't determined by DNA.

Native language.

My position is not a strawman, and calling it one doesn't make it so.

I disagree. You have ascribed to the other side, a position they do not hold.

The issue isn't whether SEXUALITY is a choice, but whether engaging in homosexual behavior is not a choice.

I again disagree. Of course sexual behavior is a choice. But if sexuality is not a choice, you are asking gay people to not realize the human need of sexual love in the only way they can.
5.28.2009 3:00pm
jrose:
That's a completely erroneous statement. Irrespective of how we feel about homosexuality, the argument for legal SSM has to be made on its merits

If sexuality is not a choice, then sexuality is most likely a quasi-suspect or suspect classification (as was the ruling in California and Connecticut). Then, the burden of proof falls on those wishing to deny SSM.

Alternatively, if sexuality is not a choice and the scope of the fundamental right to marry includes the state encouraging single people to settle down with their lifelong partner, then the burden again falls on those wishing to deny SSM.

The lack of a criminal penalty is not salient (see Zablocki).
5.28.2009 3:09pm
scattergood:



Native language.


This is pretty funny. Native language is similar to a person engaging in homosexual behavior?

Let's test this out:

1) Native language of an individual is determined during their childhood and determined by their parents. So let us ask:
a) Do children engage in homosexual behavior around the same time they acquire a native language? NO.
b) Is eventually engaging in homosexual behavior determined by the parents? NO. Influenced maybe, but determined no.
c) Can one learn another language through their own efforts? YES. Are you then agreeing that one can learn to not engage in homosexual sex.
d) One must only speak their native language? CLEARLY NO.

This is a pretty laughable comparison. You have chosen something that as a child you are taught, but that you can then chose to learn anew and not practice (native language) to something that SSM proponents claim you are not taught and that you cannot learn anew and are forced to practice (homosexuality).




I disagree. You have ascribed to the other side, a position they do not hold.


And what position is that? Do you deny that pro SSM advocates believe that those who engage in homosexual acts have no choice in the matter? Do you deny that pro SSM advocates state that such lack of choice is created by some innate deterministic factor?



I again disagree. Of course sexual behavior is a choice. But if sexuality is not a choice, you are asking gay people to not realize the human need of sexual love in the only way they can.


You are differentiating between sexuality and sexual behavior, and assuming with no scientific basis that sexuality is deterministic.

I again point you to the APA and their statement. They cannot state that sexuality is determined by any factor. They only state that those who engage in homosexual behavior feel as if they don't have a choice. Again, how do you legislate feelings? I can say I feel Black or Asian or Hispanic, can I qualify for gov't programs that cater to those groups?
5.28.2009 3:22pm
Joseph Slater (mail):
Scattergood:

Sorry, but I'm not willing to take your word over what every gay and lesbian person I know says, what almost all gays and lesbians that have written about the topic say, and what is obvious common sense. For most of human history, gays have been hideously discriminated against. the idea that all these folks would "choose" to be gay, given the obvious disadvantages and dangers, is facially absurd.

And your other points are equally absurd. The New Mexico photographer case had nothing to do with gay marriage. It was a anti-discriminationion law that applied to businesses dealing refusing customers. You may disagree with that law, but it's not a marriage law. As you should know, N.M. does not permit gay marriage.

Mass., on the other hand, does. And no polygamy, bestiality, etc. has happened there.
5.28.2009 3:28pm
jrose:
Do you deny that pro SSM advocates believe that those who engage in homosexual acts have no choice in the matter? Do you deny that pro SSM advocates state that such lack of choice is created by some innate deterministic factor?

Yes, I deny both statements. SSM advocates believe there is a choice in behavior and sexuality is not 100% determined by genes. They nonetheless believe sexuality (who you are attracted to) is primarily immutable.

Language is, of course, 100% determined by environment. On that point, the analogy to sexuality is imperfect because sexuality is most likely a mix of genetics and environment. But for the sake of argument that most suits your position, let's assume that sexuality is 100% environmental. The analogy to language holds because in spite of being 100% environmental, the vast majority of people cannot master a second language as well as their native tongue (e.g., let's see how you fare with Chinese). They have no choice the trait is primarily immutable.

I again point you to the APA and their statement. They cannot state that sexuality is determined by any factor. They only state that those who engage in homosexual behavior feel as if they don't have a choice ...

... in which gender they are attracted to. How sexuality is determined is of no consequence in this debate. All that matters whether people can change their feelings.
5.28.2009 3:48pm
scattergood:

Sorry, but I'm not willing to take your word over what every gay and lesbian person I know says, what almost all gays and lesbians that have written about the topic say, and what is obvious common sense. For most of human history, gays have been hideously discriminated against. the idea that all these folks would "choose" to be gay, given the obvious disadvantages and dangers, is facially absurd.


Don't take my word, take the words of scientists, who both engage in same sex activities and those who don't.

The issue, again, is that you refuse to follow the actual facts and instead decide to follow the 'feelings' of certain individuals. Why do you not follow the 'feelings' of people who feel that homosexuality is completely a chosen lifestyle? And why are the 'feelings' of the group who believes that they have no choice better to follow than the scientists who have actually studied the issue?

Further, let me be clear, I have not stated nor am I stating that people just up and decided 'hey I want to have sex with somebody of the same sex as me'. The mixture of the how and why people engage in homosexual behavior is complicated and not totally understood. What I am saying is that engaging in homosexual behavior is not deterministic and thus should not be afforded the exact same legal protections as a deterministic trait like race.


And your other points are equally absurd. The New Mexico photographer case had nothing to do with gay marriage. It was a anti-discriminationion law that applied to businesses dealing refusing customers. You may disagree with that law, but it's not a marriage law. As you should know, N.M. does not permit gay marriage.


To say that the NM case is about discrimination and not about SSM is sophistry at its best.

Just as Lawrence v Texas would never lead to SSM and the contraception case would never lead to abortion.
5.28.2009 4:39pm
scattergood:

Yes, I deny both statements. SSM advocates believe there is a choice in behavior and sexuality is not 100% determined by genes. They nonetheless believe sexuality (who you are attracted to) is primarily immutable.


Then all comparisons to anti-miscegenation laws and Loving are false comparisons. Good to know.

What does 'primarily immutable' mean? Why should 'primarily immutable' behaviors be protected like 'completely immutable' traits?



Language is, of course, 100% determined by environment. On that point, the analogy to sexuality is imperfect because sexuality is most likely a mix of genetics and environment. But for the sake of argument that most suits your position, let's assume that sexuality is 100% environmental. The analogy to language holds because in spite of being 100% environmental, the vast majority of people cannot master a second language as well as their native tongue (e.g., let's see how you fare with Chinese). They have no choice the trait is primarily immutable.


So if I grow up in the USA and am taught by my parents only Spanish, I have the right to not learn English and I can force everybody else to support my decision to only speak Spanish with me? I can claim discrimination if people or the government refuse to do business with me in Spanish? To use the language comparison to the NM photog case, the photog can be sued and pay damages for refusing to conduct her business in Spanish?

Your analogy is ridiculous on its face.
5.28.2009 4:46pm
Leo Marvin (mail):
scattergood:

the suit brought against the B&B owners in Whales

Jonah's B&B is my favorite. The breakfast buffet has the freshest herring you'll find anywhere.
5.28.2009 5:03pm
Leo Marvin (mail):
Joseph Slater:

Lots of people predicted bad stuff would come from allowing inter-racial marriage too.

This is what's come from inter-racial marriage. Now if you have your way, we'll also have gay anti-Christs. And deny it all you like, but you know gay anti-Christs are just the first step on a slippery slope to gay polygamous anti-Christs.
5.28.2009 5:34pm
jrose:
Then all comparisons to anti-miscegenation laws and Loving are false comparisons. Good to know.

That doesn't follow. Some analogies are appropriate, others aren't.

What does 'primarily immutable' mean? Why should 'primarily immutable' behaviors be protected like 'completely immutable' traits?

It's only primarily immutable because a small minority can change. It should be protected comparably to a completely immutable trait because for the majority it is completely immutable.

Your analogy is ridiculous on its face

The analogy only extends to your request for another trait that is not genetic but nonetheless primarily immutable. There are distinctions in the legal consequences. For example, forcing a native Spanish speaker to learn enough English to conduct business is not a hardship. It does not conflict with their immutable trait. In contrast, forcing a gay person to either be celibate or marry a person of another gender results in the tremendous hardship of depriving them of the basic human need of sexual love in the only manner they can achieve it.
5.28.2009 5:34pm
scattergood:


That doesn't follow. Some analogies are appropriate, others aren't.

Of course it follows. Every quote by a pro SSM person that states that marriage is a fundamental right as per Loving:

a) completely ignores the fact that Loving specifically referenced procreation which makes its application to SSM complete intellectual fraud

b) explicitly compares the act of engaging in homosexual acts with being Black. It implies that the two are both inherent, inheritable, and immutable. Which, even you agree is a false analogy.


It's only primarily immutable because a small minority can change. It should be protected comparably to a completely immutable trait because for the majority it is completely immutable.


How do you know? If some can why can't everybody? How do you know why people even engage in homosexual acts in the first place? It isn't deterministic as we have agreed.


The analogy only extends to your request for another trait that is not genetic but nonetheless primarily immutable. There are distinctions in the legal consequences. For example, forcing a native Spanish speaker to learn enough English to conduct business is not a hardship. It does not conflict with their immutable trait. In contrast, forcing a gay person to either be celibate or marry a person of another gender results in the tremendous hardship of depriving them of the basic human need of sexual love in the only manner they can achieve it.


You have contradicted yourself yet again. You have stated, and I quote, the vast majority of people cannot master a second language as well as their native tongue (e.g., let's see how you fare with Chinese). They have no choice the trait is primarily immutable.

So:
Language = not really changeable, but no legal protections. Engaging in homosexual acts = not really changeable, let's give it full legal protection.

Thanks for the sophistry, yet again.
5.28.2009 7:45pm
David Schwartz (mail):
Religion is to some extent a choice. Race is to essentially no extent a choice. Can you explain any reason this should change the rules regarding whether the government can discriminate on that basis? I honestly cannot think of any.
5.29.2009 12:25am
jrose:
scattergood,

A couple examples of bad Loving analogies (and neither is patently bad) does not establish that all such analogies are bad.

Although I think Zablocki is the correct source for the claim of a fundamental right, you have an incomplete analysis of Loving. Loving references procreation only after an independent sentence that references happiness. If you are correct that the fundamental right is limited to procreation, then the state could refuse marriage to the infertile, a result I doubt would hold.

The comparison to being Black is based only on immutability, not inherence nor being inheritable.

None of us knows for sure if people can change their sexuality. But, the evidence that it is primarily immutable is compelling. You can ask people (are they lying) or you can look at studies of people who tried to change their feelings.

I did not say the ability to have a minimal grasp of another language is primarily immutable. I said the ability to speak another language as well as your native tongue is primarily immutable. So, let's adjust your hypothetical to accurately reflect my claim. You can claim discrimination if the government requires you to speak English as proficiently as your native tongue, or as proficiently as a native English speaker.
5.29.2009 7:41am
jrose:
David,

Religion is a special case because of the First Amendment. I think that all other suspect, or quasi-suspect classifications are immutable.
5.29.2009 7:44am
cmr:
Although I think Zablocki is the correct source for the claim of a fundamental right, you have an incomplete analysis of Loving. Loving references procreation only after an independent sentence that references happiness. If you are correct that the fundamental right is limited to procreation, then the state could refuse marriage to the infertile, a result I doubt would hold.


Zablocki concurred with Loving and Griswald that marriage was a fundamental right. That does absolutely nothing for the case for SSM.

Loving isn't about establishing marriage as a fundamental right. It was about overturning criminal statutes on marriage on the basis of race. The entire point of that was the overarching purpose wasn't sullied by the spouses skin color. It's more than obvious that if skin color is irrelevant to the purposes of marriage, it must be for something more fundamental than that. "Marriage is one of the basic civil rights of man, fundamental to our very existence and survival". Meaning, it's a foundational aspect of how we came to be, and how we will subsist. There's no way that can be construed as arguing for SSM, because homosexuality is inherently non-biological.

And, you paint have a pretty bad false dilemma there. The state wants to incentivize relationships that will produce children. Because that might be over-inclusive to an extent doesn't mean the incentive doesn't exist or is meaningless or discriminatory.
5.30.2009 9:40am
jrose:
Loving isn't about establishing marriage as a fundamental right

But Zablocki - having nothing to do with race - is about establishing marriage as a fundamental right. The controversy is the scope of this fundamental right.

The state wants to incentivize relationships that will produce children. Because that might be over-inclusive to an extent doesn't mean the incentive doesn't exist or is meaningless or discriminatory

I agree that over-inclusiveness doesn't refute the claim that the scope of the fundamental right to marry is limited to incenting relationships that produce children. However, my hypothetical (a state refuses civil marriage to the infertile and is sued - the plaintiffs will almost assuredly win) does refute your claim.
5.30.2009 10:02am
cmr:
I agree that over-inclusiveness doesn't refute the claim that the scope of the fundamental right to marry is limited to incenting relationships that produce children. However, my hypothetical (a state refuses civil marriage to the infertile and is sued - the plaintiffs will almost assuredly win) does refute your claim.


...if the law defines marriage as a union between a man and a woman. That doesn't refute my claim that marriage incentives are for the purposes of procreation because not every married couples can or will have children.
5.30.2009 10:22am
jrose:
That doesn't refute my claim that marriage incentives are for the purposes of procreation because not every married couples can or will have children.

I already conceded that overinclusiveness does not refute your claim. But, you didn't address my hyporthetical.

One more time: a state refuses civil marriage to the infertile and is sued, the plaintiff (of course) wins.

Conclusion: whether or not marriage incentives are for the purpose of procreation, it is now established you cannot deny someone marriage because they cannot procreate. It's no longer a case of optional overinclusiveness. It is now a requirement that appplies equally to an infertile person marrying someone of the opposite sex, and a person marryng someone of the same sex.
5.30.2009 11:43am

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