Is It Crazy to Call Californians Irrational?

The weak case against gay marriage

At first blush, the notion that there is no rational basis for California's ban on same-sex marriage, as U.S. District Judge Vaughn Walker ruled last week, seems extreme. But the more you consider the arguments presented by the ban's supporters, the less far-fetched Walker's conclusion looks.

Walker ruled that Proposition 8, the 2008 ballot initiative that excluded gay couples from the legal definition of marriage, violated the 14th Amendment's command that no state may "deny to any person within its jurisdiction the equal protection of the laws." He deemed the case presented by the measure's supporters so weak that it failed even the "rational basis" test, the highly deferential standard used in equal protection cases that do not involve a fundamental right or a "suspect class" such as race (although he also argued that gay marriage bans implicate both).

Proposition 8's defenders, Walker noted, emphasized "its consistency with the 'central purpose of marriage, in California and everywhere else,…to promote naturally procreative sexual relationships and to channel them into stable, enduring unions for the sake of producing and raising the next generation.'" Yet when Walker asked Charles Cooper, the attorney defending Proposition 8, how recognizing same-sex marriages would impair the asserted state interest in procreation, he at first said it was "not the legally relevant question," then essentially conceded the issue, saying, "Your honor, my answer is: I don't know. I don't know."

In their trial brief, Proposition 8's supporters promised to identify 23—count 'em—negative consequences of "redefining marriage to encompass same-sex relationships." During the trial, however, they presented just one witness to substantiate this point: David Blankenhorn of the Institute for American Values, who in Walker's judgment "provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate."

Blankenhorn conceded that children raised by adoptive parents fare at least as well as children raised by biological parents, that recognizing gay marriages would benefit gay couples and their children, and that such recognition would be "a victory for the worthy ideas of tolerance and inclusion." Although Blankenhorn nevertheless worried that giving gay couples the same legal status as straight couples might exacerbate the "deinstitutionalization" of marriage, he never explained why.

During his closing argument, Cooper returned to the theme that "responsible procreation is really at the heart of society's interest in regulating marriage." When Walker asked him to cite the evidence that had been presented during the trial to back up this claim, Cooper replied that "you don't have to have evidence of this point."

But you really do, especially since procreation, responsible or not, has never been a requirement for a marriage license. The government routinely recognizes marriages between people who have no intention of reproducing or who are physically unable to do so.

Walker concluded that "the trial evidence provides no basis for establishing that California has an interest in refusing to recognize marriage between two people because of their sex." Since the "rational basis" test requires that discrimination be "rationally related" to "a legitimate government interest," that conclusion alone was enough to overturn Proposition 8.

Walker's reasoning is similar to that of the 1996 decision in which the Supreme Court ruled that Colorado's Amendment 2, a ballot initiative that prohibited state and local bans on discrimination against homosexuals, failed the "rational basis" test. Like the Court in that case, Walker found the asserted reasons for the challenged law to be so weak that the true motivation had to be a moral judgment concerning homosexuality.

Since Amendment 2 was ostensibly aimed at protecting property rights, freedom of association, and freedom of contract from bans on private discrimination—as opposed to requiring official discrimination—it had, if anything, a stronger basis than Proposition 8.  But even if both cases were wrongly decided, one thing is clear: Opponents of gay marriage will ultimately lose the public policy debate if they can't do a better job of defending their position.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2010 by Creators Syndicate Inc.

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  • Suki||

    Good morning reason!

  • Suki||

  • ||

    Suki: Will a groveling apology do? Doing too many things at once and just spaced the hat tip. Will add belated one.

  • Suki||

    Yes it will do! Thank you Ronald Bailey!

    Updating my post now :)

  • Suki||

    Updated!

  • Suki||

    "Is It Crazy to Call Californians Irrational?"

    Not in the slightest. And I do not agree with Jacob either. If we are going to have human marriage licenses, then all humans who want to pay for them should have them.

  • ||

    aha

    where do you draw the line?

    can a shepherd legally marry the cutest sheepie in his flock?

    can a heterosexual surfer marry his surfboard?

    what about a trisexual and his buddy the flute playing centaur?

    the confusion would be like madness.

    the answer obviously is that one size must fit all creatures great and small.

    praise da lawdie

  • Suki||


    Blankenhorn conceded that children raised by adoptive parents fare at least as well as children raised by biological parents, that recognizing gay marriages would benefit gay couples and their children, and that such recognition would be "a victory for the worthy ideas of tolerance and inclusion." Although Blankenhorn nevertheless worried that giving gay couples the same legal status as straight couples might exacerbate the "deinstitutionalization" of marriage, he never explained why.

    Just ignore advanced science and lesbian couples who can give both natural birth and nurturing!

  • MJ||

    A lesbian can give natural birth by natural insemination, a lesbian couple cannot.

    Also put aside the evidence that children do better with parents of both sexes in their lives. We must apply cosmic justice to the concept of family.

  • Suki||

    I said advanced science, not kitchen tool amateur hour.

  • Sosnowski||

    So, like, fertilizing an egg with genetic material from another egg? Or using advanced science to make ovaries produce sperm? How advanced are we talking about?

  • Suki||

    Fertilizing it with genetic material from the other partner is close enough. BTW, as soon as it is fertilized it is a person too.

  • slutmonkey||

    You're not a person until you're in my phonebook.

  • Suki||

    Then I will never be a real person.

  • ||

    So I guess it'd be legal to abort you.

  • Fiscal Meth||

    Yes, do put aside this "evidence" which assumes that correlation is causation. Also, put it aside because once you assume the authority to decide who can and cannot have kids, cosmic justice demands that you only allow the wealthiest among us to have kids since rich kids do better than poor kids.

    Besides, WTF is cosmic justice?
    Sounds like a comic book superhero.

  • Suki||

    That would be comic justice.

  • ||

    Also put aside the evidence that children do better with parents of both sexes in their lives.

    As compared to children with two parents of the same sex? What evidence might that be?

  • Suki||

    The only long term study of same sex parents is Two and a half Men on CBS.

  • ||

    Shouldn't there be alt text for that photo that reads Token Lesbians or something?

  • ||

    I'm not so sure about the one on the right.

  • Subsidize Me!||

    Believe it or not, there are actually attractive lesbians out in the wild. Boorish cunts like Rosie skew the stereotype a bit much.

  • Suki||

    Tammy Bruce makes up for many of them.

  • BakedPenguin||

    Ellen DeGeneris' wife Portia de Rossi and Sarah McLachlan come tom mind.

  • ||

    Sarah McLachlan isn't gay, as far as I can tell. In a recent interview with Gay and Lesbian Times, she specifically identified as a supporter of gay rights, and she was asked about how she felt about lesbians using Fumbling Towards Ecstasy as music for lovemaking. Doesn't sound like she's out, if she is lesbian, and she was married with two kids. (Not definitive evidence, I know, but it's evidence nonetheless.)

    Not that I'd mind it if she were gay, mind you.

  • ||

    Serious question regarding lesbian psychology: The short hair, dressing like a man...do the more masculine-looking lesbians want to be men, or is it more complicated? Do they feel that they were born the wrong sex, or is homosexuality actually a third and separate category of sexuality? Is the science settled?

  • Abdul||

    Women are about 5% of libertarinas, and Lesbians are about 5% of women, so you have about a 0% chance of getting this wuation answered here.

    You can try positing it at feministing, where your chances of making lesbinas cry approahces 100%.

  • ||

    I'm a lesbian and a libertarian, but I won't presume to speak for all lesbians everywhere in answering stupid questions.

  • JohnD||

    So you specialise in stupid answers?

  • ||

    Reading comprehension fail, JohnD.

  • ||

    Women are about 5% of libertarinas, and Lesbians are about 5% of women

    It doesn't follow that lesbian females are .05 X .05 = 0.25% of libertarians.

    That's like saying there are 100,000 people living in San Francisco's Castro District, and 5% of the population is gay, so one can calculate about 5,000 gays live in the Castro.

  • BeltwayLurker||

    From my lurker closet it looks like 69% of commenters here are gay. It follows that there should be one or two in the four or five that comment here.

  • ||

    I've wondered about that too. The gay couples I've known myself--unlike the couples portrayed on TV--always have a butch and a femme. Granted, I haven't known that many so it's not a statistically valid sample, but it's enough to make me ask the question.

  • ||

    Right. If that admittedly unscientific observation has some basis in fact, do lesbian couples, subconsciously or otherwise, tend to mirror heterosexual couples?

  • ||

    It might have more to do with a working relationship requiring complementing strengths, weaknesses, and skill sets.

    Two different angles or POVs on any given problem ups the probability that one of them will find a better solution.

  • Mr Whipple||

    always have a butch and a femme.

    The proper terms are "Diesel" and "Lipstick", respectively.

  • ||

    Almost all the hetrosexual couples I know are a butch-femme coupling (one is a femme-femme and we all suspect there is some denial and self delusion going on there).

    So is it biology or "social construction" of what a proper couple should be?

  • Skip||

  • ||

    The lesbian couple I know best -- one of them delivered two of our kids -- are both quite feminine.

    Anecdotal, of course.

  • Robert||

    Why is this even hard? All men know that women are attractive by their nature, and men basically aren't. Why wouldn't women want other women?

  • EscapedWestOfTheBigMuddy||

    Comment on "manly" lesbian dress from a traditionally attractive lesbian I know: "It's like they just don't have any sense of style."

    Her efforts to reform her partner have been partially successful: now the partner dresses like a man who'd set off your gaydar.

  • BeltwayLurker||

    Never caught that angle before. I thought they were advertising. Like many gay men do with their lisps and fem dressing style.

  • ||

    Serious question regarding lesbian psychology: The short hair, dressing like a man...do the more masculine-looking lesbians want to be men, or is it more complicated?

    It's more complicated. I'm no expert, but I've learned a bit from my fiancee (who is bi, and actually pays attention to these issues more than I). (And is in that 5% of 5%. Even she's never seen another lesbian libertarian.)

    Do they feel that they were born the wrong sex,

    No. Or at least, that's completely separate from being butch. I'm sure some butch lesbians actually are transgender, but most are just trying to fill a more masculine role. Actually trying to pass as a man is separate, too, and is transvestitism.

    Note that, at least among men, the vast majority of transvestites are straight (something like 75% or more). Wanting to dress as a woman doesn't mean you want to be a woman, or even have sex with another man. I'm not aware of similar statistics for women, but I'd be surprised if they were much different.

    Butch lesbians aren't wanting to be treated as men. They want to be treated as masculine women, who want to have sex with other women.

    or is homosexuality actually a third and separate category of sexuality?

    It very definitely is. Being gay is something very, very different from wanting to be the opposite sex. Transgender is a separate category for a reason.

    Is the science settled?

    So far as I know, yes. I'm sure there are social conservatives out there who would say that all gays are secretly transgender or somesuch. But that's the same as saying that all libertarians secretly hate poor people. Even if it's wrong to be gay, being gay isn't about secretly wanting to be the opposite sex.

  • slutmonkey||

    "Butch lesbians aren't wanting to be treated as men. They want to be treated as masculine women"

    um... can you give us the cliff notes on how those are supposed to be different?

    It makes as much sense to me as "Q: Should I treat you like a jerk or a nice person? A: Treat me like a nice jerk" Average people don't know how to treat people who want to be treated like both.

    The few gender studies majors I've met seem to feel that gender issues are obvious and think that the rest of us are either bigots or inconsiderate assholes. Sorry, but to me it's NOT obvious at all. If you say treat X like Y, I can understand, but treating X like (X+Y)/2 does not make sense.

  • EscapedWestOfTheBigMuddy||

    It's not obvious to me either, but I find that if you just assume that a butch will want to drink beer and watch football and likes tools and figures herself at least a little handy and more than a little independent you don't go to far wrong.

    It's only the gender studies people who dissect this stuff. Normal people just want to be treated with as much respect as everyone else and accepted into groups that more or less match their own disposition.

  • BeltwayLurker||

    Don't forget about the hardcore homosexuals who say anybody who doesn't try it is a homophobe. I usually chalk that up to desperate dating technique, but some do seem to be convinced that everybody is like them just not as open.

  • Ellie||

    um... can you give us the cliff notes on how those are supposed to be different?

    You get the difference between "masculine" men and "less masculine" men, right?

    It's like that, but with women. Similar: tomboy and girly-girl.

    Basically: we have a social model of behaviors, ideas, appearances, and hobbies that are "masculine" and we acknowledge the people that display these and treat them in a different way than people who display none of them. (No, not every person treats them differently, nor in every situation, but on average there's a clear demarcation.)

    (standard lesbian libertarian disclaimer: heteronormativity is not ideal, femininity is not less than, gender is not binary, sex is not determinism, war is not peace, freedom is not slavery, ignorance is not strength, etc etc etc. )

  • slutmonkey||

    I thought I was getting it until I read the disclaimer.

    I'm sure gender studies professors have given those terms meaning greater than the sum of their latin roots such that I shouldn't assume I know what they mean, and therefore I'll refrain from responding to those assertions.

    Thanks

  • ||

    You're probably getting it. In fact, if you're a libertarian, you probably get it at a gut level, if you think about it.

    Being gay in America is something like being libertarian. Everyone assumes you're a Republican or a Democrat, and if you explain they'll likely write you off as "Republican who likes to smoke pot" or "Democrat who doesn't want to be taxed." Even if they know you exist, they'll think you're really weird and often confuse you with LaRouchies.

    Think of being a masculine woman as being . . . paleo-libertarian, say. (It'd work with cosmotarians, too; this is just for illustrative purposes.) You don't want to be treated as a Republican; there are a lot of things you disagree with. But you're not exactly like cosmotarians, either. You're a libertarian, but you're more socially conservative than them. So if someone would say, "Hey, you just want to be a Republican!", they'd be wrong. They're trying to fit you into the categories they're used to, but you don't quite fit.

    Note that I think that heteronormativity is, overall, a quite understandable reaction. It's an easy shortcut if you assume that everyone you meet is straight unless proven otherwise, because the vast majority of people you meet will be straight. I can also see how it's annoying if you're gay or transgender, though, since it's frustrating that people assume that I fit into narrow political categories when I meet them (even though that, too, is an understandable shortcut). And think about when you hear a joke about libertarians in a movie or on TV, and they get it completely wrong. It's frustrating, isn't it? It annoys the hell out of me.

    Try to dissociate the useful concepts behind (some of) gender studies from the outrage industry that has grown up around it. I hate women's studies, queer studies, all that stuff, with a fiery passion; every class I had to take that dealt with it, even peripherally, was hell. (Though it was nice getting a feminist professor to agree that feminism wouldn't have worked before modern medicine and birth control.) But sometimes there's truth behind all the drummed-up outrage and victimhood.

  • ||

    Dammit, that was me. Stupid joke names!

  • BeltwayLurker||

    Cosmotarians really are gay. Don't get in an elevator with one.

  • Non-PC Person Trying to Help||

    @Slutmonkey - "Male Lesbian" = woman trapped in male body who likes women, sexually = Alan Alda

    Covers a lot of bases. Google it - it might help.

  • ||

    Note that, at least among men, the vast majority of transvestites are straight (something like 75% or more).

    Link? The male trannies I know are all at least bi.

  • ||

    Okay, I think I had it mixed up with crossdressing, which is explicitly non-fetishistic transvestitism, i.e. men dressing as women because they want to, not because it sexually arouses them. Think Drew Carey's brother on The Drew Carey Show. I've not been able to find statistics on fetishistic transvestitism, but crossdressers are almost entirely straight. If you like I can dig up actual statistics, but I'm feeling lazy.

  • ||

    I don't think they're trying to be men (though there are a few ftm trans). They prolly dress like that for the same reason you do.. it's convenient and comfortable.

  • Stormy Dragon||

    I thought it was a photo of Sean Hannity and Anne Coulter

  • Sosnowski||

    There is, of course, also no rational basis for calling homosexual cohabitation "marriage". Which is probably why most of California decided to stop doing it.

  • Subsidize Me!||

    Right, which is why cohabitation is still cohabitation.

    Is that all marriage is to you? Mere cohabitation?

  • Subsidize Me!||

    Disregard - logic fail

  • Sosnowski||

    Funny.
    I was just looking for an analogous phrase.

  • Subsidize Me!||

    I hate when I do that. After all the mosque nonsense, I find myself reading stupid into things that aren't. Cheers.

  • Stormy Dragon||

    You're seriously going onto a libertarian site to argue there's no rational basis for government inaction? Really?

  • Suki||

    +1

  • Sosnowski||

    Reversal by popular vote of the orders of a federal judge to take a certain government action is, as you suggest, nothing a libertarian would ever stand for. Ever.

  • ||

    Sonsnowski: Surely a libertarian might support the decisions orf federal judges to overturn Jim Crow laws (made by legislators who won the popular vote) in the South?

  • Sosnowski||

    I daresay a libertarian would. It is not insignificant, however, that those laws stayed in force only because they were upheld by federal judges when they were originally challenged, and not overturned by federal judeges until decades later.

  • Mr Whipple||

    I don't know. All laws are subject to judicial review. There are some Libertarians that believe in the Constitution, I think. Popular vote don't mean squat if it violates the Constitution. The recourse is a Constitutional Amendment, if I remember my civics lessons.

  • Sosnowski||

    There are indeed some libertarians who believe in the Constitution. It's very common, actually. I was pointing out that judicial review is an unreliable thing, and if a court is wrong, it is no less so for being a court.

  • slutmonkey||

    Libertarians reverence the constitution, but only because the constitution is a libertarian document that is (supposedly) the basis for our government.

    If the constitution instituted statist ideas, we'd be all about changing it, and some might be less fervent in their demands we follow it.

    IMHO though, regardless of what's in it, we ought to be following the constitution just so we can have consistent law and order.

  • Ron L||

    Sosnowski|8.11.10 @ 9:02AM|#
    "Reversal by popular vote of the orders of a federal judge to take a certain government action is, as you suggest, nothing a libertarian would ever stand for. Ever."

    Speak for yourself.
    Prior to Prop 8, the government was prohibited from *denying* marriage to a certain portion of the population.
    Through Prop 8, some majority then voted to have the government prohibit that activity.
    Speaking as a libertarian, overturning a government denial of freedoms by the courts is always and everywhere a good thing.

  • Sosnowski||

    So you're saying it's good when the courts stop the other branches of government form limiting freedom? Yes, I'd generally agree with that. However, I doubt very much that Prop 8, unless very crudely worded, denies marriage to anyone. It is my understanding that it forbids the state from granting arriage licenses in which both parties are of the same sex. The citizen can enter eny kind of relationship he wants; the state is simply prohibited from recognizing as marriage something that a majority of the voters, who it may be said ultimately constitute the state, do not regard to be marriage. The real breakdown is this: One side demands recognition of a novel institution in order to get in on special treatment. The other does not wish to recognise this or grant special treatment. Who is imposing on whom?

  • slutmonkey||

    I'd argue that voters do not ultimately constitute the state anymore than stockholders ultimately constitute a board of directors.

    Yes, voters have influence as a group and the hive mind makes decisions, but they are not the state and the state and it's agents act partially separate from the will of the voters.

  • Fiscal Meth||

    "The other does not wish to recognise this or grant special treatment. Who is imposing on whom?"

    The other side is already getting special treatment under the law, but since it's a traditional imposition of special treatment for a specific group that's been around for a long time, nobody cares. The majority shouldn't be able to vote to make the government withhold advantages from a minority while insisting that they(the majority)continue to receive it. Somethings gotta give. Enter the courts.

  • Sosnowski||

    If you think about that, you'll see that you're arguing a different issue. Nothing is being unjustly withheld; it is simply not being produced on demand. Homosexuals have the sames access to marriage that everyone has; most of them just don't want it.

  • BradK||

    So denying the civil rights of an unpopular minority of citizens by a thin majority via mob rule petition is a "freedom"? In that case, we need to bring back slavery immediately. I mean, just think of the economic benefits. Surely that's a "compelling state reason".

  • Yonemoto||

    I don't think most libertarians would argue that marriage (benefits) are a civil right.

  • BradK||

    If you want to debate whether the benefits bestowed upon officially government sanctioned marriages are a "right" or a "privilege", that is a separate argument. But they should be bestowed equally or not at all. This is what most libertarians seem to believe.

    One path to equilibrium would be to do away with the civil designation of "marriage" and replace it with the term "civil union" (or some such) for all couples regardless of gender configuration. But it seems a bit like cutting off your nose to spite your face. And of course, those who advocate against marriage equality for Teh Gheys saying, "Go away, shut up, and be happy with your second-class civil unions" would never accept such a designation for their own relationship.

  • Sosnowski||

    BradK, You are employing a false analogy, and a very tired one. Slavery is not an equal protection issue; it would not be okay if anyone could hold anyoine else in slavery. I'm surprised you didn't bring up the equally tired, but closer to appropriate, analogy of miscegenation laws. But I doubt anyone was arguing with those that interracial marriages weren't marriages; only that they didn't like them. The government sanctions marriage, however, for the same reason it sanctioned slavery; it was an ancient, impossibly enternched institution that, where it is practiced, is considered organic to the fabric of society. Slavery, of course, is evil. If you think the same of marriage, be my guest and try to abolish it. But don't try to tell me it is what it isn't. Homosexulas aren't denied the right to marry; they are denied the fiction that they can marry someone of the same sex.

  • Sosnowski||

    Explain yourself, if you can.

  • ||

    THIS libertarian would, because libertarians don't believe in pure majority rule ala democracy. In our REPUBLIC the rigths of the minority are never up for a vote, and the fundamental rigths of anyone even les so. See West Vriginia v. Barnette.

    So, yeah, a judge overturning the majority vote when that vote is clearly a vioaltion of fundamental rights, that's certainly a good and proper thing and perfectly libertarian.

  • ||

    "clearly a vioaltion of fundamental rights"? THIS libertarian doesn't think it's at all clear. As Sosnowski has pointed out, homosexuals are as free to marry someone of the opposite sex as hetero- or bi-sexuals. Anyway, Sollum follows Walker in repeating garbage. See http://www.eppc.org/news/newsI.....detail.asp . The EPPC is of course not libertarian. But the demolition is nonetheless comprehensive and convincing. And there is nothing new in the brief. Sollum should be embarrassed to be repeating Walker's lies (there really isn't any other word for it) at this late date.

  • Sosnowski||

    Also: Torontonian, you are so very right. All lesbians are unattractive and have short hair. There have been studies.

  • ||

    Not the ones I watch in porn.

  • Sue||

    Blankenhorn conceded that children raised by adoptive polygamous parents fare at least as well as children raised by biological parents, that recognizing gay polygamous marriages would benefit gay couples polygamous groups and their children, and that such recognition would be "a victory for the worthy ideas of tolerance and inclusion."

    Better?

  • ||

    It would be better if you'd pointed out that the polygamous couples tend to be heterosexual. By the way, will you favor us with your kick against consensual adult polygamy? I need some amusement today.

  • Mike the Grouch||

    So. One of the reasons gays want to marry is to have the automatic ability to make medical decisions for an incapacitated spouse. How would such a thing work in a polygamous marriage if the wives disagree?

  • tekel||

    ideally, some kind of pillow fight.

  • ||

    Milk wrestling thrown into the pillow fight mix couldn't hurt.

  • ||

    Marriage is, by and large, a legal and tax status. The state does have an interest in not allowing, for instance, Bill Gates to "marry" 100 people and split his income among all of them for tax purposes. There is a rational basis for making marriage contracts exclusive (one contract per person at a time). This doesn't mean that the government can forbid a married person from living with and having sex with people other than their spouse, and in fact that happens.

    Also, show me your studies that indicate that polygamous couples raise kids just as well as monogamous couples.

  • Fluffy||

    The state does have an interest in not allowing, for instance, Bill Gates to "marry" 100 people and split his income among all of them for tax purposes.

    Actually, this would probably raise the net amount of tax collected. Any income those women [or men] had would be taxed at Bill Gates' rate.

    And all those individuals claiming individual deductions and going for the EITC tax credit would reduce receipts more than having them on Gates' tax return as dependents.

    Also, show me your studies that indicate that polygamous couples raise kids just as well as monogamous couples.

    Who cares? This has absolutely no relevance to the question of whether any individual marriage should be allowed to proceed.

    I think it's amusing that Prop 8 died because of the rational basis test, but that doesn't mean I'm a huge fan of the rational basis test.

    If we went by statistical evidence, next you'll be coming around saying that we shouldn't let black people have children.

    "We've got this study that says that on average kids from families of this type have lower test scores."

    So what? If you want higher test scores, send all your wives to me for a solid fucking. Or shut the fuck up.

  • Subsidize Me!||

    So what? If you want higher test scores, send all your wives to me for a solid fucking. Or shut the fuck up

    Do the wives get better test scores too?

  • Fluffy||

    Only if they can walk to the test the next day.

  • ||

    I'm not saying I'm against polygamous marriage; I'm just saying that the logic of this court decision doesn't even begin to support polygamous marriage.

  • Mike||

    It would be difficult, considering the practice has been illegal for over a hundred years, so the only people practicing it anymore are a little outside the mainstream to begin with.

    I don't see any reason that having an extra parent around would make raising a child *worse*, though, any more than having helpful aunts and uncles is inherently going to make them turn out back.

  • Robert||

    When I first heard of the book Heather Has Two Mommies, I thought it was referring to polygyny.

  • ||

    It would be difficult, considering the practice has been illegal for over a hundred years, so the only people practicing it anymore are a little outside the mainstream to begin with.

    Actually, many polygamist families outside the FLDS try so very hard to blend into the mainstream so they don't get busted.

  • ||

    Also, show me your studies that indicate that polygamous couples raise kids just as well as monogamous couples.

    This is a subjective call, not something that can be parsed out in a scientific study. What a Mormon family would consider wonderful parenting would likely give Feministing types the willies.

  • Suki||

    What about bestial arrangements?

  • Madge||

    Harry, you're a beast!

  • George V||

    I prefer to call them interspecific arrangements.

  • Suki||

    You mean like the horse and dog fighting over the ovulating female?

  • George V||

    Absolutely. And the video can go viral.

  • ||

    They're not pets. They're companion animals.

  • ||

    rofl

  • BeltwayLurker||

    Should animals have human rights? Discuss.

  • Mr Whipple||

    What exactly is "marriage"? I know the history, but what does it mean in recent history? I posted this question on both liberal and conservative blogs and couldn't get a good answer. The left seems to think that there are special privileges associated with marriage, but when I stated that those privileges could be handled through private contracts, the only response I got was, the tax break, and SS benefits. The right's response bordered on a form of social engineering. The government needs to promote marriage because...Someone even suggested that marriage is a contract with the government. That two people agree to live their lives to certain standards, in return for a tax break.

    It seems to me, that besides the contractual agreement between two people, there is no real need for marriage. Most private contracts are handled by attorneys, with very little State involvement, if any. Has marriage become antiquated? Is marriage discriminatory against single people? And then, there's the issue of Common Law marriage in a handful of states.

  • Stormy Dragon||

    but when I stated that those privileges could be handled through private contracts


    Which the courts will cheerfully ignore when you ask them to be enforced.

  • Mr Whipple||

    How many courts ignore things like power of attorney, and Last Will and Testament? Joint ownership? Being a contractor, I can't think of any contracts that are ignored by the courts, as long as there was no coercion involved. I've never signed a contract that needed special permission from the government, like a license. A lawyer or a Notary Public is preferable with large contracts.

  • DesigNate||

    I believe that Reason actually had an article a few months back about some of the contracts that the judicial branch summarily ignores when it comes to gay people. Although they may have just been about custody agreements.

    Unfortunately all I have are anecdotal stories from some of my lesbian friends. This doesn't mean it doesn't happen, just that I'm ignorant of the specific cases.

  • Hate Potion Number Nine||

    "How many courts ignore things like..." if you're gay, pretty much all of them.

  • Mr Whipple||

    Really? So, if I sign a contract with a gay person to build an addition on his/her house, a judge won't recognize that contract if there's a dispute, or an insurance claim?

  • Stormy Dragon||

    This isn't really even a gay thing. TRy leaving a large portion of your estate to someone who's not a legally recognized member of your family in your will, or give Power of Attorney to someone who's not a legally recognized member of your family, and it's probably going to be completely ignored the second one of your family members decides to challenge it in court.

  • MetalNun||

    That's why, gay or otherwise, you need a Revocable Living Trust. See Suze Orman.

  • Sosnowski||

    I'll try to address some of that. The unique benefits of marriage I've usually heard cited are summed up with: hospital visitation. In issues of privacy and personal business, a spouse is more privileged even than a blood relative, certainly more than any other kind of contractual partner, at least to the best of my knowledge. It just occurred to me that sufficiantly trusting homosexuals might grant one another special power of attorney phrased to confer all such rights associated with marriage to each other. I wonder if that would hold up? Wouldn't cover the tax breaks, anyway, but there I have no sympathy at all.
    As for definition, I say marriage is a binding and socially/officially recognized union of a depth that now exists in no other context, if it ever did. It is a union distinguished by presumptions and obligations of sex, and with sex goes reproduction, significant to the institution whether it happens or not. The only arguments for monogamy, or any kind of marriage, are control of STDs, only recently understood, and establishing a family unit. Other partnerships are suitable for establishing security between adults alone. Since it is physically impossible, except perhaps in the case of certain rare deformities, for members of the same sex to have sexual intercourse or to be reproductive partners, there is no basis for marriage between members of the same sex; it cannot occur.
    Marriage, as administered in the United States, discriminates against single people. Or maybe it compensates people for a commitment that is considered socially vital? It also discriminates against same-sex couples, but only in that it makes a distinction. It is they who reject marriage, because they reject the opposite sex and therefore sex itself.
    Marriage is not exactly thriving, but it is still the institution on which our society is based. I cannot say whether it is or will become obsolete.

  • Mike||

    I'm pretty sure most homosexual couples have plenty of sex, and derive just as much social benefit from reducing the spread of STD's.

    Similarly, if they were to raise an adoptive child, the child would see the same benefit to a socially recognized, long term, and stable relationship between his or her parents. I would go so far as to say I would expect children of a stable gay couple to on average do better than children of single unmarried heterosexuals.

    IMO, conservatives should to stop looking at homosexual marriage as the enemy, and look at it as a solution to their other problems. They want to encourage adoption instead of abortion, but they're dead set against probably the biggest source of potential adoptive parents in the country.

  • Sosnowski||

    I thought at first you might be disputing its definition, or that you were trying to insult me, but apparently you really don't know what sex is. Sex, as a noun denoting an activity, is short for "sexual intercourse", which is the way mammals and many other animals reproduce. There are a lot of ways to do it, but in humans the male's penis goes in the female's vagina, and he ejaculates into her vagina a fluid containing multitudes of sperm, a haploid cell produced in the testes. If these sperm can reach a mature ovum or "egg", the female haploid gamete, one of them can fertilize it, producing a diploid cell called a zygote or, as I guess Suki might put it, "baby", which can develope into a tiny human and, nine months after fertilization, be expelled from the vagina. Sorry, that spilled over into sexual reproduction, but it's all good to know.
    Good call on VD.
    Why should you have to be married at all to adopt? There is in any case no shortage of married couples willing to adopt, just an incredibly cumbersome, intrusive, and discouraging system for the state to let them. Plus they usually have to qualify with an agency, most of which are religious NGOs with their own standards. Solving the adoption problem requires the liberalization of the adoption process, not an expanded pool of potential adoptors

  • mad libertarian guy||

    Aaaahhhh. The old "sex is only the male penetration of the female" meme.

    How quaint.

  • Mr Whipple||

    Everything you always wanted to know about sex, but were afraid to ask.

  • Sosnowski||

    By "quaint", I assume you mean "I disagree with you but am not sure why, and assume everyone else disagrees with you too". Or are you suggesting that because people now use the term vaguely, without precise definition, that I am wrong to use it precisely, having explicitly defined it?

  • William F Cain III||

    We're actually suggesting, rightly as it turns out, that language is not a fixed construct but a convenience of communication that changes over time in response to memetic drift and social selection pressures.

    This is why Gay no longer simply means happy, cool is not strictly associated with temperature, radical is hardly considered a political term, and badass has no connotation of a pejorative buttock.

    In short, sex now means 'sexual activity' or possibly 'sexual activity between two or more partners,' thanks to the drifting and adapting ability of the English language, and your attempt to stick to one specific definition of it is insipid, fatuous, and willfully ignorant.

  • Sosnowski||

    You, William F Cain III, if that's your real name, have just made the same point I did, while purporting to correct me. You proceed to present two defintions of sex that are in fact just repesentations of the word as a phrase that in no way contradict the definition I used. Throughout, you try to use your apparently limited command of slightly unusual words to appear clever. Is this to be taken at face value, or are you assuming this persona to make fun of someone else?

  • ||

    You, Sosnowski, if that's your real name, are being a 'tard.

    Just thought I'd let you know.

    Regards,
    Torontonian (not my real name)

  • William F Cain III||

    Certainly is my real name, one I'm quite fond of.

    I do not apologize for my use of the English language. It's a lovely language that I am rather versed in, it being the focus of my profession.

    As to the definitions of sex, my explanation -does- contradict your definition. Your post rather aggressively implies that sex is (and only is) procreative intercourse. I'm pointing out that by the standards of how language actually works, this definition is wrong, and defending that definition reeks of smug idiocy.

    Contrary to what you might believe, there are people who use language this way. We're most assuredly a minority, but really that's never been a reason not to engage in enjoyable behaviors.

  • Sosnowski||

    While words can have a variety of meanings, even vary, depending on context, in the exactness of their meanings (how else could there be figurative language), whenever a word is used it means something, and hopefully the writer will provide enough context to let the reader see what he means. I was aggressive and sarcastic in responding to Mike because I believe he willfully misread my use of the word "sex", a definition you may not like but a legitmate one and the only one I thought could be reasonably be read from my post. I suppose this was made less clear by my bit about rare deformities muddling things, but that was just to account for ambiguous genitalia, which is a whole other issue.
    I visited your blog, and note that you clearly believe that words mean things, that they mean what you mean them to, and that people who do not know what they mean are to be despised. (English Is Too Good For Me).
    I stand by my definition of sex, even though I accept broader ones when used by people who do not presume to correct my own. The word is commonly modified to "anal sex" or "oral sex", but very rarely to "vaginal sex"; I think the last is still the most usual meaning.
    Even if the meaning is archaic, it is clear what I meant. If you were to say, "What a splendid evening! I'm off work, the weather of fine, and I'm about to take out that girl I was telling you about. I feel positively gay!", and I were to respond, "What are you, some kind of 'mo?", I would either be joking or an asshole. Perhaps both? It wouldn't be much of a joke. It's a crude anology, more obvious, but that's basically what Mike did.

  • William F Cain III||

    Well, in the spirit of free and friendly debate I'll withdraw the charges of fatuity. Probably no reason to jump to them after all.

    No one (least of all me!) is disputing your right to define sex in whatever way you wish. However, your definition is woefully out of synch with the broad and accepted use of the term. I was trying, in my admittedly confrontational and polemic way, to draw your attention to this fact.

    Where I failed to build on the point is that the definition of marriage can change just as much as the definition of words can. Perhaps in the past yes, marriage came with expectations of heterosexual procreative intercourse.

    However, this is not and can no longer be the case. Sterile couples get married. Men have vasectomies, and yet remarry after their first wife dies. Women who have had their uterus removed to treat cancer get married. There's no expectation of children here, is it then reasonable to deny them the right to marry?

    So no, marriage does not any longer have the connotations of procreative, heterosexual intercourse. Similarly, sex now means far more than procreative, heterosexual intercourse. The two words have both grown, and it is right and proper to extend both to greater spheres as our society's zeitgeist moves on.

    Perhaps this makes my claims clearer and less combative?

  • ||

    Um... Yes, it could be perfectly reasonable to deny marriage licenses to infertile couples. It is impractical, uncertain and intrusive, but if it could be done without those deficiencies it would be clarifying, and I would recommend it, perhaps while allowing something other than "class I" marriage for other situations.

    @Sosnowski- Re your suggestion that hospital visitation is a "unique benefit of marriage". I believe domestic partnership grants substantively the same rights. So, no, it comes down to the word, and tax benefits.

  • Mike||

    I did not willfully misread your use of anything. I did not realize you were actively ignoring the dictionary and common usage of the word sex. You may want to peruse the Merriam-Webster.

    http://www.merriam-webster.com/dictionary/sexual+intercourse

    Also,
    http://www.merriam-webster.com/dictionary/sex

    You may prefer whatever definition you want, but you must realize that the purpose of language is to communicate with other people, and arguing with them when they do not conform to *your* non-standard definition of a word is generally unhelpful.

  • Sosnowski||

    Mike, that's not what dictionaries are for, or, as you might have inferred from posts in this sub-thread if you'd read them, how language works. I stand by my assessment of the two situations in which you could have misunderstood me.

  • ||

    Sosnowski is RIGHT! I told you I didn't have sex with that woman!!!

    Sosnowski is my kind of conservative!!!!

  • ||

    rofl!

  • Mr Whipple||

    I think it should be the other way around. Homosexuals should stop wanting to be part of an institution that seems to have been designed to reinforce negative roles and stereotypes of men and women.

    If the government was allowing a group of people to jump off a bridge, but denying your group that right, would you fight for the right to jump off a bridge? I suppose, possibly, but how much effort and resources would you put into it, if there were other rights being denied, as well?

    Being single (and happy) for 43 years, I guess my view of marriage is biased.

  • Suki||

    On reinforcing stereotypes, you must not be talking about the homosexuals who attend gayday parades.

  • Mr Whipple||

    The difference between government sanctioned marriage and gay pride parades is...?

    Government involvement.

  • ||

    Being single (and happy) for 43 years, I guess my view of marriage is biased

    You must go through a lot of Charmin.

  • Mr Whipple||

    You must go through a lot of Charmin.

    Only when I squeeze it.

  • ||

    You're right but this would require conservatives to shed an animus they like, not to mention plain old envy.

  • Mr Whipple||

    The hospital thing is bullshit. Who makes that policy? The hospital? Anyway, I think the hospital was sued, and settled in one of those cases, so that alone, the fear of lawsuit, could prevent that from happening again. There is "spousal privilege" in criminal court cases. Does marriage outweigh a formal power of attorney agreement? Should it?

    So, you are saying marriage is based on sex and raising children? That seems to be a narrow view. Marriage seems to reinforce the traditional roles of men and women in society in this country. Those roles have been changed significantly in recent decades.

  • Robert||

    Common law marriage is just marriage without need of gov't licensing or registr'n. It just says that people are married to each other if they, and other people, consider them to be so.

    And that's really what it's all about. Take away licensing (which is just a gov't-imposed tax or barrier, albeit trivial one, to marriage) and registr'n, and the issue is no different from real estate ownership without deed registr'n. Nobody denies that it's possible for land to be owned without such ownership to be registered with authority; it's just a matter of whether other people recognize person A as owning land B.

    So, take away what's being called "gov't involvement" with marriage, and nothing about this issue changes. It's still a matter of whether person A is married to person B as recognized by person C. Libertarians would probably understand the issue better if all marriage was still common law marriage, but they're hung up attaching importance to gov't licensure, as if possession of a dog license were either necessary or sufficient to determine whether an animal is a dog, or as if a fishing license automatically produced a fish.

  • ||

    There is NO tax break for being married.

  • ||

    There is NO tax break for being married.

    Depends. My wife earns well into six figures. Her tax rate as "married" is lower than if she were to file as "single". But any income I might earn would be subject to her top marginal rate, which means any income I take in has about 2/3 stolen by the various levels of government.

    So, rationally, I do work around the house that doesn't generate taxable income.

  • ||

    The government needs to promote marriage because... it helps create stablity in societies and humans don't do it naturally.

    So incentives are attached.

  • ||

    It seems to me, that besides the contractual agreement between two people, there is no real need for marriage.

    Not if you're a religious person who believes that being married before having sex is commanded by God.

    Try telling a devout Mormon couple that they don't really need a Temple marriage, just a ceremony by a justice of the peace.

  • Sosnowski||

    How dare you draw an obvious parallel that many people would dismiss because its implications make them uncomfortable, regardless of whether they misinterpret its true significance, which they probably will?
    Not here though. This is Reason. Everybody here is cool with polygamy, or will pretend to be.

  • Fluffy||

    I definitely am.

    Half of the family relationships of people below the age of 30 these days are essentially polyamorous anyway, so giving some of those relationships a legal basis that goes beyond a court order for child support really doesn't horrify me all that much.

  • Sosnowski||

    Are you describing something people would actually do if only they were alllowed, or something the state would make them do if only it could?

  • Fluffy||

    I imagine some non-zero number of people would do it if allowed.

  • ||

    Without the few incentives that marrioage does confer, and without any vocal support for the institution, marriage would slowly disappear entirely. It would not be supplanted by polygamy.

    Society would stratify as parented children(who tend to do better) were replaced by monoparented and unparented children. Eventually parented children would be abberrations.

    Males would practice serial 'polygamy', and females would go back to choosing mates that are the 'best' in a less forward looking mode.

    How far this would regress human society is anyone's guess. The impulse is clearly there, sexually, humans want something different from what marriage gives us.

    But societally, civilization is aided by enforced monogamy. The problem lies in the question of whether the addition of gay marriage will add or detract from the stability that enforced monogamy brings.

    Anyone who's been to a gay bar would question the nature of monogamy among male homosexuals. Is there a real stability to be had?

    And how will society be affected by the loss of gays as accepted sexual outliers in society?

    There are many questions.

    I suspect gay marriage will eventually become legal. I do not expect that 'marriage' will have the same base definition when it does.

  • Mike||

    Anyone who's been to a gay bar would question the nature of monogamy among male homosexuals. Is there a real stability to be had?

    I'm sure we should judge all heterosexual behavior by what goes on at campus bars as well.

  • ||

    Anyone who has been to a straight bar might also question the nature of monogamy among heterosexual men, if they made the colossal mistake of thinking that the men there were a representative sample of the population of hetero men.

  • Sosnowski||

    Meant to address that to Sue. So sorry.

  • ||

    Anybody curious why the Morms suddenly got so concerned about gay marriage a couple of years ago? Or how this decision might ultimately play into their hands because it just might allow...polygamy? Given this decision, how likely is that? Genuinely curious...

  • ||

    Not very. Legalizing Gay marriage doesn't do a thing to change the legal status of existing marriage, do discourage heteros from marrying eachother, etc. If you allowed people to marry more than one person at once, everyone's marriage would be redefined. Plus, you could argue that monogamous marriage is a legitimate state interest because it protects against the existence of lots of single, angry men. It's a much more substantive issue than Gay marriage.

  • ||

    you could argue that monogamous marriage is a legitimate state interest because it protects against the existence of lots of single, angry men

    You could if you were being satirical. But humans are not chimps. We males don't go out on raiding parties, killing the other males and stealing their females. At least not in my state.

  • Sosnowski||

    No, not in your state. But throughout history, one place or another, up to the present day? Yes, that has been know to happen.

  • Paris of Troy||

    Say what?

  • Sosnowski||

    It's not as common now as in previous centuries. Obviously there's the Moabites, who recorded taking a certain proportion of Israelite women and girls as wives after defeating them in Canaan, the Rape of the Sabine Women by the early Romans (you may have seen a painting or two), the customs of the Caribs, whose women didn't even speak the same language as the men, so many of them were war captives. The Yanomamo (I hope I'm spelling it right), were making war on their neighbors specifically to kidnap women at least as late as the 1960s. Brides are still occasionally abducted in Chechnya.

  • DesigNate||

    As far as I know, none of that has taken place in England or the US for like 500 years.

  • ||

    So then, you don't know? Why not just say that then?

    It takes very little to look at our society and see the equivalents of those olde roving bands of marauders.

  • ||

    I'm sure in your state there are lots of single, desperate men robbing convenience stores, shooting at eachother on street corners, shooting up, etc. Human men take bigger risks when they feel like they ain't getting no loving. The FLDS has lots of problems with what to do with the extra boys, and there's lots of semi criminal abandoned boys in Utah as a result.

  • ||

    Fear of polygamy is one the funnier features. Historically, polygamy occured for three reasons:

    1. Rich/powerful men get multiple wives/consorts. This is a rational choice for a women in a pre-industrial society where a 10% of a rich man is worth more to you and your children than 100% of poor man. Of course this happens today with serial monogamy and consorts/mistresses (who have limited legal prividges).

    2. Family obligation: a man is obligated to marry his brother's widow and care for their children. You'd be suprised how often this happens even today (functionally, not legally), but happened a lot in pre-industrial middle and lower classes.

    3. Religion: "God says that righteous men get more women than the heathens and sinners." It's a great incentive to keep the senior men in a group in-line. You just have to convince the chicks that "God wants this."

    I really don't think there is large pool of men and women, just itching to form polygamous unions -- and the only thing holding them back is that they can't get a tax credit for it!

  • moosecat||

    are you arguing for or against the legalization of polygamy?

  • ||

    Actually I'm against government mandated marriage. I'm pro-marriage (though I haven't imbided in the institutions myself), having been raised by a happily married couple (one of whom was raised in #2 family himself).

    Marriage provides lots of societal externalities (free nursing, for example) and individual stability, if not happiness. But why that's the government's business is a mystery to me.

  • Tony||

    Did someone say externalities?

  • ||

    rofl

  • ||

    I'd add one more item to your list:

    4. War casualties and resulting gender imbalances: Since only the men went off to do the fighting, and not all of them came back home, there would have been a persistent shortage of eligible adult males.

    Polygamy improved the clan's long term survival odds, especially in times of conflict.

  • tarran||

    It's possible; If the government has to get out of the "defining marriage" game, then the outlawing of polygamy makes little sense.

  • Sosnowski||

    Such Morms as I've discussed this with, and I admit that's exactly two, are concerned with the link only to the extent it would bolster what they consider their idiot stepcousin, the FLDS.

  • tarran||


    to the extent it would bolster what they consider their idiot stepcousin, the FLDS

    Actually, legalization would probably go far towards taming the FLDS

  • Sosnowski||

    Good point.

  • ||

    Polygamy is an interesting side issue to the same-sex debate, but there's hardly a clamoring for it among Americans or indeed any other Western culture. But it does exist and has existed for millennia among many Eastern, tribal cultures. The question is: why do so many tribalist cultures not have a problem with polygamy, when we supposedly mature, rational and enlightened Westerners do? Is it attributable to our religious heritage only? And since we have all but abandoned religion (finally) as a legal force in the West, has polygamy's time come?

  • Tim||

    It's hard enough keeping one woman happy, I can't imagine more.

  • ||

    One at a time would be sufficient. Let's not get greedy.

  • Subsidize Me!||

    I talked to an old guy in Falluja that had 4 wives. He said it was 4 times the trouble and they all stopped having sex with him years ago... no thanks.

  • Tim||

    Yeah, I think once you get past the "Letters to Penthouse" aspect of it, you get 4x nagging, 4x hysterical crying, 4x mothers in law, 4x birthdays, 4x anniversaries. Sheesh.

  • mad libertarian guy||

    These situations don't multiply the hassle, it grows exponentially.

    4 wives = 16x hassle, nagging and 16x the frustration having to remember whose bday is when, which anniversary with whom.

    Fuck all that.

  • Tim||

    great point.

  • ||

    It's lingering puritanicalism and little else. If a guy has five girlfriends and a child each with them all it's not the concern of statists, but if he legitimizes those relationships in the public sphere, it's suddenly the end of the world.

    Either the problem is with sleeping with multiple partner or it's just whining about the definition of marriage.

    Back a law against sleeping with more than one woman at the same time and I'll take their objections to plural marriage more seriously.

  • ||

    If a guy has five girlfriends and a child each with them

    What does the NFL have to do with this?

  • ||

    BURN!

  • Shawn Kemp||

    5? Amateur.

  • ||

    "It's lingering puritanicalism and little else."

    Bingo. So much as a boob pops out on TV and we have a national conniption.

  • ||

    "And since we have all but abandoned religion (finally) as a legal force in the West..."

    Uh, yeah, except for the religion of enlightenment rationalism.

  • ||

    Yeah, just how like not having a car is the exact same thing as having a car.

  • ||

    What do you mean? I'm pretty sure I own a car, but maybe it's just my rational "faith" that makes me think so.

  • ||

    Anybody curious why the Morms suddenly got so concerned about gay marriage a couple of years ago? Or how this decision might ultimately play into their hands because it just might allow...polygamy?

    As an ex-Mormon, I think I can answer this. To get baptized into the Mormon Church, you have to pass several interviews where they ask you if you have ever had gay sex, and won't let you in unless you declare you either haven't had gay sex, or won't do it ever again because the Bible says you must not.

    So, there is no suddenness here. Mormons have always been very anti-gay, because pro-gay people get screened out pretty vigorously, though not completely (it's sort of OK to have a gay sexual orientation -- it's acting on that orientation that is verboten.)

    And, ironically, the Mormon Church is full of some of the most anti-polygamous people you can imagine, who do mental acrobatics to square that with not condemning the past history of the Church.

    And, the governing council of the Church wants to grow the membership as fast as possible, and knows good and well that their fragile acceptance into mainstream society means being publicly VERY anti-polygamy (though privately I've had some curious and interesting conversations with Church leaders during the periodic priesthood interviews.)

    So, if push comes to shove, watch the Mormon Church vigorously fight any attempt to legalize polygamous marriage, too.

    Any other questions?

  • ||

    Surely those in favor of 'traditional marriage' should be in favor of polygamy, as there are numerous instances in the Scriptures.

  • Sosnowski||

    There are also instances of genocide, incest, God-wrestling, and lethal donkey jaws in the Scriptures. But you weren'r being serious, were you?

  • ¢||

    If it stands as is, the decision, even more so than Romer, changes what the "rational basis" test is. In both cases, judges mind-read the voters—through the prism of a state's malingering lawyers' intentionally shitty arguments (and a pro-Prop 8 commercial? WTF?))—not the state. That's not how that's supposed to work. But now it always will, apparently.

    "The citizens supported this measure to alter the operation of the state employees' pension system for no reason other than racism. African-Americans are, because of the institutional racism of the so-called 'free market,' overrepresented in public service. One of the pro-referendum commercials even had a fat black lady in it! The law is unconstitutional."

    You asked for it.

  • Fluffy||

    The really annoying thing to me about the "institution of marriage" argument is that the state already routinely acts in ways that undermine that institution vastly more than anything gay people do ever could.

    The disparity between the effect of gay marriage on traditional marriage, and the effects of child support law and public assistance guidelines on traditional marriage, are so vast that it really renders the entire question absurd.

    Gay marriage opponents are freaking out because gay couples are walking on the lawn...of a building that is engulfed in flames. It's silly.

    Want to restore traditional marriage rates?

    1. No child support orders for children born out of wedlock.

    2. Make all public assistance benefits of any kind pay more to two-parent families than single-mother families.

    "Problem" solved. Within a decade. With more inexorability than the law of gravity.

  • Sosnowski||

    Might work. Hard on the kids, though. But I wonder if there is a solution to the problems associated with illegitimacy, and notice I do not say that they are caused by illegitimacy, that won't be.

  • Fluffy||

    What kids?

    I ask that in all seriousness.

    After #1 and #2 are in place for five years the out-of-wedlock childbirth rate will go right back to where it was before the Johnson administration.

    Probably lower, since we now have abortion on demand.

  • Sosnowski||

    I mean the ones already born, and who will be born before people wise up.

  • mad libertarian guy||

    Yeah. Because there was nary a bastard before the state provided child support for out of wedlock kids.

  • Sosnowski||

    Those, too. Took them for granted, I guess.

  • Mr Whipple||

    3. Deny divorce.

  • Skip||

    of Congress’ Thomas Web site displays it as the ‘XXXXXX Act of XXXX.’”

    “A nameless bill for a hopeless cause is a fitting metaphor for a Democratic Congress that refuses to listen to the American people and abandon its job-killing agenda,” said House Republican Leader John Boehner (Ohio).

    Boehner on Monday offered 10 possible names for what he called the “union-boss bailout” bill:

    -- Save Our ‘Stimulus’ (SOS) Act
    -- ‘Recovery Summer’ Bailout Act (Cash for Flunkers)
    -- Delivering Unions a Major Boost (DUMB) Act
    -- Helping Election Expenditures, Hurting American Workers (HEEHAW) Act
    -- Democracy is Strengthened by Clearly Leveraging and Optimizing Special-Interests’ Effectiveness (DISCLOSE) Act
    -- Holding Union Bosses Over Until Card Check Act
    -- Rescuing Incumbent Democrats Is Costly (RIDIC) Act
    -- Summertime Cash for Union Bosses Instead of Spending Cuts for Taxpayers Act
    -- Frivolous Act of Ineffective Largesse (FAIL) Act
    -- Naming These Things Hasn’t Gotten Us Anywhere, So Why Bother? Act

    Boehner says the Republican Party is listening to the American people and is “offering better solutions to make government more responsive and accountable to the people it serves.”

  • The Libertarian Guy||

    Good stuff!

  • moosecat||

    Shouldn't libertarians stay out of the gay "marriage" fight considering we don't believe in state sanctioned marriage?

  • ||

    We don't believe in the drug war either. Should we stay out of that, too?

  • ||

    NO. But isn't arguing for state sanctioned homosexual marriage like arguing for more illegal drugs from that perspective?

  • mad libertarian guy||

    I'm not looking for state sanctioned marriage so much as I'm looking for reasons the state can't deny "x" to people for any reason.

  • ||

    Then you are looking for state sanction of your marriage.

  • tarran||

    No. It's like arguing that people should be able to sell Marijuana in accordance with applicable FDA regs.

    I for one am opposed to the very existence of the FDA. However, if a company lobbies for a legal change that relaxes the prohibitions on testing thrown up by the ONDCP, my support for that change in no way means that suddenly I am throwing my weight in favor of the FDA.

    Then again, I am a hypocrite using government roads...

  • ||

    It's a useful rubric to out crypto-Republicans.

  • ||

    Everyone is a crypto something. The gay marriage debate filters them all out. The people who think rule by robed overlords is great are the cryto democrats. The people think the bans are good are the crypto Republicans.

    The one or two actual libertarians, as opposed to the hybrids, just wonder why the hell homosexuals would even want government sanction for their marriages.

  • ||

    Gay marriage is culture war and little else. The fun is in fighting, not solving things. As always, libertarians have a solution to a culture war which satisfies no one and takes away the fun of it. Of course we are ignored.

  • ||

    If everyone left each other alone, they couldn't hate each other anymore. And where is the fun in that?

  • ||

    None at all. :-(

  • Masturbatin' Pete||

    Government sanction isn't that important to me, but I do like that my wife can't be forced to testify against me, and that our conversations are privileged. Remove state sanction for marriage and that disappears.

  • ||

    True. Of course that creates the Chuck and Larry problem. If you are running a criminal enterprise with someone, it really would pay to marry them.

  • ||

    But men and women can already "fraudulently" marry for insurance, immigration and criminal benefits.

    The problem is the fraud, not the plumbing of those committing it.

  • ||

    Yes they are. But you can determine that the marriage is a feud very easily. Are they screwing each other? That is harder to determine in cases of homosexual marriage. What does it mean to "consummate" a homosexual marriage? I don't think anyone has ever thought about that.

  • ||

    You can't "consummate" a fraudulent heterosexual marriage? People will even fuck people they hate for far simpler reasons.

    And there isn't any conformation of consummation, anyway... Not even ICE routinely watches people fuck.

    And none of these even address your 18th century definition of sex. Heterosexual consummation is based on marriage being a contract for child-rearing. If you want to redefine marriage to say it's only purpose is reproduction, you've made a more radical change to the notions of marriage than a couple of gay guys in matching tuxes ever could.

  • ||

    "You can't "consummate" a fraudulent heterosexual marriage? People will even fuck people they hate for far simpler reasons."

    Of course you can. But sex is one of several essential factors. You have to hold yourself out as a man and wife. You have to cohabitate. And you have to have sex. Don't do any one of the marriage is fraudulent. So, the question still remains what constitute homosexual "sex" for the purpose of consummating a marriage. And further, since it will have to be something besides intercourse, that definition will have to then be applied to heterosexual marriages. It seems to me that if oral sex counts as "sex" for the purpose of homosexual marriages, which it would have to I think, then the woman whose husband lies to her about being gay and only has oral sex with her, probably doesn't get an annulment anymore.

  • ||

    Once again, the problem seems to be with the notion of annulment, not the problem of gay annulment.

    Annulment has more religious roots than a rationale for law. Get rid of it. It was mostly just a test drive to get around divorce. I know the Catholic Church liked it for centuries, but the sex rule for "making" a marriage is beyond antiquated. Would any rational jurist give people that had been married for years an "annulment" based on one partner asserting that the marriage wasn't sexually consummated? You'd be laughed out of court.

    It's either a government contract or a religious covenant. The contract route makes the "signing on the dotted line" the determiner, not religious driven definitions of sexual contact.

  • ||

    "Would any rational jurist give people that had been married for years an "annulment" based on one partner asserting that the marriage wasn't sexually consummated? You'd be laughed out of court."

    No you would not. You might be laughed out of court because no one would believe that you lived together for so long and never had sex. But if the parties stipulated that fact, they would get an annulment in most states. And that has pretty big legal consequences.

  • ||

    But if the parties stipulated that fact, they would get an annulment in most states.

    Which means that an annulment can be obtained on someone's word as opposed to any evidence. That's an argument for getting rid of annulment, not denying gay marriage.

    If two gay guys got an annulment of a state-sanction marriage by fraudulently claiming that they never engaged in sex, how is this a rational against same-sex marriage and a heterosexual couple doing the exact same thing isn't an argument against opposite-sex marriage?

  • Masturbatin' Pete||

    Would any rational jurist give people that had been married for years an "annulment" based on one partner asserting that the marriage wasn't sexually consummated? You'd be laughed out of court.

    Annulment? Dunno, but I'm sure you could find a rational jurist would would tell you that protracted intentional failure of one spouse to engage in sexual relations amounts to cruelty or constructive desertion, which is grounds for divorce.

  • ||

    But, Pete, I must once again point out that there is no independent verification of sexual activity in a marriage. If it just comes down to taking someone's word for it, why isn't a homosexual's word good enough (assuming we keep those silly laws anyway)?

  • Masturbatin' Pete||

    I can tell you that in Maryland, where adultery is still a criminal offense punishable by a ten-dollar fine (seriously), only sexual intercourse meets the statutory definition. Smoke all the hogs you want outside your marriage, and that's legal.

  • Sonny||

    Smoke all the hogs you want outside your marriage, and that's legal.

    And it damn well should be, son!

    Say, you aren't taking about barbeque, are you?

  • Bill Clinton||

    If oral sex counts as sex I would have been thrown out of office.

  • ||

    "Not even ICE routinely watches people fuck."

    Site your source.

  • ||

    The state of Pennsyltucky requires fishing licenses for all fresh water fishing. Libertarians are against this. Pennsyltucky's fishing license law denies these fishing licenses to Jews. Last year, the ADL sued to overturn this restriction. Libertarians shouldn't bother with this unequal treatment because they aren't in favor of the fishing licenses in the first place. Right?

  • ||

    If Jews were still free to cast a line anywhere they wanted to and to catch fish but were just denied the "license" then I would say no they should care. Gays, unlike polygamists, can still get married in every meaningful sense of term. They just don't get a piece of paper.

  • ||

    The idea behind the license is that you are prohibited from fishing without the license. And while libertarians will argue that the piece of paper has no value, lack of the piece of paper carries penalties.

  • ||

    There are no penalties for a gay person getting married and holding themselves out as a married couple. They are free to do so. If we treated gays like polygamists and made the underlying conduct a crime, it would be more analogous to your fishing example.

  • ||

    There are penalties though. The penalties include losing your hospital visitation rights and having your will ignored.

  • ||

    Point being: Just because a libertarian is against public schools, that doesn't mean the libertarian shouldn't have an opinion when those public schools prohibit blacks.

  • Robert||

    But in this case the closest way to continue the analogy is to have someone hold an object up while you determine whether what that person has caught is a fish. Would you take possession of a fishing license or lack thereof as evidence bearing on whether that thing on the hook is indeed a fish?

  • ||

    The people who defended this thing were so stupid, I wonder if they were plants. The rational basis for such a ban is that legally marriage means more than living together. It means sex to. There is such a thing as a legal annulment. It is different than a divorce in that it means the marriage never occurred legally. That means no community property or any kind of dissolution of assets and such. The basis of an annulment all relate to heterosexual marriage and sex. If the couple never have sex, if on of them is infertile and lies about, if one of them is gay, those are all basis for annulment. How do you apply that to gay couples? Is oral sex sex? Do lesbians have to use a strap on or gay have to have anal sex to consummate their marriages?

    Since divorces are so easy to get and prenups so easy, how do we get around the Chuck and Larry problem of two people getting married for the sole purpose of being on each other's insurance? It creates a lot of legal complications. Maybe those complications are worth it. But the fact that they exist strikes me as a rational basis for the law.

  • Masturbatin' Pete||

    ...or Silvo Dante and Tony Soprano getting married upon indictment so that they don't have to testify against each other.

  • MNG||

    Wouldn't this be an argument against hetero marriage? I mean, if we let men and women get married there might be sham marriages for nefarious purposes...

  • ||

    You get around it the same way you get around hetero couples getting married so that one can get a green card.

  • Suki||

    You mentioned green cards on this board? Prepare for the flood of 'immigration' comments.

  • ||

    No you cant. Read Suger Free's and I's thread above. It is not that simple. It is also not that simple for the purpose of annulments.

  • ||

    I saw that, but I don't buy into the idea that it is easier to spot immigration-marriages than insurance-marriages or any other type of fraud. I also don't think that a supposedly sticky evidentiary problem is a rational basis to deny equal treatment.

  • ||

    It is not a sticky sedentary problem. It is a sticky legal standard problem.

  • ||

    I don't quite know what you mean, other than the whole thing is sticky....

    I don't see it as a problem defining a legal standard because you can use the same legal standard in effect for immigration marriages. If the wedding is fraudulent, it's fraudulent.

  • Bill Clinton||

    I never had sex with that woman.

  • David||

    And John agrees!

  • Tony||

    Get your mind out of the gutter. A marriage license is not contingent upon a visit from the sex police.

  • Robert||

    Historically infertility was also a reason for annulment. However, today in most places neither sexual intercourse nor childbearing is a requirement for marriage. Rather, the common law of marriage was that you two were married to each other if you convinced people you were married to each other. If you wanted to prove you were married from time X, it helped to have a witness at that time to your proclaiming yourselves married to each other.

    So that's how it should be with same sex marriage. If person C (for instance, an insurance co.) requires (for whatever purpose) person A to be person B's spouse believes that person A is person B's spouse, then that's what counts. Obviously that's going to depend in part on whether person C believes such a relationship could even be called spousal.

    The question of someone's believing certain other persons are married to each other encompasses such issues as same sex couplings, age of consent to marriage, etc. You can say gov't should stay out of the matter, but when it comes to a court case, somebody has to decide whether person C had in mind A's particular relationship with B was what was meant by "married". As long as gov't has courts, gov't can't stay out of the matter.

  • Masturbatin' Pete||

    Can we talk about bisexuals for a moment?

    Let's assume that the state has a rational basis for encouraging procreation within two-parent families. (I could go further and say that the state has a rational basis for encouraging families where both parents are the biological parents of all children, but that's not necessary for this argument).

    Let's further assume that there are a number of bisexuals who are completely or somewhat indifferent as to whether they form a committed partnership with a man or a woman.

    Isn't it then at least rational for the state to encourage bisexuals to form committed partnerships that are capable of procreation? And wouldn't giving more rights to opposite-sex couples than to same-sex couples then be rational?

  • ||

    Isn't it then at least rational for the state to encourage bisexuals to form committed partnerships

    It's none of the state's business. Period.

  • ||

    If you don't want it to be the state's business, don't go whining to the state to give you a marriage license. See that was easy.

  • Masturbatin' Pete||

    Thank you for providing the standard Libertarian answer, but the question is whether it is rational for the state to encouraging bisexuals to enter into opposite-sex relationships.

  • William F Cain III||

    I really am trying to engage you on this, so hear me out.

    Why are we assuming it's rational for the state to be interested in procreation? Is it just for the sake of an exercise? I want to know before I engage any further, just for clarity.

    Thanks!

  • ||

    The state exists to protect the rights of its citizenry. If gays have a right to be married and enjoy all the civil liberties as non-gays, then the state should guarantee that right. It should not, however, be in the business of social engineering. Social engineering is not the same thing as guaranteeing and protecting rights. Hope this helps.

  • ||

    "It should not, however, be in the business of social engineering."

    Most of the American people disagree (not saying that makes them right, just saying that's how it is)

  • ||

    They agree when it benefits their own interests at the expense of others, but get really pissed off when their own ox is gored. So yes, many people are philosophically inconsistent, if not ignorant of the proper role of government in a free republic.

  • Clarity||

    Future tax payers?

  • Andrew "Dice" Clay||

    What's this bisexual shit. You either suck cock, or you don't.

  • ||

    Some people are Trisexual. They try anything sexual...

  • The Libertarian Guy||

    As Dennis Miller put it years ago re: bisexuals... pick a hole and stick with it, and quit being greedy.

  • ||

    Celibates are herbivores. Heterosexuals are carnivores. Bisexuals are omnivores.

  • ||

    I do find it interesting that the only "benefits" of marriage that can't be handled by contract are the exclusive province of the state.

    And one of those (taxes) will turn from a benefit to a burden on January 1, when the marriage penalty snaps back.

    So the argument seems to be:

    (1) Equal protection prohibits the state from denying an E-Z shortcut to those benefits that can be duplicated via contract. (I note that this includes hospital visitation. Don't try to argue this one with me - this is what I do for money.)

    (2) Having given special privileges to heterosexual married couples, equal protection requires that we give them to anyone who wants them. I merely observe that this is exactly the same kind of bootstrapping that leads us from state-funded healthcare to Big Nanny.

  • ||

    Yes it is. And the logic used in this case can be used to force the government to give benefits to a lot of people. I don't think Libertarians are going to like that very much.

  • MNG||

    What were those goofballs in Loving so uppity about? A marriage license? They could have lived together without that...

  • ||

    Thank you for your as usual thoughtful contribution to the conversation. One thing about you, you set a standard and consistently live down to it.

  • MNG||

    And I mean, what if a black and white person got married for a sham purpose?

  • The Libertarian Guy||

    Not the same thing, MNG. Stop sullying the civil-rights fight.

  • MNG||

    In Loving an adult couple was denied marriage based on their race. Here it is because of their gender. I fail to see why this is not analogous.

  • The Libertarian Guy||

    You just want another excuse to compare a contemporary battle with the civil-rights movement, MNG.

    On the local level, one of your fellow travelers likens the push to ban smoking in privately-owned buildings to the civil-rights movement. Some of you on the left have no shame whatsoever.

  • William F Cain III||

    I'm hardly on the left, but this really does have parallels with the civil rights movement, given that it's a fight about our civil rights.

  • ||

    The problem I have with this judge and with gay activists in general is they don't really mean it. They want their rights, and they'll use a libertarian argument to get it, but when prostitution, or polygamy, or incest, or gambling, or recreational drugs, or any other issue that isn't "gay sex" comes before this judge, how much do you want to bet his rational basis analysis goes by the wayside? The problem with portraying this as a libertarian victory is that it isn't. The players on the "gay rights" side are almost exclusively authoritarian socialist who ABSOLUTELY believe government has the right to regulate every aspect of our lives. They are no different than social conservatives. They just have a slightly different cultural preference as to what lifestyle government should be ramming down everyone else's throat.

  • Mr Whipple||

    Someone pointed out earlier, it's all about the culture war. I get the impression they just want to be able wave a marriage license in somebody's face and say, "see this? That's right I'm married".

    I made the Libertarian argument to a couple homosexuals on a progressive blog, and was called homophobic, among other things. They reject the Libertarian argument, completely.

  • Ron Stringfield||

    Your argument is not libertarian. It is nothing but ad hom. An error on some other issue does not justify one here. Further, this is an issue on very intimate matter of liberty. State action to limit individual liberty in this area DOES deserve greater scrutiny.

  • ||

    Marriage is a religious sacrament. It provides the same rights as civil union. The main reason why activists want to change the definition to permit homosexuals to marry is to open up religions to prosecution for discrimination.

  • MNG||

    So the folks in Loving should have gotten civil unions?

  • ||

    Such was not available to them, it being a rather new innovation in the US. In France, people apply to the government for a civil union, and if they want, apply to a church for a marriage. An interesting approach.

  • Tony||

    So better to have discrimination enshrined in law?

  • ||

    Discrimination based on gender is widely enshrined in law. As a man, pop into a woman's rest room to have a look around, and see how enshrined.

  • Tony||

    Since gay marriage bans affect both male and female gay couples, I fail to see how this is gender-based discrimination more than it is sexual-orientation-based discrimination.

  • The Libertarian Guy||

    Civil-union parity would also benefit straight, unmarried couples, Tony.

  • Tony||

    So couples of all stripes could... go to the courthouse and get a "government permission slip" to be civilly unioned? I don't see the point.

  • MNG||

    "Discrimination based on gender is widely enshrined in law."

    Depends. Try to start an all-male public college.

  • DesigNate||

    Do some research. It doesn't provide the same benefits. Many states won't even recognize civil unions. And you can't seriously be trying to make a case for yourself because there might be, in the future sometime, threats of discrimination lawsuits.

  • Ron Stringfield||

    Marriage is not JUST a religious sacrament. The state has no interest in the religious sacrament or encouraging it. I was married on a beach, by some guy who was not a member of the clergy, not in a church by a priest.

    The courts have already dealt with and upheld the right of churches to discriminate on a limited basis. It is called ecclesiastical discretion and it absolutely applies to gay marriage.

    Your concern is a conspiratorial and paranoid red herring and slippery slope argument that is without merit.

  • Stormy Dragon||

    Actually, this argument makes the case for legalization even stronger. If marriage is just a religious sacrement, how can the government tell a church who is elligible to receive its sacrements without running afoul of the establishment clause? Can California ban certain groups of people from being baptised as well?

  • MNG||

    Chubbydrunk
    I'm pretty sure that the rational basis test would be used in those instances, after all it's the low standard of scrutiny...

  • ||

    Insurance companies offer a discount to married men, largely because of their better health habits lead to less expectation that the insurance will have to pay. Having unprotected homosexual relations with a large number of partners is a bad health habit. Adding large numbers of homosexual men with the usual health risks of homosexual men to the pool of married men will raise costs for those who qualify for the standard definition of "Married".

  • Mr Whipple||

    In NJ, married people get discounts on car insurance, up to a certain age. Younger people who are married are more "stable", or something. Not that I agree with it.

  • ||

    Is it state-sponsored car insurance? If not, to gain market share, you'd think insurance companies would extend their discounts to domestic partners, too.

  • Mr Whipple||

    You would think. I don't know, for sure. it was a long time ago when I was young enough to qualify for it, if I was married. But I think it's just private insurance. State insurance is only for high risk drivers.

  • DesigNate||

    Your prejudice is showing.

  • bubba||

    I'm not aware that "married" homosexual men have unprotected sex with large numbers of men.

    Seems somewhat counterintuitive.

  • Robert||

    The great majority of homosexuals who want to form marriage-style couples are women whose sexual habits already make them better than avg. risks.

  • ||

    Of course lawyers want access to the money of the pool of homosexuals who may eventually want a divorce.

  • ||

    I don't want access to a pool full of homosexuals.

  • Mr Whipple||

    Maybe if it was a pool full of hot female homosexuals that swung both ways.

  • ||

    I have a problem with "females" that swing both ways, assuming that "swinging both ways" is a description of how their testicles dangle. I'm just saying I don't want to get involved with that.

  • Robert||

    There's plenty of good reasons for people to form couples, especially if they like each other. There are also good reasons for other persons to treat such couples as an item in many respects.

    However, that's not to say it's a good idea to treat the term "spouse", wherever it has legal significance, as including components of couples who were not previously thought of as married.

  • ||

    Ok, apparently somebody needs to inform Mr. Solum what rational basis scrutiny is:

    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." For these reasons, a classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity. Such a classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose. Further, a legislature that creates these categories need not "actually articulate at any time the purpose or rationale supporting its classification." Instead, a classification "must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification."

    A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification. "[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data." A statute is presumed constitutional, and "the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it," whether or not the basis has a foundation in the record. Finally, courts are compelled under rational-basis review to accept a legislature's generalizations even when there is an imperfect fit between means and ends. 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.'" "The problems of government are practical ones and may justify, if they do not require, rough accommodations -- illogical, it may be, and unscientific."

    Heller v. Doe, 509 U.S. 312, 319-20 (1993).

    What this means is that the state was correct -- it wasn't legally obligated to provide any evidence, and Judge Walker was holding them to the incorrect standard. The rational basis test is excessively deferential to legislatures.

    The Romer decision alluded to rational basis scrutiny, but never even used those words or explained the standard. It was nothing more than emotive blustering (as Scalia pointed out in his dissent). If you actually apply the relevant legal principles to Walker's decision, it's ridiculous. Furthermore, it's just ridiculous from a casual review -- the notion that wanting to preserve traditional institutions or moral standards is "irrational."

    You can't prove the validity of even the most basis laws without resting on society's right to preserve traditional moral axioms. Resting on them has to be rational, because if it isn't, no law is rational.

  • ||

    Let me match up the actual standards with the alleged deficiencies Mr. Solum points out:

    [W]hen Walker asked Charles Cooper, the attorney defending Proposition 8, how recognizing same-sex marriages would impair the asserted state interest in procreation, he at first said it was "not the legally relevant question," then essentially conceded the issue, saying, "Your honor, my answer is: I don't know. I don't know."

    "[C]ourts are compelled under rational-basis review to accept a legislature's generalizations even when there is an imperfect fit between means and ends."

    The generalization here is that heterosexual marriage aids in the government's interest in promoting procreation, while homosexual marriage does not. There is no legal principle that the government must provide recognition and benefits to relationships that do not facilitate its interests simple because it provides benefits to relationships that *do* facilitate its interests.

    During his closing argument, Cooper returned to the theme that "responsible procreation is really at the heart of society's interest in regulating marriage." When Walker asked him to cite the evidence that had been presented during the trial to back up this claim, Cooper replied that "you don't have to have evidence of this point."

    But you really do, especially since procreation, responsible or not, has never been a requirement for a marriage license. The government routinely recognizes marriages between people who have no intention of reproducing or who are physically unable to do so.

    "A State . . . has no obligation to produce evidence to sustain the rationality of a statutory classification. "[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data."

    And again...

    "[C]ourts are compelled under rational-basis review to accept a legislature's generalizations even when there is an imperfect fit between means and ends. 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.'" "The problems of government are practical ones and may justify, if they do not require, rough accommodations -- illogical, it may be, and unscientific."

    First of all, the state was not obliged to provide evidence as a legal matter, period. Secondly, the state was not obligated to prove that the classification was precise. Even if the procreation justification was imperfect because it did not explain recognition of marriage between where one or both of the partners is infertile, Walker still should have accepted the justification.

    Walker concluded that "the trial evidence provides no basis for establishing that California has an interest in refusing to recognize marriage between two people because of their sex."

    [A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data."

    Sounds pretty simple to me. All that factfinding was irrelevant. The speculation of the legislature is sufficient by itself under rational basis scrutiny.

    Walker's reasoning is similar to that of the 1996 decision in which the Supreme Court ruled that Colorado's Amendment 2, a ballot initiative that prohibited state and local bans on discrimination against homosexuals, failed the "rational basis" test.

    Look again. Did Romer actually go through the rational basis test? Did it even mention it? What Kennedy did in that decision was basically rant for several paragraphs while never really explaining the legal basis for his decision. It's a cipher.

    Opponents of gay marriage will ultimately lose the public policy debate if they can't do a better job of defending their position.

    Agreed. But they shouldn't lose the *legal* debate, and this was a legal decision.

    I personally think the policy justifications given are pretty weak, and often are post-hoc rationalizations. However, weak justifications and post-hoc rationalizations, even if they are illogical and unscientific, based on nothing more than legislative speculation, still satisfy the rational basis test.

  • ||

    +1

  • Ron Stringfield||

    This does involve a fundamental right.

    The precedent you quote dealt with section 602(7)(B) of the Cable Communications Policy Act of 1984 which provides that cable television systems be franchised by local governmental authorities. Not a fundamental right.

  • ||

    Ron,

    You're looking at this the wrong way. The right involved is the right to equal protection under the law. Gays are not a suspect class under the equal protection clause, and so any laws that discriminate against them are subject to rational basis review. Rational basis review is the same in every case. If you assert that rational basis review is malleable and actually encompasses multiple standards, I'd have to ask for some kind of citation on that. I don't think it exists.

  • Ron Stringfield||

    The court has used a somewhat varying standard depending on the nature of the right and harm done by the restriction. It has been called rational basis with bite. Lawrence v Texas...

    aws such as economic or tax legislation that are scrutinized under rational basis review normally pass constitutional muster, since “the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes.” Cleburne v. Cleburne Living Center, supra, at 440; see also Fitzgerald v. Racing Assn. of Central Iowa, ante, p. ___; Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955). We have consistently held, however, that some objectives, such as “a bare … desire to harm a politically unpopular group,” are not legitimate state interests. Department of Agriculture v. Moreno, supra, at 534. See also Cleburne v. Cleburne Living Center, supra, at 446—447; Romer v. Evans, supra, at 632. When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.

    We have been most likely to apply rational basis review to hold a law unconstitutional under the Equal Protection Clause where, as here, the challenged legislation inhibits personal relationships. In Department of Agriculture v. Moreno, for example, we held that a law preventing those households containing an individual unrelated to any other member of the household from receiving food stamps violated equal protection because the purpose of the law was to “ ‘discriminate against hippies.’ ” 413 U.S., at 534. The asserted governmental interest in preventing food stamp fraud was not deemed sufficient to satisfy rational basis review. Id., at 535—538. In Eisenstadt v. Baird, 405 U.S. 438, 447—455 (1972), we refused to sanction a law that discriminated between married and unmarried persons by prohibiting the distribution of contraceptives to single persons. Likewise, in Cleburne v. Cleburne Living Center, supra, we held that it was irrational for a State to require a home for the mentally disabled to obtain a special use permit when other residences–like fraternity houses and apartment buildings–did not have to obtain such a permit. And in Romer v. Evans, we disallowed a state statute that “impos[ed] a broad and undifferentiated disability on a single named group”–specifically, homosexuals. 517 U.S., at 632. The dissent apparently agrees that if these cases have stare decisis effect, Texas’ sodomy law would not pass scrutiny under the Equal Protection Clause, regardless of the type of rational basis review that we apply. See post, at 17—18 (opinion of Scalia, J.).
    ...

  • ||

    Ron,

    There is no such thing as "rational basis with bite." Lawrence v. Texas wasn't a rational basis case. It wasn't resolved on equal protection grounds at all. When you're dealing with a non-suspect classification, rational basis standard is applied, and rational basis is a discrete test that is the same in every case.

    You're not making a valid argument here. Rather, you're trying to parse a distinction where none clearly exists.

  • ||

    By the way -- this is not to say that people haven't claimed that certain Supreme Court decisions apply "rational basis with bite." This is just another way of saying that in certain cases, the court has supposedly applied rational basis review, but because of the personal prejudices of the justices, they have ignored the extremely deferential nature of the standard. That doesn't actually change what the standard is -- it just means that courts at all levels have tended to misapply it for political and philosophical reasons in particular cases.

  • Some dude||

    Isn't the burden of proof on the opponents of prop 8 to demonstrate that there are people in California who are not being equally protected by the law? Who is it that is not being equally protected? Apparently all those men who are told they can't marry other men and all those women who are told they can't marry other women. Wait... that's the whole dang state.

  • bubba||

    As best I can tell, approximately 75% of marriages result in offspring, so it does seem rational to me that the government would largely equate the two.

    Meanwhile, I think the percentage of homosexual couples that have or adopt children is considerably lower. I'd guess it's because most homosexuals are male, and just don't have the same parenting drive as women.

    Perhaps we could let lesbian couples "marry."

    Or we could grant marriage licenses to homosexual couples that adopt or otherwise obstain offspring.

    More importantly, I'm trying to get my head around the putative list of "rights" granted to California marriages that aren't granted to domestic partnerships. As I recall it was a lot of inside baseball about pension benefits. Benefits that I don't even think should exist.

    So... forgive me for not being persuaded that it matters if Californians prefer not to call gays "married."

  • Mike||

    So by your own random numbers, 25% of heterosexual marriages don't really need to be called marriages, either?

    I would imagine that the number of homosexuals adopting children is also lower because many places refuse to adopt children to homosexual or unmarried families.

    I really don't get why lesbians are so much more acceptable than gay men.

    Perhaps we should make all hetersexual couples sign an agreement on their marriage license that they will show one healthy baby to the state within five years, and if they fail their marriage should be annulled?

    Personally, I'm trying to get my head around why blacks don't like having their own water fountains, bathrooms, and reserved seating on all buses.

  • ||

    "I really don't get why lesbians are so much more acceptable than gay men."

    Because girl on girl is hot. Guy on guy is not.

  • Mike||

    My wife (and the large numbers of Yaoi websites available) would seem to disagree with you.

    More that girl on girl is socially accepted to be hot, because public male lust is socially acceptable, whereas female lust is not.

  • Sosnowski||

    No! Bad Mike! You put those non sequiturs back where you found them!

  • Ron Stringfield||

    The state's interest in marriage does not start or end with children.

    As for marriage versus domestic partnership, even if the rights are identical, such a s distinction without a difference can only serve invidious discrimination. It's a "separate but equal" argument that the courts have already properly rejected. It was a large reason for the decision in Loving v Virginia.

  • Ron L||

    bubba|8.11.10 @ 12:00PM|#
    "More importantly, I'm trying to get my head around the putative list of "rights" granted to California marriages that aren't granted to domestic partnerships. As I recall it was a lot of inside baseball about pension benefits. Benefits that I don't even think should exist."

    Visitation rights
    Rights of married spouse concerning healthcare
    Inheritance
    There's more.
    You can claim they shouldn't exist, and that's fine. But now they do, and I have a hard time seeing how the government can deny them to a certain portion of the population.

  • bubba||

    The rights you list are covered in California's Domestic Partnerships.

    http://en.wikipedia.org/wiki/D.....rnia#Scope

    damn you threads

  • Ron L||

    bubba|8.11.10 @ 12:28PM|#
    "The rights you list are covered in California's Domestic Partnerships."

    Only if you stay in California.

  • Tony||

    And ignore the federal benefits.

  • Ron L||

    Tony,
    Doesn't work that way. A gay couple I know go through all sorts of crap at tax time; CA sees them as married, US tax law doesn't.
    Seems 'full faith and credit' does *not* apply to the feds.

  • ||

    Some people still seem to think there is a tax break for being married.

    There is NO tax break for being married. In fact there are tax penalities in the higher tax brackets.

  • bubba||

    The rights you list are covered in California's Domestic Partnerships.

    http://en.wikipedia.org/wiki/D.....rnia#Scope

  • ||

    In CA about 48% thought gay marriage was fine, and about 52% didn't. So its' not like the voters overwhelmingly oppose gay marriage.

    Sullum was right, the gay marriage opponents arguments were too weak for the judge to buy them.

  • Ron Stringfield||

    Finally, a a good article from Reason on this.

  • ||

    The weak case against gay marriageand polygamy

    That line of reasoning is SO going to bite liberals in the ass if they persist with it, and try to stop polygamy.

  • David||

    Someone would have to try to start polygamy first. The only times I ever see it raised in these debates is as an intellectual exercise or as a side effect of booting government out of marriage altogether, not an actual focus of advocacy.

  • slutmonkey||

    there's always the members of the old school orthodox LDS church. They'll push it.

  • Ron Stringfield||

    Why should that bite anyone in the ass? First off, I am not so sure polygamy should be prohibited. Secondly, it's a much different issue. The issue of polygamy DOES impact the state's valid interest in marriage (contractual disputes), and so I can imagine a decent rational basis argument against it.

  • slutmonkey||

    I think gays are right to push hard for the WORD marriage because getting marriage would get them all the rights they want AUTOMATICALLY, without further effort.

    for example: If you're "married" then hospital visitation policies, health insurance plans, taxes, people's attitudes and everything else that matters are ALREADY worded to accommodate you as a spouse.

    But if you're Civily Unioned, that may not be the case. You'd either have to re-write all the relevant laws and contracts to say "married or in a civil union", OR you'd have to write laws or build case law that makes civil unions a legal synonym for marriage.

    Further, even if civil unions DO become a legal synonym for marriage, the public in general would not immediately honor it. The burden would be on the gay person to convince the receptionist at the hospital that Civil Unions allow the same rights as a marriage, rather than putting the burden on the receptionist to accept that the two same-gender people really are married.

    Gays don't want to have to go to court every time they want to do something married people can do. Courts take time and cost money, and you may not have excess of either when your spouse lands in the hospital. Having a true marriage means that by default hospital staff etc. would treat them how they want to be treated, while Civil Unions might require more fuss. The word marriage means that tolerance is the default action instead of bigotry.

  • Ron L||

    slutmonkey|8.11.10 @ 3:22PM|#
    "...The word marriage means that tolerance is the default action instead of bigotry."

    To expand on this:
    Marriage is a certain contract between two consenting adults. By law, implicit in that contract are certain privileges and responsibilities. Similarly, a contract to incorporate also has legal privileges and responsibilities.
    Note that the "right" to contract in either manner is *not* granted by the state, no more than the right to free speech is granted. The legal privileges and responsibilities are separate from the right to contract.
    If the state has the authority to deny rights to the people at all, the state must show compelling reason to do so. I don't see such a compelling reason to deny gays the right to marriage contracts.

  • Coeus||

    See, now that's a decent argument for the picking that specific word. I knew someone would make one eventually.

    +(insert meaningless # here)

  • ||

    EVERY male is bound by the ban on marrying another male, and every female is equally banned from marrying another female. A ban that applies to all is not discrimination.
    Legislatures are not reluctant to grant equivalent rights to homosexuals, so why not just make up a list and litigate only that which is not given legislatively.

  • Ron L||

    So if every brown-eyed person were denied the right to a marriage contract with brown-eyed people, and ditto for other colors, that's OK?

  • Ron Stringfield||

    The court said it was when that EXACT same argument was presented by Virginia in the Loving case. All had an equal right to marry within their own race and were prohibited equally. It was rejected for the same reason it was here,i.e., it creates invidious discrimination. In fact, that is the only reason for it.

  • Sosnowski||

    The issues are completely different. The whole basis for anti-racism is that there are only minor, insubstantial differences between the races, and that race is therefore no proper basis for discrimination. Sex, on the other hand, is a very significant biological difference, and the union of opposite sexes is what marriage, in all its forms, is. If you don't want to marry a person of the opposite sex, then you don't want to marry; you want to do something else, and neither society nor the state is obliged to sanction it or even give it a name.

  • ||

    Same sex marriage?

    Nothing but a yellow star ready to stitch to a gay person's jacket.

    With any luck it will look good next to the pink triangle.

    The opposition to gay marriage is probably better off as a silent majority, especially when Reason magazine now gives in to the logic of group identity politics instead of critiqueing it.

  • Ron L||

    Mark|8.11.10 @ 7:04PM|#
    "The opposition to gay marriage is probably better off as a silent majority, especially when Reason magazine now gives in to the logic of group identity politics instead of critiqueing it."

    Uh, allowing an excluded group to share the same rights as others it 'identity politics'?
    I think you have "up" confused with "down".

  • ||

    Ron L.

    "an excluded group" "sharing rights" as "others". Take your crap back to some ivy league humanities classroom.

    And stitch that yellow star on the tux of your same sex marriage so it won't fall off when the feds come to protect your gay right to marry.

  • Matt R.||

    "If the state has the authority to deny rights to the people at all, the state must show compelling reason to do so. I don't see such a compelling reason to deny gays the right to marriage contracts."

    Do you see a reason for the state to deny a brother and sister the right to marry? A father and son? These are "excluded groups" in virtually every sense that homosexuals are.

    No, there hasn't been an incest rights movement-- yet. But virtually every argument that can me made for legalizing gay marriage can be made for incestuous unions and a whole host of other "marriage" arrangements that most would reject outright.

  • Ron L||

    Matt R.|8.11.10 @ 10:12PM|#
    "If the state has the authority to deny rights to the people at all, the state must show compelling reason to do so. I don't see such a compelling reason to deny gays the right to marriage contracts."
    Do you see a reason for the state to deny a brother and sister the right to marry?"

    No, so long as:
    A) They are consenting adults, and
    B) The state (taxpayer) does not have responsibility for any damaged offspring.

    "A father and son?"
    Nope, see above.

    "These are "excluded groups" in virtually every sense that homosexuals are."
    Now that you've offered most every stupid alternative you can imagine, what more stupidity is available to you?
    I'll be more than willing to keep count; how many ignorant straw men can you contrive?

  • Ron L||

    Just out of curiosity, what sort of moralistic nosiness would make you concerned about whether Jim and Jane were siblings or Jim and John where father an son? Did your favorite sky-daddy say "no-no"?

  • Matt R.||

    Mmm. I see at 10:27 you succumbed to some arbitrary inner need to insert my "sky-daddy" into the discussion. Ironic, coming from the same individual throwing out strawman labels.

    Of course, the implication here is that only a wild-eyed God freak would be concerned about the state issuing marriage licenses between direct family members-- an implication you know to be ridicules. So yes, the strawman. You're clearly quite an expert.

    "Now that you've offered most every stupid alternative you can imagine, what more stupidity is available to you? "

    Define stupidity. Following your own logic to it's inevitable conclusion? There's no need for name-calling. If my comparisons are so intellectually offense, you need only explain how.

    There's really no reason for you to be upset, anyway. Since you would accept incestuous marriage the same as gay marriage, I really can't argue your consistency.

  • Ron L||

    Matt R.|8.11.10 @ 11:12PM|#
    "Mmm. I see at 10:27 you succumbed to some arbitrary inner need to insert my "sky-daddy" into the discussion."
    Since you offered nothing other than silly hyperbole and nothing approaching a reasonable argument, I had to wonder. But you are a god-talking fool, right? Kinda gave it away with your talking points.

    "Of course, the implication here is that only a wild-eyed God freak would be concerned about the state issuing marriage licenses between direct family members-- an implication you know to be ridicules"
    Yep, the 'everyone knows' defense of stupidity. Thanks. Or did you actually have a point? If so, let's see it.

    "If my comparisons are so intellectually offense, you need only explain how."
    I pretty much have. Got anything that says they're not? Or just 'matt doesn't like them'?

    "There's really no reason for you to be upset, anyway."
    Strange how those who would deny rights to others claim that those would wouldn't are "upset", right, oh, upsettedeness-bozo?

    "Since you would accept incestuous marriage the same as gay marriage, I really can't argue your consistency."
    You couldn't argue to begin with. You're a god-talking fool, and there's scant reason to hide it.

  • Ron L||

    BTW, I see you never bothered to answer the question, which answered it by default.
    I have to take it as a matter of progress that sky-daddy bleevers are now hiding the fact that their politics are driven by their stone-age beliefs.

  • ||

    "Since you offered nothing other than silly hyperbole and nothing approaching a reasonable argument, I had to wonder."

    You haven't put forth a single tangible argument I can respond to. Again, explain how my argument is "silly" and we might actually have something resembling an intelligent discussion on our hands.  And what do you mean by hyperbole?  Are you referring to all the juvenile taunts I've employed to avoid legitimate argument? god-talking fool? Bozo? Stupid? Cuz, um, that was actually you. 

    You've "pretty much" explained how incestuous marriage isn't a valid comparison to gay marriage? How, telepathically? Maybe you could humor the rest of us by typing and posting your responses. That way, we could actually discuss the issue at hand.

    "Or did you actually have a point? If so, let's see it."

    I think my point was pretty clear. You can't seriously be suggesting that belief in God is the only reason people might object to government-sponsored incestuous marriage. Thus, the only motivation for invoking such language is to dismiss any of my arguments without having to engage them. You know, a straw man.

    "BTW, I see you never bothered to answer the question, which answered it by default."

    I can only assume that "the question" I haven't answered is the following:

    "Just out of curiosity, what sort of moralistic nosiness would make you concerned about whether Jim and Jane were siblings or Jim and John where father an son?"

    I'm not concerned about it, unless the state is endorsing the relationship. Whether you agree with the reasoning or not, I should think it would be obvious why one might object to the government actively incentivizing incestuous unions. My point is that most of those objections equally apply to gay marriage. I can spell some of those objections out for you if you'd like, but I  bet you could think of some on your own.   

  • Ubermonkey||

    Uninvolved observer here.

    Clearly this Ron L guy has a lot of rage to work out. For someone who claims to live & let live (see first post about letting siblings/parents marry) he certainly has a very low level of tolerance for people with different ideas. Everything is fine so long as you agree with him.

    My advance: stop feeding the troll.

  • ||

    Good advise. And good points.

  • ||

    The first question I would ask would be: "Why do you consider yourself to have the ultimate right to define the central purpose of marriage?" I am not in favor of intellectual property, so to me it is ridiculous to make such a claim. But even if you believe in IP, it is obvious that marriage is in the public domain. So either way, they have no right to say what contracts two adults may make with each other.

  • ||

    Adopted children in traditional marriages are overrepresented in mental health cases. Studies (and common sense) also show that sperm donor offspring experience a range of issues related to their conception that traditionally conceived people don't.

    So I'm sorry that I can't completely trust the studies that show that kids with gay parents are as peachy as anyone, when I know the troubles that can arise when kids aren't related to their STRAIGHT parents.

  • cheap watches||

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  • fendi bags||

    Maybe if it was a pool full of hot female homosexuals that swung both ways.

  • fendi bags||

    Suki: Will a groveling apology do? Doing too many things at once and just spaced the hat tip. Will add belated one.

  • bags||

    We get our jollies from seeing people (primarily elderly) starving in the streets. Beats watching baseball.

    reply to this

  • Scarpe Nike||

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  • Jordan Shoes||

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