No Reason to Rush

California voters—not judges—should decide the future of gay marriage

Steve Chapman | May 19, 2008

In the old story, a preacher gives an inspiring sermon, which he concludes by asking his congregants to stand up if they want to go to heaven. Everyone rises except one nervous-looking fellow. "Brother," asks the incredulous pastor, "don't you want to ascend to paradise when you die?" Says the holdout: "When I die? Sure! I thought you were getting up a group to go right now."

That's pretty much how I feel about the California Supreme Court's decision granting the right of same-sex couples to marry. The destination is a good one. I just wish the court weren't in such a hurry to get there.

In recent years, the country has been moving at a steady pace to affirm a once-unthinkable concept—namely that as a matter of both individual rights and social good, gays should be free to make the same commitments as heterosexuals. According to a 2007 CBS News/New York Times poll, 60 percent of Americans now support allowing same-sex couples to enter into civil unions or marriage.

Radical changes don't happen overnight. But the speed of this one has been impressive. It's been only 22 years since the U.S. Supreme Court said states may criminalize homosexual conduct. It's been only 15 years since the Supreme Court of Hawaii shocked the country by ruling that gays might have a constitutional right to marry.

It's been only eight years since Vermont became the first state to admit same-sex couples to the rights and responsibilities of matrimony through civil unions. It's been only three years since California followed suit by letting gays enter into domestic partnerships.

But all of a sudden, the justices have discovered that their state constitution not only allows but requires that marriage include homosexual couples—even though in 2000, 61 percent of the state's voters rejected that option.

The majority is not always right, and in that instance, I thought the majority was wrong. But democracy doesn't say the people will always be right. It merely says they have the right to decide most matters of public policy. Here, by contrast, the California Supreme Court says the citizenry has no right to define marriage the way it has been defined by custom and law for eons.

At stake was not whether gay couples may acquire the rights and duties of marriage in a state-sanctioned framework. As the court acknowledged, they can already do so under the domestic partnership law. But it's not enough for them to get the substance of marriage. The court said they must also get the same terminology.

It reached this conclusion through a lot of philosophizing about "the right of same-sex couples to have their official family relationship accorded the same dignity, respect and stature as that accorded to other officially recognized family relationships." But the state constitution (like the federal one) does not traffic in mushy terms like "dignity" and "stature." When a court puts such heavy reliance on amorphous concepts, it telegraphs that it will not be tied down by the actual words of the state charter.

For further proof, consider that while the California constitution forbids discrimination on the basis of "sex, race, creed, color, or national or ethnic origin," it does not forbid discrimination on the basis of sexual orientation. The justices somehow found something in the document that the authors thought they omitted.

Prudence and caution, which are virtues in the executive and the legislative branch, are no sin in the judiciary, either. What those attributes dictated here is that the court give civil unions a fair interval to show their merits or flaws in practice, rather than rushing in to pronounce them inadequate.

The justices would have been wise to mark time while the people of California continued on their path toward full equality for gays. Instead, the court has practically exhorted them to stop the journey. Opponents of gay rights have mounted a drive to put a constitutional amendment on the ballot in November, which stands a good chance of passing.

The exercise may end up not only overturning the Supreme Court's presumptuous decree but hardening public attitudes against the whole idea for years to come. In time, Californians would probably be inclined to embrace gay marriage. But if you insist they go there today, don't be surprised if they refuse.

COPYRIGHT 2008 CREATORS SYNDICATE, INC.

Comments

Kip Esqueer|5.19.08 @ 7:10AM|#

Does it matter why? gay Marriage is the most important libertarian issue.

Elemenope|5.19.08 @ 7:18AM|#

I'm not quite with Kip as to it being the biggest issue, but it certainly is a big one.

One of the primary and most important roles for the courts is protecting minority rights, which by definition cannot be left up to voters (who will, generally, only decide in the interests of the majority). The position supported in the article would have, for two obvious examples, delayed the ending of slavery and the ending of segregation by many decades.

No, we shouldn't wait around until voters get it into their heads its a good idea in order to extend those rights to all what we have seen fit to extend only to some.

Dr. Freud|5.19.08 @ 7:20AM|#

As usual, Reason drinks the Kool-Aid, all of a sudden calling for caution, prudence, nothing hasty, etc., etc.

|5.19.08 @ 7:45AM|#

I'm not quite with Kip as to it being the biggest issue, but it certainly is a big one.

I have no problem with gay marriage being legal, but I question why it would be a libertarian issue one way or the other. To the best of my knowledge, the most libertarianism demands is that the state not interfere with the citizen going about his peaceful business. That it demands a right to public sanction and approval of that business is a new one on me.

parse|5.19.08 @ 7:59AM|#

No, we shouldn't wait around until voters get it into their heads its a good idea in order to extend those rights to all what we have seen fit to extend only to some.

I'm not sure extending rights to all is what the California decision does. To the degree that marriage confers rights to some that are denied others, all the court has done is widen the pool of those eligible to claim the special rights of marriage. Couples will continue to have rights denied to single people (and to threesomes or other polyamorus arrangements).

Elemenope|5.19.08 @ 8:11AM|#

To the best of my knowledge, the most libertarianism demands is that the state not interfere with the citizen going about his peaceful business. That it demands a right to public sanction and approval of that business is a new one on me.

Except for the minarchist and anarchists among us, Libertarians do acknowledge a (small) role for the State. It is true that the primary urge is towards the state staying out of peoples' lives. However, inevitably a non-nominal state will interfere in some aspects of peoples' lives. Most libs, I think, (including me) believe that the state has no legitimate role in establishing and recognizing marriages, beyond their being standard contracts enforced along with any other such arrangement.

However, granting the fact that the state is in the marriage business, it is a legitimate libertarian concern that the state recognize and respect rights of people irrespective of any special status. If two people love each other, if the state has a monopoly on marriage, it is not legitimate for it to deny access to a couple if they happen to be the same gender.

marc h.|5.19.08 @ 8:17AM|#

Note to your editors: California judges aren't "unelected."

marc h.|5.19.08 @ 8:21AM|#

andrew sullivan (sigh) has more:
All seven members of the California court have been confirmed by the voters. Kennard -- confirmed 2006 with 74.5% Corrigan -- confirmed 2006 with 74.4% Werdegar -- confirmed 2002 with 74.1% Moreno -- confirmed 2002 with 72.6% Baxter -- confirmed 2002 with 71.5% George -- confirmed 1998 with 75.5% Chin -- confirmed 1998 with 69.3%

|5.19.08 @ 8:22AM|#

Could not agree more with Elemenope. The State has controlled a purely religious function for far too long. Even the government in CA agrees - it wants to give this power back to the people and to religions. What can possibly be wrong with it. Nobody is being forced to marry same sex partners to my knowledge? Thomas Jefferson would be proud! Americans should be proud for another important step towards individual rights and democracy and freedom.

rbm|5.19.08 @ 8:22AM|#

REASON is so disingenuous. how many articles have you guys published advocating judicial review of legislation you don't like?

|5.19.08 @ 8:26AM|#

Which is better, "unbridled majoritarianism" or "rule by an unaccountable elite"? Whichever way you go, you need to be wary of your liberties.

Ultimately, I feel the important thing is to reach the right decision, and I don't really care if it's reached by the legal system or by the voters. IMHO the right decision on this issue is to ensure that gays have the same rights as anyone else, and I'm very pleased that the California courts did just that.

I share the other posters' disappointment that Reason would publish an article preferring majority rule over maximizing freedom.

Elemenope|5.19.08 @ 8:29AM|#

Calm down, rbm. I imagine that since the Reason editorial staff isn't a Borg hive-mind (right? Right?!), that the individuals who make it up have differing views and opinions, and that those differences would be reflected in the articles they write.

Talking about Reason Magazine as a monolith instead of a collection of individuals is silly, silly, silly.

|5.19.08 @ 8:33AM|#

I can see where Steve Chapman is coming from wrt the "counterproductive" argument. I recognize and acknowledge all the standard libertarian disclaimers, and I agree with Elemenope about how, since the State of California holds a monopoly on marriages they should not be allowed to permit some and exclude others - - - but from a purely strategic standpoint, if Californians actually pass an amendment to the state constitution banning gay marriage, this decision could set back the movement rather than propel it.

That being said, I disagree with everything else Steve Chapman said about letting the voters decide blah blah blah - - democracy is not virtuous in and of itself.

|5.19.08 @ 8:34AM|#

However, granting the fact that the state is in the marriage business, it is a legitimate libertarian concern that the state recognize and respect rights of people irrespective of any special status. If two people love each other, if the state has a monopoly on marriage, it is not legitimate for it to deny access to a couple if they happen to be the same gender.

Do I really need to point out that the state's concern with legal arrangements has nothing to do with people's feelings?

What you're saying is that the state cannot legitimately make legal distinctions between types of associations, without regard to intent and consequences, and is obliged to treat them all equally, i.e. bowling teams should be treated equally to corporations, street gangs should be treated equally to charities, churches should be treated equally to governments.

Try this one: both surgeons and snuff-film makers cut people up for a living. Should not snuff-film makers and surgeons have the same rights?

The government gives me a tax break for spending my money on a mortgage, but does not give me a tax break for spending my money on hookers and coke. To say that the government shouldn't give special tax breaks to people who spend their money on mortgages is not that same argument as saying that as long as it does, it's obliged to give them to people who spend money on hookers and coke as well...

|5.19.08 @ 8:43AM|#

Just because the CA judges are elected doesn't mean their authority extends this far. I'm all for extending the right to marry to gays; I just oppose judicial power grabs whether those judges are elected or not.

KipEsquire|5.19.08 @ 8:46AM|#

Wait, I have my very own anonymous, infantile defamer-troll on Hit & Run? Cool. Can't be mocked if you're not read, right?

In any case, some thoughts --

1. Chapman writes:

"But all of a sudden, the justices have discovered that their state constitution not only allows but requires that marriage include homosexual couples"

Let's keep in mind that -- unlike legislatures, bureaucracies and majoritarian mobs -- courts cannot, upon their own initiative, do anything. A lawsuit was filed (several in fact), the court resolved them. That's about as far from being "activist" as one can get. (Indeed, the majority unambiguously reiterated the court's prior ruling that activist San Francisco mayor Gavin Newsom was flat-out wrong to issue SSM licenses and that those gay marriages remain null and void.)

2. The notion that a group suffering from patent discrimination should "just wait a generation or two" is all well and good when you're not part of that group. I would, qua libertarian, posit that no one ever owes anybody, even their fellow victims (let alone their oppressors) a duty to "grin and bear it." To assert that doing so would be smart politics is one thing; to assert that it's somehow the moral high ground is absurd.

3. Once again we see (not from Chapman but from commenters here and elsewhere) the shameful thesis (paraphrased) that:

Since marriage licenses are not a legitimate function of government, libertarians should embrace irrational and animus-inspired discrimination against an insular minority because that way at least the gays can't get married -- and anything that denies a marriage license to anyone is a good thing.

If that's the current pinnacle of libertarian "equal protection" theory, then I'm joining the Workers World Party. (Bravo to Elemenope for the intelligent comments on this.)

J|5.19.08 @ 8:57AM|#

"Elemenope | May 19, 2008, 8:29am | #
Calm down, rbm. I imagine that since the Reason editorial staff isn't a Borg hive-mind (right? Right?!), that the individuals who make it up have differing views and opinions, and that those differences would be reflected in the articles they write.

Talking about Reason Magazine as a monolith instead of a collection of individuals is silly, silly, silly."

Even more interesting is that someone attracted to a libertarian magazine would see the magazine as an entity instead of made up of individuals. It just seems like the opposite bias from what you would expect in a libertarian readership.

Episiarch|5.19.08 @ 8:58AM|#

Unfortunately, getting the state out of the marriage business isn't going to happen any time soon. Therefore giving gays equal status under the law is a good thing, the majority be damned.

However, if Chapman is right and there is a backlash that gets a constitutional amendment, it would seem counterproductive.

But judges aren't supposed to make rulings based on the productivity or counter productivity of some agenda; they are supposed to interpret the law. And that seems to be what they did here.

|5.19.08 @ 8:58AM|#

If two people love each other, if the state has a monopoly on marriage, it is not legitimate for it to deny access to a couple if they happen to be the same gender.

The state does not have a monopoly on marriages--it merely has a monopoly on granting tax breaks and other privileges to couples who enter into a legal relationship. California already made it possible for gay couples to acquire those privileges. Since a couple that happens to be of the same gender can already 1) obtain legal rights through civil union and 2) be married in a church that performs gay marriage, what is the ruling by the court providing that's currently unavailable?

Elemenope|5.19.08 @ 9:02AM|#

What you're saying is that the state cannot legitimately make legal distinctions between types of associations, without regard to intent and consequences, and is obliged to treat them all equally...

Whoa! No, I didn't. I said *in the context of marriage* the state can't make legitimate distinctions between adults as to their suitability for marriage. This onus is placed upon the state because of its monopoly and capacity for the use of force to enforce its decisions.

In any context, a society only has the ability to restrain another person's behavior *for a damn good reason*, usually involving direct harm or extremely probable harm to another resulting from the behavior in question. "Ew! Two women touching on each others' titties? That shit is gross!" is not a sufficient reason to restrain a behavior, because it insufficiently demonstrates the potential for grievous harm to others.

This is strict scrutiny, baby. The sexiest scrutiny there is.

Quattro|5.19.08 @ 9:08AM|#

I don't even bother to read Steve Chapman's pseudolibertarian syndicated crap any more. If Reason staffers can't be bothered writing an extra article or two each week maybe they should just have a page of white space surrounded by ads.

|5.19.08 @ 9:10AM|#

Another unlibertarian article by Steve Chapman. Some of his stuff has been OK, but he is all practicality and no ideology. I wish Reason would find someone with a better understanding of libertarian principals.

|5.19.08 @ 9:12AM|#

I wonder if the pro-gay-marriage folks could explain why the "discrimination" can't be solved by civil unions carrying all the legal nuts and bolts currently associated with marriage, but rather requires the word "marriage" to be applied to homosexual relationships.

Are gays really that desperate for sanction from society that denial of a word is a constitutional issue?

|5.19.08 @ 9:14AM|#

Whoa! No, I didn't. I said *in the context of marriage* the state can't make legitimate distinctions between adults as to their suitability for marriage. This onus is placed upon the state because of its monopoly and capacity for the use of force to enforce its decisions.

The implication of the courts decision-and of its supporters- is that the 99+ percent of all cultures throughout all history has been unwarrantedly homophobic in limiting marriage to heterosexual relationships. Clearly, no compelling State interest could have led the Ancient Greeks (well known homophobes, they) to the same decision as 13th century Hindus, as 8th Century Chinese, as 4th Century Visigoths, as (continue this sentence for another 10 thousand lines or so).

And this stupendous denial of history is an essential part of the justification used to overturn a popular vote.

Unbelievable.

kinnath|5.19.08 @ 9:14AM|#

The majority is not always right, and in that instance, I thought the majority was wrong. But democracy doesn't say the people will always be right. It merely says they have the right to decide most matters of public policy. Here, by contrast, the California Supreme Court says the citizenry has no right to define marriage the way it has been defined by custom and law for eons.

Yup, that's the whole point of having a court whose job is to review the constitutionality of laws created by elected representatives.

kinnath|5.19.08 @ 9:16AM|#

I wonder if the pro-gay-marriage folks could explain why the "discrimination" can't be solved by civil unions carrying all the legal nuts and bolts currently associated with marriage, but rather requires the word "marriage" to be applied to homosexual relationships.

The court essentially said "seperate, but equal" is never "equal".

kinnath|5.19.08 @ 9:20AM|#

And this stupendous denial of history is an essential part of the justification used to overturn a popular vote.

The constitution itself is a wholesale repudiation of thousands of years of legal precedence.

In the words of the great Marion Barry, get over it.

|5.19.08 @ 9:21AM|#

I wonder if the pro-gay-marriage folks could explain why the "discrimination" can't be solved by civil unions carrying all the legal nuts and bolts currently associated with marriage, but rather requires the word "marriage" to be applied to homosexual relationships.

Sure. Simply declaring "all the legal nuts and bolts currently associated with marriage" apply don't make it so. Marriage law is well established and respected in every court in the land. So, for example, consider if one partner dies and the birth mother sues to take custody of the child from the surviving parent. If the couple was joined by a "civil union" then the rights of the surviving spouse in this situation are not well established. If they are "married" then the law is settled.

|5.19.08 @ 9:21AM|#

kinnath,

I'm not a fan of the Brown decision, as it was the first of a long line of "fuck the constitution, let's do the right thing" SCOTUS decisions. So I wouldn't be convinced even if the argument behind that decision applied here -- which it doesn't.

|5.19.08 @ 9:25AM|#

Simply declaring "all the legal nuts and bolts currently associated with marriage" apply don't make it so.

But simply declaring that gay marriage is just as valid as hetero marriage does make it so? I don't see how a civil union statute is somehow less effective at securing the rights it claims to than a court ruling in favor of gay marriage.

LarryA|5.19.08 @ 9:27AM|#

That being said, I disagree with everything else Steve Chapman said about letting the voters decide blah blah blah - - democracy is not virtuous in and of itself.

I don't think he said it was. But in a democracy shifting public opinion in the way you want to go is much more effective than trying to herd the cats.

Try this one: both surgeons and snuff-film makers cut people up for a living. Should not snuff-film makers and surgeons have the same rights?

Absolutely. If someone under their care dies they should have the same rights to an attorney, to avoid self-incrimination, to a speedy trial by a jury of their peers, to not be retried after acquittal, etc.

The offensive part of your argument is that you are equating gay marriage with heinous conduct.

Since a couple that happens to be of the same gender can already 1) obtain legal rights through civil union and 2) be married in a church that performs gay marriage, what is the ruling by the court providing that's currently unavailable?

The right to say, "This is the person I'm married to." If it's no big deal to withhold "marriage," how can it be a big deal to grant it? You can't have it both ways.

Some of his stuff has been OK, but he is all practicality and no ideology. I wish Reason would find someone with a better understanding of libertarian principals.

Because God knows libertarians never want to be practical.

Are gays really that desperate for sanction from society that denial of a word is a constitutional issue?

Are anti-gays really that desperate to withhold sanction from society that denial of a word is a constitutional issue?

Kinnath nails it.

kinnath|5.19.08 @ 9:31AM|#

But simply declaring that gay marriage is just as valid as hetero marriage does make it so?

Why yes.

Holy Matrimony is a religious concept. Marriage is a civil concept. There is no valid reason to allow marriage for some consenting adults while prohibiting it from others.

|5.19.08 @ 9:32AM|#

Are anti-gays really that desperate to withhold sanction from society that denial of a word is a constitutional issue?

Opponents of gay marriage aren't the ones running to the courts to overturn current law.

|5.19.08 @ 9:33AM|#

The offensive part of your argument is that you are equating gay marriage with heinous conduct.

Making an analogy with heinous conduct, not equating. Two very different things.

|5.19.08 @ 9:35AM|#

kinnath,

What basis do you have for saying marriage is a civil, rather than religious, concept?

kinnath|5.19.08 @ 9:36AM|#

Opponents of gay marriage aren't the ones running to the courts to overturn current law.

Defending the status quo, when the status quo is unconstitutional does not give one a position of moral superiority.

|5.19.08 @ 9:36AM|#

Whoa! No, I didn't. I said *in the context of marriage* the state can't make legitimate distinctions between adults as to their suitability for marriage. This onus is placed upon the state because of its monopoly and capacity for the use of force to enforce its decisions.

Let me ask you this - what would the public consequences be if nobody formed another bowling team, as opposed to the consequences of nobody forming another commercial enterprise. Would you agree that there are legitimate reasons why public policy grants prerogatives to commercial associations that it doesn't grant to recreational ones?

Another question - if nobody forms another gay relationship, what are the public consequences? Now, what are the consequences if nobody forms another hetero relationship? How does your society look in 10, 20 30 years? Would you agree that facilitating the continuance of your society is a legitimate public interest in every society except maybe suicide cults?

What is the public interest in bowling teams and gay relationships, such that they merit protection by public law?

I don't really have dog in this fight, as far as I'm concerned gay marriage is the public policy equivalent of a "NOP" instruction in assembly language - it does nothing besides burn cycles. Which doesn't stop me from noting anyone using the word "equal" in connection with it doesn't deserve any response besides getting a cream pie slapped in their face...

|5.19.08 @ 9:39AM|#

The right to say, "This is the person I'm married to."

You can say that right now (and I've heard gay couples actually say this, and people understand what they mean).

If it's no big deal to withhold "marriage," how can it be a big deal to grant it? You can't have it both ways.

Again, the ones making a big deal out of it are the ones who are trying to fundamentally alter a milennia-old institution for the sake of words.

kinnath|5.19.08 @ 9:44AM|#

Again, the ones making a big deal out of it are the ones who are trying to fundamentally alter a milennia-old institution for the sake of words.

Until you come up with an argument to prohibit two consenting adults from being joined in a marriage recognized by the state that does not rest on tradition, there isn't much point in carrying on this conversation.

|5.19.08 @ 9:44AM|#

Also, I might note that even if gay "marriage" becomes the law of the land in every state in the US, that's not going to change the minds of people who disapprove of homosexuality. It may even make them more resentful, especially those of us who were willing to let gay couples have the legal nuts and bolts of marriage without the word.

You are fighting for a word -- and that's what you may get. But don't expect any more approval.

|5.19.08 @ 9:47AM|#

Until you come up with an argument to prohibit two consenting adults from being joined in a marriage recognized by the state that does not rest on tradition, there isn't much point in carrying on this conversation.

I'll worry about that after you've shown how marrying a person of your own sex is a constitutional right.

|5.19.08 @ 9:49AM|#

Until you come up with an argument to prohibit two consenting adults from being joined in a marriage recognized by the state that does not rest on tradition, there isn't much point in carrying on this conversation.

Let's turn that around - most human associations are not recognized by the state, the exceptions being the ones that have an impact on the public at large.

Again, what is the public interest in gay relationships?

kinnath|5.19.08 @ 9:49AM|#

Also, I might note that even if gay "marriage" becomes the law of the land in every state in the US, that's not going to change the minds of people who disapprove of homosexuality.

We still have racist that can't stand the thought of mixed marraiges.

It may even make them more resentful, especially those of us who were willing to let gay couples have the legal nuts and bolts of marriage without the word.

That's your problem. Got bad news for you dude, you have no authority to "let" gay people have anything.

|5.19.08 @ 9:50AM|#

It seems to bit foolish to note that the public's opinion on gay rights has changed at a remarkable pace, call out a series of court-initiated events as evidence of that change, then decry the fact that a court made a ruling.

Vermont? The legislature passed their bill in response to a court ruling. Hawaii? Court ruling. Massachusetts? Court ruling. Gavin Newsome? Responding to the Massachusetts' court ruling. Connecticut and New Jersey? Passed their laws AFTER gay marriage has been in place in Massachusetts for years.

The reason this keeps happening is that the society's evolution on the issue is being driven by court rulings, just as it was during the Civil Rights era. Having black kids and white kids going to school together, and having black adults and white adults working and living side-by-side more, really did change the public's opinon on the issue. Having married gay couples living all over Massachusetts without the sky falling in, ditto.

Courtroom advances in their legal status and shifts in publc opinion aren't two mutually-exclusive or even contradictory dynamics. It's a feedback loop, and it goes both ways.

kinnath|5.19.08 @ 9:52AM|#

I'll worry about that after you've shown how marrying a person of your own sex is a constitutional right.

Go read the fucking judgement.

If the state establishes a legal framework that gives married couples automatic rights without the need to draft a contract (and those rights are very, very extensive), then the state cannot discriminate who can get married. It is straightforward equal protection stuff dude.

|5.19.08 @ 9:58AM|#

joe,

There were some court rulings in Nazi Germany that were influential on public attitudes toward Jews, as I recall. Social engineering via court rulings is a pretty dicey proposition, don't you think? Maybe we should just stick to, you know, following the Constitution.

|5.19.08 @ 9:59AM|#

Is Chris Potter really so determined to make sure that homosexuals are stigmatized that he wants the state to make up a Rube-Goldberg legal contraption in order to meet the equal protection standard without calling it marriage?

I know, Chris, let's call inter-racial marriages "civil unions" too, while retaining the term "marriage" for unions involving people of the same race. Hey, if they've got all the substantive legal rights, who could possibly object, right?

Abdul|5.19.08 @ 10:01AM|#

Again, what is the public interest in gay relationships?

The state could have several interests. As there are insufficient heterosexual unions willing to adopt orphaned children, and since no homosexual union can produce children, allowing legalized gay relationships would absorb more ophans out of government care into the private sector.

Secondly, cohabitating homoseuxals have no legal way of dividing property and assets in the event of a breakup. Without legal resolution, there must be some number of illegal resolutions such as theft or violence. Providing homosexuals with divorce would increase civil peace.

Elemenope|5.19.08 @ 10:01AM|#

What basis do you have for saying marriage is a civil, rather than religious, concept?

Thousands of years of history, which pretty clearly shows the primary purpose of marriage to be to have a system for distributing assets and land after a person bites the big one. *Plenty* of patently social regulations have been given the patina of religious justification to assist in their authority throughout history, and this is no different.

You are fighting for a word -- and that's what you may get. But don't expect any more approval.

Actually, there is good evidence to show that social approval sometimes follows, rather than proceeds, official action. It has a profound impact on the psychology of the generation reaching maturity during the time the decision takes place; perhaps it is a function of the new generation's natural impulse to rebel against the structures and values of their parents.

|5.19.08 @ 10:01AM|#

Yawn. Nazis. Yawn.

|5.19.08 @ 10:03AM|#

It is straightforward equal protection stuff dude.

The equal protection clause certainly doesn't apply to every situation in which the law makes life more difficult for one person than another. Does that mean it's unconstitutional for a county to require you to go to the county courthouse for a hearing, which favors people who live near the courthouse over those who live far away?

|5.19.08 @ 10:03AM|#

I'm in favor of gay marriage, and I'm not one for reading legal opinions, but I agree with Chapman regarding the practical implications of this decision. If it ultimately causes Californians to pass a constitutional amendment to ban gay marriage, what was actually gained? You can feel all high and mighty about your principals, but the net result is failure to attain your goal.

|5.19.08 @ 10:06AM|#

Chris Potter | May 19, 2008, 9:44am | #

Also, I might note that even if gay "marriage" becomes the law of the land in every state in the US, that's not going to change the minds of people who disapprove of homosexuality. It may even make them more resentful, especially those of us who were willing to let gay couples have the legal nuts and bolts of marriage without the word.

You are fighting for a word -- and that's what you may get. But don't expect any more approval.

Nope.

Public opinions on gay marriage have become much more favorable since the Goodridge decision, as people who used to be opposed to gay marriage have seen the reality of having gay married couples in their neighborhoods and state.

Just like opinions on desegregated schoold and workplaces changed in the wake of desegregation rulings.

Given the timing of the Connecticut and New Jersey laws being passed, I'd say that the effect of Vermont and Massachusetts' court-driven gay rights advances on public attitudes is pretty well-established.

The gay-bashers in Massachusetts realized this would happen, of course. That's why they mounted such a full-court press to put an anti-gay-marriage amendment on the ballot right away, and why they've since given up.

|5.19.08 @ 10:07AM|#

Thousands of years of history, which pretty clearly shows the primary purpose of marriage to be to have a system for distributing assets and land after a person bites the big one.

And during those thousands of years, marriage was also understood to be a relationship between a man and a woman. (Yes, I know polygamy existed before, but that was merely the co-existence of several marriages, not something fundamentally different.) So if you throw out milennia of history on that count, you really can't use those same milennia to argue for your point.

kinnath|5.19.08 @ 10:09AM|#

The equal protection clause certainly doesn't apply to every situation in which the law makes life more difficult for one person than another. Does that mean it's unconstitutional for a county to require you to go to the county courthouse for a hearing, which favors people who live near the courthouse over those who live far away?

Are you being obtuse on purpose? Or do you really equate living far from a court house with being deprived of legal protections against being compelled to testify against your spouse?

|5.19.08 @ 10:10AM|#

Does that mean it's unconstitutional for a county to require you to go to the county courthouse for a hearing, which favors people who live near the courthouse over those who live far away?

In this case, it is not the law itself that is making it more difficult for some than for others, but factors - geography and our inability to travel instantaneously - that make it more difficult.

Sometimes, the law has a duty to overcome these external inequalities, and sometimes it doesn't, but that's not what's at issue here.

In this case, the law itself has created the inequality. The only reason why it is harder for gay couples to form a marital union is because the law has made it so.

|5.19.08 @ 10:11AM|#

Yawn. Nazis. Yawn.

You're right. I should have used the SCOTUS decisions upholding the New Deal programs, which helped put in place the attitude that Mama Washington is responsible for feeding, clothing, and wiping the tears of all her little children (as well as keeping them off drugs).

Abdul|5.19.08 @ 10:12AM|#

Just like opinions on desegregated schoold and workplaces changed in the wake of desegregation rulings.

Which is why abortion remains completely uncontroversial to this very day, and many women even put the fact that they've had one at the top of their resumes.

|5.19.08 @ 10:12AM|#

When the anti-gay activists tried to get an amenmdment on the ballot, they couldn't even get 1/4 of the legislature to approve it.

This was two elections after the Goodridge decision, so the public had plenty of opportunities to work its will on the legislature. Not one pro-gay Senator of Rep lost his seat to an anti-gay challenger in those elections, although one anti-gay legislator lost his to to a pro-gay challenger.

|5.19.08 @ 10:13AM|#

In this case, it is not the law itself that is making it more difficult for some than for others, but factors - geography and our inability to travel instantaneously - that make it more difficult.

Yes, and in this case, the sexual orientation of the would-be spouse is making it more difficult for them to wed someone of the opposite sex, as is the right of any person under the law.

|5.19.08 @ 10:14AM|#

You're right. I should have used the SCOTUS decisions upholding the New Deal programs, which helped put in place the attitude that Mama Washington is responsible for...

Yeah, it really is just a left-right thing. It's striking how little effort it takes to get the anti-gay people to break down and admit that.

|5.19.08 @ 10:14AM|#

Abdul, have you ever looked at public opinion data about attitudes towards abortion? Comparing 1970 to the present?

Obviously not.

Abdul|5.19.08 @ 10:14AM|#

In this case, the law itself has created the inequality. The only reason why it is harder for gay couples to form a marital union is because the law has made it so.

You could just as easily say that gay person's genders made it more difficult.

The law allows Hooters to hire me as a waitress, but my gender makes it impossible.

Elemenope|5.19.08 @ 10:17AM|#

Another question - if nobody forms another gay relationship, what are the public consequences? Now, what are the consequences if nobody forms another hetero relationship? How does your society look in 10, 20 30 years? Would you agree that facilitating the continuance of your society is a legitimate public interest in every society except maybe suicide cults?

I missed this one the first time through, but glad I caught it.

Do you honestly, really believe that people will stop fucking and making babies if it stops being incentivized by the state?

Are you serious?

|5.19.08 @ 10:17AM|#

Yes, and in this case, the sexual orientation of the would-be spouse is making it more difficult for them to wed someone of the opposite sex, as is the right of any person under the law.

Sorry, Chris, you're pre-pwned by Loving vs. Virginia. Being able to marry someone you don't love, instead of your willing intended, is unequal.

|5.19.08 @ 10:17AM|#

joe,

By that standard, I guess the public really doesn't have a problem with the Iraq war, since Congress can't even pass a bill to stop it or even refrain from passing a bill to continue it. Also, the presidential candidate who couldn't be more pro-war is polling basically even with the one who's against it.

|5.19.08 @ 10:18AM|#

You too, Abdul.

You might as well argue that a law forbidding you from criticizing the president is Constitutional, because it still allows you to praise the president.

Abdul|5.19.08 @ 10:20AM|#

Joe,

My point is that court decisions don't always change social attitudes for the better. Dred Scott might be a better example. Even though the Supreme Court ratified the instituion of slavery, and it was Justice Taney's intent that the reputation of the court would quiet the increasingly rancorous public debate, the decision didn't mollify public opinion on the issue at all.

What's more, you probably don't want courts trying to influence public opinion too much. Sooner or later, courts will adopt a social position that you don't like and enshrine it into law.

|5.19.08 @ 10:20AM|#

Whatever. I'm not getting anything done today if I stick around here, and I'm sure no one's mind is going to be changed by the goings-on anyhow. You all know where I stand.

|5.19.08 @ 10:20AM|#

Bad morning, Chris? You usually comport yourself better in these arguments.

By that standard, I guess the public really doesn't have a problem with the Iraq war, since Congress can't even pass a bill to stop it or even refrain from passing a bill to continue it. The public handed the Republicans, and some pro-war Democrats in the primaries, an epic defeat starting in 2006 and continuing to last week, largely because of the Iraq War.

Not really the same thing as every single pro-gay-marriage legislator holding his seat, now is it?

Abdul|5.19.08 @ 10:22AM|#

Sorry, Chris, you're pre-pwned by Loving vs. Virginia. Being able to marry someone you don't love, instead of your willing intended, is unequal.

Which is why first cousins are able to marry in all fifty states.

Colin|5.19.08 @ 10:22AM|#

I agree with Chapman -- and I'm glad I'll be able to vote on this.

|5.19.08 @ 10:25AM|#

Abdul,

My point is that court decisions don't always change social attitudes for the better.

And my point is that, in cases where they expand civil rights and tear down old structures of discrimination, they do.

What's more, you probably don't want courts trying to influence public opinion too much. Sooner or later, courts will adopt a social position that you don't like and enshrine it into law.

A fine sentiment, and I'm certainly not arguing for courts handing down decisions for the purpose of influencing public opinion, in the absence of a constitutional necessity.

Mr. Chapman put forward an argument against the courts upholding equal protection, because of its effect on public opinion. I'm rebutting that, not making an argument for a jurisprudence built around social engineering.

Besides, it you are so hostile to the idea of the government taking actions for the purpose of shaping social attitudes, then how can you justify creating a Rube Goldberg legal device which only exists for the purpose of marking gay couples' families' as inferior or different?

|5.19.08 @ 10:25AM|#

gheys are the debil!

Ok, time to get to work.

Mark|5.19.08 @ 10:26AM|#

Chris Potter wrote:
"The equal protection clause certainly doesn't apply to every situation in which the law makes life more difficult for one person than another. Does that mean it's unconstitutional for a county to require you to go to the county courthouse for a hearing, which favors people who live near the courthouse over those who live far away?"

Apples and oranges. Your hypo does not involve a situation where the state has consciously determined to favor one specifically identifiable group over another. In legal terms, it comes down to the definition of a "suspect classification" requiring strict scrutiny. Put another way, and applying a view grounded more in Law and Economics, it is the difference between a policy that "happens" to benefit one group over another, and a policy that is "intended" to benefit one group over another.

|5.19.08 @ 10:29AM|#

Abdul,

Which is why first cousins are able to marry in all fifty states.

That, like anti-miscengenation laws, IS discrimination, for exactly the reasons I outlined.

The Constitution allows intrusions into the rights guaranteed to individuals, but subjects them to strict scrutiny. The state has to make a showing that such discrimination is done to advance an important public purpose, that the regulation is effective in addressing that purpose, and that it is narrowly tailored, so its impact will be limited as much as possible to its target.

There is no question that laws against first cousins marrying is the same type of discrimination as that which existed towards gay couples and interracial couples. The question is whether that discrimination meets the scrutiny test.

|5.19.08 @ 10:30AM|#

I think that social change requires a combination of natural progression/education and structural change - just one will get very little done, but a little of both can do a lot. I don't think this decision was so radical that it should warrant cries of forcing people to accept something they don't want to accept.

Abdul|5.19.08 @ 10:37AM|#

Besides, it you are so hostile to the idea of the government taking actions for the purpose of shaping social attitudes, then how can you justify creating a Rube Goldberg legal device which only exists for the purpose of marking gay couples' families' as inferior or different?

Where's your evidence that civil unions exist only for marking gay couples as inferior? It seems to me that we wouldn't grant gay unions any rights if we thought they were inferior. You think civil unions are second rate, therefore you impute that feeling to everyone else. Much in the same way that you've implied that anyone opposed to judicial activism is a homophobe.

Also, civil unions can be entered into by both homosexuals and heterosexuals.

Abdul|5.19.08 @ 10:41AM|#

There is no question that laws against first cousins marrying is the same type of discrimination as that which existed towards gay couples and interracial couples. The question is whether that discrimination meets the scrutiny test.

How come cousin-discrimination meets scrutiny in some states, but not in others? Why is prohibiting cousin marriage a compelling state interest in West Virginia, but not in Virginia? It's not interracial marriages are legal in some states but not in others.

dhex|5.19.08 @ 10:54AM|#

What basis do you have for saying marriage is a civil, rather than religious, concept?

my yearly federal tax form, for starters.

no jesus, buddha or krishna, but plenty of "married filing jointly" up in that bitch.

|5.19.08 @ 10:55AM|#

Abdul,

Where's your evidence that civil unions exist only for marking gay couples as inferior?

The legislative record of every state legislature that has ever adopted a civil-unions bill. Those who argued for the separate-but-equal marriage laws have always been quite explicit about their desire to preserve marriage for heterosexual couples, in order to uphold it as the "gold standard." Ditto for the arguments presented before, for example, the Supreme Judicial Court in the Goodridge case. The anti-gay side explicitly argued for the "fallback" position of only creating civil unions, in order to uphold heterosexual marriage as the preferred system. You can pretend I'm putting this novel argument forth because of my own opinions, but you've got a pretty serious reality problem.

It seems to me that we wouldn't grant gay unions any rights if we thought they were inferior. Huh? Southern states still provided schools for black kids during segregation - just inferior ones. No, this is not a binary system, but a heirarchy.

|5.19.08 @ 10:56AM|#

Why is prohibiting cousin marriage a compelling state interest in West Virginia, but not in Virginia?

Because West Virginians actually try to do it?

I keed, I keed!

|5.19.08 @ 10:57AM|#

How come cousin-discrimination meets scrutiny in some states, but not in others?

Becasue, in the American political system, each state has its own judicial system, which can rule all by themselves, and are under no obligation to harmonize their opinions with those of the courts in other states.

|5.19.08 @ 11:06AM|#

I am with Kip. I thought this article was a disgrace and should not have been published on a libertarian web site of all places. The notion that gays should wait a few generations for equality is smug and clearly coming from someone who is not gay and suffering from discrimation right now.

Also majoritarian rule is not what our republic is about. The balance of powers dictates the courts should be doing this very thing (interpreting rights provided in the constitution) and that rights should never be dictated by the majority. What a disappointment that reason employs someone who doesn't understand the basics of liberty.

Rhywun|5.19.08 @ 11:34AM|#

"Civil unions" do NOT have all the rights of marriage. Try to use one to keep your foreign-national partner in the country some time.

|5.19.08 @ 11:37AM|#

That raises an interesting point, Rhywun:

If a civil union law granted all of the benefits of marriage under the laws of the relevant state, would the fact that it does not provide certain protections found under federal law render it in violation of the state's equal protection laws?

What if the feds won't recognize the union even if the state calls it a marriage?

|5.19.08 @ 11:45AM|#

joe,

A state's equal protection clause only applies to state laws, not federal ones. Back to work now.

|5.19.08 @ 11:49AM|#

Do you honestly, really believe that people will stop fucking and making babies if it stops being incentivized by the state?

No, and I don't believe people will stop shitting if the government doesn't provide toilets in roadside rest-stops, either. But that isn't the point. The point is there are certain things that human beings have to do in order to survive, therefore it behooves us to design our institutions such as to accommodate performing those function in an orderly manner.

Are you serious?

Yes. Are you?

Elemenope|5.19.08 @ 11:59AM|#

The point is there are certain things that human beings have to do in order to survive, therefore it behooves us to design our institutions such as to accommodate performing those function in an orderly manner.

Sloppy fucking won't produce enough babies, and so end civilization? Wha...?

Funny thing is, as a general principle I agree with you; we should design our institutions much the way we design our cars; so as to best facilitate the function they are intended to provide.

I just don't think social stability or health is facilitated by denying a huge swath of the population access to a basic social institution.

|5.19.08 @ 12:01PM|#

@LarryA

The offensive part of your argument is that you are equating gay marriage with heinous conduct.

No, I'm doing exactly what people who are advocates for gay marriage on the premise of equal protection are - focusing on the superficial resemblances between the two situations while ignoring the very different consequences, and then declaring them to be equal.

|5.19.08 @ 12:08PM|#

I just don't think social stability or health is facilitated by denying a huge swath of the population access to a basic social institution.

It's amazing our civilization has survived so long without gay marriage.

The only thing more tiring than the "gay marriage=end of the world" scenarios are the "no gay marriage=end of the world" scenarios.

|5.19.08 @ 12:22PM|#

BTW - what should the voters exactly decide? If we should uphold the constitution or not? That would turn the whole gay-marriage issue into something much bigger and would touch every aspect of the law and society.

What is next - only FDA government approved Christian names may be given to babies. Or - only a government organization has the right to baptize you - anything else and you do not go to heaven? I know.. I know.. voters should decide.

kinnath|5.19.08 @ 12:30PM|#

It's amazing our civilization has survived so long without gay marriage.

You still haven't provided any objective reason beyond tradition that gay marriage should be banned. Do you have one?

|5.19.08 @ 12:39PM|#

Sloppy fucking won't produce enough babies, and so end civilization? Wha...?

I don't think it's the lack of babies that they're worried about.

I think the fear is that recognizing families headed by gay couples will somehow lead to greater promiscuity.

|5.19.08 @ 12:41PM|#

It's amazing our civilization has survived so long without gay marriage.

And by "survived" you mean "oppressed gay people"

|5.19.08 @ 12:55PM|#

It's amazing our civilization has survived so long without gay marriage.

And by "survived" you mean "oppressed gay people"

It's amazing our civilization has [oppressed gay people] so long without gay marriage

Nope, still doesn't make sense.

|5.19.08 @ 1:26PM|#

Re: Chris Potter | May 19, 2008, 9:21am | #

Whoa Nellie! Did you just say that the SCOTUS ruling school segretaion by race unconstitutional was wrong?
A-fucking-mazing.

|5.19.08 @ 1:30PM|#

The gay-bashers in Massachusetts realized this would happen, of course. That's why they mounted such a full-court press to put an anti-gay-marriage amendment on the ballot right away, and why they've since given up.

Actually, no it isn't. They gave up because the MA Supreme Court claims that the MA constitution cannot be amended in opposition to its gay-marriage ruling. The court has arrogated the right to say how and if the MA constitution can be amended. That kind of breathtaking judicial overreach is wrong no matter what side of this debate you're on.

♪|5.19.08 @ 1:57PM|#

kinnath
You still haven't provided any objective reason beyond tradition that gay marriage should be banned. Do you have one?

Self-evidency. It is objectively self-evident that two married dudes or two married chicks are married in name only, in some sort of strange and pitiful game of pretend.

kinnath|5.19.08 @ 2:06PM|#

Self-evidency. It is objectively self-evident that two married dudes or two married chicks are married in name only, in some sort of strange and pitiful game of pretend.

Everyone that is married is married in name only.

The marraige license comes with many benefits at both the state and federal levels. Laws depriving a class of people from participating in those benefits must pass strict scrutiny that there is some overwhelming benefit to society in order to pass constitutional muster.

Self-evidency is a long fucking way from passing that test.

|5.19.08 @ 2:11PM|#

Self-evidency. It is objectively self-evident that two married dudes or two married chicks are married in name only, in some sort of strange and pitiful game of pretend.

You just described most of the heterosexual marriages in the U.S.

kinnath|5.19.08 @ 2:12PM|#

Actually, no it isn't. They gave up because the MA Supreme Court claims that the MA constitution cannot be amended in opposition to its gay-marriage ruling.

I've seen a similar discussion on this matter elsewhere.

If one assumes that a law has been overturned because it violates one or more clauses of the constitution, then amending the constitution to embed that law within the constitution produces an internal conflict within the constitution -- the new clause still violates the other clauses.

In order to effectively ban gay marriage, it would be necessary to first strip the equal protection clause from the consitution. You cannot just add a ban to gay marriage.

♪|5.19.08 @ 2:22PM|#

kinnath
Laws depriving a class of people from participating in those benefits must pass strict scrutiny that there is some overwhelming benefit to society in order to pass constitutional muster.

I agree. But there are no such laws in the USA. Gays are allowed to marry just like anyone else.

Everyone that is married is married in name only.

That is not a very objectively reasonable thing to say. Some couples really are "married" and some are not.

|5.19.08 @ 2:23PM|#

If Libertarian has anything to do with freedom - why would we limit the freedom of a group of individuals.
There is a concept called tyranny of the majority. In the 1800s, would the majority of people vote for emmancipation.
Would catholic Italy in the 1500s allow divorce. Or would men in the 1700s allow women the vote. Or for that matter would England in the 1600s allow untitled plebians (much like the author of the article)the vote.

|5.19.08 @ 2:26PM|#

Gays are allowed to marry just like anyone else.

Under the Sedition Acts, people who hated the Federalists were allowed to praise John Adams just like anyone else.

Not really the point, is it?

|5.19.08 @ 2:31PM|#

Self-evidency. It is objectively self-evident that two married dudes or two married chicks are married in name only, in some sort of strange and pitiful game of pretend.

How is that self-evident? Examples, please, with particular attention to examples that illustrate the difference between "pretend" marriages of homos, and "real" marriages of straight people.

Suspect that ultimately, your arguments will devolve into dehumanizing the homos, but willing to give you enough rope with which to hang yourself.

kinnath|5.19.08 @ 2:31PM|#

Everyone that is married is married in name only.

That is not a very objectively reasonable thing to say.

Depends upon what "married" means doesn't it?

kinnath|5.19.08 @ 2:32PM|#

joe stole my closing italics tag.

Andy B|5.19.08 @ 2:33PM|#

"California voters-not judges-should decide the future of gay marriage"

Just as Antebellum Georgian voters should have been allowed to decide the future of slavery, not some hot-shot Republican President.

|5.19.08 @ 2:40PM|#

Ha ha ha ha ha i>ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha!!!!

|5.19.08 @ 2:41PM|#

...and I screw up the tagz.

Yes!

♪|5.19.08 @ 2:44PM|#

kinnath
Depends upon what "married" means doesn't it?

You're getting it now. You asked for an objective reason why gay marriage should be banned. In order to go about the problem objectively in any way, you have to have an objective concept of marriage.

kinnath|5.19.08 @ 2:51PM|#

You're getting it now. You asked for an objective reason why gay marriage should be banned. In order to go about the problem objectively in any way, you have to have an objective concept of marriage.

That's not relevant.

The question at hand is why a gay couple should be denied a marriage license, with all attendant benefits. Note that CA Supreme Court said that a seperate but equal "civil union" concept would be unconstitutional.

I have yet to see any opponent of gay marriage offer any objective criteria for denying a gay couple a marriage license.

|5.19.08 @ 2:56PM|#

If Libertarian has anything to do with freedom - why would we limit the freedom of a group of individuals.

What freedom is being limited? AFAIK, all we're discussing is what associations should be entitled to public recognition and attendant benefits.

That's a bit like saying my freedom is being limited because moderately well-to-do middle-aged white guys don't get to collect a welfare check...

♪|5.19.08 @ 2:59PM|#

Tonio
How is that self-evident? Examples, please, with particular attention to examples that illustrate the difference between "pretend" marriages of homos, and "real" marriages of straight people.

Can't you just trust me?

It starts with acknowledging there is such a thing as a "man" as distinct from a "woman" in more than just body parts. That is, there are real gender differences. Some people deny this against common sense observation.

♪|5.19.08 @ 3:05PM|#

♪
You're getting it now. You asked for an objective reason why gay marriage should be banned. In order to go about the problem objectively in any way, you have to have an objective concept of marriage.

kinnath
That's not relevant.
...
I have yet to see any opponent of gay marriage offer any objective criteria for denying a gay couple a marriage license.

If the very concept of marriage itself is not relevant then there can be no objective criteria for allowing or denying a gay couple a marriage license. You are being irrational.

If it doesn't matter what a marriage "is," then any criteria for allowing or denying a marriage license to anyone is, by definition, subjective.

|5.19.08 @ 3:07PM|#

I have yet to see any opponent of gay marriage offer any objective criteria for denying a gay couple a marriage license.

I have yet to see an advocate for gay marriage enumerate any public benefit accrued from it's recognition. Particularly salient to the point is that marriage is a matter of public law, and the object of public law is protecting and promoting public interests, not ensuring every little girl gets a pony for Christmas...

kinnath|5.19.08 @ 3:12PM|#

I have yet to see an advocate for gay marriage enumerate any public benefit accrued from it's recognition.

We're liberatrians, so we don't give a flying fuck about public benefit.

The issue is only whether or not it is constitutional to offer a civil contract that comes with tangible benefits (a marriage license) to one class of people (heterosexual couples) while denying it to another (homosexual couples).

|5.19.08 @ 3:12PM|#

It starts with acknowledging there is such a thing as a "man" as distinct from a "woman" in more than just body parts. That is, there are real gender differences.

It had better continue well beyond that, because this doesn't even beging to justify government discrimination.

I have yet to see an advocate for gay marriage enumerate any public benefit accrued from it's recognition. Particularly salient to the point is that marriage is a matter of public law....

Because marriage is a matter of public law, the Constitution requires that the protections associated with it be made available in a non-discriminatory manner. The government is only allowed to ignore the equal protection doctrine if it can be shown that the discrimination serves a broad public purpose.

We do not have to show that providing equal protection under the law serves any other purpose; that is provided equal protection is sufficient in and of itself. The burden is on those who would have the law discriminate.

|5.19.08 @ 3:15PM|#

It starts with acknowledging there is such a thing as a "man" as distinct from a "woman" in more than just body parts. That is, there are real gender differences. Some people deny this against common sense observation.

Uh, no examples there. Nobody is denying that there are real gender differences between men and women.

You're not doing anything to move the debate forward, just giving circular definitions.

Again, I challenge you to provide examples of how heterosexuals are somehow inherently capable of long-term loving commitments, and homos not.

Rhywun|5.19.08 @ 3:16PM|#

That is, there are real gender differences. Some people deny this against common sense observation.

True - and completely irrelevant to the topic at hand.

I have yet to see an advocate for gay marriage enumerate any public benefit accrued from it's recognition.

Check out some Andrew Sullivan sometime. He talks about it at length. Gay marriage provides some of the same public benefits as hetero marriage. Stable relationships, a better environment for any children that might be involved, etc. etc.

Mike Laursen|5.19.08 @ 3:29PM|#

However, if Chapman is right and there is a backlash that gets a constitutional amendment, it would seem counterproductive.

There's a sweeping assumption here that just because some initiative got on the ballot in California, and the majority voted for it, that it implies that the majority actually care a lot about the issue.

There are a shitload of initiatives on all kinds of random topics in every California election. Lots (maybe most) voters just pick Yes or No based on reading the little blurb describing the initiative while they are standing in the voting booth. Then forget all about it when they walk out of the booth.

|5.19.08 @ 3:30PM|#

Because marriage is a matter of public law, the Constitution requires that the protections associated with it be made available in a non-discriminatory manner.

Which brings us back to my earlier question - can the law not make a distinction as to what associations constitute a "marriage"? If not, wouldn't denying marriage benefits to street gangs, corporations, bowling teams and garage bands also be discriminatory?

Mike Laursen|5.19.08 @ 3:35PM|#

Let's keep in mind that -- unlike legislatures, bureaucracies and majoritarian mobs -- courts cannot, upon their own initiative, do anything. A lawsuit was filed (several in fact), the court resolved them. That's about as far from being "activist" as one can get.

Also, it's a silly accusation because this was not a "liberal" court. The justice who wrote the majority decision was a Republican appointee.

|5.19.08 @ 3:37PM|#

I agree to a point with voter initiatives and the will of the voter...but generally when it pertains to giving more rights to people...etc...like recall initiatives...medical marijuana...etc...etc.

I would wager there are a few states that given a vote would still have a slight majority that would vote in favor of banning interracial marriage. I would pose the following question to the author of this piece: If the majority of people in a state voted to ban interracial marriage in that state should that be the rule of the land for citizens of that state or should a judge find it unconstitutional? How does this differ?

Voter initiatives should be about restoring, enhancing, or protecting rights....not restricting them especially in a disciminatory manner.

kinnath|5.19.08 @ 3:42PM|#

i>Which brings us back to my earlier question - can the law not make a distinction as to what associations constitute a "marriage"? If not, wouldn't denying marriage benefits to street gangs, corporations, bowling teams and garage bands also be discriminatory?

What bullshit.

We haven't broached the subject of plural marriage yet, so we'll table the question on street gangs to a later date.

Corporations, bowling teams, and garage bands are voluntary associations, but they have absolutlely nothing to do with marriage.

Are you capable of answering the simple question? Why should it be constitutional to deprive homosexual couples of a marriage license with its associated benefits?

Robert|5.19.08 @ 4:10PM|#

Things went wrong long ago when people started associating love with marriage. In ancient times, people fucked who they wanted, and one coupling was chosen by arbitrary process (usually arranged by families at an early age) to determine which children would inherit the farm, while they continued to fuck and love who they wanted.

Now people expect romantic marriages, not only for themselves but for others, and what we see here is only a tiny bit of the problems that expectation leads to. It leads to awkward "dating", assumptions of fidelity, a world set up for singles and couples and no other categories, and absolutely unrealistic attitudes about children.

|5.19.08 @ 4:12PM|#

Pig Mannix,

Which brings us back to my earlier question - can the law not make a distinction as to what associations constitute a "marriage"?

It certainly can, but it cannot make such distinctions based on the personal characteristics (race, sexual orientation, whatever) of those who wish to enter such an association, without meeting the strict scrutiny test.

It may distinguish based on the features of the association itself - it involves hundreds of people, it is based on joint ownership of property - at will.

Robert|5.19.08 @ 4:12PM|#

Corporations, bowling teams, and garage bands are voluntary associations, but they have absolutlely nothing to do with marriage.

The same can be said regarding same sex couplings w.r.t. the purpose of marriage.

kinnath|5.19.08 @ 4:16PM|#

The same can be said regarding same sex couplings w.r.t. the purpose of marriage.

This snark has been used multiple times above. Try something new.

|5.19.08 @ 4:20PM|#

A lawsuit was filed (several in fact), the court resolved them. That's about as far from being "activist" as one can get.

By this definition, its impossible for any court to be activist, no matter what it does, as long as there is a case header at the top of the page. Please. Do we look that stupid?

Why should it be constitutional to deprive homosexual couples of a marriage license with its associated benefits?

Well, I think there are legitimate reasons for not overturning definitions of marriage that refer to "a man" and "a woman", but I frankly don't care much about that.

What I do care about is the courts staying in their proper sphere. The California court can throw out California marriage law (which is riddled with references to "a man" and "a woman"), but it can't legitimately interpret the language on the books or amend any statute to allow gay marriage. The court has the authority to throw out a law that doesn't allow gay marriages, but it doesn't have the authority to de facto enact a law that does.

I'm still not sure exactly what the court did (the opinion is hella long, never a good sign in cases like this), but I have a bad feeling.

kinnath|5.19.08 @ 4:35PM|#

Well, I think there are legitimate reasons for not overturning definitions of marriage that refer to "a man" and "a woman", . . .

I can't think of any.

|5.19.08 @ 5:01PM|#

I felt pretty much the same until I saw video put together by LGBT community in MA (I live in very gay neighborhood of Boston). The video was shown as part of fund raising drive to keep gay marriage off the ballot. Till then I wanted to let people vote and finally settle the issue. But the video detailed the loss of a ballot measure in MN (I think). That and further thought on the issue of allowing the majority to vote on the rights of the minority even led me to donate money to keep it of the ballot. I am still glad it wont be voted on.

|5.19.08 @ 5:06PM|#

Reason: the magazine of "you have no rights that aren't explicitly mentioned in the Constitution."

Wow.

|5.19.08 @ 5:25PM|#

It's been only 15 years since the Supreme Court of Hawaii shocked the country by ruling that gays might have a constitutional right to marry.

And less than 15 years since the voters in Hawaii amended the state Constitution to outlaw state-recognized gay marriage by a 70-30 margin, the charge being led by a person currently serving as a Democratic state senator.

|5.19.08 @ 5:29PM|#

In order to effectively ban gay marriage, it would be necessary to first strip the equal protection clause from the consitution. You cannot just add a ban to gay marriage.

Assume this to be true. So what? The MA Supreme Court claims that the MA constitution can't be amended without its consent. That's just plain wrong. It cannot be a violation of the MA constitution to amend the MA constitution. The amendment could expressly define the marriage ban to be an exception to the equal protection clause and thus would not be in conflict with it. Moreover, it is a standard tenet of legal construction that where conflicts arise the later clause supersedes the earlier. No, this is a straight-up judicial power-grab.

Mike Laursen|5.19.08 @ 5:33PM|#

For further proof, consider that while the California constitution forbids discrimination on the basis of "sex, race, creed, color, or national or ethnic origin," it does not forbid discrimination on the basis of sexual orientation. The justices somehow found something in the document that the authors thought they omitted.

I'm not sure where Chapman got this information. Section 7 (b) of the California Constitution says: "A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens. Privileges or immunities granted by the Legislature may be altered or revoked."

|5.19.08 @ 5:36PM|#

However, granting the fact that the state is in the marriage business, it is a legitimate libertarian concern that the state recognize and respect rights of people irrespective of any special status. If two people love each other, if the state has a monopoly on marriage, it is not legitimate for it to deny access to a couple if they happen to be the same gender.

Why "If two people love each other"? Are you incensed by the state not recognizing gay marriages, but OK with them discriminating against polygamous marriages?

Why "If ... people love each other"? Shouldn't your broad-minded view also allow bestiality to be recognized by the state?

Or should it be defined as "The state has a moral obligation to recognize those private marriages I find acceptable, and a similar duty to reject recognition of those marriages I personally find gross and reprehensible?"

I reject the right of the state to officially recognize ANY private marriage. Their role should be confined to enforcing private contractual terms related to what people may or may not choose to call "marriage".

Rhywun|5.19.08 @ 5:40PM|#

voters in Hawaii amended the state Constitution to outlaw state-recognized gay marriage by a 70-30 margin

The thought of pairs of tuxedo'ed faggots striking so much fear in the hearts of heterosexual America would be amusing if it weren't so sad.

bestiality

And with that, the thread has officially gone off the rails.

Mike Laursen|5.19.08 @ 5:41PM|#

I reject the right of the state to officially recognize ANY private marriage. Their role should be confined to enforcing private contractual terms related to what people may or may not choose to call "marriage".

Would you trade some of you're purity of libertarian principle if you could see more liberty in the real world?

MJ|5.19.08 @ 6:40PM|#

"Nobody is denying that there are real gender differences between men and women." - Tonio

If you say the concept of "equal protection" mandates that the state must recognize same sex marriages, then yes, you are denying that there are real gender differences between men and women. Marriage was developed as an institution in recognition of the gender differences between men and women in a family and to provide a structural framework for acommodating them and raising the children. To claim that a romantic relationship between a same sex couple has the same consequences to the persons involved as a hetero couple and is therefore equivalent denies biological fact.

Now perhaps, Tonio, you have not thought through the logic of your position and do not realize what you actually advocate, but it is what it is.

MJ|5.19.08 @ 6:49PM|#

"...what should the voters exactly decide? If we should uphold the constitution or not?"

Well, that's part of the problem isn't it? Whether or not the CA Supreme Court's ruling has much to do with what's actuall in the CA constitution?"[f]rom the beginning of California statehood, the legal institution of marriage has been understood to refer to a relationship between a man and a woman." - Majority opinion.

"Nothing in our Constitution, express or implicit, compels the majority's startling conclusion that the age-old understanding of marriage - an understanding recently confirmed by an initiative law - is no longer valid. California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow. If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means."- CA Associate Justice Marvin R. Baxter (writing in dissent).

So what justifies the majority's ruling? What has changed in the law that mandates the majority's logic? Beyond that four of the seven justices have come to believe that same-sex couples are the social functional equivalent of a male-female pair? Which by the facts of biology simply is not true.

3pr|5.19.08 @ 6:57PM|#

To me, the article exposes the flaws in strict codified constitutional government. Using a constitution, even a vague short one, cannot possibly forsee future problems and this is a clear example of that.

MJ|5.19.08 @ 6:58PM|#

"Why should it be constitutional to deprive homosexual couples of a marriage license with its associated benefits?"

Because homosexual couples are not equal to heterosexual couples. There are different consequences for the persons involved and a significant interest for society in the stability of heterosexual pairs.

MJ|5.19.08 @ 7:06PM|#

"Also, it's a silly accusation because this was not a "liberal" court. The justice who wrote the majority decision was a Republican appointee."

"Republican" and "liberal" are not mutually exclusive terms. What is SCOTUS Justice Souter if not a liberal in the modern sense by any reasonable definition of the word?

jimmy|5.19.08 @ 7:37PM|#

MJ, i love how my relationship with my partner can somehow destroy the "stability of heterosexual pairs." is hetero marriage really that fragile? that's pretty sad.

BTW who is this "society" who has an interest in heterosexual marriage anyway? there are NO GROUP RIGHTS...a right is something held only by an individual. basic legal jurisprudence as well as basic libertarian dogma. try to keep up with the rest of the class.

MJ|5.19.08 @ 7:54PM|#

jimmy, I wrote that society has an interest in the stability of hetero sexual and none in homosexual pairings, not that your relationship has any direct negative effect on anyone else's relationship.

And "society" is the same group of people who institute governments among men.

You may wish to comprehend what you read before you comment on it.

kinnath|5.19.08 @ 8:17PM|#

Because homosexual couples are not equal to heterosexual couples.

Says who? It is true that a homosexual couple is not the same as a heterosexual couple. However, we hold these truths to be self-evident that all men are created equal and they are endowed with certain unalienable rights, among these are life, liberty, and the pursuit of happiness. You cannot argue that the individuals involved in either couple have different rights under the law to form a union and receive all benefits accorded under the law.

There are different consequences for the persons involved and a significant interest for society in the stability of heterosexual pairs.

I see that claim a lot, but it is utter bullshit.

Society has no rights, only individuals have rights.

Society has no compelling interest in the relationship between two consenting adults.

The best solution is to get the government out of the marriage business altogether. But as long as the government provides benefits according to a marriage license, the government must provide equal benefits to all couples regardless of the gender of the individuals within each couple.

MJ|5.19.08 @ 9:04PM|#

kinnath, says you. You admit the relationships are different. If they are different, then that is a compelling reason to treat them differently. It does not matter that the individuals involved are equal, because the relationships are not.

"Society has no rights, only individuals have rights."

Society has legitimate interest in punishing you if you prove yourself to be a danger to others, among other things. You are making an argument against governmental powers in all cases. If you are that much of an anarchist, then you are a utopianist crank and not worth arguing with.

"Society has no compelling interest in the relationship between two consenting adults."

Really? There is no interest in seeing that the children produced have stable home to grow up in? There is no interest in seeing that a woman who gives up significant amounts of her working life to bear and raise children not be cast aside without protection when she's lost her youth? There is no interest in seeing that a father has recourse to stay involved in his children's lives when their mother decides he's stifling her freedom? If you say no, then you are the one spouting utter bullshit. The problems inherent to single parent households that have resulted because of the weakening of marriage as the preferred family arrangement are legion and have had tremendous negative impact on our civilization.

"The best solution is to get the government out of the marriage business altogether."

And how exactly does that work? On pixie dust and good wishes?

|5.19.08 @ 9:20PM|#

I do think it a libertarian issue and I don't think it ought to go to popular vote. Would a popular vote in 1941's Germany be the way to state the rights of Jews? Should blacks have been happy with Jim Crow until white voter's grew tired of it?

Chapman is wrong that this is a democracy. The founders established a republic and didn't think the rights of minorities depended upon the altruism of majorities. In California the legislature had supported gay marriage twice, and the governor is now on board. The representatives who were elected to make the laws approved it and the court said that the one obstacle that stood in the way is not valid.

And I remind people that if you are part of the anti immigration crowd that you have to have marriage laws if just for immigration purposes.

I'm opposed to the referendum. I don't think that a law, which violates rights, is valid no matter how big the majority. Libertarians are advocates of individual rights not advocates of majority rule.

kinnath|5.19.08 @ 9:22PM|#

If they are different, then that is a compelling reason to treat them differently.

No, not all. White people, black people, brown people, red people, and yellow people are all different. The government must treat them equally.

Young people and old people are different, and the government must treat them equally.

Heterosexuals and homosexuals are different, and the government must treat them equally.

It does not matter that the individuals involved are equal, because the relationships are not.

The fact that the individuals have equal rights is the only thing that matters.

Society has legitimate interest in punishing you if you prove yourself to be a danger to others, among other things. You are making an argument against governmental powers in all cases. If you are that much of an anarchist, then you are a utopianist crank and not worth arguing with.

It's just a jump to the left
And then a step to the right
With your hands on your hips
You bring your knees in tight
But it's the pelvic thrust that really drives you insane,
Let's do the Time Warp again!

There is no interest in seeing that the children produced have stable home to grow up in?

Are you claiming that children cannot be raised by a homosexual couple. Because if you are, you are wrong.

There is no interest in seeing that a woman who gives up significant amounts of her working life to bear and raise children not be cast aside without protection when she's lost her youth?

Blatant sexism.

However, the supporting role that you elude to could just as easily be fulfilled by the woman's lesbian spouse as well as by a male spouse.

There is no interest in seeing that a father has recourse to stay involved in his children's lives when their mother decides he's stifling her freedom?

With rights comes responsibilities. A father that abandons his children is lower than dirt. A woman that abandons her children is lower than dirt.

Any couple that starts a family, gay or straight, is making a two decade commitment to raise that family. Whether the state has a role in enforcing that responsibility is a separate topic.

The problems inherent to single parent households that have resulted because of the weakening of marriage as the preferred family arrangement are legion and have had tremendous negative impact on our civilization.

Assuming that you are correct, this has no actual bearing on the topic of gay marriage.

|5.19.08 @ 10:20PM|#

Reason disappoints me. Gays and straights have equal rights to marry whomever they choose. (Equal rights) Voters don't get to have an opinion.

MJ|5.19.08 @ 10:28PM|#

The government can treat people equally while treating their various relationships with other people differently when the consequences of that relationship are different.

"Are you claiming that children cannot be raised by a homosexual couple."

I am stating the fact that children cannot be produced by a homosexual couple. I am stating the fact that the consequences of biology that make men and women different and have different roles in the family do not apply to homosexual couples.

"Whether the state has a role in enforcing that responsibility is a separate topic."

Then how do you propose it be enforced? Since the state has been taking that role for a long time. Are you such a fool that you have given no thought to what method you'd have in it's place before recommending the existing one be torn down?

"...this has no actual bearing on the topic of gay marriage."

It has a bearing on why society has such an interest in heterosexual couples that it created marriage as a structure for that kind of relationship.

kinnath, you have a penchant for dishonest argument, or you are so hung up on what on your own train of thought is that you cannot understand another person's point of view enough to come with a reasoned refutation of it.

Mike Laursen|5.19.08 @ 11:06PM|#

Marriage was developed as an institution in recognition of the gender differences between men and women in a family and to provide a structural framework for acommodating them and raising the children.

I'm not sure it's accurate to characterize marriage as something that "was developed." Evolved maybe. And it has other traditional purposes, like preserving family wealth through inheritance.

Mike Laursen|5.19.08 @ 11:12PM|#

So what justifies the majority's ruling?

The case was brought before the court, and they decided that they had to rule the way they did because of the California Constitution's equal protection clause.

Mike Laursen|5.19.08 @ 11:14PM|#

To me, the article exposes the flaws in strict codified constitutional government. Using a constitution, even a vague short one, cannot possibly forsee future problems and this is a clear example of that.

What problem has arisen from allowing gay couples to legally marry?

|5.19.08 @ 11:19PM|#

MJ - serious question: if the government has a compelling interest to promote stability through heterosexual marriage, why do you believe that this somehow can be undone through adding more individuals to the class of "marrieds".

Secondly - should childless, married couples receive tax breaks? Should couples have to declare to government that they are having children before they are legally permitted to obtain a marriage license? A lot of your arguments seem to hinge on providing stable homes for children: what if the licensed couple doesn't have children?

Mike Laursen|5.19.08 @ 11:22PM|#

Are you such a fool that you have given no thought to what method you'd have in it's place before recommending the existing one be torn down?

What has been torn down? Did the Court take away the rights of heterosexual couples to legally marry?

|5.19.08 @ 11:31PM|#

Really? There is no interest in seeing that the children produced have stable home to grow up in? There is no interest in seeing that a woman who gives up significant amounts of her working life to bear and raise children not be cast aside without protection when she's lost her youth? There is no interest in seeing that a father has recourse to stay involved in his children's lives when their mother decides he's stifling her freedom?

I am failing to see how adding to the class of "individuals permitted to obtain a marriage license" somehow has any bearing on these issues.

|5.20.08 @ 3:55AM|#

Ah yes, we always get back to the "but men and women can have TEH BAYBEEZ together and TEH GAYS can't!"

I take it MJ is also insisting that a) we have fertility tests for all married couples, b) any couple that decides to not have children is ipso facto automatically divorced, and c) as soon as either of the partners become infertile (either through age or other accidents) they also must then get divorced? (I also take it that infertile (hetrosexual) couples who adopt a child are doing a big nasty no-no?)

Your bloody argument doesn't stand up.

|5.20.08 @ 5:23AM|#

I take it MJ is also insisting that a) we have fertility tests for all married couples, b) any couple that decides to not have children is ipso facto automatically divorced, and c) as soon as either of the partners become infertile (either through age or other accidents) they also must then get divorced? (I also take it that infertile (hetrosexual) couples who adopt a child are doing a big nasty no-no?)

Do you insist that every corporation shows a profit and creates jobs to maintain incorporation, every stop light proves it prevents a fatal accident to justify putting stop lights at intersections, every dog is proved to be susceptible to rabies to justify ordinances requiring rabies shots? I doubt it.

As most people with a brain in their head understand, our laws and institutions aren't necessarily designed to mandate specific outcomes, many of which couldn't be mandated anyway, the object is to facilitate an environment where desirable outcomes are possible.

Nobody with sense believes all corporations will produce profits and create jobs, all stop lights will prevent accidents, and all rabies shots given to dogs prevent a case of rabies in every case.

However, the fact that those laws will not create the desired outcome in each and every case does not justify applying them in situations where those outcomes are not even possible. An argument for incorporating bowling teams, putting stop lights out on country roads far from any intersection, and giving rabies shots to canaries on the principle of "equal protection" is not convincing....

The measure of laws and institutions is not whether they produce a desirable outcome in each and every circumstance, but whether desirable outcomes are produced more often then they otherwise would be.

If you insist your laws justify themselves by producing favorable outcomes 100% of the time, best of luck! You won't have any laws at all, because no law ever written has ever met that standard.

|5.20.08 @ 5:33AM|#

Society has no rights, only individuals have rights.

Society has no compelling interest in the relationship between two consenting adults.

Uh, then to whom are you appealing to for this "right to marry"?

Nobody is stopping you from forming any kind of relationship you like, or making any kind of agreement concerning common property or division of responsibilities you like.

Considering that what you are demanding, specifically, is the sanction of society, turning around and claiming it has no sanction to give is ridiculous. Just what the hell are you arguing for, anyway?

MJ|5.20.08 @ 7:06AM|#

"What has been torn down?"

It is not what has been torn down but what kinnath and others want to tear down ("The best solution is to get the government out of the marriage business altogether."), and have no explanation for what would take its place.

"I am failing to see how adding to the class of "individuals permitted to obtain a marriage license" somehow has any bearing on these issues."

As I was justifying what interest society has in the structure of heterosexual relationships. My ultimate point is that "equal protection" does not require the state to offer same sex marriages, as they are not equal to heterosexaul relationships.

|5.20.08 @ 7:37AM|#

As I was justifying what interest society has in the structure of heterosexual relationships. My ultimate point is that "equal protection" does not require the state to offer same sex marriages, as they are not equal to heterosexaul relationships.

I see...you admit that it has no bearing.

kinnath|5.20.08 @ 9:15AM|#

I am stating the fact that the consequences of biology that make men and women different and have different roles in the family do not apply to homosexual couples.

The consequences of biology are not directly related to the legal structure called "marriage". Married people get tax breaks (regardless of whether they have children). Married people automatically have a say in the medical treatment of their spouses when their spouses are incapacitated. In these cases, the spouse's will trumps blood family. Married people cannot be forced to testify against each other. Spouses have automatic rights to inherit if a married persion dies. Etc Etc Etc.

kinnath, you have a penchant for dishonest argument, or you are so hung up on what on your own train of thought is that you cannot understand another person's point of view enough to come with a reasoned refutation of it.

I sorry dude, but the only thing is see from in you is latent bigotry. Your defense of heterosexual marriage is based on a storybook a view of history that is far from the reality of marriage throughout the ages.

And even if your view of the past was close to being accurate, it has absolutley no fucking relevance as to whether or not the constitution allows discrimination against homosexuals.

Slavery was with us for thousands of years, and still persists in some parts of the world. It is unfortunate that it took the US a hundred years or so to abolish it, but it did eventually get around to fulfilling the plain letter requirements of the constitution.

It is not what has been torn down but what kinnath and others want to tear down ("The best solution is to get the government out of the marriage business altogether."), and have no explanation for what would take its place.

Gee, we could strip the concept of marriage out of the laws and let people draft private marriage contracts (people use Quicken Marriage Serivces for simple contracts).

But that is not what I am actually advocating. What I said was as long as the state provides rights and privileges to married couples, it cannot discriminate against who can get married.

♪|5.20.08 @ 12:20PM|#

kinnath
The consequences of biology are not directly related to the legal structure called "marriage". Married people get tax breaks (regardless of whether they have children). Married people automatically have a say in the medical treatment of their spouses when their spouses are incapacitated. In these cases, the spouse's will trumps blood family. Married people cannot be forced to testify against each other. Spouses have automatic rights to inherit if a married persion dies. Etc Etc Etc.

Ah! You are finally getting around to defining what marriage is. Before you said it didn't matter.

So... marriage is tax breaks and whatnot. If that is what marriage is, I'd marry my next door neighbor or roommate or Aunt or whoever I trust to make medical decisions for me or divvy up my inheritance and enjoy tax breaks with. If that is marriage, I agree. It doesn't matter who gets married. Also, those things can be contractually obtained without a "marriage license."

Mike Laursen|5.20.08 @ 12:56PM|#

So... marriage is tax breaks and whatnot.

Yes, exactly. Add in some laws about child custody and, legally, that's what marriage is.

If that is marriage, I agree. It doesn't matter who gets married.

This is great! Glad to hear you say that. We agree.

Also, those things can be contractually obtained without a "marriage license."

True, you can set up the contractual equivalent of marriage with a lot of paperwork. Or you could just get married.

Regardless, the California constitution says that the law must treat everyone equally -- so, if California offers marriage for one class of people, it has to provide it for others.

♪|5.20.08 @ 1:21PM|#

♪
Also, those things can be contractually obtained without a "marriage license."

Mike Laursen
True, you can set up the contractual equivalent of marriage with a lot of paperwork. Or you could just get married.

What if we made it ridiculously easy (easier than actual marrage) to set up such contracts but make it clear the two are not "married"?

I seriously doubt this whole fight is about tax breaks and medical decisions.

Regardless, the California constitution says that the law must treat everyone equally -- so, if California offers marriage for one class of people, it has to provide it for others.

Of course it does, and always did. Gays could always marry. I don't know what's so hard about that concept.

What about the class of people like me, who don't want to get married. I should be treated equally in my decision not to marry. Where's my tax breaks? Who is automatically going to make medical decisions for me? Waaaaaa!

Edintally|5.20.08 @ 1:55PM|#

If you felt your rights were at stake, I wonder how interested you would be with cautious progression.

If it's the right thing to do then it's the right thing to do regardless of some people's queasy feelings to the contrary.

Mike Laursen|5.20.08 @ 2:22PM|#

What if we made it ridiculously easy (easier than actual marrage) to set up such contracts but make it clear the two are not "married"?

But why do you care if they want to call themselves married? Especially, since you personally don't even want to get married. How does it diminish your life in any way? What happened to the good old fashioned values of minding one's own business and live and let live?

|5.20.08 @ 5:01PM|#

You provide a list of things for which discrimination is banned (sex, race, etc) and seem to believe that since homosexuality is not mentioned, it may be okay to discriminate on that basis. The list in the constitution does not include discrimination based on baldness, extra toes, or a host of other characteristics. I guess you believe it okay to discriminate on those bases also. Or, is it possible that in the US, our government should not discriminate on any basis.

Another fallacious reasoning in your essay is the statement concerning the majority not needing to be right in order to rule. One very real concern of our fore fathers was preventing tyranny of the majority. This is a reason for many of the balances in our Constitution. Tyranny is not acceptable in our governance whatever form it may take.

I agree that this is not the best time for this action to have been taken. It is a few decades LATE.

Trevor|5.20.08 @ 6:06PM|#

The tag line,

"California voters-not judges-should decide the future of gay marriage"

Is offensive to most libertarians (rightly so), but it's a deceptive summary and doesn't hold to your entire article.

The point you made is something many in the gay community are also making: the judges are condemning gay marriage by forcing a vote. I'm not sure some of the commenters read your entire article.

|5.20.08 @ 6:11PM|#

Society (the people) trump the courts and the government. Too bad too many don't seem to understand the basics of our system. The judges ARE NOT in charge. The judges, even when confirmed by the people, are still subordinate to the people. The state constitution is subordinate to the people of the state because the people of the state created the state constitution. Any law passed BY the people of a state is equivalent to the state constitution and cannot be unconstitutional. See the Declaration of Independence for a better understanding of "alter or abolish"...

"For, whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself: there is not upon earth any other tribunal to resort to.

Sir William Blackstone, Blackstone's Commentaries on the Laws of England, Book I, Chp3, pg.205/6"

So once more we find judges pretending to be in charge, overriding the authority of the people. Wake up. Learn who is in charge and stop letting THEM (government) usurp authority they do not have.

Mike Laursen|5.20.08 @ 9:01PM|#

So, FWB, if the people decided that it's their will that you had to marry another man, that would be fine with you? After all, it would be the will of the people.

|5.20.08 @ 11:36PM|#

Holy s**t, Batman!!! There is a HUGE cross section of posters (both pro and con) on this topic who need to reevaluate what it means to be libertarian. Half of the numbnuts are arguing for government enforced sanction of a personal choice, and the other half are arguing for a goverment enforced ban on the same personal choice. Both arguments do nothing more than waste my tax dollars in court.

I, for one, could care less who puts what in whom. And anyone, ANYONE who talks to me about "the good of society" or the "right of society" to regulate (or allow?!) personal behaviors that don't infringe on the rights of others needs to reconsider their political views.

As a fairly intelligent person once said, "It's amazing how many people seem to think that the government exists to turn their prejudices into laws."

|5.20.08 @ 11:41PM|#

And BTW, as ole Willie Vanderbilt said, "the public be damned". To that I would add, f**k the "will of the people" in their little brown eye. Whoops, does that make me gay??

|5.24.08 @ 3:54PM|#

I'm all in favor of judicial activism. It keeps the 51 from taking away the rights of the 49.