Legislating Freedom from the Bench

The case for legalizing gay marriage by "judicial decree"

Terry Michael | October 28, 2008

As a 61-year-old, un-partnered, gay, atheist libertarian, I react with mixed emotion but some agreement to arguments against activist judges imposing same-sex marriage.

Such a case was published recently by one of the most persuasive libertarian-minded essayists in daily print journalism, Chicago Tribune columnist Steve Chapman. "Massachusetts, California and (just this month) Connecticut have all legalized gay marriage the wrong way—by impatient, unpersuasive judicial decrees," Chapman wrote. "Now California voters have the chance to do it the right way—by the free consent of the governed."

Part of that makes sense. With fewer divisions than the Pope, courts can ill-afford to jump too far ahead of the culture. To do so invites rebellion by activists, like those in California who initiated Proposition 8, which was placed on the ballot this November in an effort to nullify the state supreme court's May decision allowing same sex couples to wed.

I would remind Steve Chapman of something written about a hundred years ago by his fellow Chicago newspaperman, Finley Peter Dunne, as voiced by his famous fictional Irish pub character Mr. Dooley: "The Supreme Court follows the election returns." Certain they can read the minds of the Founders by perusing the Constitution's text with their conservative imaginations, even rabid originalists like Antonin Scalia might acknowledge that truth (though it might take a few drinks at Mr. Dooley's tavern for Scalia to come around).

Mr. Dooley made enduring good sense, because justices, one way or another, are products of elections. Many state justices have been directly elected. And those in Massachusetts and Connecticut, though theoretically shielded from the whims of the masses by appointment, are usually politicians named by other politicians, and confirmed by still other elected officials.

So it strikes me as curious that Chapman argues that appointed judges aren't following the "the free consent of the governed."

Pollsters have found significant percentages of voters in the left and right coast states backing gay marriage. A Survey USA poll released just two weeks before Proposition 8 will be decided showed support and opposition running within the margin of error (48 percent for, 45 percent against, and 7 percent undecided).

In fact, a third or more of adults nationwide now tell researchers they back same-sex marriage. But there is a real regional difference, with support at 51 percent in both the West and East, but only 35 percent in the Midwest and 30 percent in the South, according to a Gallup poll taken just a week after the California court ruled on May 5. Even more interesting, however, is how far the culture has moved just since the mid-1980's, when over 80 percent of Americans opposed gay unions. By the mid-1990's, that number had dropped to about 65 percent. And now, according to the Gallup poll from this year cited above, opposition has declined another 10 points.

Contrast where the culture has moved in just a few years on gay marriage with public attitudes towards school desegregation in 1954, when, with Brown v. Board of Education, the Supreme Court completely reversed its Plessy v. Ferguson ruling of 1896. Plessy sanctioned segregation by claiming separate facilities for blacks were not a violation of the equal protection clause of the 14th Amendment.

Shortly after the 1954 Court "decreed" an end to segregation, a May 1954 Gallop poll showed that only a bare majority—55%—of Americans nationwide approved of the decision, and 40% opposed it—very close to the current division on gay marriage. You don't need a pollster to calculate the tiny percentage of voters in Southern states who would have tolerated integration then.

Should the Court have waited for Southern voters to fall in line before overturning Plessy? And, 54 years later, should state courts wait for electoral majorities to extend gay men and women the fundamental contractual right of marriage enjoyed by heterosexuals? Opponents of gay marriage, like 19th century proponents of segregation, essentially are claiming the right to protect their cultural and religious beliefs by enshrining them in law. Both Republicans catering to a socially conservative base, and "liberal" Democrats appeasing a divided center, now argue that gays and lesbians can enjoy the same rights afforded to straight couples through contract law, while reserving the term "marriage" for heterosexuals. But they're being disingenuous. To be consistent, they'd support civil unions for straights, who could then take their state-issued licenses to priests, rabbis, and pastors and be blessed as "married."

Where you stand on gay marriage is surely influenced by where you sit in the gay-straight divide. Steve Chapman, who usually does a great job of upholding the most important original intent of our Founders—liberty—doesn't seem to get the urgency of those who are tired of sitting at the back of this particular bus. Even as he gives lip service to what he calls "a noble goal designed to serve both individual freedom and social health," he argues that "a wholesome end doesn't justify every possible means."

A few years ago, I would have been more sympathetic to the "wait-for-the-voters" approach. Never a fan of marital bliss, I find myself empathizing with Texas humorist and heterosexual Kinky Friedman's backhanded support for gay marriage: "Because (gays) have a right to be just as miserable as the rest of us."

But as a libertarian, I have no problem with any court actively "legislating" a fundamental extension of freedom of choice and equal protection of the law. The time to wait for voters has passed. The time to decree this liberty is now.

Terry Michael is Director of the non-partisan Washington Center for Politics & Journalism and former press secretary for the Democratic National Committee. He blogs at www.terrymichael.net.

Comments

|10.28.08 @ 3:03PM|#

Terry Michael, he's the "libertarian-democrat" yes?

|10.28.08 @ 3:13PM|#

Look, a joke's a joke, but Bert and Ernie are not gay. I happen to know for a fact that Bert was caught at the Emperor's Club around the same time as Eliot Spitzer, while in flagrante delicto with some high-priced call girl.

|10.28.08 @ 3:20PM|#

Okay, now having read the article, it's a load of "the courts should rule this way because they did so in the past" fluff.

Let me establish up front, I am all for 'gay marriage'* or the equivalent civil union. Indeed, I am for polyamory as well(against the polls I'm sure).

That having been said, the public sentiment is turning less negative about gay relationships and 'gay marriage' in general and will continue to do so provided that "activist judges" don't step on the toes of the governed. Revolutions are usually neither smooth nor effective at achieving the desired result.

This nation is, or at least should be, a hodgepodge of "experiments in democracy" and having a court, particularly the SCOTUS, tell a state what it should and shouldn't do in the name of "following the election returns" is bogus. If the election returns (voter initiatives as well as representation), on a state by state basis support it then it should become legal state by state. Granted, the 14th amendment throws a big monkey wrench into that but I think you see my point.

*note, these are not scare-quotes but rather delineation quotes for those who will claim that "marriage is the right of God".

|10.28.08 @ 3:20PM|#

Interesting how proponents of gay marriage have a hard time distinguishing intimate same-sex friendships from homosexual relationships. Hence Frodo and Sam, Kirk and Spock, Bert and Ernie MUST be gay because they're pairs of guys who are around each other all the time, is that it?

nj|10.28.08 @ 3:27PM|#

Twix makes some good points. It's only a matter of time before the electorate accepts gay marriage ( we are really close). Going through the courts could create some serious blowback.

|10.28.08 @ 3:27PM|#

Okay, I asked before, why is this asshole Terry Michael being allowed to write in Reason when he is a nut?
There is no such thing as a "libertarian democrat". It is a contradiction in terms.
How come you don't understand that Nick?
Does Terry have pictures of you in a compromising position?
What?
Terry, have you ever had your head checked?

litmus test|10.28.08 @ 3:30PM|#

He called you "Twix." You gonna take that?

Joel|10.28.08 @ 3:32PM|#

But as a libertarian, I have no problem with any court actively "legislating" a fundamental extension of freedom of choice and equal protection of the law. The time to wait for voters has passed. The time to decree this liberty is now.

This seems to parse out to "I have no problem with more laws, as long as they enshrine my opinions." Which, if I understand libertarianism, isn't very.

At no point in this article did Michael ask the obvious question, "Why is the government in the marriage business in the first place?"

|10.28.08 @ 3:33PM|#

Terry, Terry, Terry, *sigh*
You lose all credibility when you address Steve Chapman as though he has the intellectual capacity to tie his own shoes.

Joel|10.28.08 @ 3:33PM|#

There is no such thing as a "libertarian democrat". It is a contradiction in terms.

And "libertarian republican" isn't?

kvelling|10.28.08 @ 3:34PM|#

Hey, I just looked up "scare-quote," in wiki, and guess which political philosophy is prominently listed among the three used to give examples?

|10.28.08 @ 3:35PM|#

So, Kwix, am I to understand that you would support imposing gay marriage through the courts if popular opinion weren't moving in that direction?

gmatts|10.28.08 @ 3:35PM|#

"Twix makes some good points. It's only a matter of time before the electorate accepts gay marriage ( we are really close). Going through the courts could create some serious blowback."

But what if the correct path must go thru the courts? Sometimes 50.1% of people having their way on issues is a poor way for an issue to be decided.

hotsauce|10.28.08 @ 3:36PM|#

Great, Terry "Can I Play Libertarian Too?" Michael is channeling Steve "Prohibition" Chapman. There has to be a corollary to the GWB doctrine -- a rebuttable presumption against whatever idea is being pitched.

Kolohe|10.28.08 @ 3:37PM|#

MUST be gay because they're pairs of guys who are around each other all the time, is that it?

OTOH, don't you think if 40 something year old 'confirmed bachelor' adopted a male teenager these days, people would talk?


(BTW, regular google search even with all filters on says that the rebuilt Wayne manor might be in Connecticut.)

|10.28.08 @ 3:40PM|#

75% of the hate for gay males from straight men is simple jealousy that the former get more blow-jobs than the latter. If women want their men to be more progressive, they need to step up to the plate.

kinnath|10.28.08 @ 3:43PM|#

Majority rule works; except when it doesn't.

The court is supposed to step in when majority rule doesn't work.

Only history can determine when the majority or the court was correct.

|10.28.08 @ 3:44PM|#

If gay marriage is a right, it is a right from where? It is certainly not a right intended by the drafters of the Constitution. To find it in the Constitution you have to insert it there. If Michael supports the idea of inserting rights into the Constitution he ought to be honest and say so and just admit that the Constitution doesn't mean what the drafters intended but instead means whatever judges decide it means.

It is true, however that there are natural rights and that not all rights exist in the Constitution. Is Michael saying the gay marriage is a natural right that exists outside of the Constitution? If he is, he seems to have a very weird sense of how natural rights arise. It seems to arise when a plurality of the regions of the country decide that it is a natural right. Certainly gay marriage is not something that has existed historically. If it is a right it is the product of the 20th and 21st Century. Michael seems to be arguing for some sort of Electoral College of rights whereby new natural rights are created when a majority of areas of the country decide they should exist. It is unclear whether the plurality can take away such rights.

In the end his argument is a tautology. The Supreme Court enforces gay marriage over the objection of a large percentage of the electorate because it is a right and we don't wait around to vote on rights. Why is it a right? Michael doesn't really say why other than a plurality of the country thinks it is. I wonder what other rights a majority of the majorities would support?

In the end though, don't we already have a method by which we can enshrine natural rights into the Constitution? A 2/3s majority of the states and Congress could enshrine gay marriage forever if they so chose. Further, we have a federal system whereby states are free to determine what marriages they recognize and what marriages they don't. There is no federal law of marriage.

Why are these mechanisms not good enough for Michael? The only reason I can see is that they are not giving him the results he wants. In the end the entire article really is just a long winded way of saying "we should have gay rights because Michael says so". That is nice but hardly enlightening.

New World Dan|10.28.08 @ 3:44PM|#

The problem as I see it is that courts are trying to fashion a rememdy from the bench, which exceeds their authority. The proper response is simply to strike down the existing marriage law as unconstitutional. Resulting in chaos, of course, but there isn't any need for government to be involved in marriage in the first place.

nj|10.28.08 @ 3:44PM|#

Gmatts, a fair point.

As far as the whole "libertarian democrat" memo goes, if it is a contradiction then so is "libertarian republican". The truth is we need more Terry Michael's. If we want to move this country towards a more libertarian direction, libertarians need to create a greater presence in both parties.

|10.28.08 @ 3:45PM|#

Going through the courts could create some serious blowback.

I always hear this theory, but in the cases cases I can think of when a court imposed a pro-civil-rights ruling on an public that didn't agree (Brown vs Board, Loving vs Virginia, and the recent state court rulings in favor of marriage rights for gay couples), public opinion quickly turned strongly in favor of the courty's position in short order.

People who opposed those rulings like to say "Courts can't change people's hearts," but the experience of living in a society where integration and happily, but non-traditional, married couples are right there for everyone to see, it changes people's minds.

The sky didn't fall in Massachusetts, lots of people noticed, and the polling flipped.

|10.28.08 @ 3:47PM|#

"At no point in this article did Michael ask the obvious question, "Why is the government in the marriage business in the first place?"

As soon as there is an initiative on the California ballot to abolish state marriage, I'll vote for it.

Until then, I'll uphold the constitutional and libertarian principle of equal protection of the law, and vote NO on Prop. 8.

|10.28.08 @ 3:50PM|#

If gay marriage is a right, it is a right from where?

The court in Loving vs. Virginia found that marriage was part of the "liberty" and "pursuit of happiness" rights.

The Constitution doesn't mention oxygen, either, but the courts recognize that allowing people to breath is necessary for their lives.

And that's before we even get to the equal protection clause of the 2/3 approved 14th Amendment.

New World Dan|10.28.08 @ 3:50PM|#

It is certainly not a right intended by the drafters of the Constitution.

I'll refer you to the 14th amendment's gurantee of "the equal protection of the laws." You create a special class of citizen based primarily on a narrow interpretation of the religious beliefs of a majority.

And again I say, get the government 100% out of marriage.

nj|10.28.08 @ 3:52PM|#

Joe, you are probably right.

Mike Laursen|10.28.08 @ 3:54PM|#

Look, a joke's a joke, but Bert and Ernie are not gay.

Besides Bert's out of the scene. Everything is Ernie and Elmo now. Guess Bert didn't test well with 4 year olds.

|10.28.08 @ 3:56PM|#

"Resulting in chaos, of course, but there isn't any need for government to be involved in marriage in the first place."


That is an interesting argument. If marriage law ended, everyone straight or gay would have to contract with each other. There would be no such thing as legally mandated spousal rights to inheritance and such. Essentially you would be putting everyone in the same position gay couples are in now.

One of the big arguments why gay marriage is a right is that not being able to get state sanctioned marriage makes life harder for gays. If that is true, then the "just get the government out of marriage argument" is saying that the government should make it equally hard for everyone. Wouldn't it be better to make it equally easy for everyone?

If you object to the concept of marriage, then isn't the government doing gays a favor by not recognizing gay marriage? Yes, they don't get the automatic benefits, but they can end any relationship by tearing up a few papers instead of going to divorce court. If you really beleive the government ought to be out of the marriage business, I don't see how you can support extending government sanctioned marriage to more people.

|10.28.08 @ 3:56PM|#

"""I happen to know for a fact that Bert was caught at the Emperor's Club around the same time as Eliot Spitzer, while in flagrante delicto with some high-priced call girl."""

Yeah, but was he doing the call girl or her makeup?

I see the issue like this. If you pass a Constutional amendment or a law that forbids the government from discriminating due to sex, then you can't use sex as a reason for government to forbid a marriage. Any church can refuse to marry due to seperation of church and state, but the Justice of the Peace, as an agent of the state, can not.

Problems arise because the people are not that serious about equal rights. They still want to discriminate when it serves their ends.

PFJO|10.28.08 @ 3:58PM|#

What about not regulating marriage at all as an answer?

Why not leave the benefits up to basic contract law and simply leave the recognition of marriage to whatever authority people deem appropriate so long as it isn't the state?

Then the issue simply goes away... I like that answer, liberty for all with no fuss. Everyone wins except trial lawyers.

|10.28.08 @ 4:00PM|#

Joe,

No western society ever sanctioned gay marriage before very recently. If it is a right, it is a new right. I am willing to admit that sociatal standards can change and new natural rights can be created. But, the question is what is the threshold for determining when a new right is created? There are people in the world who want Polygomy or to mary their siblings. They can't claim a natural right to do so. Micheal is claiming gays can claim a natural right to marry? Why? He seems to be saying because a majority in a most areas of the country say they should. That seems pretty screwy to me. If the majority of the people think it is a right, fine, enshrine it at the state level or ammend the Constitution. I don't object to that. What I do object to is enshrining a natural right based on a few judges reading some polls, which seems to be what Michael is argueing.

Robert Goodman|10.28.08 @ 4:01PM|#

Terry Michael is correct that the question should be a judicial one. However, judges should strike down any legislative, administrative, or referendum institution of same-sex marriage. What I seem to be in a tiny minority in recognizing is that however it's done, this is an attempt to have government alter the meaning of a word, as with "dollar", "pound sterling", etc. Gov'ts didn't invent marriage, and the law should just recognize its common law meaning derived from common usage rather than acting as if marriage were a matter of law rather than fact. The way to change the meaning of "marriage" is via usage, the way most words change their meaning slowly over time. Otherwise, use your own word, and don't impose your new meaning on those whose legal agreements mention the old word.

|10.28.08 @ 4:01PM|#

"""And again I say, get the government 100% out of marriage."""

You can't. I call marriage a two part entity. The spiritual (church) and the legal (state). Since marriage has legal benefits, you can not remove the state element out of it. We should keep the feds out of it.

Now, if you want to remove all legal benefits of marriage, then you could remove the government's role.

kinnath|10.28.08 @ 4:02PM|#

The institution of marriage has tendrils into many, many aspects of the law including property rights, inheritance rights, parental rights, tax concerns, testimony in trials, so forth, so on, ad nauseum.

It would pretty much be impossible to remove state recognition of or involvement in marriage at this point.

The only remaining issue is whether or not the 14th requires equal treatment of any two (or more) consenting adults that wish to join into a marriage.

This is a valid topic for judicial review.

|10.28.08 @ 4:02PM|#

Didn't Bert stop showing up as often on Sesame Street around the same time he was seen on a bin Laden poster?

Incidentally, it's common knowledge that Bert had relations with guest Connie Stevens. Yeah, I know he's a puppet. So does Connie, in a much more intimate way.

Robert Goodman|10.28.08 @ 4:02PM|#

And never mind Bert & Ernie; what about Bert & Harry?

Potts|10.28.08 @ 4:05PM|#

But, the question is what is the threshold for determining when a new right is created?

And just exactly how is free association a new right?

|10.28.08 @ 4:07PM|#

If gay marriage is a right, it is a right from where? It is certainly not a right intended by the drafters of the Constitution.

I suspect this is an excellent example of where "textualist" and "original intent" part ways. No one would argue that the Founders or the drafters of the 14th Amendment ever dreamed they would be cited as mandating state recognition of gay marriages, but there is a plausible case that the words on the page require equal treatment of gay and marriages.

Of course, that same plausible case has no limiting principle, and would require state recognition of polygamy.

I always hear this theory, but in the cases cases I can think of when a court imposed a pro-civil-rights ruling on an public that didn't agree (Brown vs Board, Loving vs Virginia, and the recent state court rulings in favor of marriage rights for gay couples), public opinion quickly turned strongly in favor of the courty's position in short order.

Er, Roe v. Wade? Culturally, I think gay marriage is much closer to abortion rights (a sexual freedom issue) than to Jim Crow, despite the efforts (generally resented in the black community) to paint gay rights and civil rights as two peas in a pod.

|10.28.08 @ 4:08PM|#

"""If gay marriage is a right, it is a right from where? """"

Where is the right to marriage for straight people? Marriage is not a right, period, for anyone gay or straight.

"""Why not leave the benefits up to basic contract law and simply leave the recognition of marriage to whatever authority people deem appropriate so long as it isn't the state?"""

Do you have an example of what authority? That's the tricky part. How do you resolve dispute if someone decides not to recognize that authority?

|10.28.08 @ 4:09PM|#

Twix, my favorite cookie.

|10.28.08 @ 4:10PM|#

Interestingly, robot Laura Ingraham just called me warning me how my vote could prevent more liberal Supreme Court justices.

|10.28.08 @ 4:11PM|#

Once upon a time, John, no western nation banned slavery. So?

Marriage is not a new right. It is a right. Talking about "gay marriage," you might as well talk about "black freedom." Black freedom? We've only ever recognized freedom for white people, black freedom is a new right.

No, freedom is a right. A human right. Like marriage.

There are people in the world who want Polygomy Loving not only found that marriage is a right, but defined that right, the right to join with your loved one in a marital union, forsaking all others, yadda yadda yadda. This is what the courts have found you, and I, and Bruce who tends bar down at the bar we've never stopped in, have a natural right to do.

...or to mary their siblings. The rulings on this question agree that there is a sufficiently-important public interest in avoiding incest to justify over-riding people's right to marry. They've never ruled that there is no right to marry.

He seems to be saying because a majority in a most areas of the country say they should. I don't know how you drew this conclusion, because his argument is precisely the opposite, that gay people have rights, period, wither the majority like it or not, so they shouldn't have to wait for the majority.

|10.28.08 @ 4:12PM|#

Putting institutions like marriage and education in the hands of the state force us to debate issues that are largely none of our damned business.

|10.28.08 @ 4:13PM|#

Eliminating government recognition of marriage would be like eliminating government recognition of parenthood.

Those insitutions predate the state. I don't see the point of forcing the state to pretend not to notice how human beings organize their families.

armchairpunter|10.28.08 @ 4:15PM|#

Hijack the court? Why not just amass a stockpile of arms and demand that the people add an amendment to the Constitution? Coercion is coercion. This is beyond the bounds of the court's power.

It wouldn't be the first time the court strayed beyond the limits of it authority.

Many a rogue cop has used his gun and his badge to achieve an end he thought desirable even beneficent. You don't see libertarians applauding such abuse of power just because the end being pursued seems just.

When cops and courts abuse their power, regardless of the nobility of their aims, our freedom dissipates.

|10.28.08 @ 4:16PM|#

RC,

There was not majority support in America for abortion rights in the early 70s, and there is today. Public support for abortion rights increases after Roe v. Wade.

Culturally, I think gay marriage is much closer to abortion rights (a sexual freedom issue) than to Jim Crow, despite the efforts (generally resented in the black community) to paint gay rights and civil rights as two peas in a pod.

|10.28.08 @ 4:16PM|#

Your culture aside, civil rights are civil rights, and people are entitled to them regardless of demographics.

|10.28.08 @ 4:19PM|#

There was not majority support in America for abortion rights in the early 70s, and there is today. Public support for abortion rights increases after Roe v. Wade.

That's an interesting argument. Do you think that if Roe v. Wade had been decided differently more people would be anti-abortion today?

|10.28.08 @ 4:20PM|#

""""Marriage is not a new right. It is a right. Talking about "gay marriage," you might as well talk about "black freedom." Black freedom? We've only ever recognized freedom for white people, black freedom is a new right.""""

So blacks didn't have freedom before the slave trade, nor were they robbed of their right to be free while they were slaves? Come on, you do think slavery was wrong, No?

|10.28.08 @ 4:20PM|#

RC Dean,

I don't think you have to be an originalist to argue that gay marriage isn't gaurenteed by the Constitution. Without question meanings of words change over time. For example, "free association" doesn't mean by today's standards that I have a right to have sex with a 16 year old. That is a product of societal standards and nothing more. There is nothing to say that 50 years from now society might decide that having sex with 16 year olds is acceptable and covered by the right to free association.

Gay marriage is similiar. A hundred years ago such a thing would never be considered a right by any significant portion of the population. It has never been a right in the US. Even from a textualist perspective, the question what causes the text to change? Why is something a right now but it wasnt' 50 or 100 years ago? I would argue that there can be a sociatal consensus obtained through amending the Constitution or widespread recognition at the state level changing and expanding the meaning of "free association" to include gay marriage. My objection to Michael is that he thinks that that recognition occurs when he judges decide it does rather than the electorate at large.

|10.28.08 @ 4:20PM|#

Why? Treat marriage as a contract, then government's role becomes one of enforcing the terms of the contract, not all of the nonsense we observe today. In that case, gays and polygamists could run free. There may be special situations where the government might refuse to enforce certain types of contracts as against public policy--marriage contracts between pre-teens, for instance--but that's not the same thing.

I think the idea that any court case has led America anywhere is ass-backward. Society almost always leads in these types of issues, and the court almost always scrambles to catch up.

|10.28.08 @ 4:25PM|#

"""My objection to Michael is that he thinks that that recognition occurs when he judges decide it does rather than the electorate at large."""

The electorate at large did decide the issue when they voted for equal rights laws. If you want to deny someone of an ability because of their sex, don't pass a law that says you can't.

kinnath|10.28.08 @ 4:26PM|#

Why is something a right now but it wasnt' 50 or 100 years ago?

God does not play dice with the universe -- A. Einstein

Poor Albert, genius that he was, couldn't cope with the consequence of his own discoveries.

We are still coping with the consequences of "we hold these truths to be self-evident . . . "; probably will be for a few more centuries.

|10.28.08 @ 4:27PM|#

Joe,

The court in Loving never considered gay rights. No one has ever recognized a right to gay marriage. How exactly do new rights arise? Is there some Platonic ideal of rights that we discover as we obtain enlightenment? No. Rights are a product of a consensus of society. We create them as our society changes and our view of each other changes. I have a ground up view of natural rights, whereby society itself as its needs and values change determine them. Michael seems to have a top down approach whereby judges, or really him since he would only support judges recognizing rights he approved of, decide what is a right and what is not.

|10.28.08 @ 4:30PM|#

"""We are still coping with the consequences of "we hold these truths to be self-evident . . . "; probably will be for a few more centuries."""

I think we've learned to cope through denial.

But hey two halfs don't make a whole without a hole -- giggadity giggadity

|10.28.08 @ 4:31PM|#

John-David,

I don't know. I don't think abortion rights would be less popular.

TrickyVic,

Please, go back and read that again. I was drawing a comparison, in order to show where John's argument comes up short.

Pro Lib,

Shall we treat parenthood as a contract, too?

I think the idea that any court case has led America anywhere is ass-backward. Society almost always leads in these types of issues, and the court almost always scrambles to catch up. Well, that's the CW around these parts. I've given several examples suggesting the CW isn't true.

gmatts|10.28.08 @ 4:33PM|#

"Is there some Platonic ideal of rights that we discover as we obtain enlightenment? No. Rights are a product of a consensus of society. We create them as our society changes and our view of each other changes. I have a ground up view of natural rights, whereby society itself as its needs and values change determine them. Michael seems to have a top down approach whereby judges, or really him since he would only support judges recognizing rights he approved of, decide what is a right and what is not"

Then what does "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." mean?

That kinda implies that privileges - which marriage seems to be - aren't a product of consensus and mutable dependent on the whims of a slim majority of people.

|10.28.08 @ 4:34PM|#

joe,

Now you're being silly.

armchairpunter|10.28.08 @ 4:34PM|#

I believe gay "marriage" is a much easier case than abortion because it does not turn on the difficult question of the rights and liberty of an unborn person. The remaining hurdle to legal recognition of gay marriage and other alternative unions would seem to be the continued conflation of marriage as a religious or cultural rite and institution and marriage as a creature of law. Abortion, on the other hand, involves deeper, more abiding concerns.

Even staunch supporters of Roe are willing to concede that it is a dismal piece of jurisprudence. It is, frankly, more akin to a state-recognized religious epiphany than a proper legal holding. That doesn't seem to bother those who agree with its outcome overly much, but it should trouble all who look to the rule of law as a foundation of freedom. The court should not be reduced to the cat walk of societal fashions.

Perhaps if people did not see the state as such an invasive, parental force in their lives, they would not particularly care about what the state chooses to call marriage. Unfortunately, they rely too much upon the state as a key maker of meaning in their lives.

|10.28.08 @ 4:34PM|#

John,

It's not a new right. Marriage is an old right, an eternal right.

An ancient injustice, equivalent to denying Jews the right to own property, was undone when the courts realized that the eternal, ancient right to marry applies to minorities, too.

Gay people's right to marry has always existed; it just took us a while to acknowledge that.

Rights are a product of a consensus of society. Rights are endowed to us by our creator, and are inherent in our status as human beings. Governments are created to protect these rights.

|10.28.08 @ 4:34PM|#

. . .because parents own their kids outright.

|10.28.08 @ 4:36PM|#

Pro Lib, I am not being silly. The family predates the state, and the state has a duty to recognize it.

It's not the same thing as a contract, which is a creation of the state. We shouldn't try to squeeze square pegs in round holes.

|10.28.08 @ 4:37PM|#

LOL, you so got me!

Hayekian Dreamer|10.28.08 @ 4:38PM|#

My biggest fear on the issue of gay marriage is the blowback issue. I think obviously gay couples should have every acknowledged right to marry as heterosexual couples. There is no amorality based reason to deny it.

With that said, I think that going through the courts at this point (the federal courts at least) is just asking for trouble even if we were to win. I want the issue to be largely "settled," and that's going to take time to achieve. It's already been mentioned that Roe v. Wade remains a controversial decision to this day, but I would suggest that people take a second look at the polling on inter-racial marriage (and the laws governing it) just prior to Loving v. Virginia. I think you'll find that in the preceding years a strong majority of states had repealed their laws against miscegenation.

I have strong reservations about imposing marriage equality on an unwilling country and just asking them to like it, but as it becomes more the norm and states begin to adopt it on their own it may be prudent to go to the courts for the last handful of states that will inevitably hold out.

|10.28.08 @ 4:40PM|#

As the great natural rights scholar William Henry Cosby, Jr. noted, "You know, I brought you in this world, and I can take you out. And it don't make no difference to me, I'll make another one look just like you."

armchairpunter|10.28.08 @ 4:41PM|#

"Natural law" arguments won't offer much comfort for those seeking to broaden the meaning of marriage under the law. In any event, the privileges sought are predominantly the creature of statute. Until very recent times, the respective rights and privileges accorded husband and wife were rather disparate. Had their been gay marriage back then, how would one determine which partner would get the shorter end of the stick, so to speak?

|10.28.08 @ 4:44PM|#

Joe, like many leftists, you seem to conflate issues with the label "civil rights" with slavery. Is there anything that anyone ever calls a civil right that you don't think is one?

I have a few problems with gay marriage. First, on Hayekian grounds, I am reluctant to demand major, instant changes in ancient traditions on the grounds of today's ideas of "fairness." (By instant I refer to the way gay marriage was a punchline a few decades ago, not even pushed by most gay activists, and now anyone who opposes it is somehow a reactionary bigot.)

Second, I cringe at the stretching of the phrase "equal protection." Obviously the people who wrote and interpreted those words for generations did not mean gay marriage. If it can mean that, why can't it mean sibling marriage or polygamy? Even better: since we deserve "equal protection" from disease, why can't it mean equal health care for all? (I don't mean universal coverage, I mean one size fits all.) Why can't it mean one wage for everyone? If it means gay marriage, it can mean pretty much anything.

That said, I don't have a problem with domestic partner laws, which seem like a reasonable compromise. And I've had gay friends for longer than some of you have been alive, so please, no ad hominem attacks.

|10.28.08 @ 4:47PM|#

Armchairpunter is exactly right. Joe when you say "endowed by the creator" you are just saying "because I said so". How do you know that gay rights are endowed by the creator? A whole lot of people think that is bunk. Why are you right and they are wrong? Radical Mormons claim that the creator mandated that they have more than one wife. Why are they wrong about that?

In the end they are wrong because the rest of society says they are. Society creates its own standards that evolve over time. It may be that society is evolving towards gay marriage being accepted and a right. If it is so be it. But, if it is, then go win an election and show that society has changed. Otherwise, you are just saying that it is a right because you want it to be. I am sorry, but there has to be a better reason than that.

|10.28.08 @ 4:48PM|#

The family predates the state, and the state has a duty to recognize it.

I like this. Demand that the definition of marriage needs to be changed from what it's always been, and then say that the state has to recognize marriage because it's always existed (under the old definition now).

I would give that bit of mental gymnastics a 9.9, even if I were the French judge.

kinnath|10.28.08 @ 4:48PM|#

Second, I cringe at the stretching of the phrase "equal protection."

Explain how the marriage of any two consenting adults is "stretching" equal protection under the law.

|10.28.08 @ 4:50PM|#

Not to conflate issues or to repeat the phrase "conflate issues" in this thread (too late!), but line-drawing is and must be part of any rights issue--for instance, most of us here would state that discriminating against pedophiles and not providing them with equal protection under the law (only in their pedophilia, of course) is a good thing.

Gays aren't equivalent to pedophiles, but neither are they equivalent to 19th century blacks. Society will naturally draw the line somewhere, so arguing about where that line should be drawn is not necessarily an unprincipled argument for either side of the debate. Abortion is a similar type of argument--where is the line between humanity and nonhumanity? Despite the rhetoric, it isn't really an argument about choice at all.

kinnath|10.28.08 @ 4:50PM|#

John, step aside from the question of whether marriage of any kind is a "right".

Since marriage exists in the law, does the 14th mean that marriage must apply to any two consenting adults or not?

|10.28.08 @ 4:50PM|#

"""Rights are a product of a consensus of society."""

Your using the word consensus loosely, right? I'd bet you can't get every single person in a society to decide what's for lunch.

I would say a constitutional amendment is about as close to consensus of our society as it gets. Our society decided that laws should not discrimminate due to someone's sex. By John's definition of right, the 14 amendment does create the right for same sex marriages by forbiding the government from forbiding a law against it by consensus.

Most rights do not start with you have a right to ...... That's why some people actually think we don't have rights, just privilages.

mr simple|10.28.08 @ 4:51PM|#

It seems to me that all people against marriage between two homosexuals either:
a) have never met anyone who was gay or
b) have been raised to believe that those feelings inside them come from the devil and must be pushed down at all costs
and have the fundamental misunderstanding that being gay is some lifestyle choice. Its not.

This is then not some new right that we've discovered. It is a recognition that people who might be wired differently than us are still people. Marriage is about two consenting adults (and yes it can still easily be defined as such; slippery slope arguments are illogical and imply a false causality) who are in love and want to spend their lives together, be able to visit in the hospital, inherit property and all the other next-of-kin rights that straight people obtain when they get married. This is where rights some in to play. It is the recognition of these rights that forces the state to be involved in marriage as someone has to do it.
As far as the courts go, I've been torn on this for awhile. It would seem, though, that occasionally the electorate can break down and the courts do need to step in, as in the civil rights cases (and since homosexuality is an inherent trait and not a choice, like abortion, it is more akin to the racial civil rights struggle), the problem is where to draw the line. But just because the public can find loopholes in the law to discriminate against others, doesn't mean they should be allowed to.

|10.28.08 @ 4:51PM|#

Yes, when you're talking about matters of life or death or imprisonment, sometimes the judiciary needs to get involved. When you're talking about the negative emotions resulting from having your relationship recognized by the state, not so much.

|10.28.08 @ 4:51PM|#

One last thing for Libertarians to chew on. If judges can create a "right to gay marriage" why can't they create a right to healthcare or housing or a right not to be offended? Once you sell your soul to judges deciding rights rather than electorates, there is no end to where it goes. If the majority of the country thought that universal government funded healthcare was a right or that having creationism taught to your children is a right, should the courts recognize as such and mandate it from the bench? If not, why not if they can do so for gay marriage? Judicial activism is great until one of your sacred cows gets gored.

Tulpa|10.28.08 @ 4:55PM|#

Since marriage exists in the law, does the 14th mean that marriage must apply to any two consenting adults or not?

What about siblings?

What about people who are already married?

Once you start making some exceptions rather than others, your moral high gourd disappears.

kinnath|10.28.08 @ 4:55PM|#

If judges can create a "right to gay marriage" . . .

John, step aside from the question of whether marriage of any kind is a "right".

Since marriage exists in the law, does the 14th mean that marriage must apply to any two consenting adults or not?

|10.28.08 @ 4:57PM|#

That is great Mr. Simple. A fundementalist Mormon will make the same arguments for polygamy. Why do you get a right and they don't? We have to have some way to determine the limits of marriage. Historically that has not included gays. Perhaps now it does. If it does it is because society norms and the defnition of marriage has changed. If that is the case, then there shouldn't be an issue with changing it at the state level or ammending the Consitution. If it is not, then maybe societal norms haven't changed. The issue of judicially mandated recognition of gay marriage is not about gay marriage as much as it is about the right of society versus judges to define marriage. If gay marraige is defined by judges, that means society no longer has any control over the definition of marriage. That I think would be a very bad thing.

|10.28.08 @ 4:58PM|#

:"Since marriage exists in the law, does the 14th mean that marriage must apply to any two consenting adults or not?"


Not at all. My sister and I are consenting adults and we can't get married even under a regime that recognizes gay marriage.

kinnath|10.28.08 @ 4:59PM|#

If gay marraige is defined by judges, that means society no longer has any control over the definition of marriage.

John, step aside from the question of whether marriage of any kind is a "right".

Since marriage exists in the law, does the 14th mean that marriage must apply to any two consenting adults or not?

kinnath|10.28.08 @ 5:01PM|#

Not at all. My sister and I are consenting adults and we can't get married even under a regime that recognizes gay marriage.

Why doesn't the 14th allow you two to marry?

The "ick" factor is not a legal doctrine.

|10.28.08 @ 5:01PM|#

PapayaSF,

Joe, like many leftists, you seem to conflate issues with the label "civil rights" with slavery.

And you draw this conclusion because I refuted RC Dean's argument that gay rights are NOT a civil right because some black people don't think they are. Brilliant analysis. Just genius.

Is there anything that anyone ever calls a civil right that you don't think is one? Ever read anything from NAMBLA?

|10.28.08 @ 5:02PM|#

Since marriage exists in the law, does the 14th mean that marriage must apply to any two consenting adults or not?

What about siblings?

What about people who are already married?

Once you start making some exceptions rather than others, your moral high gourd disappears.

|10.28.08 @ 5:03PM|#

Joe when you say "endowed by the creator" you are just saying "because I said so".

You'll have to forgive me my Americanism.

BTW, I made that argument in response to your statement that rights are socially-created concepts, and your rights are only those that other people say they are. No, rights are eternal, and inherent in us as human beings.

kinnath|10.28.08 @ 5:04PM|#

What about siblings?

What about people who are already married?

Once you start making some exceptions rather than others, your moral high gourd disappears.

The "ick" factor is not a legal doctrine.

|10.28.08 @ 5:04PM|#

kinnath,

So you support legalizing incestuous marriage and polygamy? It's fine if you do, just making sure of this.

|10.28.08 @ 5:04PM|#

Why doesn't the 14th allow you two to marry?


Maybe it does. But you would be in a very small minority in argueing that the 14th Amendment means that the state cannot regulate any form of interaction between consenting adults. You would, however, be making a more honest argument than Michael is. In the end, if the 14th Amendment means mandatory gay marriage, I don't see how it doesn't mean mandatory recognition of every form of marriage. If it doesn't mean that, then it just means marriage as whatever a judge choses to define it.

|10.28.08 @ 5:04PM|#

Incidentally, I don't care much about gay marriage. I'm not entirely comfortable with gays raising kids, but that's just my more traditionalist side coming out. I'm not looking to legally forbid gay marriage or, for that matter, gay parenting. My real objection is to making marriage into a government-sanctioned institution in the first place. Government recognized, sure, but government-sanctioned and controlled? Nah.

|10.28.08 @ 5:05PM|#

How do you know that gay rights are endowed by the creator?

Human rights are endowed by the creator.

Gay people are human.

Ergo, gay people have human rights.

Civil rights acrrue from membership in society.

Gay people are members of our society.

Ergo, gay people have civil rights.

Zeb|10.28.08 @ 5:06PM|#

The idea that recognizing gay marriage is a new government power is ridiculous. The government does not create marriage, it recognizes it. Gay people are getting married, with or without official legal recognition. The simple fact that this is the case should be sufficient reason for state recognition of marriage.

The right to marriage (of whatever sort) falls under the right to do whatever the fuck you want to as long as it doesn't hurt anyone or damage anyone else's rights. This is the most important and most natural of rights.

|10.28.08 @ 5:06PM|#

"""If judges can create a "right to gay marriage" why can't they create a right to healthcare or housing or a right not to be offended? """"

It's not really a right. It's an ability. Show me the document where marriage, in general, is a right. No ugly guy or girl can sue because no one will marry them. You have the ability under law to wed not a right.

"""Since marriage exists in the law, does the 14th mean that marriage must apply to any two consenting adults or not?"""

Exactly. If law allows marriage, and you pass an amendment to say laws can't discriminate against one's sex. Then you can't say no to male/male marriages. But no one who really wants to deny gays marriage will look at it in proper light. The need to feed their belief.

|10.28.08 @ 5:07PM|#

I don't know much about French judges, Tulpa.

Demand that the definition of marriage needs to be changed from what it's always been, and then say that the state has to recognize marriage because it's always existed (under the old definition now

I do know that the old definition of "parent" including marrying off your daughter against her will, that the old definition of "husband" included the right to rape your wife, and that government has had a duty to recognize parenthood and marriage even as our understanding of individuals' rights became more enlightened and expansive.

|10.28.08 @ 5:08PM|#

"""What about siblings?"""

Check the Cumberland Gap area of Kentucky for that one.

kinnath|10.28.08 @ 5:09PM|#

kinnath,

So you support legalizing incestuous marriage and polygamy? It's fine if you do, just making sure of this.

Since we are too far down the road to dismantle all legal entanglements with marriage, yes.

But you would be in a very small minority in argueing that the 14th Amendment means that the state cannot regulate any form of interaction between consenting adults.

I am used to being in the tiny minority of people that believe in mostly unfettered freedom.

You would, however, be making a more honest argument than Michael is.

I think the 14th is the only valid legal argument for removing the gender restrictions on marriage.

In the end, if the 14th Amendment means mandatory gay marriage, I don't see how it doesn't mean mandatory recognition of every form of marriage.

Simple logic. The slipperiest of slippery slopes ;-)

|10.28.08 @ 5:10PM|#

It's not really a right. It's an ability. Show me the document where marriage, in general, is a right. No ugly guy or girl can sue because no one will marry them. You have the ability under law to wed not a right.

The right to life is not a guarantee of life, either. If you starve to death because you do not have the money to buy food, your right to life has not been violated.

|10.28.08 @ 5:12PM|#

Tulpa | October 28, 2008, 4:51pm | #

Yes, when you're talking about matters of life or death or imprisonment, sometimes the judiciary needs to get involved. When you're talking about the negative emotions resulting from having your relationship recognized by the state, not so much.

I actually agree with this. I don't think the "negative emotions" argument in Goodridge is terribly compelling as a "protection under the law." I think the Vermont decision was better, leaving it up to the legislature to determine how to protect gay people's rights.

It's those substantive, meaningful, concrete rights and benefits that accure from marriage - the ones that it would cost roughly $35,000 to replicate by having lawyers draw up contracts - that are the "protections under the law" that need to be equalized.

As a political matter, I support marriage, not civil unions, but as a legal matter, I think civil unions which provide equal rights satisfy the equal protection clause.

Zeb|10.28.08 @ 5:12PM|#

Rights (of the natural variety) are things that cannot rightly be denied to you, not things that must be given to you.

|10.28.08 @ 5:12PM|#

The legal argument for gay marriage (on a national scale) isn't that complicated. Gay people are a protected class (not in all jurisdictions, but they should be). That is, they are a distinct minority with a history of discrimination. They are not the equivalent of pedophiles, polygamists, or sheep fuckers thank you very much.

Presto, 14th amendment. It has been interpreted both to protect the right to marry and to require equal protection under the law (the latter because that's what it says).

|10.28.08 @ 5:14PM|#

I do know that the old definition of "parent" including marrying off your daughter against her will, that the old definition of "husband" included the right to rape your wife

You aren't talking about definitions. You're talking about social customs that grew up around those who satisfied those definitions.

Tell me, if a 16th century European encountered a foreign culture where parents were not allowed to marry daughters off against their will, and where husbands were not allowed to rape their wives, would they have said that they were not really "parents" or "husbands"?

|10.28.08 @ 5:15PM|#

If judges can create a "right to gay marriage" why can't they create a right to healthcare or housing or a right not to be offended?

If the government provided universal healthcare to everyone but gay people, they would have an actionable case under the 14th amendment. If the government protected straight people from the right not to be offended, they would have a responsibility to provide equal protection under the law to gay people.

Judges didn't create the right to marry, there has always been a right to marry, and it is shameful that we used to deny it based on race or sexual orientation.

|10.28.08 @ 5:16PM|#

They are not the equivalent of pedophiles, polygamists, or sheep fuckers thank you very much.

Why not? And what do you have against sheep fuckers? I understand that libertarian favorites Penn & Teller indulge in that practice (joke from B.S.) as does Gene Wilder (watch more old Woody Allen if this reference escapes you).

|10.28.08 @ 5:18PM|#

That is, they are a distinct minority with a history of discrimination. They are not the equivalent of pedophiles, polygamists, or sheep fuckers thank you very much.

Those three groups are (a) minorities, and (b) have historically been discriminated against.

No, gays aren't the equivalent of them. Gays aren't the equivalent of blacks either, but that doesn't stop you from squashing them together in the same "protected class" category.

|10.28.08 @ 5:19PM|#

Zeb | October 28, 2008, 5:12pm | #

Rights (of the natural variety) are things that cannot rightly be denied to you, not things that must be given to you.

And when some judge rules that the state police have to go out and find Bruce the Bartender a suitable man-bride, I'll object on the grounds you raise.

Hayekian Dreamer|10.28.08 @ 5:19PM|#

Pro Libertate - It may not be a comforting fact to you, but most states allow (or do not specifically forbid) gay couples to adopt, and every state currently allows gay couples to act as foster parents under the same standards as heterosexual couples. So, really, the issue of gay marriage and children in our society is not really linked as much as some people want you to think. As many as 1 million children are currently being raised by gay couples in the US.

|10.28.08 @ 5:21PM|#

No, Tulpa, the right to have sexual access to your wife was an integral part of the old definition of marriage, not a custom.

I neither know what a 16th century traveller might think, nor what that has to do with this discussion.

|10.28.08 @ 5:23PM|#

Why not?

Read Loving. The features of marriage that that decision describes with such insight are by definition absent in when a man rapes a child or a goat.

|10.28.08 @ 5:27PM|#

Also, neither sheep-fucking nor polygamy are inherent, immutable traits.

Sexual orientation and race are.

Pedophilia and incest get treated differently by the courts on the grounds that there is an important public interest in preventing them, which overrides the fundamental right to marry - the established standard for when an infringement on a constitutional right may be authorized.

|10.28.08 @ 5:27PM|#

Hayekian Dreamer,

I know. I was just confessing my biases in this debate.

joe,

Does an electric sheep consent to sex? What if you bring it flowers?

I do think polygamy is hard to distinguish here, incidentally. In fact, unless it involves minors, it can't be legally distinguished. Not that I care--let the fools who want more than one spouse have at it.

|10.28.08 @ 5:29PM|#

My big issue with this discussion is that people are making assumptions and drawing lines without admitting that fact. Come on, you do it. You love to do it. We all do it. You do it. . . .

|10.28.08 @ 5:30PM|#

No, Tulpa, the right to have sexual access to your wife was an integral part of the old definition of marriage, not a custom.

Not true. There have been many more human societies where marital rape was forbidden than there have been which recognized same-sex relationships as marriages.

I neither know what a 16th century traveller might think, nor what that has to do with this discussion.

Of course it is relevant. If people don't consider X to be Y, than X is not the definition of Y. If the old definition of marriage included access to marital rape, then such a traveler would not consider arrangements where rape was forbidden to be marriages.

|10.28.08 @ 5:33PM|#

Also, neither sheep-fucking nor polygamy are inherent, immutable traits.

Sexual orientation and race are.

Religion isn't. So why is it a protected class?

You guys keep trying to find some fundamental trait that protected classes have in common with homosexuality, and you keep failing. The laundry list of protected classes has no basis in logic, it's the result of centuries of cultural thrashing about. So please, please don't accuse me of not understanding the OBVIOUS meaning of the 14th amendment because I don't think gay marriage is guaranteed by it.

|10.28.08 @ 5:41PM|#

Since the term "Marriage" refers to a religious institution, and the greatest protector of religion is the separation of church and state, all unions between consenting adults should be civil contracts. This would include heterosexuals, homosexuals, polygamists who are CONSENTING ADULTS and the like. The the term "marriage" can be left to churches alone. In this system, non-religious heterosexual couples would be considered to have a social contract. Can we agree that ideal of libertarianism is that adults all have a right to personal social choices that do not display aggression against another?

Regardless of whether or not the founding fathers ever thought that marriage would include gays or more than two members, they probably also did not expect blacks or women to be able to vote. NEITHER were social norms in America at that time. However, the founding fathers did one very important and wise thing. They created our government as a representative republic and not a direct democracy because occasionally the majority vote is WRONG. Had we relied on the majority vote for civil and voting rights for blacks and women our country most likely would have been socially backwards for much longer.

I actually believe that the gay marriage issue is much different than the abortion issue. The abortion issue has to do very much with the concept of whether or not a person has the right to terminate a life. In most cases people would say no. In some cases, people may say yes. If a fetus is considered life, then what reasons to we have to justify its termination? Even outside of religion, abortion is really discussing the right to control life and death, much like euthanasia or capital punishment. However they all have different justifications which leads to different results.

Any libertarian must agree that when law is imposed all adults should be treated equally within this law. Churches, as private institutions, have a right to discriminate, but the government should not.

Hayekian Dreamer|10.28.08 @ 5:48PM|#

Siren48 - Bingo on your last paragraph. Regarding your first paragraph though, as great as that sounds to me, it's impractical in the real world because a majority of heterosexual couples won't want to "lose" (as they would perceive it) the legal term marriage (even though they could still be married by a church, etc).

Also, on abortion I think you're probably right in terms of why individual fervor on the issue was and remains so deep, but personally I believe if the Roe decision hadn't been issued, or had been issued either way 20 years later the issue would be more "settled" one way or another. The best way to figure out what to do on an issue is often to let individuals, legislatures, and finally, eventually, the courts hash it out. I don't think we were "ready" for the decision, maybe we never would have been, but the longer an issue has to percolate the easier the public seems to accept a decision one way or another.

|10.28.08 @ 5:59PM|#

I figured my first paragraph would be hard for the majority of people to accept, as anything too radically different from tradition is always met with a lot of opposition.

I completely agree with you on the abortion issue as well. In my own opinion I am pro-choice, but both sides have strong and reasoned arguments and I'm not sure what the role of government should be here.

My views on "fairness" have been tested many times though, as I am a public school teacher. I've had to do a lot of work and policy making to give the students a real sense of security that they will be treated fairly and with dignity. Its amazing how much better that kind of stuff works than punishment. I work in an poor urban district and some people are very surprised with how little real discipline problems I have anymore.

|10.28.08 @ 6:01PM|#

Tulpa,

The aged are also a protected class. Like homosexuality, elderliness exists in all races. There's an analogy that is a little tighter than comparing gays to racial minorities.

The only reason they may not be a protected class is BECAUSE of their history of discrimination. A history so bleak that gay people weren't even allowed to be themselves for most of history.

|10.28.08 @ 6:02PM|#

Don't forget to act surprised when the freedom to health care, living wage and non-discrimination are judicially decreed as well.

|10.28.08 @ 6:38PM|#

I guess my point is, why are some classes protected and not others? There's no rhyme nor reason.

|10.28.08 @ 6:49PM|#

"Don't forget to act surprised when the freedom to health care, living wage and non-discrimination are judicially decreed as well."

The point here has been missed. I do not believe that new legislation should be decided at the judicial bench, just the responsibility to enforce legislation equally. God forbid freedom of health care means a socialized system and is passed through the legislation. However, if this happens and for some reason there is a group of legal citizens that this does not apply to, I would expect the courts to make sure that the law was applied evenly to all.

|10.28.08 @ 7:09PM|#

Majority rule works; except when it doesn't.

The court is supposed to step in when majority rule doesn't work.

WTF. Is somebody handing out ignorant pills?

The courts job is to interpret what the law says. The federal constitution being the sprme law of the land. It is not supposed to step in when majority rule doesn't work.

Look folks, I'm as pro gay marriage as anybody. This is not an issue for state supreme courts to decide. When they do, you can expect things like this initiative in California. Gay marriage is coming, but it is not a question for the courts to decide. It has nothing to do with Brown vs the board of ed or Loving vs. Virginia. It has nothing to do with slavery, the impressment of merchant seamen or the whiskey tax either.

Upthread, somebody brought up Roe vs Wade. A better example of judicial overreach would be hard to find, but if the SCOTUS legalized gay marriage from the bench, we'd have a contender,

Lastly, I dunno about Bert and Ernie, but Fred and Barney were as queer as a three dollar rock. Mr. Slate fathered Pebbles.

Formerly Jennifer|10.28.08 @ 7:14PM|#

"Since the term "Marriage" refers to a religious institution, and the greatest protector of religion is the separation of church and state, all unions between consenting adults should be civil contracts. This would include heterosexuals, homosexuals, polygamists who are CONSENTING ADULTS and the like. The the term "marriage" can be left to churches alone. In this system, non-religious heterosexual couples would be considered to have a social contract. Can we agree that ideal of libertarianism is that adults all have a right to personal social choices that do not display aggression against another?"

This is the wall that we are all banging our heads against. If only "they" had decided, lo these many moons ago, that there should have been two different terms for the "unions blessed by 'insert religious figure here' and "unions sanctioned by 'insert civil authority here", then we wouldn't be having this argument at all.

The problem with your argument, Siren48, is that ALL legally recognized "marriages" in this country ARE first and foremost "social contracts". The Pope himself could could perform a rite of "marriage" at the Super Bowl Halftime show, and without the little piece of paper properly witnessed and filed with the county courthouse, it wouldn't mean jackshit to anybody except the couple involved. It would be meaningless to the HMO, the SSA, and the IRS. Many of you seem to be in favor of that, but that's NOT the way things work right now.

There are an awful lot of heterosexual couples who are partners in a "civil union", up to 40% of couples in some states, including my husband and myself.

http://www.usatoday.com/news/nation/2003-10-06-civilmarriage-usat_x.htm

Everyone calls them "married". Most would probably be horribly offended if you described them as "civilly unionized" or whatever the fuck you want to call it.

The state, like it or not, is the arbiter of "marriage", has been for a very long time, and will almost certainly continue to be for a very long time.
As far as I can tell, the only reason that more people support "civil unions" than gay "marriage", its because of their own prejudice. "Ew, those icky gays. 'Civil unions' are good enough for them, but, me, I'm Married!"

There is no reason not to call a "social contract" with all the rights and responsibilities of "marriage" something besides "marriage", except to pretend that homosexual couples don't count.

BTW, I support loving relationships between consenting ADULT HUMANS.

|10.28.08 @ 7:23PM|#

Not true. There have been many more human societies where marital rape was forbidden than there have been which recognized same-sex relationships as marriages.

Just not ours.

|10.28.08 @ 7:25PM|#

Religion isn't. So why is it a protected class?

Because religion is specifically called out in the Constitution for special protection. It is an oddball, yes.

Now that I've answered your question, you must feel pretty silly for doing that touchdown dance about your question being unanswerable.

|10.28.08 @ 7:27PM|#

Oh, Tulpa, you misunderstand: I'm not accusing you of misunderstanding the 14th Amendment, and what "equal protection under the law" means.

I'm accusing you of not understanding what the marriage rights that our government provides to straight people, and must therefore provide to gay people under the 14th's equal protection language, are.

|10.28.08 @ 7:30PM|#

The nuns at Bishop Feehan taught me that "marriage" was a civil contract involving two people and the state, and that the religious covenant that involved God, two people, and the Church was "matrimony."

Formerly Jennifer|10.28.08 @ 7:44PM|#

joe,

As in "Holy Rite of Matrimony", yes?

I always draw a blank on that one.

Jack|10.28.08 @ 7:45PM|#

"The state can't give you free speech, and the state can't take it away. You're born with it, like your eyes, like your ears. Freedom is something you assume, then you wait for someone to try to take it away. The degree to which you resist is the degree to which you are free..."
- Utah Phillips

--------------

Rights do not come from society. They are "inalienable." So long as the government is to recognize a religious and social institution as a legal one (as is the case with marriage), it must do so equally with all instances.

I am of the mind that it should not be a matter in which the government involves itself. Until that comes to pass though, people must be treated equally under the law. That means that picking and choosing which equivalent cultural or religious traditions to reward and which to shut down is unacceptable. There are a significant number of religious institutions that are willing to perform same-sex marriages. Why should the government not recognize them in the same way they do opposite-sex marriages?

It is perfectly reasonable for judges to recognize that some people do not have equal access to an existing legal institution and for them to require that this change. If the legal institution has a place at all, it has to be open to all people equally.

Robert Goodman|10.28.08 @ 8:35PM|#

Since hardly any of you (and hardly any of the rest of the world) understand this issue, please focus on this question:

C has a dispute with A & B over a term of a contract C has with A. It says A's spouse is entitled to certain benefits from C. The parties now disagree as to whether B is A's spouse. How do you want a court to decide this case? Do you want them to figure out what "spouse" meant to A & C when they made the agreement? Or do you want to decide on the basis of some judge's, legislature's, or plebiscite's subsequent decision as to what that word would be deemed to mean universally?

That's the rub. A & B are free to contract with each other however they want, but that's not the important issue, even though a great many libertarians and others seem to think so.

Also, the issue is one of the definition marriage, which is entirely a different issue than that involved with prohibitions on interracial marriage, polygamy, or incest, which is the regulation of marriage. The state never denied that marriage between persons of different races, blood relatives, or who were already married was possible, they just made it illegal.

Marriage is older than the state, older than the church, and probably predates H. sapiens. If you believe the dictionary as a fair reporter of customary language -- a spontaneous order if there ever was one -- then same sex marriage is impossible. There's no need to outlaw it, just to recognize its impossibility when a case comes up in court.

Trying to achieve legal equalization between homos & heteros by redefining words like "married" and "spouse" would be like trying to achieve race equaliz'n by decreeing the words distinguishing races out of existence, or decreeing all persons to be Australoid, and therefore of the same race, so that no distinctions could be made between them in any legal proceeding. Your state forbids "colored people" to work in certain occupations? Hey, easy fix -- there are no coloreds; next case! The restaurant won't serve Orientals? Boom -- this person isn't Oriental, and neither is anybody else!

Sosnowski|10.28.08 @ 9:10PM|#

Mr Michael is not at the back of any bus. He prefers not to get on the bus, and wants to be given another, identical one. The contract of marriage by any reasonable definition requires both sexes. If you want that changed, the legislature is the proper venue.

|10.28.08 @ 9:32PM|#

I will share a revelation I experienced in law school. You know the phrase "to have and to hold"? It's a real property term.

JD|10.28.08 @ 10:14PM|#

Ammendment 10 reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Like that is really clear?

The founding fathers punted on that one. This ammendment has screwed things up for generations. Which is it already?!!!!!

Time to decide - does my state have the power, or do I as and individual?

MJ|10.28.08 @ 11:54PM|#

" If you pass a Constutional amendment or a law that forbids the government from discriminating due to sex, then you can't use sex as a reason for government to forbid a marriage."

I suppose under that reasoning separate restroom/locker facilities for men and women in goverment buildings are unconstitutional as well?

Mike Laursen|10.29.08 @ 1:37AM|#

If you believe the dictionary as a fair reporter of customary language -- a spontaneous order if there ever was one -- then same sex marriage is impossible.

Translation: "I don't want the customary meaning of the word, marriage, to change."

|10.29.08 @ 10:47AM|#

As a supporter of marriage equality, the curious arguments against it -- usually relying on some stream-of-consciousness bullshit about tradition, mixed in with a hearty dose of imaginings about the clan-bonds of homo erectus -- hearten me. Such arguments are the last desperate gasps of a dying segregationist movement -- and a segregationist movement it is.

As for "why can't the gays do ," I encourage faux-libertarians of that bent to try it themselves.

Radical anarchists who attack me as a socialist for wanting the option of a marriage license to be available to gay folks spit with fury when I note that they, themselves, have marriage licenses. When they urge me to "live in defiance of the state," I urge them to do the same, divorce their spouses, and live in sin with $5K worth of "contracts."

I know a number of gay marriage opponents who have imported spouses from abroad, and who make similar arguments against same-sex marriage licenses. I encourage those people to live under the world they want for others, and import their spouses as illegal aliens (or move to Nicaragua or Russia to live legally with them).

There's a whole assortment of other stuff to consider, but to me, it comes down to this.

When gay people were targeted, repeatedly, by the Republicans and Democrats, the faux-libertarians were nowhere to be found. So their "concerns" about how a ruling that the equal protection clause applies equally to gay people will destroy society don't concern me in the slightest. If they were truly concerned about inequity under the law, they'd be lobbying for a massive Queer Tax Refund for all those homofolk who have been paying massively higher taxes to support a heterosexist social redistribution paradigm.

Alas, the bigotries of heterosupremacist dogma often overpower otherwise admirable intellectual capacities. And thus, we have "libertarians" raging against the court rulings in Connecticut, Massachusetts and California.

|10.29.08 @ 10:50AM|#

I suppose under that reasoning separate restroom/locker facilities for men and women in goverment buildings are unconstitutional as well?

Absolutely.

First, we're coming for marriage.

Then, we're coming for sex-specific bathrooms and locker rooms.

Finally, we'll be coming for THE CHILDREN!

BOO!

|10.29.08 @ 10:55AM|#

The contract of marriage by any reasonable definition requires both sexes.

If, by "reasonable definition," you mean "tradition," then yes, you are correct.

Of course, it also requires one man and multiple women -- usually treated as property handed from the father to the new husband.

While I'm sure you will doubtlessly spit out some argument over why this is bad and why monogamous marriage arrangements treating opposite gender individuals as equal parties is superior to the traditional arrangement, unfortunately your patina of "tradition" sorta falls by the wayside there.

Also, please don't bother to bring up "procreation." It's neither a requirement nor even tested for as part of the marriage process. A woman with a removed uterus can marry a man who has had a vasectomy -- a union that has precisely the same likelihood of producing naturally-conceived children utilizing the biology of the two partners as any same-gender pairing.

Considering the advances of science over the last few years, it's entirely possibly that two men or two women will be more easily able to have children than the aforementioned barren hetero couple too.

The whole "common sense" argument boils down to "this is the way it has always been." It's the 21st century's argument akin to "mainframes are the only proper computers, PCs are just toys."

|10.29.08 @ 2:00PM|#

The whole "common sense" argument boils down to "this is the way it has always been." It's the 21st century's argument akin to "mainframes are the only proper computers, PCs are just toys."

mainframes and pcs haven't been around for thousands of years. Marriage contracts between men and women have. An organic institution that formed without the help of the state. Now less than 2 percent of the population wants to change that ancient contract by using the state. Doesn't sound very libertarian to me.

MJ|10.29.08 @ 11:02PM|#

Brian,

I see my point went right over your little head. Let me explain, I'll try to keep polysyllabic words to a minimum (whoops). The person I quoted was justifying homosexual marriage as a right by taking an absolutist position on discrimination by sex, i.e. never acceptable. But if separate facilities for people of different sexes are acceptable, then perhaps treating relationships differently where the sex of the participants is important to the nature of the relationship is acceptable as well.

Jack|10.29.08 @ 11:34PM|#

Bathrooms are not a legal institution with a broad bundle of privileges and responsibilities attached to them. Perhaps some folks feel that there is no difference between their marriages and an outhouse, but I'm not one of them.

- Heterosexual, married man favoring equality under the law for all people.

|10.30.08 @ 12:09AM|#

Yeah, well someone has to speak for us.

The minority can't wait for the majority to make up its mind generations have died all ready.

If that was the case I don't think many folk even today would allow blacks to have equal rights. It's in the hands of the few to deliver justice.

|10.31.08 @ 12:27AM|#

these so-called 'activist judges' in california are republicans, appointed by republican governors. they did not 'find a right to gay marriage', they simply agreed with the complaintants that they were being discriminated against according to the equal protection clause in the state constitution.
the california legislature, representing the people, have twice voted for equal marriage rights but were vetoed by the governor on the grounds that the issue was wending its way through the courts and should not be further complicated pending the courts decision. now, instigated and funded by mostly out-of-state and religious organizations, stripping gay couples of the equal rights asserted by the court has been placed on the ballot. should the civil rights of any group of citizens be decided by popular vote or is it, indeed, the courts responsibility to see that all citizens are afforded the same rights and responsibilities regardless of the current sentiments of the mob ? if gay citizens can be singled out for a second-class status with limited civil rights, aren't we all in danger and who could we turn to if not the courts ?