Overreaching on Gay Marriage

Voters should decide the future of same-sex marriage—not federal judges.

What the federal court decision in favor of same-sex marriage will do for gay couples and their children is heartening and welcome. What it will do for our law and politics—well, that's a different story, and a dismal one.

If I favored a constitutional amendment banning gay marriage, I would have considered Wednesday a very good day. When a judge in California found that same-sex couples have a right to wed, he cemented the widespread notion that the courts are out of control and that the Constitution means whatever judges want it to mean. The verdict will go far to energize and expand opposition to gay rights, at a time when they were on the rise.

Let me be clear: Had I been a Californian, I would have voted against Proposition 8, which banned gay marriage. I would like all 50 states and the federal government to grant same-sex couples access to marriage. But it would be far better for that change to come from elected institutions than from the courts.

U.S. District Judge Vaughn Walker struck down Proposition 8 because it "fails to advance any rational basis for singling out gay men and lesbians for denial of a marriage license." But it's silly to believe only nut jobs and bigots could rationally oppose same-sex marriage, or that millions of Californians who accept other laws protecting gays were acting irrationally.

They might reasonably fear that in some subtle way, the legalization of gay marriage may gradually weaken the appeal of marriage among heterosexuals. They might think it will modestly increase out-of-wedlock childbearing. They might believe our understanding of the possible repercussions is so limited that we shouldn't tinker with an age-old institution in this way.

Are those concerns persuasive? Not to me. But they are plausible enough to contradict Walker's assertion that the only real justification for the ban is "the notion that opposite-sex couples are superior to same-sex couples."

Most people and judges agree that the Constitution doesn't allow the government to outlaw interracial marriage. Most would also say the Constitution does allow the government to outlaw polygamous marriage. Those who applaud this ruling should ask themselves: Would they feel the same way if the court had ruled in favor of polygamy?

The same arguments, after all, apply in both realms. The judge said authorizing same-sex marriage would further social goals like fostering stable relationships, protecting children, and allowing adults to follow their natural sexual desires. Ditto for permitting polygamy.

The ban prevents the polygamous from marrying their chosen partners just as the prohibition of same-sex marriage deprives gays of that freedom. Josh can't marry Zack; Michael can't marry Katie and Nicole. If the right to marry encompasses the former, why not the latter?

Gays argue, correctly, that they can't be expected to change their inborn sexual orientation to get married. But polygamists can assert that monogamy is impossible for them—and, judging from the prevalence of sexual infidelity, for most people.

Nor does the polygamy ban solve any problems. Men can already have sex with multiple females, produce offspring with them, and furnish them with financial support. Former NFL running back Travis Henry has nine children by nine different women.

Prohibiting polygamy does nothing to prevent such conduct. It just keeps people who want to do it responsibly from operating within an established legal framework.

That's why I would legalize polygamy as well as same-sex marriage. But it's one thing to believe those changes would make sound policy and entirely another to think that the Constitution requires either—especially when California, which passed Proposition 8, has granted gay couples access to most of the rights afforded by marriage.

The decision may very well lead the Supreme Court to rule in favor of same-sex marriage. If so, it would be the most polarizing decision since Roe v. Wade in 1973, which we are still fighting about.

It would spark a furious backlash from Americans who, whatever their views about homosexuality, think such decisions belong with them and their elected representatives. It could even lead to a constitutional amendment overturning the decision.

Thanks to Judge Walker, the debate is no longer about whether gays deserve protection from the law, a debate they were steadily winning. It is more about whether democratic processes should be trusted to resolve the question. That's a debate they are likely to lose.

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  • Suki||

    Good morning reason!

  • Tim||

    12:04? Why not 12:01?

  • Suki||

    I hate being predictable.

  • Suki||

    Tim,

    Just for you I set the time on my wayback machine to 12:00AM for todays good morning message.

  • Dividist||

    Well, of course it should have been at:

    8.9.10 @ 11:12AM

    Which is exactly when I posted "Prop 8, James Madison, and Majority Rule" where I outlined why I think Steve is wrong. Quoting from myself in that post,there are many examples in our history when democratic processes cannot be trusted to resolve questions of inalienable rights.

    The founder's understood this when they appended the Bill of Rights to the Constitution. In James Madison's words arguing for the inclusion of the bill of rights:

    "The prescriptions in favor of liberty ought to be leveled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power. But this is not found in either the Executive or Legislative departments of Government, but in the body of the people, operating by the majority against the minority."

    So what should happen when the majority acts against a minority, as in Proposition 8? Particularly when we see the executive branch make a craven political decision to not act in support of the minority, and legislators at both the federal and state level unwilling to act in contradiction to the majority view? In such a case, it seems obvious that the judiciary is the last firewall to protect our liberty, and it is only the judiciary that can preserve our rights against the will of the majority. In such a case, not only is judicial action acceptable, it is necessary, even when it means substituting judicial fiat for democratic majority or legislative action. Self evident inalienable individual rights should trump the majority every time.

    I suppose that one can argue that same sex marriage does not rise to the category of a self evident inalienable right to pursue happiness. But on the broader question - whether a judge should ever substitute their judgment for the judgment of a democratic majority? Yes they should. I see Prop 8 as a clear attempt by the majority to impinge on the rights of a minority. Judge Vaughn Walker did his job and did it well.

    BTW - There will be another shot to get this comment timing thing right with a comment at 8.9.10 @ 11:12PM

  • ||

    Exactly right, Dividist. The supreme law of the land empowers the courts to interpret the laws, and they are the last hope for protecting the minority from the tyranny of the majority.

    The average voter is not guided by constitutional principles like rational-basis scrutiny, is probably completely unaware of them, and is instead swayed by their personal belief system. That system is fit for guiding their own lives. It is spectacularly UNfit for guiding the lives of millions of others. The courts defending the equal rights of gay citizens is long overdue, and the principles of the Constitution, not the feelings of some votres, must control.

  • Soonerliberty||

    I have to disagree here. It is not the right of the voters to violate the rights of any other individual. Also, the state has no right to use violence to implement the will of the voters who want to limit the rights of others.

    The best argument is to get the state out of marriage altogether.

  • scineram||

    There is no right to same sex marriage.

  • Fist of Etiquette||

    There is no right to government recognition of same sex marriage. Or of any marriage. It's an entitlement, not a right.

  • Fluffy||

    Equal protection doesn't only apply to enumerated rights.

    It applies to any right or benefit extended by the government.

    There's no right to food stamps, either, but if the state said only white people could get them, it would violate the 14th.

  • ||

    OK, I've read the whole thread and came back up here because it's Fluffy's first invocation of equal protection. Question: an adult bother and sister wish to get married, or a father and his adult daughter. Is it a violation of "equal protection" for the state to forbid this?

  • slutmonkey||

    That's easy: Yes. Incestuous marriage should be ok as far as government is concerned.

    Is it disturbing to the rest of us to see? of course, but we don't have a right to not be offended.

    Marriage is simply a ritual that people perform to bond in a certain way. Government has no place regulating relationships outside of preventing violence.

  • Tim||

    Can you marry your elderly, widowed mother just in order to get her on your work health plan?

  • Jimmy 'Crack' Corn||

    +50

  • Suki||

    What about working somewhere that allows you to put whomever you like on your health plan?

  • ||

    This is just a bit too much Year Zero/Committee of Public Safety for me. I am reluctant to take any ideology to the point of tossing out ancient traditions because we "rationally" decide they're bad. They may well be, but the process to change them should not be too quick, and not decided by a few judges.

  • ||

    under ancient tradition, the purpose of marriage is to dissolve one set of familial relations and replace them with another. These traditions should be applied to gays and lesbians. In ancient tradition, women were property. Now that marriage is not a bill of ownership, but a contract among equals, there is no reason to favor heterosexual marriage.

  • Down 98 Cents||

    From my understanding of the decision, and equal protection, as long as the government can show a rational basis for the law, then its fine. I'm guessing a rational basis could be advanced for not allowing family members to marry, but I really don't understand the science behind genetic problems with incest (aside from knowing a self-professed "cat-lady" whose kittens came out weirder and weirder as inbreeding continued).
    If same-sex-marriage is a fundamental right, instead of just an equal protection problem of the government discriminating against homosexuals, then I think the government must show more than a rational basis for such decisions, but should have to show a compelling purpose behind the statute banning gay marriage. I would argue that they almost certainly could not meet that burden through any argument I've heard popularly advance to this point.
    Personally, with all this in mind, I don't know why the government gives a shit about marriage across the board. If they want some mechanism to control the passage of property or claims from one individual to the next, if they want to control how the benefits they've created are extended to persons choosing to enter some type of "marital" union, then they can accomplish it without sanctioning what is essentially a religious ceremony through other means. If the government was generally less involved in all aspects of our lives, then this wouldn't be an issue at all.
    My two cents.

  • Down 98 Cents||

    From my understanding of the decision, and equal protection, as long as the government can show a rational basis for the law, then its fine. I'm guessing a rational basis could be advanced for not allowing family members to marry, but I really don't understand the science behind genetic problems with incest (aside from knowing a self-professed "cat-lady" whose kittens came out weirder and weirder as inbreeding continued).
    If same-sex-marriage is a fundamental right, instead of just an equal protection problem of the government discriminating against homosexuals, then I think the government must show more than a rational basis for such decisions, but should have to show a compelling purpose behind the statute banning gay marriage. I would argue that they almost certainly could not meet that burden through any argument I've heard popularly advance to this point.
    Personally, with all this in mind, I don't know why the government gives a shit about marriage across the board. If they want some mechanism to control the passage of property or claims from one individual to the next, if they want to control how the benefits they've created are extended to persons choosing to enter some type of "marital" union, then they can accomplish it without sanctioning what is essentially a religious ceremony through other means. If the government was generally less involved in all aspects of our lives, then this wouldn't be an issue at all.
    My two cents.

  • ||

    Marriage is the shifting of one's primary relationship from the family of origin to the spouse, creating a new next of kin. As such, a brother and sister need not marry to be next of kin. This argument is a canard.

  • ||

    The problem with that argument is that the Federal government does just that. It gives special privileges to certain races and groups.

    If the 14th were applied to affirmative action, subsidies, targeted tax breaks, tariffs, etc, etc, etc which all benefit certain parties by unequal treatment then yes, I would say kudos on this decision.

    But the fact is the feds pick and choose, as such, the power is better left with the states where it is less dangerous.

  • Jimmy 'Crack' Corn||

    +10

  • ||

    Equal is not special, just equal. The class was created by the prohibition and the class based prohibition had no rational basis (since procreation is not required to wed).

  • ||

    Your statement is unclear. Regardless the base problem is marriage is a special protected legal status.

    If marriage was what it should be, which is whatever the hell the people involved want it to be, and had no special legal privileges this would be a non issue.

    Government meddling is yet again made the basis of a case for more government meddling.

  • ||

    Also, they could rule that the Commerce clause allows them to say no state may refuse reciprocation of the marriage contract.

    They could rule that civil unions must be legally identical to marriage.

    We're ultimately talking about a trademark violation. The definition of a word. It's a bad excuse for feds to usurp states rights more.

  • ||

    States don't have a right to discriminate. If you don't want federal interference, don't support state intrustions into the liberty interests of its citizens.

  • ||

    Don't be a dolt. Prop 8 doesn't end discrimination. It just expands the privileged group.

  • ||

    Should be 'overturning prop 8' doesn't end discrimination'

  • ||

    States don't have a right to discriminate. If you don't want federal interference, don't support state intrustions into the liberty interests of its citizens.

  • ||

    I don't want federal or state discrimination. You're the one that is supporting discrimination, you just want it federal and with different criteria.

  • Tony||

    This is just plain wrong according to our supreme court. Marriage has been recognized as a fundamental right many times, most notably in Loving.

  • ||

    That is a libertarian canard. Marriage is the legal creation of a new family and the severing of familial relations with the family of origin. As long as familial relations are recognized in law, marriage is essential and therefore a right of free people. The alternative is that the state or the existing family decides whom you will marry. Neither prospect is savory. Especially unsavory is the fact that if one is incapacitated and there is no familial relation recognized in law, only the state can make decisions on your behalf. Now that is scary.

  • ||

    Actually, that's wrong, there are multiple cases of supreme court precedent which hold the right to marry as fundamental in US law. This would cause them to be protected rights under the definition of "liberty" under the due process clause of the 14th amendment.

    And the legal fact of the fundamental right to marriage went uncontested by the Prop 8 proponents in this case as well.

  • ||

    No but there is a right of people to enter into any contract they wish

  • TXLimey||

    Would be nice, but if we're talking actual legal rights guaranteed by US law and the constitution, like hell do we have the right to enter any contract we wish.

  • Soonerliberty||

    Exactly what I was referring to. Any state violence used to prevent voluntary contracts should be null and void.

  • ||

    "But they are plausible enough to contradict Walker's assertion that the only real justification for the ban is "the notion that opposite-sex couples are superior to same-sex couples."

    I would have some respect for the Judge if he had found also that 2 person marriage makes a claim that it is superior to polygamous union, or for that matter multi-species marriage.
    If the judge truly believed his only logic, why shouldn't I be able to marry 10 women (other than the fact that I am so hideous even blind women won't marry me), or 10 animals, or my computer, which does supply me with quite a bit of sex.
    There is gay marriage now (I went to one in DC 2 weeks ago - unfortunately, my gay friends were not in the vanguard, so I got no certificate of being a guest at the 1st 100 gay marriages in DC) and it seems obvious to me that there will be gay marraige where it is wanted soon.
    If judges need something to do, maybe they can start with all the innocent people that scientific evidence keeps finding in prison - maybe they need to start asking 'why is that?'

  • ||

    The court can only decide issues before it. If members of the more radical fringes of the Morman Church wish to have this ruling applied to their situations, they might have a good case. If they wish to attempt it, I wish them well - especially given the way Utah was abused during their statehood process by the federal government when it made abandoning polygamy a requirement for statehood. That violates both their religious freedom rights and their fundamental right to marry.

  • ||

    I agree.

    But then they would have to overturn liquor license laws, zoning laws, all legally enforced professional licensing, etc etc.

    If they did that, I'd be in favor of this decision. As it is it's selective enforcement, and I trust states with power more than feds.

  • ||

    Madison did not. The radical Republicans who got this amendment passed and ratified did not. Anyone who has successfully sued to secure their rights did not.

    Indeed, the fact that the 14th Amendment has needed to be enforced time and time again show that state governments are inherently untrustworthy in this regard.

  • ||

    Kelo. Slaughterhouse. Griswold. Dread Scott. Wickard. Whitman. Plessy. Penn Central. etc etc.

    Who is untrustworthy again? The Federal government is much less trustworthy. It's not even close.

    There is a reason for 9A and 10A. Disregard at peril.

  • Beowulf||

    There is no right to interracial marriage or integrated schools

  • Suki||

    The government should not be running schools.

  • Geotpf||

    The point is that you guys are missing the point. If the government recoginizes marriage (or runs schools), they can't descriminate against gays or blacks. The question being determined here is not whether or not it is right or constitutional or whatever for the state to be recoginizing marriage.

  • Soonerliberty||

    So, the best protection is to get them out of the business of running things altogether.

  • Geotpf||

    Again, good job missing the point. That is not currently a choice. The point is that the choices in the current debate are governmental recoginized straight and gay marriages, or governmental recoginized straight marriages only.

  • AA||

    "Again, good job missing the point. That is not currently a choice."

    No, your point is understood. SL is just coming up with a different solution.

  • ||

    They do a pretty bad job of it, don't they. The reality of government schools is that they are an income transfer to parents for the education of their children. You can get rid of government schools if you make the income transfer much more explicit.

    Is accident of birth really enough grounds for inequality of outcome, or condemnation of any citizen to outright poverty? To put it in terms of merit, does a rich child have any more merit than a poor child in getting their basic needs met?

  • ||

    There is no right to publicly funded segregated schools, nor any public right to control the race or gender of who marries whom. That is the point of the ruling. It is not incumbent on those who want interacial (or intragender) marriage to prove their right to these things, nor to those who desire equal education to prove their right to that as well. It is up to the excluders and the discriminators to find a rationale for their position. Because such a right is only based on malice, no such right exists.

  • Michael Ejercito||

    It is not the right of the voters to violate the rights of any other individual.


    And that is the argument there, whether or not the right was actually protected under the original public understanding and relevant case law of the 14th Amendment's equal protection and due process clauses. And I have read critiques of the ruling itself from people who oppose states using gender classifications in the definition of marriage.

  • 05Train||

    Sorry Steve, you're missing the larger issue. The people of California can't vote to ignore Equal Protection. If the government is going to offer special rights and privileges to adult couples, it has to offer them to all adult couples. Adding the word "gay" to marriage simply obfuscates the issue.

    Denying federal marriage benefits based upon what sort of plumbing someone has is unconstitutional, no matter how many Californians vote to make it so.

  • Untermensch||

    Denying federal marriage benefits based upon what sort of plumbing someone has…

    Playing devil’s advocate here: the State was not denying based on the sort of plumbing one has. Had the law forbade men or women as a class from marrying, your statement would be correct, but there is no law forbidding anyone from marrying based on their plumbing. (Had you said based on having two sets of the same kind of plumbing in the couple, you would be right…)

    These debates about “marriage” are fundamentally circular (on both sides), because they rest on the definition of the thing they are trying to define:

    If marriage = one man + one woman, than gay marriage cannot be marriage and there is no denial of a right (since it would be a logical impossibility to deny a right to something that doesn’t allow the possibility you are trying to get recognized).

    If marriage can equal one man + one man or one woman + one woman, then equal protection applies.

    But in either case, you can only make that determination based on the definition of marriage, which is what is at stake here. If the very definition weren’t at stake, we wouldn’t see any issue. But most of the arguments start by assuming a particular definition and making legalistic type arguments based on that assumption.

    Note that I am in favor of gay marriage if the state has to define marriage, so I am not arguing against it, but rather pointing out that the appeal to equal protection is begging the question since it relies on a definition that is fundamentally up in the air. I believe that this will ultimately be settled in favor of gay marriage, but it is not yet settled. I realize that such a statement is cold comfort to those who want it now…

  • 05Train||

    Fair enough.

    Ultimately, that's why the government needs to get the hell out of the "marriage" business. Government-sponsored marriage is nothing more than a legal contract. Is there any other sort of government status that is dependent upon the participant's plumbing?

    It just seems pretty silly that so much energy is being wasted trying to keep them damn queers from filing joint tax returns.

  • Dello||

    Signing up for Selective Service?

  • ||

    Not true. The only way to get out of the marriage business is to eliminate all familial rights and priviledges in law. Marriage is simply the act of leaving one family and starting another. To deny gays the right to marry is to deny them the right to exit their family of origin, which would be tyranny. Domestic partnership provisions are not adequate, precisely because they are transitory. Marriage is legally permanent.

  • Fluffy||

    Note that I am in favor of gay marriage if the state has to define marriage, so I am not arguing against it, but rather pointing out that the appeal to equal protection is begging the question since it relies on a definition that is fundamentally up in the air.

    In legal terms marriage is whatever the state says it is.

    When the state opens its mouth to say what marriage is, it can't say anything that denies any of its citizens equal protection.

    You're basically saying that marriage is an extra-state institution that the state must find a way to accomodate, and that's really just false. Any institution that can't adapt itself to the requirements of the constitution can't be supported by the state.

    Saying, "Well, marriage by definition is set up this way, so the state has to accomodate that even if it violates equal protection," is like saying, "Well, the feudal relationships between lord and tenant were unequal by definition, so it doesn't violate equal protection if the state keeps using that old definition." You either have to change the definition, or dispense with the institution entirely.

  • Untermensch||

    Apologies for taking your points out of order:

    Saying, "Well, marriage by definition is set up this way, so the state has to accomodate that even if it violates equal protection," is like saying, "Well, the feudal relationships between lord and tenant were unequal by definition, so it doesn't violate equal protection if the state keeps using that old definition." You either have to change the definition, or dispense with the institution entirely.

    Fluffy, I think you’re arguing orthogonally to my point. I’d agree with you, but you’re already assuming the ending point. If “marriage” is definitionally one thing, then arguing that it should be extended to something else a big change, not just the recognition of a pre-ordained right.

    I happen to agree with you, but if Brother Ray Bob Tom thinks that marriage is ordained by God to be one man + one woman (and quotes 1 Timothy as proof of this), your asking him to accept another definition is, from his perspective, evil. He may be wrong, but by his (presumably honestly held) opinion, you can no more marry a man with a man than you can a fish with a bicycle. So as long as the essential definition of “marriage” is in question, you can’t reach agreement since the premises for application of the law and logic are not agreed upon.

    In legal terms marriage is whatever the state says it is. When the state opens its mouth to say what marriage is, it can't say anything that denies any of its citizens equal protection.

    I’m a little surprised at your formulation since that’s the sort of argument Chony uses: all rights stem from the state. But it’s also problematic for your argument, because it legitimizes the viewpoint that if a legislature says that marriage = one man + one woman, then that’s what marriage is. So if the definition is that, then the state isn’t violating equal protection, which was my point. You only know if the state is violating it if you know the definition. So we come back to the start of the circle.

    You're basically saying that marriage is an extra-state institution that the state must find a way to accomodate, and that's really just false. Any institution that can't adapt itself to the requirements of the constitution can't be supported by the state.

    No, I’m not arguing that the state needs to accommodate any extra-state institution, and I’m really not sure where you got that, but I must have been unclear for you to get that impression. I’m guessing that you wrote that because I was arguing that the definition of marriage is up in the air and does not originate from the state. Assuming that I’ve got that right, I’m still puzzled, since where would the definition the state uses come from if not somewhere external to the state? Last time I checked the state still had some at least vague connection to the society over which it rules. If the state decreed that marriage was a union between a paper clip and a dolphin, I think we would all object, but only because we have some idea of what marriage is that stems from somewhere other than the state.

    I would argue that the state should be out of the marriage racket entirely and that “marriage,” however defined, should be up to individuals and organization to define as they see fit.

    I think that if an employer wants to deny gays spousal benefits, it should have that right (just as an employer should be able to deny heteros spousal benefits). On the other hand, that employer will have to suffer the consequences of that choice (just as right now a gay-friendly environment will probably not attract the best-qualified employees if they happen to be Southern Baptists). That position is exactly the opposite of the state accommodating an extra-state institution.

  • The Angry Optimist||

    Untermensch, as a friend of mine from these-here boards might say, you are the gold medalist of the 100-Yard Violently Missing the Point.

  • Untermensch||

    Which point is that? Please enlighten me. I am not arguing against gay marriage, only pointing out that the logic here relies on things external to logic.

  • Untermensch||

    I'm pretty sure I got Fluffy’s point, but I happen to disagree with him. Disagreeing ≠ missing the point. Or perhaps you subscribe to the Fluffy School of Everybody Who Disagrees with Me is an Idiot and Moral Defective™?

  • the gay libertarian ||

    TL/DR

  • Untermensch||

    Must be ADHD...

  • the gay libertarian ||

    We are writing comments here not essays.

  • Untermensch||

    Since when did something that takes less than 45 seconds to read constitute an essay? Or are you still writing the 500-word five-paragaph essays you were assigned in elementary school? An essay in the real world takes a little more than that, so my vote is that you’re really complaining that we aren’t confining ourselves to your attention span.

  • the gay libertarian ||

    TL/DR

  • silly faggot||

    dicks are for chicks

  • the gay libertarian ||

    Oh, you are a clever one, aren't you?

    If you ever had gay sex, then you'd know that's not true.

  • Just curious||

    How come gay only applies to homosexual men ie Gay and Lesbian community.

    Also, how did gay go from being happy to being homosexual male?

    Was successfully redefining the word gay from happy to homosexual male what emboldened to gays to redefining marriage?

    Just curious!

  • Fluffy||

    The key thing to remember is that the state can't take any act that violates equal protection, and that this is true before the legislature undertakes its definition.

    So the reason the legislature can't just assign the definition and then stand back and chortle that the law doesn't violate equal protection now that the definition is in place is that the act of stating the definition is also subject to the equal-protection limit.

    It's the moment when they say, "...between a man and a woman... that is subject to legal challenge under the 14th. They don't possess the power to posit that particular definition.

    They could, in fact, define it as being between a fish and a bicycle because that very absurdity would protect it from equal protection claims - no citizens would be impacted either positively or negatively by such a definition. But as soon as they involve one or more citizens in their definition, BAM! The 14th comes down on them like a ton of bricks.

  • Untermensch||

    Fluffy, thanks for the thoughtful response. I shouldn’t accuse you of being doctrinaire, because this is a real response, not like TAO. So I apologize for my response below that accused you of thinking everyone else is wrong.

    I’m not sure the courts in general would see this in as cut and dried a manner as you do, and I do worry that forcing the definitional issue without a social consensus may cause more harm than good (which was Chapman’s point). I think, however, that we are getting there. Again, it’s cold comfort, but in twenty years we’ll look back on this very differently than today.

  • Bo||

    All this expanding of "equal protection" will someday lead to a lefty judge throwing out private property.

  • Joe||

    Let me try that again (going back and forth between html and vB screws me up):

    Playing devil’s advocate here: the State was not denying based on the sort of plumbing one has. Had the law forbade men or women as a class from marrying, your statement would be correct, but there is no law forbidding anyone from marrying based on their plumbing. (Had you said based on having two sets of the same kind of plumbing in the couple, you would be right…)

    That's pretty much the reasoning for upholding the anti-miscegenation statute in Pace v. Alabama (later overturned by Loving)--the law doesn't prohibit blacks or whites from having sex, just from having interracial relations, so there is no equal protection violation.

  • Joe||

    Fucking threaded comments

  • Mike||

    No, because sex isn't a state-recognized and sanctioned contractual institution that it has the inherent power of regulating under the law.

  • ||

    Marriage is more than what the state says it is, although the law is used to define what marriage is in the settling of disputes about marriage. The right to contract marriage is the right to leave one family and start another (adoption is the method by which one may join an existing family). As long as you have families, you must have marriages. To deny gays the right to marriage is to deny them the right to leave their family of origin - which would be tyrannical.

    Understood this way, employers cannot deny spousal benefits to one type of marraige and offer them to another. They have no right to an opinion on an individual's family.

  • Robert||

    You're basically saying that marriage is an extra-state institution that the state must find a way to accomodate, and that's really just false.


    No, that's exactly the truth. Marriage pre-dates the state, pre-dates the church, pre-dates language, pre-dates biologically modern humans. When language came about, words were invented to describe the relationships that had already existed among hominids (and various other animals). When gov't and religion came about, they adapted to those words.

    What makes you think otherwise?

  • Fluffy||

    Well, you clipped my post to remove the very answer to your question.

    If there is in fact some ur-Marriage that predates the state and the church [I would dispute that it predates language or biologically modern humans - monogamy is not marriage, and child-rearing is not marriage] that's all well and good, and to the extent that it's an extra-state institution it will have to go on being one.

    When we talk about legal marriage we're talking about a state institution. Nothing more. And if we're going to have a state institution, it has to accomodate equal protection or it has to go over the side of the boat.

  • Robert||

    If there is in fact some ur-Marriage that predates the state and the church [I would dispute that it predates language or biologically modern humans - monogamy is not marriage, and child-rearing is not marriage]


    Certain living things that are not human act in ways that show recognition of existing couples of their kind.

    When we talk about legal marriage we're talking about a state institution.


    Is childhood a state institution? Parenthood? Disability?

    These concepts and words expressing them all existed before. There have been various state interventions that involve them, but they all ultimately boil down to recognitions of those statuses. Even if you look at something like the Americans With Disabilities Act, you see that certain things are statutorily defined as disabilities that might only arguably be considered such, but otherwise the definition is left open-ended, which means it's a judgment as to whether someone is disabled or not, depending on facts specific to the case.

    It's one thing for gov't, or anyone writing a legal document, to define words as terms of art going forward in that particular document or others under the control of the parties writing the one at hand. It's quite another to rule that a word as it exists in pre-existing legal documents means something other than the understanding of the parties at the time it was written! And that's what's at stake here: ruling that wherever a legal document, written and agreed to by whomever, referred to "spouse", etc., that it includes the possibility of a "spouse" of the same sex. That's not just equal protection, because the people who drafted the document were free to include such cases if they'd wanted to.

    And if you think nothing bad can happen due to such redefinitions, consider how words like "thaler" ("dollar") used to mean a certain weight of silver.

  • DLM||

    [I would dispute that it predates language or biologically modern humans - monogamy is not marriage, and child-rearing is not marriage]

    Probably the biggest problem is in definitions. I see it all the time. Two presumably reasonable people arguing two different points talking past each other all becuase they are using somewhat different definitions for the same word(s). They may as well each be speaking a different language.

  • Robert||

    Yeah, the definitions thing is the problem here with both the issue and the meta-issue of discussing it. Equivocation is an especially wide-mouthed trap on this issue.

  • St. V||

    If the word is the problem, get rid of it altogether. Remove the term marriage from legal documentation and replace it with civil union for all. The state's concern is with contractual rights and nothing more. Problem mother fucking solved.

  • Coeus||

    Bingo

  • Robert||

    If the word is the problem, get rid of it altogether. Remove the term marriage from legal documentation and replace it with civil union for all. The state's concern is with contractual rights and nothing more. Problem mother fucking solved.


    Until you realize that most legal documents that mention terms such as "spouse" are not gov't edicts, but are the very contracts that should be the state's concern.

  • ||

    Marriage is the process by which you sever the family of origin's rights and start a new family. It should not depend on the state, however it must be recognized by the state because it gives the new family rights that are superior to the family of origin. To try to simply change terminology is fucking wimpy. The essential right to gay marriage is the right to tell your family to fuck off, you have a new one. A civil union is governmental in nature. The right to marriage is organic and need not depend on state actions, as civil registry does - so that gays should have the right to common law marriage as well - as well as mediation of the state when common law marriages unravel, aka, divorce.

  • Earl Clovis||

    If marriage predates the state, church, language, etc, then so does gay marriage. It's not like homosexuality is a modern invention.

  • Robert||

    If marriage predates the state, church, language, etc, then so does gay marriage. It's not like homosexuality is a modern invention.


    No. Marriage between males & females is ancient, pre-human, but attempts at same sex marriage are a very recent phenom. Homosexuality may go back a long way, but marriage is not sexuality.

  • iamtheeviltwin||

    "In legal terms marriage is whatever the state says it is.

    When the state opens its mouth to say what marriage is, it can't say anything that denies any of its citizens equal protection."

    This is a bit snarky, but "marraige" as defined by (most) states is a legal construction that involves one man and one woman.

    There is no "equal" protection being violated here. Marraige (as defined by the state) has nothing to do with whom you love, whom you sleep with, or anything involving sexuality.

    The law is applied equally to all men and all women.

    Outside of a few barriers, such as age and familial relationship, there is nothing stopping a gay man from marrying a woman or a lesbian woman from marrying a man. They have the same rights to marry as anyone else in the country.

    Equal protection is perhaps the weakest argument in favor of gay marraige.

    This is one of the reasons the courts should leave this issue alone and let the battle be fought where it should be, at the legislative level.

    The best solution is to remove the state from marraige altogether and if (a big IF) the state feels a compelling social reason to enforce a "civil union" contract then institute civil unions for any two (or more) adults willing to enter one.

  • iamtheeviltwin||

    ...and one of these years I will remember how to spell marriage...

  • Earl Clovis||

    Jane and Bill both love Jack. Jane can legally marry Jack because she has a vagina. Bill cannot because he has a penis. That is patent denial of equal protection based on gender.

    As such, at the very least, prop 8 is required to pass intermdiate scrutiny. This judge found Prop 8 to fail even the rational basis test.

    Note that this argument doesn't evoke any kind of protected status for gays. It doesn't even acknowledge gays exist.

    http://en.wikipedia.org/wiki/Intermediate_scrutiny

  • ||

    Changing the name does not change the issue. The issue is whether a person can form a family with the person of his or her chosing and by so doing sever ties with the family of origin. Gays must have the same right to do that as straights and that right is called marriage.

  • Joe||

    [i]Playing devil’s advocate here: the State was not denying based on the sort of plumbing one has. Had the law forbade men or women as a class from marrying, your statement would be correct, but there is no law forbidding anyone from marrying based on their plumbing. (Had you said based on having two sets of the same kind of plumbing in the couple, you would be right…)[/i]

    That's pretty much the reasoning for upholding the anti-miscegenation statute in [a href="http://en.wikipedia.org/wiki/Pace_v._Alabama][i]Pace v. Alabama[/i][/a] (later overturned by [i]Loving[/i])--the law doesn't prohibit blacks or whites from having sex, just from having interracial relations, so there is no equal protection violation.

  • Michael Ejercito||

    Playing devil’s advocate here: the State was not denying based on the sort of plumbing one has. Had the law forbade men or women as a class from marrying, your statement would be correct, but there is no law forbidding anyone from marrying based on their plumbing. (Had you said based on having two sets of the same kind of plumbing in the couple, you would be right…)


    The issue is whether or not the state can use gender classifications in legal definitions, basically.

    Given that the Supreme Court upheld criminal statutes that discriminated on the basis of gender (and sexual orientation!) ( Michael M. v. Superior Court ), I fail to see how using gender classifications in a mere legal definition is unconstitutional.

  • Earl Clovis||

    Judicial review encompasses three levels of scrutiny. Depending on the nature of the law being challenged, it's gonna have to pass one of those three levels. From weakest to strongest these are rational basis, intermediate scrutiny, and strict scrutiny.

    Laws that discriminate based on gender, like Prop 8, oftentimes just have to pass intermediate scrutiny. But prop 8 doesn't just discriminate based on gender...it denies people a fundamental right. Marriage has been described time and again by the courts, including the Supreme Court, to be a fundamental right, and laws that deny fundamental rights warrant strict scrutiny.

    Judge Walker additionally found gays and lesbians to constitute a suspect class. To be a suspect class, you must

    1. be a discrete or insular minority
    2. with a history of persecution
    3. who is powerless to protect themselves by the political process
    4. whose defining characteristic is immutable

    Laws that discriminate based on suspect classification must also pass the strictest scrutiny under judicial review.

    Walker found Prop 8 to fail even the rational basis test, let alone intermediate or strict scrutiny.

    Here's a link that describes the criteria a law reviewed under strict scrutiny must pass:

    http://en.wikipedia.org/wiki/Strict_scrutiny

  • Michael Ejercito||

    Laws that discriminate based on gender, like Prop 8, oftentimes just have to pass intermediate scrutiny. But prop 8 doesn't just discriminate based on gender...it denies people a fundamental right. Marriage has been described time and again by the courts, including the Supreme Court, to be a fundamental right, and laws that deny fundamental rights warrant strict scrutiny.


    Walker misapplied the Glucksberg test, which requires that a right has to be deeply rooted in our nation's history and tradition to be considered fundamental. And he admitted in his own ruling that marriage was traditionally considered to be an opposite-sex union.

    1. be a discrete or insular minority
    2. with a history of persecution
    3. who is powerless to protect themselves by the political process
    4. whose defining characteristic is immutable


    Based upon current circumstances, or their circumstances in 1868?

    For example, what happens if one of the above factors ceases to be true? Does a suspect class lose its suspect classification? Does that mean Supreme Court rulings striking down laws on the basis that the laws failed to meet strict scrutiny have to be revisited?

    Does that mean that race can cease to be a suspect class without an intervening constitutional amendment?

    And to write that homosexuals can not protect themselves via the political process is strictly not true today. They were able to protect themselves from the Briggs initiative (an initiative opposed by Ronald Reagan) and the LaRouche initiative. They were able to use the legislative process to redefine marriage regardless of gender in New Hampshire and Maine, and they were able to convince a majority of voters in Washington to support domestic partnership initiative.

    They do not get all the laws that they want, of course, neither do any other class, but they are able to use the political process.

    Of course, the above is irrelevant if suspect classification depends on historical circumstances. But remember that this would mean that suspect classification would apply to polygamists as well, under this standard.

  • ||

    To do so would allow heterosexuals to create a new family while severing the relation to the family of origin while prohibiting gay people from severing family of origin ties. There is no rational justification for family members to have greater rights vis-a-vis a homosexual spouse of one of their family members in comparison to the rights of a heterosexual spouse of another family member.

    To put it more plainly, Mike is married to Moira and Steve is married to Stevie. Peggy is Mike and Steve's mom. Mike and Steve and their spouses are visiting Peggy for her birthday and Mike and Steve are going out to get coffee, but get in an accident and are both incapacitated. Should Peggy have more rights than Stevie or Moira or should Stevie's and Moira's rights be the same (and, yes, Stevie is a boy and Moira is a girl).

  • DaveSD||

    The constitutional definition of marriage as the union of one man and one worman contains no discriminators and therefore must either stand or be changed by the constitutional process. Any discriminators such as one "white" man or one "straight" woman would be challengeable constitutionally since they restrict the basic definition in arbitrary ways that deny equal protection to members of the classes "man" and "woman". Similarly the inclusion of "one" in the definition is not a discriminator since there is no class of persons who is a "two". If you want to change the legal definition do so but you can't nullify it based on denial of equal protection under the 14th Amendment.

  • ||

    To deny gays the right to marry is to deny them the right to form a new familial relationship and sever the old one. That is tyranny, pure and simple.

  • ||

    Unless you want the state making all decisions for you when incapacitated or dead, you must recognize the interest of families. If you understand marriage as the establishment of a new family and the severing of relations with the old families, then the right to marry whomever one wants becomes clear. In some societies, individuals do not have a right to marry who they want - either the state or the family makes that decision for them. In this society, however, the individual decides and the state should not limit that choice based on the requirement of opposite genders.

    The right to gay marriage is the right to determine who you will have as next of kin (which is why the question of familial marriage is a canard, since family members have these rights already). To deny gays the right to marry is a denial of their right to designate someone besides their families as their next of kin. The refuge to terms like "domestic partnership" is simply a fear based response to confronting people's biases and calling them wrong.

  • Suki||

    Why limit it to couples?

  • ||

    "If the government is going to offer special rights and privileges to adult couples..."

    Hey, by offering special rights and privileges to "couples" and not single persons, the government is discriminating. Does this implicate equal protection?

    Also, you have to bear in mind that the issue of benefits wasn't actually at stake in this case, just the word "marriage."

  • Bo||

    Why limit the presidency to American born people? Does that violate equal protection?

  • ||

    It probably does. I hope Arnold challenges it and wins.

  • ||

    Yes the State of Cali can.

    Or rather states do this all the time. California is itself the king of granting special benefits to certain groups.

    If you apply this standard you'd have to get rid of affirmative action for one.

  • ||

    Gays would not be a special group were there not a concerted effort to deny them the right to marry whomever they chose or have sex with whomever they chose. If families always respected the rights of gay spouses, so declared, there would be no call for gay marriage. One cannot allow hetero children the right to form new families, thereby leaving the family of origin, and not give the same right to gay children.

  • ||

    You seem to have good impulses but you need to think it through a few more steps.

    All this will do is expand the special protected class. That's fine so far as it goes, but ideally there should be no protected class in the first place.

    However it will enshrine government discrimination against single-by-choice parents and poly families, or even just single people.

    The bible people are wrong, no question. But expanding the privileged class, while quantitatively better in a sense, just kicks the can down the road, and likely enshrines politically, due to the politics of numbers, this form of government discrimination.

  • Pundit||

    Marriage is broken. Washington must fix it.

  • JoshINHB||

    You know its a bad issue when "libertarians" think more state involvement will solve it.

  • Mike||

    *wooosh*

  • ||

    Families broke marriage when they claimed rights superior to those who were married, for all intents and purposes, to their gay children. This needed to be corrected - the problem is, a correction that should have been obvious and non-controversial was resisted by local religious elites who whipped up local majorities to continue the brokenness of marriage rights for gay people.

  • ||

    "Marriage" is, at its historical root, a contract restricting two or more adults to sexual exclusivity, mutual financial support, and communal responsibility for rearing any children resulting from the exercise of that contract.

    "Marriage" is a social contract that may be witnessed and validated by the participants' religious society, but is something that should not be defined or regulated by politics (nor should there be any differences in taxation rates or other special protections for persons claiming to be parties to a contract of marriage).

  • DLM||

    Contracts need to be enforceable under the law, so the state (or some authority) must necessarily be involved.

  • Prime||

    Marriage is a privilege, not a right.

  • Pundit||

    And it's broken. Why doesn't Obama fix it?

  • Suki||

    He is busy fixing things that aren't broken.

  • Raven Nation||

    +10 LMAO

  • Mike||

    Hah.

    or just breaking them worse. Kinda like seeing your neighbor's store being destroyed by a flood and looting it.

    I hope that's not racist.

  • Anonymous||

    Totally racist.

  • ||

    Marriage is a public act that is necessary as long as you have familial recognition in the law. Marriage creates new families and severs the connection to old families. As such it must be a public act - unless you are one of those brave new worlders who don't believe in familial relations at all - in which case only the state could make decisions for the incapacitated. Now that would be scary.

  • fart monkey||

    There are two separate issues here.

    One is the meaning of marriage, the other is one of legal rights.

    To say marriage is between a man and a woman does not mean one opposes legal rights for same sex couples, it simply means that one sees marriage as between a man and a woman.

    The argument that opposition to redefining marriage equates to opposition to same sex couples having access to legal protections is a false choice.

    But that is what makes the argument so appealing.
    It paints supporters of true marriage as bigots, no different than the racists who opposed interracial marriage because they didn't want mulatto babies.
    Of course that argument is a crock since same sex couples cannot make babies without help from a third party.
    It really is nothing but an ad hominem argument that tries to paint any opposition to the redefinition of marriage as equivalent to racism.

    The fact that the most vocal same sex marriage proponents will accept no compromise that does not include the redefining of marriage tells me that they are engaging in a dishonest argument.
    They want to redefine marriage.
    They want the social acceptance that would come with that redefinition.
    The legal rights argument is a red herring.

  • Fluffy||

    The state isn't allowed to have any institutions that deny any element of the citizenry the equal protection of the laws.

    Your definition of marriage predates the state, and exists above and beyond it. And that's fine. But the state can't accomodate itself to that definition and can't give it legal force. If that undermines the historical institution, fuck it. Nobody promised you a Rose Garden.

    I don't give a shit about any of the historical institutions that the first amendment undermined. So why would I give a rat's ass about one undermined by the fourteenth?

  • fart monkey||

    "Your definition of marriage predates the state"

    And the state has no right to change it.

    Get the government out of the marriage business and there's nothing left to argue about.

  • Fluffy||

    The state has two choices:

    Employ a definition that doesn't violate equal protection.

    Get out of the marriage business.

    You're right in that it has to choose one.

    If it hurts your little fundtard feelings that it's currently choosing the first course, you should make it your business to get them to choose the second course.

  • Untermensch||

    The reason why this is so hard, and not as simple as you (or I) would like it to be, is that state recognition of gay marriage carries with it certain obligations for third parties and it will be only a matter of time before churches and civic groups would find themselves subject to legal actions for not recognizing gay marriages. (There is already the, possibly apocryphal, story about the photographer in New Mexico who was penalized by a state human rights commission for refusing to photograph a gay commitment ceremony. This one gets trotted out pretty regularly in scare-appeals from right wingers and may not be true—they never link to a source for it—, but even so, it works because it is the kind of thing we’ve seen elsewhere, like with the Alberta Human Rights Commission.)

    If I were a Baptist minister who believes homosexuality is a sin that will earn its followers an eternity in Hell, it would stick in my craw if the state was saying that there was a legal right to gay marriage, mostly because I would be very afraid that, all assurances not withstanding, this would be only the opening salvo in an attempt to penalize my view and freedom not to sanction it in any way. In other words, if marriage were a private matter, I don’t think that the Minister would be scared of it: but it is not a private matter and sooner or later state recognition leads to state use of force in support of one view or another. (Here you would rightly argue that the state is already involved in forcing a particular view, but all things considered I actually find the status quo less troubling than the outcome I refer to whereby people would be forced to act against their conscience, however fault it may be.)

    I realize you think it’s a simple matter that you are right and everyone who disagrees with you, either on the principle or the strategy, is a blithering idiot who can’t possibly be acting from any reasonable motive. However, marriage is a pretty bedrock sort of social thing and tinkering with it, however justified, is going to generate a lot of reasonable concern. Even if you don’t think it is justified, I think the Baptist minister’s concern that his church will be forced to sanction gay marriage against his conscience is a pretty reasonable one.

    Your absolutist position that doesn’t acknowledge that there are legitimate concerns among people who don’t agree with you 100% only undermines your goals.

  • Fluffy||

    The problem with the objection you raise here is that the potential problems you cite are the result of illegitimate employment and public accomodations law.

    There's no way for me to square that circle for you. Yes, laws that require people to provide employment or services to people they don't like are bad. So it's not surprising that they'd be bad when applied to gay marriages.

    I can't make them go away for you. But you're basically arguing that we have to keep treating one set of citizens unequally because if we don't, the number of people who can take advantage of our atrocious Civil Rights legislation to abuse employers and service providers will increase. And that seems like a pretty brutal argument to ask me to accept.

  • Untermensch||

    Re, a “brutal argument”: Either way is brutal. But there is now a priori way to decide which is worse. You (obviously) think denying marriage to gays outweighs the issues of conscience, and I think the other way. So you will think I am, quite simply, wrong, but there is no way to square the circle, and if you can’t square it for me, I also can’t square it for you, because I am starting with different premises than you and because I think that, for the most part, the legal pertinences of marriage are already available to gays through civil unions and the argument over marriage is about the word, not the substance. Since I believe that, you’ll have to excuse me if I find the issues of conscience more substantive in my consideration.

    Of course, if we got the state out of marriage and only in civil unions (as a matter of contract law) and left marriage to the private sector, we could square the circle for both of us. The problem, though, is that marriage is too useful a club in debates that have little to do with marriage itself, and the state gets too much power through it to give it up. So I will not hold my breath that the state will even leave marriage alone.

  • Untermensch||

    ugg, no a priori way… (Cue Wegie to push his intellectual limits by making fun of my mistake in 3… 2… 1…)

  • Fluffy||

    You (obviously) think denying marriage to gays outweighs the issues of conscience, and I think the other way.

    No, not really. I think that "conscience" has already been taken away from employers and service providers, so there's nothing to protect.

    Look at it this way:

    The number of people victimized by the Civil Rights Act would decline if we declared that nobody with a B in their name was actually a human. If we declared that, all of those B-name people would be denied access to the courts, and their employers and wedding photographers and ministers wouldn't have to worry about lawsuits from those people.

    I would still say this was a bad idea, for reasons that I would hope were obvious. The fact that it decreased the number of people fucking with their fellow citizens using the tools the CRA provides would not be relevant. And repealing the B-name law would still be a good idea, even if it drastically increased the number of unjust CRA suits against wedding photographers and ministers.

    The CRA is bad law and it sucks, but the way to deal with that is to get rid of the CRA.

  • Ron L||

    Untermensch|8.9.10 @ 10:09AM|#
    "Re, a “brutal argument”: Either way is brutal."

    Disagreed.
    Denying SSM is brutal in that it denies the various "rights" associated with marriage to a certain group. Some of them are 'emotional' losses (visitation rights, etc), others are 'factual' (tax law, inheritance, etc).
    The opposite is not true; SSM imposes nothing other than discomfort to those who oppose it.

  • Untermensch||

    Ron, I think it will impose more than that, if marriage is a state-sanctioned right. The moment someone is sued for not recognizing a gay marriage as valid in some context outside of government (which you can’t convince me won’t happen), then it is more than discomfort: it is state-instituted force to make someone think or act in a certain way. If you don’t believe it will happen, see the comments above about the (supposed) case in New Mexico (which was private discrimination) or the action of Canadian Human Rights Commissions to deny right of freedom of speech and freedom on conscience to anti-gay activists in Canada. Those things go far beyond “discomfort” (which I wouldn’t care about). You can argue that the Canadian precedent isn’t relevant, but those HRCs are looked upon with longing by many so-called liberals in the U.S.

    Denying SSM is brutal in that it denies the various "rights" associated with marriage to a certain group. Some of them are 'emotional' losses (visitation rights, etc), others are 'factual' (tax law, inheritance, etc).

    I don’t care about the emotions (I disagree that visitation rights are emotional losses: they go far beyond that and are “factual” rights if there are any at all). But what in your argument would prevent civil partnerships from filling that role? If the issue is just about legal rights, why is the fight about the word, not the substance?

    If Libertarianism means anything at all, it must allow for the freedom of people to be wrong and not dismiss it as mere “discomfort”. Which is why the state has no business defining marriage either way.

  • fart monkey||

    The problem with civil partnerships is that they are only recognized within the state they are issued.

    So if a same sex couple in a civil partnership venture outside of their state, and one of them has to go to the hospital, their partner may not be able to visit them.

    Their argument is that redefining marriage is the only way to rectify that.

    I disagree.

  • slutmonkey||

    It goes a little further than that. Gay couples were raised in the same marriage-glorifying culture as straight couples. The word marriage means a great deal to them--even if they get all the same benefits with a civil union, they still want the word.

  • St. V||

    And they can have to word, on a private level, just as straight couples. Get the fucking word out of legislation. G'DAMMIT!

  • Robert||

    When people opine to "get gov't out of the marriage business", what do they mean? Gov't involvement in the "business" is, in the jurisdictions we're referring to, minimal, except in one respect: the judicial business of determining who is married to whom. Do those who advocate disengagement have some magic formula whereby nobody ever has a legal dispute concerning the status of marriage?

  • St. V||

    When it comes to the state-level contractual crapola, remove the word "marriage" and replace it with "civil union" for everyone.

  • Robert||

    Yeah, then what about all the non-state contractual crapola?

  • fart monkey||

    Equal protection is a red herring.

    Your implication is that someone who opposes the redefinition of marriage opposes legal rights for same sex couples.

    That is a lie. A falsehood. An untruth.

    Or, in terms you might better understand: bullshit.

  • Fluffy||

    There's no question of "redefinition".

    For the institution to exist legally it has to be defined by the state.

    The state has no right to care if there is some other definition out there.

    It has to state a definition and it has to do so in a way that doesn't violate equal protection.

    Say the state decided it wanted to hand out licenses to have bar mitzvahs. Now, that institution is well-defined already and "belongs" to a particular religious group.

    If the state decided to make it a state institution, if it attempted to preserve the features that currently define the institution [i.e. that it's for Jewish males] it couldn't do so in a way that didn't violate equal protection. It would have to open it up to everyone.

    Now, it's entirely possible that doing so would "destroy" the institution. And doing so would definitely "redefine" the institution. But that's really just too fucking bad. The people who like the institution the way it is lose. Oh well.

  • fart monkey||

    Thank you for confirming that the "equal rights" argument is a disingenuous distraction (translation:bullshit) from the goal of redefining marriage.

    You seem to be heavily emotionally invested in this.
    Why all the malice?
    Why so much hatred directed at those who see marriage as something between a man and a woman?

  • Fluffy||

    I have a lot of contempt for people who allow their religious beliefs to box them into positions that harm liberty and equality.

    If we were talking about a legal case about, say, the ability of single people to purchase contraception, and people showed up arguing that the courts needed to acknowledge the "definition" that all sexual activity should be procreative, that would earn my disdain too.

    Or if we were talking about laws banning pornography and someone came around quoting Augustine. [Actually, I'd probably think that was pretty cool, depending on the quote. But I'd still disdain the position.]

  • fart monkey||

    Again you insist that the belief that marriage is between a man and a woman implies a conscious and deliberate attempt to deny legal protections to same sex couples.

    Why can't you get it through you head that they are two distinctly different issues?

    By the way, I have no religious beliefs.

    So now you're hanging on two lies - that those who support traditional marriage do so for religious reasons and because they wish to deny legal protections to same sex couples.

    You have earned my contempt and disdain by the fact that you hold lies to be truth and hate other people for it.

  • Fluffy||

    Again you insist that the belief that marriage is between a man and a woman implies a conscious and deliberate attempt to deny legal protections to same sex couples.

    No, of course not.

    In fact, I imagine that when the practice of licensing marriages was dreamed up, nobody even considered the possibility that it could be anything but heterosexual in nature.

    I also imagine that when the 14th amendment was passed, nobody even considered the possibility that it could be extended to such a case.

    But neither of those things matter. The 14th amendment objection is reflexively self-justifying - it's obviously and automatically valid as soon as anyone voices it.

    [Lots of parts of the Constitution are this way. I am part of the press as soon as I say I am. My religion is a religion as soon as I say it is. I am involved in a political association as soon as me and one other person think we are. Etc. Our quisling courts sometimes refuse to acknowledge this, but to libertarians these things should be immediately obvious.]

    So I don't think that traditional marriage is a "conscious and deliberate attempt" to deny anyone anything.

    OTOH, as soon as the 14th amendment objection is raised, any attempt to defend against it would be a conscious and deliberate attempt to deny equality to same-sex couples.

    Because the only course of action you really can take once the objection is raised, if you like marriage the way it is, is to say, "Aw, shit. They really fucked up when they wrote this amendment. They screwed me and they screwed over traditional marriage. I know they didn't realize what they were doing, but this really sucks." And then to just let it go.

  • fart monkey||

    I have a father and mother who were husband and wife.

    Do you hate traditional marriage because your parents never married or were separated?

    Do you hate traditional marriage because your parents were Christians and you're engaging in some sort of rebellion?

    Do you hate traditional marriage because, as a homosexual, you have no interest in a husband/wife father/mother relationship?

    Why all the hatred?

    And why do you let your emotions dominate your decision making process?

  • The Angry Optimist||

    mr. monkey argues like a leftist. If you hate the CRA because it violates property rights, you must be a racist.

    When your argument falls apart, I guess the next step is to cast aspersions --- lashing and flailing about, attempting to discredit your opponent's motives rather than deal with the fact that you are wrong based on the logic.

  • fart monkey||

    What am I wrong about?

    My position is that the government should not be in the marriage business.

    I am attacking the notion that the motive behind traditional marriage is to deny rights to same sex couples.

    I am proposing that, since no compromise that does not include redefining marriage is acceptable, that the word is more important than the rights.

    IMHO the word "marriage" should be removed from the law books and replaced with "civil union" defined as a union of two individuals.

    Then there's nothing to argue about.

  • Untermensch||

    fart monkey, I’d agree with you on this, but as TAO likes to accuse people of, now he’s the one Missing the Point. Bu then, if you don”t agree with Fluffy or TAO, the only possible reason is because you are stupid and don’t understand their masterful logic. So neither you nor I should waste more time discussing anything with them, because there is no way to come to a meeting of the minds with folks that doctrinaire. Even if you understand their points, but disagree with them on how to reach the end goal, you really don’t understand them. They are just misunderstood folks...

  • Fluffy||

    Nope, my parents were married til death do us part.

    My mother was a lapsed Catholic and my father was a lapsed Lutheran. There was almost no religion in my house. I went to Catholic schools, but in New York that's just how you go to private school - the religious content there didn't earn my resentment, because it was all just a little bit pathetic.

    I'm not gay. In fact, I'll bet most people IRL probably think I'm an anti-gay bigot, because I've never gotten out of the schoolyard habit of using the word "fag" as an insult.

    And my emotions aren't dominating my decision making process. For me it's basically mechanical here. 1 + 1 = 2, and anyone who doesn't like it can kiss my ass.

    Certainly I've got a chip on my shoulder and a lot of annoyance, but that doesn't extend merely to this one issue. This is how I always act. Is it a character flaw? I guess so.

  • Untermensch||

    I’ve already apologized. Can we be friends now ;-)

  • Fluffy||

    IMHO the word "marriage" should be removed from the law books and replaced with "civil union" defined as a union of two individuals.

    I agree that this would be the best outcome.

  • slutmonkey||

    U mad bro?

  • Robert||

    For the institution to exist legally it has to be defined by the state.


    No, that's ridiculous, as a moment's reflection will show you, unless you mean merely the implicit ratif'n of existing meanings of words. Statutes typically define a few terms of art, but all the other words are assumed to have their dictionary meanings. And the dictionary meanings of words are established by custom, not fiat.

  • Fluffy||

    I'm not talking about the meaning of "and" or "the" here.

    A statute organizing marriage has to define it.

    People know what a "bank" is, too, but when the legislature wants a bank law they have to define what a bank is.

    Any law that did not define its core elements would be absurdly vague.

  • Robert||

    A statute organizing marriage has to define it.


    Well, surprise! Until recently (1990s)in most of the jurisdictions we're referring to, the key words "spouse", "married", etc. were not defined by statute. Domestic relations laws just assumed people knew what words like "husband" and "wife" meant.

  • slutmonkey||

    That may be true, but only because the state wasn't asked to define "marriage" until recently.

    As long as no one asks for a definition, you can continue to use the word as it is written in the dictionary. However, as soon as differing definitions start popping up (i.e. as soon as gays started having weddings) Then the state has to go back and define marriage in statute or face the long court battles required to give it a definition in common law.

  • Robert||

    It has a definition in common law. That is, words mean what they are commonly understood to mean. Defining it in statute would usurp the common law definition, just as the was done with money terms when the sovereign decreed that a certain bank's note would for all intents and purposes be what had previously been a commonly understood weight of silver.

    Unfortunately several states and Canadian provinces, when this marriage issue reared its ugly head in the 1990s and it looked as if courts might usurp the common law, were backed into regulating marriage via statute in a way to reflect the previous customary understanding. But given the choice of usurpation one way or the other, a usurpation that effected the old meanings of words in law by regulation at least does less damage than does the likelihood of judicial redefinition. I'm not saying statutory change is superior to judicial change in general, only that given the choices on the table, the legislation is better.

    Better would be a constitutional amendment simply saying what should not be necessary: that words in legal documents not written by gov't shall mean what the parties thought they meant.

  • DLM||

    For the institution to exist legally it has to be defined by the state.

    And of course the state must necessarily use the same terminology to make it clear they are in fact redefining an the substance of an existing institution when it could merely use a different labe like, say, "civil unions" and leave the definition of "marriage" alone.

  • DLM||

    redefining an existing institution. (Note to self: use 'preview' more.)

  • ||

    The state isn't allowed to have any institutions that deny any element of the citizenry the equal protection of the laws.

    Wrong. Affirmative action. Done.

  • DesigNate||

    We should get rid of that too.

  • JoshINHB||

    They want to redefine marriage.
    They want the social acceptance that would come with that redefinition.
    The legal rights argument is a red herring.

    Exactly this whole issue is nothing but a pathetic attempt to get state validation for their lifestyle.

    That libertarians think state validation is a worthy goal is even more pathetic.

  • Fuck||

    You

  • Geotpf||

    But inter-racial bans also banned marriages between blacks and whites who were sterile. Marriage does not require procreation (this point was specifically mentioned in the judge's ruling).

  • TheOtherSomeGuy||

    Mr. Chapman, I disagree.

    The courts exist to enforce the law and prevent the majority from voting on things which are detrimental to the minority.

    What if Prop 8 had been a vote to take away all of the property of the gay people in California, for instance, instead of just prohibiting them from getting hitched?

    The simple act of voting doesn't make it legal, nor right, for the majority to strip the minority of their right to the pursuit of happiness. The courts and the law exist to prevent this exact scenario from happening.

    Do I think the judge ruled the way he did based purely on partisanship, and that he should have recused himself as incapable of being impartial? Yeah.

    Do I agree with the "logic and reasoning" behind his ruling? No.

    But he did hand down the correct ruling, no matter his reasoning.

    The majority does not have a legal right to remove the pursuit of happiness from a non-criminal minority, even with a legal vote. Otherwise, the next step may very well be to remove their rights to life, liberty, and property.

  • Fluffy||

    Chapman doesn't understand the ruling.

    The ruling doesn't say that there's no possible way for us to guess that maybe there kinda sorta could be a rational basis for denying gays the right to marry.

    The ruling says that no rational basis was offered to the court during the proceedings.

    So it doesn't matter if Chapman thinks he can think of one. All that matters is whether it was offered.

    The problem here is that the primary reason most people have for opposing gay marriage - "It's weird" - doesn't lend itself very well to presenting a legal argument that satisfies the "rational basis" test. "How do you know it's pornography weird?" "I just know it!" means you lose in court.

    The other problem with Chapman's article is that I would expect a libertarian to know that the rational basis test is crap anyway. Basically, it boils down to the legal principle that the government can deny equal protection any time it can convince a judge that it has a good reason for denying equal protection. That makes it yet one more of a long line of contemptible and bogus legal principles invented along the way to justify denying people their Constitutional rights. It's just like the "balancing test" and "strict scrutiny" and all the other nonsense used to fill up the white space of legal decisions that boil down to "It would be inconvenient for us to actually honor your Constitutional rights, so we ain't gonna." Get your head out of your butt, Steve.

  • ||

    "Basically, it boils down to the legal principle that the government can deny equal protection any time it can convince a judge that it has a good reason for denying equal protection."

    Every time the government treats two groups of people differently it is denying equal protection. So, when they charge someone a higher tax rate on income they technically denying them equal protection. Pretty much every decision the government makes by necessity treats someone differently. The rational basis test makes perfect sense. Unless you are dying someone a enumerated right, there is no reason for the government not to be able to do it as long as it is not arbitrary.

  • Fluffy||

    So, when they charge someone a higher tax rate on income they technically denying them equal protection.

    Two things:

    First, you really wouldn't have to twist my arm too hard to get me to accept the argument that a progressive tax scheme violates equal protection. So I'm perfectly happy to lose that argument.

    But leaving that aside, I don't think that a law that says, "Any person who makes $100,000 will pay a tax of 33% of their income" [or whatever] violates equal protection. Any more than a law that says that any person who sticks up a bank with a gun has committed armed robbery.

    But if the law said, "Any person who makes $100,000 and is male will pay a tax of 33% of their income; any person who makes $100,000 and is female will pay a tax of 50% of their income" would fail the equal protection test. [And no Equal Rights Amendment would be necessary.]

  • ||

    Why is that, Fluffy? The equal protection clause doesn't say that is protects gender but not income status. It also doesn't say that it protects those inclined towards crime less than those inclined towards order. Your interpretation of equal protection seems to be that it only protects groups that you think it should protect.

  • Fluffy||

    No, my interpretation of equal protection is that laws that apply to "any person" have to apply to any person.

    As I said, I could happily be persuaded that progressive taxation violates equal protection.

    Criminal statutes, however, easily pass the equal protection test because they do in fact apply to all citizens equally.

  • ||

    Fluffy,

    Sure, criminal statutes apply to all citizens equally. Similarly, gays have always been able to marry; they just have to marry a member of the opposite sex like everybody else. Traditional marriage law applies to all citizens equally.

    The point here is that the equal protection clause was never intended to protect every group, and the courts have correctly (or at least reasonably) determined that it was understood to protect certain classifications at the time of ratification, while reserving a bare "rational basis" scrutiny for all others.

  • Guy||

    Progressive tax rates could be defended by noting that everyone pays x% of the first $a of income, then y% of the next $b and so on.

    Now I feel dirty. Don't make me defend progressive tax rates again.

  • Tony||

    There is something very nasty about your argument against progressive taxation... Somehow the guy with a $1 million is more oppressed than the guy with because his tax rates are higher? Bullshit. You'd rather be the first guy any day of the week.

  • Tony||

    "...than the guy with $10..."

  • ||

    Irrelevant. We're talking about equal protection under the law. Progressive tax treats people unequally.

    Now a fair tax does indeed pass 14th Amendment muster because your taxing the purchase. Anyone making the same purchase pays the same tax and the prebate applies to everyone. (everyone is given a check to cover the tax that would be spent by a person in poverty for the year)

  • Tony||

    faithkills that's an interesting approach but in my opinion completely misguided. What if I were to say that wealth disparities make people demonstrably unequal. If the law allows people to have different amounts of money, does that not violate equal protection?

    To me, that's just as absurd as your "poor, oppressed millionaire" stuff. Taxation is raised according to what a person can spare. The macro effects of a flat tax would place a much heavier burden on those least able to shoulder it.

  • ||

    What if I were to say that wealth disparities make people demonstrably unequal.

    lolwut? Who ever argued otherwise?

    If the law allows people to have different amounts of money, does that not violate equal protection?

    Not at all. Equal protection is about government action.

    If you try to redistribute wealth then you are violating equal protection, because the law is acting unequally against some people and against others. Once you abandon equal protection under the law, all you are really doing is fighting over who has the guns, and in that battle the wealthy will win. History is pretty clear on this. Progressives just want to give them more guns because this time for sure 'the people' will benefit from expanded government power. Let's certainly never examine the tends of income disparity and government spending and unemployment.

    To me, that's just as absurd as your "poor, oppressed millionaire" stuff.

    You're taking the piss right? You're accusing me of being an apologist for, much less sympathizing with, the 'poor oppressed millionaire?'. Do you even read what you reply to?

    The macro effects of a flat tax would place a much heavier burden on those least able to shoulder it.

    First I said fair tax. The poor pay nothing under a fair tax. Hell even under most flat tax proposals the poor pay no tax. The difference is taxation is more voluntary, and saving is encouraged and production is not punished.

    Currently 'the rich' have all sorts of mechanisms to protect themselves from taxation. Ultimately they can relocate to a more favorable tax climate. We call this job flight and capital flight.

    Add to that the sheer corruption magnet which is the tax code because everyone wants their own enterprise or investments to be 'protected'. This sucks vast amounts of resources away from productive uses into paying off politicians. Can you imagine how many more people a business could employ or how much more capital goods they could buy for each lobbyist is has to maintain?

    A progressive tax is designed to do what all progressive policies actually do. Protect the rich from competition. There's a reason they call them 'elitists'.

    Imagine a world where all you had to do was work hard and you could become rich?

    That's the world the progressives fear. The class mobility of the worker. Instead we will put up walls and call them safety nets which engender dependence and regulations which give big business an insurmountable systemic edge over small business and 'affordable' loans which will bankrupt them.. to protect them from the rich.

    I'm no friend of the 'oppressed billionaire'. I have as much antipathy for them as any socialist.

    The difference is I understand economics and I look at the actual results of progressive policies.

  • The Libertarian Guy||

    And the FairTax, via the prebate, eliminates that disparity to the poor, Tony.

    But, since the progressive tax structure allows wealth-enviers an opportunity to hate on successful people via the power of government, you're just fine with it.

  • J_L_B||

    The argument is based on the incosistency of tax policy versus everything else. In dealing with the millionaire in your example, the government could not justify denying him his rights to free speech, religion, counsel, or trial by jury, yet can tax his income at a higher rate because he earns income above an arbitrarily-determined amount.

  • The Flintstones||

    When you're, with the Flintstones, Have a yabba dabba doo time, A dabba doo time, You'll have a gay old time!

  • ||

    While this approach might make sense in a true democracy, where the majority has the right to oppress the minority, it does not make sense in a limited-democracy, where the minority are supposed to have rights in spite of the majority (not at the will of the majority).

    Our Constitution is largely for the protection of the minority. It does not allow the majority to oppress the minority with a simple election.

    If voters oppress minorities, then it's right for the courts to stop this.

  • ||

    Our Constitution is largely for the protection of the minority

    Indeed, for the protection of the smallest minority: the individual. It doesn't protect group rights or faction rights or states' rights.

  • ||

    Our Constitution is also an expression of the popular will and can be changed. Americans own the Constitution. It doesn't own us.

  • fart monkey||

    "Today, when a concerted effort is made to obliterate this point, it cannot be repeated too often that the Constitution is a limitation on the government, not on private individuals -- that it does not prescribe the conduct of private individuals, only the conduct of the government -- that it is not a charter for government power, but a charter of the citizen's protection against the government." - Ayn Rand

  • ||

    When did Rand write that--40 or 50 years ago? She was a realist, and her cause-and-affect predictions seemed to her detractors to be unduly pessimistic. History has born them out, yet I think even Ayn Rand would be shocked at the state of affairs in contemporary America.

  • Lysander Spooner||

    Massachusetts voters have reasonable, even if unpersuasive, concerns about guns; should they be able to ban them?

  • JohnD||

    Now that is a red herring.

    The right to keep and bear arms is a Constitutional right. There is no mention of marriage in the Constitution.

  • Bob||

    Seems like we have a Majoritarian here, not so much one who seems to want to preserve the individual. In reference to freedom of contract, that is a freedom we have lacked in America for many years legally, and yet goes against our Human Right (or ius naturale) to person and property.

  • Victor||

    In all honesty, Polygamy and multiple "wives" has more of a legal standing than gay marriage does since polygamy results in the ability to raise and produce kids. The Bible even refers to multiple "wives".

    If it were not for the nanny state, tax breaks, and a myriad number of rules and laws, state recognized marriage would not be needed.

    Even if the state were to not grant marriage "licenses", there still must be a definition of what marriage is or else any laws that point to that particular contract will forever be open to interpretation and litigation.

  • ||

    I've never been clear on why exactly the "ability to raise and produce kids" is supposedly such an important part of marriage. First of all, I think anybody from any background can effectively raise children if he or she cares enough about it.

    As far as baby production goes, there are plenty of unfertile heterosexual marriages, no? Or people who simply choose not to have kids? How do they fit the child-rearing standard any better than a homosexual couple?

  • Victor||

    Well one of the main functions of a married couple has been to raise a family. It is true that a number of married couples do not/cannot have children. I would tend to say that child-rearing by itself does not define marriage as single individuals raise children all the time who were never married.

    Individuals have the right to have relationships with whoever they want (or at least should). I just don't understand why the gay community doesn't accept the civil union contract and instead keeps trying to redefine marriage.

  • fart monkey||

    "I just don't understand why the gay community doesn't accept the civil union contract and instead keeps trying to redefine marriage."

    Because they are lying.
    Their argument about equal protection is a lie.
    If they will not accept equal protection without the word marriage, then what they are after is the word marriage.
    The fact that they attack anyone who supports traditional marriage as being opposed to equal protection, to put them on the defensive for a different issue, only enforces the notion that they are lying.

  • Fluffy||

    If they will not accept equal protection without the word marriage, then what they are after is the word marriage.

    So what if it's just a word?

    The very fact that you're desperate to deny them that word proves that the word has value. If it had no value you wouldn't give a shit.

    If blacks and whites were legally equal in every last conceivable way, with the sole exception being that all blacks had to have the word "Nigger" embossed on their driver's licenses, that too would be only a word. But it would also violate equal protection.

  • ||

    The very fact that you're desperate to deny them that word proves that the word has value. If it had no value you wouldn't give a shit

    This. If the nomenclature shouldn't matter to "the gays", it shouldn't matter to anybody.

  • fart monkey||

    +1

  • ||

    The courts can legitimately rule that civil union contracts must be legally equal under the commerce clause.

    Other than that we're talking about a trademark dispute and the feds should stay out.

  • slutmonkey||

    of COURSE they're after the word marriage. It has emotional value to them, just like it does for hetero couples.

  • ||

    Well one of the main functions of a married couple has been to raise a family

    OK, perhaps, but that's not really something the government should be concerned with is it? Marriage as a legal entity should be about equality in the eyes of the law and protection of consensual contract.

    The name thing? Yeah ok, we can call them "unions", but let's call it that for everybody, gay or straight (or polygamist!). The "gay community" is often accused of obsessing over meaningless names -- a criticism I have leveled myself -- but it's clear that the opposition has just as many hangups about the nomenclature.

  • Politically Homeless||

    "Well one of the main functions of a married couple has been to raise a family."

    Then why don't traditional marriage vows contain language about procreating? Traditional vows are silent on the point of children, and instead are a vow of commitment between the couple. Nothing more.

  • DLM||

    Then why don't traditional marriage vows contain language about procreating? Traditional vows are silent on the point of children, and instead are a vow of commitment between the couple. Nothing more.

    Because having children is pretty much taken for granted. Massive use of contraception and abortion is relatively recent. Large families used to be much more common.

  • JoshINHB||

    I just don't understand why the gay community doesn't accept the civil union contract and instead keeps trying to redefine marriage.

  • JoshINHB||

    Because it is not about equal rights, it is about getting state validation.

  • Geotpf||

    But existing civil union contracts provide weaker legal status than marriage.

    Here is a proposal: Eliminate state recoginition of all marraiges and only have the state recoginize civil unions. That would be a perfectably acceptable solution. Of course, nobody has proposed this.

    That is, if the state recoginizes something that has some sort of name that involves two adults forming a sexual/family union, it need to recoginize something with 100% of the same legal standards for gays, with the same name. You can't call it marriage for straights and civil union for gays. Seperate is inheritly unequal.

  • Tony||

    It is arguably correct that the reason the state recognizes and encourages marriage is for the protection and security of children.

    Now you get to demonstrate a)How legal gay marriage upsets the ability of straight couples to raise their children in any way and b) Why the children of gay couples don't deserve the same protection and security as children (biological and non-biological) of straight couples.

  • Butts Wagner||

    I'm pretty sure the state is interested in raising children who match what it believes is the correct American ideals. Laws defining marriage are a partly nationalistic pursuit.

  • ||

    Equal protection does matter here for many reasons. Marriage allows for the control of assets, legal guardianship, visits in the hospital, etc. The only compromise available is to change the names non-traditional marriages to something else but leaves all rights and privileges intact.

  • ||

    How about we stop having the government call anything a "marriage", and let the churches and synagogues and covens and communes define it for themselves? There is the legal partnership you're talking about -- call it a "union" or whatever -- and there is the cultural tradition or marriage. The government needs only to be concerned with the former, and it can let the latter be defined however people choose (with the usual disclaimers about consenting adults, etc).

  • ||

    "How about we stop having the government call anything a "marriage", and let the churches and synagogues and covens and communes define it for themselves?"

    We already do that. You can get married to anyone or anything you like. You just can't get the state to sanction it. But so what? That doesn't get you anything beyond a penalty on you taxes. There are child custody issues. But, those can be worked out through statute. It is not like we don't decide custody between unmarried couples every day in this country.

    I think people get worked up about this issue because they view the use of the courts as a way to force institutions to recognize gay marriage. If I am running a business, I shouldn't be required by law to recognize your marriage if I object to it morally. I certainly can, but I shouldn't be compelled by law to do so.

  • ||

    That doesn't get you anything beyond a penalty on you taxes.

    First of all, tax inequality is a problem worth addressing, no? Also, it's about more than that. In addition to the child custody and right-of-adoption stuff, there are things like hospital visitation rights, power of attorney, legal protection of wills, etc. Some of that is pretty important stuff.

  • ||

    "In addition to the child custody and right-of-adoption stuff, there are things like hospital visitation rights, power of attorney, legal protection of wills, etc. Some of that is pretty important stuff."

    You can all of that now through a power of attorney. Further, there are millions of un married straight couple who live together and face the same legal hurdles whatever they are. Yet, they still choose not married. Clearly, they don't find it to be a burden. Yet somehow we are supposed to believe gay couples are living under some kind of Jim Crow law.

  • ||

    Further, there are millions of un married straight couple who live together and face the same legal hurdles whatever they are. Yet, they still choose not married.

    Yeah I'm in one of those couples. You really don't see a difference between choosing not to do something and being legally prevented from doing it?

  • ||

    You miss the point. The fact that you and millions of others choose to do it puts lie to any claim that living as an unmarried couple is any kind of significant legal burden justifying the creation of a right where none existed before.

  • ||

    So legal inequality needs to be sufficiently burdensome from a pragmatic perspective before it's a problem?

  • ||

    "So legal inequality needs to be sufficiently burdensome from a pragmatic perspective before it's a problem?"

    Yes. There is legal inequality everywhere. And further, it damn better be a big deal if you are going to create a "right" to something where none existed before. You are telling the entire country that they have no right to define marriage as they please and no voice in how and what marriages are recognized by the state. You better have a pretty damned good reason to do that.

  • Tony||

    John,

    The plaintiffs laid out "a pretty damned good reason." It does immeasurable harm to gay couples when they're treated like second class citizens in the eyes of the law.

    And how interesting that all of a sudden "societies" have collective rights--just as soon as it's a right to keep a minority in second-class status.

  • ||

    It does immeasurable harm

    I think anyone should be able to enter any contract they wish but this is laughably hyperbolic.

  • Tony||

    Okay then I'm sure you can quantify the harm?

  • ||

    Sure.

    It means they may have to move to another state if they want to have the same special privileges that straight married people enjoy in their state.

    If you tell me the two states in question and the incomes and health (can they move themselves or not) of the two parties concerned I can hazard a decent dollar estimate on the amount of the 'harm'.

    Corporations make these calculation all the time when they relocate employees.

  • Tony||

    What about the harm associated with being second-class in the eyes of the law? What about the social stigma the law helps perpetuate? What about the harm children of gay couples are caused by not getting the same security as children of straight parents? Ted Olsen used the word "immeasurable," by the way.

  • Iconoclast||

    You cannot legislate social acceptance.

  • DesigNate||

    Iconoclast|8.10.10 @ 12:49AM|#

    You cannot legislate social abhorance.

    FTFY

  • ||

    What about the social stigma the law helps perpetuate?

    What about the social stigma affirmative action perpetuates? Hell it turned a perceived inferiority into actual inferiority by systemically lowering standards. For example, you can't possibly have lower med school standards for one group without everyone knowing the academic result will be inferior.

    You can't fix this stuff by force without making it worse and perpetuating it.

    What actually would have fixed it is freedom.

    Even if some people were not being hired, or paid less because of race, religion, gender (or whatever you progressives like to divide people about) etc do you really assert that those 'greedy' corporations would consistently sacrifice potential profits by hiring overpriced labor? Of course not.

    Then their bigoted competitors assuming they existed would have to follow suit or be unable to compete.

    What about the harm associated with being second-class in the eyes of the law

    Hell you're barely coherent in my eyes. I assume you want the government to fix that.

    You cannot legislate social acceptance.

    You can try but you make it worse.

  • DesigNate||

    I think affirmative action is just as wrong as prohibition of drugs, prostitution, polygamy, or SSM.

  • fart monkey||

    You nailed it.

    The proponents of same sex marriage want it legally redefined so they can take people to court.

    It's all about initiating force on people through the court system.

  • ||

    You notice no one responded to that point. State sanctioned marriage is a means to an end. The end is getting the government to use to force of law to make people recognize gay marriage, which doesn't strike me as very libertarian.

  • ||

    So how does existing marriage law not do the same thing? Does it not "get the government to use force of law to make people recognize heterosexual marriage"? Like you said, what if I run a business and I personally find the idea of marriage fraudulent and choose not to recognize it (by, say, paying for spousal insurance plans). How are the two situations any different from a constitutional perspective?

  • ||

    "So how does existing marriage law not do the same thing? Does it not "get the government to use force of law to make people recognize heterosexual marriage"?"

    Absolutely it does. And indeed if you want to use that as a case against any state sanctioned marriage, I am not sure I can argue with that. It is not really an issue right now since nearly everyone in society recognizes heterosexual marriage. So therefore no one is being put upon. But supposed that changed. Suppose some new religion took hold in the country where the majority of people objected to such a thing out of moral conviction. At that point maybe we would have to reconsider state sanctioned marriage.

    The difference now is that people don't object to straight marriage so the legal coercion doesn't really coerce. But the large majority of the country do object to gay marriage. And the law is going to coerce them into recognizing a marriage they don't consider valid. That is what libertarians are advocating here.

  • fart monkey||

    I supported same sex marriage under the context of non-interference.
    Why should I interfere with who someone marries?

    But that was until I saw that the goal was not non-interference, but to "get back at the oppressors".

    I remember the day too. I was driving to work, flipping through the stations, and I stopped on NPR doing a piece on the subject.
    They said that the same sex marriage proponents were going to take a civil rights approach, comparing their struggle to that of MLK.
    I found the comparison to be disgusting, and I also realized that their motivation was not non-interference, but coercion.
    That was when they lost my support.

  • ||

    And indeed if you want to use that as a case against any state sanctioned marriage, I am not sure I can argue with that.

    I mean, that's the only direction we could go on this. We're talking about freedom, which should have nothing to do with percentages or majorities. If something is wrong, it's wrong, no matter how many people agree with it.

    The difference between gay and straight marriage in their potential to coerce a person into recognizing rights he or she doesn't support is one of degree, not of fundamental nature. And when you're talking about freedom, it can't be about degrees and numbers, it has to be based on fundamental theory.

  • Untermensch||

    That is my only real concern with gay marriage: that it will be used to force ad poenam others to act or believe in ways contrary to their conscience. I don’t even care if people call gay unions marriage, but if the issue was just about the legal rights of marriage, there would be no issue since civil unions and reasonable planning address the issues.

  • fart monkey||

    There is one aspect to the insistence on the word "marriage" that has merit.

    As it is if a "married" same sex couple travel outside the state in which they are married and get into an accident, they may not have access to each other in the hospital since the state in which the accident occurred may not recognize the marriage.

    And I do agree that that is a problem.

    However I disagree that redefining marriage is the only solution.

  • DesigNate||

    The best solution would be to let states decide whether the marriages could be performed, with the fed (through the 14th) telling them they have to "recognize" all unions equally.

  • ||

    Exactly, yes.

  • ||

    This is the correct answer.

  • ||

    They might reasonably fear that in some subtle way, the legalization of gay marriage may gradually weaken the appeal of marriage among heterosexuals. They might think it will modestly increase out-of-wedlock childbearing. They might believe our understanding of the possible repercussions is so limited that we shouldn't tinker with an age-old institution in this way.

    Since when are moralizing ends-over-means concerns like that relevant, particularly when constitutional protections are concerned? I mean, Chapman said he doesn't find them persuasive, but why exactly does he consider that line of argument a "plausible" objection that doesn't boil down to unequal treatment?

  • ||

    Victor makes a good point. Polygamy has a much better historical standing than gay marriage. Gay marriage is a late 20th century invention with no basis in religion. No one's right to the free exercise of religion is harmed by not having access to state sanctioned gay marriage. Polygamy in contrast has a long history, really since the beginning of time and is a part of some religions. I don't see how you can say that a gay person's equal protection rights are violated but a Muslim or Mormon polygamists rights are not. Any person that supports this decision needs to start arguing for the right to polygamy or just admit they don't care about anything beyond getting their way.

    Ultimately, people do in the long run decide what kind of society they are going to have. And unless and until gays convince the larger society that they should marry these are going to be Pyrrhic victories, because they will be overturned either through Constitutional Amendment or impeaching judges. And when that happens gays will be worse off than they are now. And so will the country for that matter.

  • ||

    Gay marriage is a late 20th century invention with no basis in religion. No one's right to the free exercise of religion is harmed by not having access to state sanctioned gay marriage.

    Umm, so? Marriage is about a lot more than religion, and the case wasn't argued from a first amendment perspective.

    And unless and until gays convince the larger society that they should marry these are going to be Pyrrhic victories, because they will be overturned either through Constitutional Amendment or impeaching judges

    I disagree. There would be no basis for judicial impeachment, and the issue is much too contentious to effectively mount a political drive for a constitutional amendment.

  • ||

    "Umm, so? Marriage is about a lot more than religion, and the case wasn't argued from a first amendment perspective."

    Well no shit. But you miss the point. We have to decide what marriage is under the law. It has to mean something. And we also have a duty under the First Amendment not to infringe on people's right to practice their religion. And gay marriage in now implicates the first amendment. Gay people are always free to say what they want, live with who they want, and hold themselves out as married. They just don't get a license that says it is a "marriage".

    Polygamy in contrast is illegal. You can't hold yourself out as a polygamous couple. And you effectively cannot practice some forms of religion as a result. That is a much more compelling case for constitutionally protected polygamy than gay marriage will ever have. The point is that anyone who supports this decision has to support polygamy to avoid hypocrisy.

    "I disagree. There would be no basis for judicial impeachment, and the issue is much too contentious to effectively mount a political drive for a constitutional amendment."

    The legislature can impeach a judge for whatever reason they want. And you are playing with fire when you are supporting the courts giving the finger to the large majority of the country.

  • ||

    We have to decide what marriage is under the law. It has to mean something.

    But shouldn't that definition be based on legal equality and freedom of contract, as opposed to religion or tradition? By the way, I have absolutely no problem with full legalization of polygamy.

    The legislature can impeach a judge for whatever reason they want. And you are playing with fire when you are supporting the courts giving the finger to the large majority of the country.

    I don't think the legislature could build enough political consensus to make that happen. And as somebody said downthread, weren't those who were instrumental in legalizing "miscegenation" also giving the finger to the large majority of the regions in which those laws existed?

  • ||

    There was a price to be paid in those miscegenation cases. The price was that the courts assumed a hell of a lot more control over our lives and our government. And in the end people did change and accept such a thing. And further, those laws were in one part of the country not the entire country. If the entire country had been against them and stayed against them for 20 years or more, things would have turned out differently.

    And lastly, you can only go to the well so many times. We used the courts to solve Jim Crow. And there was a price to be paid for that. How many more times are we going to use to courts to force social change before society has had enough and turns on it?

  • ||

    So just so we have this straight, if the entire country was strongly in support of miscegenation laws, they should have been maintained? Protecting the rights of individuals is unimportant so long as enough people don't care about those rights?

  • ||

    It is not a question of should, it is a question of would. I am telling you that if the entire country wanted something, that is what would have happened. Period. You can only shove things down people's throats so much.

    There is an interest in "rights" but there is also an interest in self government. And that interest will ultimately make itself heard.

  • ||

    OK, fine, but "should" is what we're talking about here. And the ultimate "should" in classical liberal thinking is that people should be free to act as they choose so long as they do not harm others. This philosophical principle -- and the resultant constitutional framework in the US -- supersedes majority rule, or what you're calling "self government". That's how our system works; the will of the majority is exercised only when it does not violate the rights of an individual. Or at least that's how it was designed to work.

  • ||

    But gay marriage is not asking for the freedom to do anything. Unlike polygamists gays can already get married and hold themselves out as such. What you are asking for is the right to state sanction and state coercion. Where does that right come from?

  • ||

    Again, that just leads us to question the validity of any sort of state-sanctioned marriage. Which I'm fine with, for the record -- I see no reason to legally define it at all. But in that case the issue really has nothing to do with "gay" marriage.

  • ||

    The question is why can't the people define what they mean by marriage? I don't want to live in a country where we have state sponsored and coerced recognition of polygamy. But if you say that people can't define state sanctioned marriage as they please and recognition is a right, I think we have to either recognize everything, which makes the term meaningless or have the state no recognize any marriages, which doesn't strike me as a very good option either.

    Good for you for being honest about it. Better that than the MNG "it is a right because I say so" approach.

  • ||

    But if you say that people can't define state sanctioned marriage as they please and recognition is a right, I think we have to either recognize everything, which makes the term meaningless or have the state no recognize any marriages, which doesn't strike me as a very good option either.

    Yeah, see I don't have any objections to the second scenario. I don't buy into arguments about encouraging marriage through state recognition for all of its supposed benefits to society.

  • Tony||

    What you are asking for is the right to state sanction and state coercion. Where does that right come from?

    The right in question is equal protection of the law.

  • ||

    Tyranny of the majority? Isn't that what the Constitution is supposed to prevent?

  • ||

    The Constitution is supposed to prevent the tyranny of the federal government.

    You can escape the tyranny of the State of California with a Uhaul.

  • Tony||

    John, you bigot, a much larger portion of the population was against racial integration during those fights than ours is against gay equal rights. And it is trending inexorably toward acceptance. There is not going to be a novel, convincing argument for denying equal rights to gays that will surface in the future. It's a losing argument, and the courts are not that far ahead of the people this time.

  • ||

    And it is trending inexorably toward acceptance.

    You are correct. Unfortunately this decision is needless dividing the nation over an issue that will be resolved correctly on it's own.

    Worse with the current court makeup it's possible SCOTUS could rule in favor of Prop 8 ultimately anyway. This would set us back.

    When I am slowly getting my way, I let sleeping dogs lie. As any married person should know, just because you are right doesn't mean you have to force your way or trumpet the fact.

    The right is wrong on this one, but this just gets their back up and energizes them.

  • Tony||

    I don't accept the implicit threat of angry old bigots as a good enough reason to deny equal rights. The time for securing equal rights is always yesterday, not tomorrow.

  • ||

    Well you might feel differently about that threat in November. This is just chumming the waters more.

    But fine. Provide equal protection vs employment or admissions and from discrimination based on race and equal protection from discrimination based on income and equal protection for the unborn.

    The fact of the matter this ruling enshrines special government privilege. It just extends it to another protected class.

    If equal protection is the theme of the day you simply cannot make a legitimate case for excluding the poly community.

  • Tony||

    faithkills how does a Bush-appointed Judge ruling on a California law have anything to do with R vs. D in November? Those scared old bigots who like to vote in midterms who via their FOX News IV drip conflate that decision somehow with Obama?

    Anyway. Marriage is considered a fundamental human right according to this country's case law. Call it special privileges if you want, but if it's only available to straights but not gays then it violates equal protection.

    Polygamy is completely irrelevant, of course.

  • ||

    Those scared old bigots who like to vote in midterms who via their FOX News IV drip conflate that decision somehow with Obama?

    Lol, is this a rhetorical question?

    Call it special privileges if you want, but if it's only available to straights but not gays then it violates equal protection.

    If it's available to anyone and not to anyone else it violates equal protection.

    But you don't really care about equal protection. You care about special privilege which is why you like the ruling.

    Polygamy is completely irrelevant, of course.

    It's patently relevant. They are specifically discriminated against. So are single people.

  • slutmonkey||

    Yes, equal right should exist yesterday not tomorrow, but he's talking about the best STRATEGY for getting from where are to where we want to be.

    Sometimes you have to let the bear think you're dead by not resisting his bite so that he'll go away sooner.

  • ||

    Sometimes you have to let the bear think you're dead by not resisting his bite so that he'll go away sooner.

    Of course. A libertarian understands this. The finish line is in sight. True prop 8 was a setback, but it's obvious which way the wind is blowing.

    But you must understand progressives want to divide people. They don't really care about equal rights. They hate equal rights. They like this decision because it is a hugely divisive one and sets the stage for needless social and political polarization.

    An organic and natural and voluntary and peaceful social consensus is the last thing they want. For one it would show that big government didn't need to do anything.

  • Tony||

    faithkills when has having gay rights central to the political debate ever helped progressives win political power?

    What it has done is get the worst president in the country's history, a conservative, reelected. We don't want a fight for its own sake.

    What the fuck is libertarian about letting equal rights be decided by the whims of majorities, and waiting around for majorities to approve before they're recognized?

  • ||

    faithkills when has having gay rights central to the political debate ever helped progressives win political power?

    Well clearly it does in some districts. I think it will work against you now.

    What it has done is get the worst president in the country's history, a conservative, reelected.

    Bush was awful, but Obama is ridiculously worse and is essentially doing everything Bush did wrong times 4. Neither are the worst in history by a shot. Although Obama may be called that due to the coming currency crisis.

    What the fuck is libertarian about letting equal rights be decided by the whims of majorities, and waiting around for majorities to approve before they're recognized?

    I'm a consequentialist libertarian not an idealist one. I care about results. This is a fight we were winning and it may be set back with the current SCOTUS consist.

    The other problem is that it sets yet another bad legal precedent of federal usurpation of states power.

    You assume that the feds always make good decisions. You forget just a few years ago. The party in power changes, but the power up rarely reverses.

    States making mistakes is tautologically always better than the federal government making mistakes.

    I assume you like sanctuary cities. I assume you won't like federal overreach if the next administration uses the supremacy clause to shut them down. I assume you like gun control laws. I assume you didn't like federal overreach in McDonald. (unlike you I can agree with a decision but see the problematic sides)

    There is a profound difference between consequentialists and idealist that makes it look to me like idealists are morons because they can't connect dots once they reach some abstract idea that appeals to them.

    You want to concentrate power in the hands of fewer and fewer of the political class, because you think centralized power will always be used in ways you like despite their is abundant evidence to the contrary.

  • ||

    The Constitution and the Bill of Rights sets the foundation for what kind of society the US will have. While a constitution amendment is possible it is not probable. I wouldn't hold my breath on impeachments.

  • ||

    Where do rights come from? There is nothing in the Constitution that says there is a right to gay marriage. Further, at no time in the history of the country was there ever such a right. No one thought that there should be such a right until about 20 years ago.

    How is it that a small group of people can create a right to do something whole cloth without the consent of the rest of the country? No one has ever adequately explained to me why there is a right to gay marriage for any other reason than some people like it and it sounds nice.

  • ||

    John, I'm sure you know that just because a right is not enumerated, it still may exist.

  • ||

    Sure it can exist but how and why? Because you say so?

  • ||

    Silly boy. I could use the same argument against you, but I won't. See instead Jefferson, Locke, Hume...

  • ||

    We don't have a right to do everything. There has to be some kind principle that governs how we decide what is a right. Understand that we are not just talking about the right to do something. Gays already have the right to marry and hold themselves out as married. They just don't have the right to state sanction and the coercion that goes with that. No one in the history of the world ever thought that there was a right to be married to the same sex before now. The vast majority of the country is dead against it. Why is it a right? And if it is a right, why then do people not have an equal right to marry anything or anyone they want in however many numbers they want? What is so special about gay marriage versus say polygamy or anything else you can think of?

  • Tony||

    It's about half and half these days, John. The FOX News viewership is not representative of the entire country--just a heads-up.

    'Gay marriage' isn't a right. Equal protection is. If the state grants rights and benefits to straight couples, there is no legitimate reason to deny these to gay couples.

  • iamtheeviltwin||

    'Gay marriage' isn't a right. Equal protection is. If the state grants rights and benefits to straight couples, there is no legitimate reason to deny these to gay couples.

    and this is where your "equal protection" argument falls apart. The state does not grant any rights or benefits to a "straight" couple. It provides rights and benefits to a man and woman who are "married" under law.

    I could live with a girlfriend and we would never have the same "rights and benefits" as my parents who are married.

    Equal protection is being applied equally to anyone who is married (as sanctioned by the state).

    Now if your argument is that state sanctioned marriage grants a legal framework that is "inexpensive" to obtain for two individuals who happen to be of opposite gender, and there is no "inexpensive" option available for two individuals that happen to be the same gender...then you are reaching the heart of the matter as far as the state is concerned.

    Ergo, get the state out of the marriage business (and just because the correct solution is "hard" is no reason to try and shortcut it or take the "easy" path)

  • ||

    We don't have a right to do everything. There has to be some kind principle that governs how we decide what is a right.

    There is a principle. It's an application of freedom to associate. Freedom to contract. You have a right to enter into an arrangement with anyone you like for any purpose so long as you don't impose an externality on someone else. If you do, there is tort.

    Unfortunately what you do not have a right to is special government privilege which is essentially what marriage does.

    The problem is marriage itself being a protected form of contract that all people may not avail themselves of.

  • ||

    What is the definition of a right then? How do you know what a right is and what is not? What qualifies as a right and what does not?

  • Geotpf||

    Um, the ruling is based on the 14th amendment, not the 1st. Religion is not involved in the ruling.

    And, no, a constituional amendment will not pass banning gay marriage. There is 0% chance that you could convince two thirds of the Senate, two thirds of the House, and three quarters of the state legislatures to pass an amendment banning gay marriage (or nearly anything else).

  • rho||

    Here's hoping gay marriage happens soon so homos and pseudo-intellectuals without enough to keep them busy will shut the fuck up.

  • JoshINHB||

    They'll find some other worthless cause to agitate for so enough.

  • Bo D||

    They'll probably move on to same sex restrooms.

  • slutmonkey||

    As long as they don't turn to "eliminating gender definitions". I fucking hate it when people try to force everyone to be androgynous.

  • ||

    People have a rational interest in privacy in this setting that can be amply demonstrated.

  • ||

    Your argument is not compelling. In fact, the points you raise about polygamy highlight that, in fact, the judge could have gone further. The real point is that there is no Constitutional rationale for prohibiting any form of marriage. To do so imposes religiosity and morality on a personal issue.

  • ||

    Does this also mean that the government cannot, legally, recognize marriage? It's a traditional institution that provides a special title and legal benefits to married persons while denying them to single persons.

  • ||

    Marriage is and must be a public institution - at least as long as familial rights are recognized and enforced in public and private settings. Saying you wish to abolish marriage is saying you wish to abolish the family - since marriage is the transition of two people from their family of origin to a new family of their own declaration. Unless you are willing to allow housemates and lovers next-of-kin rights over the people they live with, as long as families have a say or exist at all, there must be a mechanism in the law to create them.

  • Patriot Henry||

    "Those who applaud this ruling should ask themselves: Would they feel the same way if the court had ruled in favor of polygamy?"

    Yes, for I actually support free minds and free markets.

    Why are you writing for Reason? Why does Reason still exist? What are the names of the individuals responsible for guiding Reason to support the state and "democracy"?

  • ||

    Yeah seriously -- are we all supposed to recall in moralistic horror at the idea of legal polygamy?

    Don't be so harsh though. Any publication has its occasional duds, as does any individual author.

  • normcash||

    Thank-you

  • johnv||

    Reason has really been confusing me lately. Or surprising, in bad ways.

  • slutmonkey||

    Personally I'm in favor polygamy. I don't know that I could get two people to love me enough to let me marry them both, but I'm in favor of keeping the option open.

  • the gay libertarian ||

    So, I suppose black American should have just waited until public opinion had come around to support the notion that they deserved due process and equal protection under the law?

  • ||

    +1

  • Victor||

    There is a difference between an individual right which by definition is for an individual, and a particular type of contract. Although then one argues back that everyone should have the right to the same contract and round and round we go.

    I'd rather argue about repealing the commerce clause in the Constitution. :)

  • ||

    Although then one argues back that everyone should have the right to the same contract and round and round we go.

    How does it go round and round from there? That seems like the end of the argument to me, if you're trying to compare laws against interracial marriage to laws against same-sex marriage. The comparison is apt, because the laws have no legitimate function in terms of contract enforcement and legal protections.

  • fart monkey||

    The purpose of laws against interracial marriage was to make sure that children produced by an interracial union would be bastards.

    I fail to see how that compares to defining marriage as a man and a woman.

  • ||

    First of all, the "purpose" of a law is irrelevant; what matters is its legal basis and constitutional validity.

    I fail to see how that compares to defining marriage as a man and a woman.

    Because they are both arbitrary and meaningless definitions that have nothing to do with consistent application of legal principle and everything to do with simple majority opinion overriding personal rights.

  • fart monkey||

    Why is the "purpose" irrelevant?

    Shouldn't laws have a purpose, and shouldn't that purpose be allowed to be questioned?

  • ||

    When you're talking about violating constitutional protections, no the purpose is not relevant. The constitution addresses means, not ends. You can't dismiss violations simply because the ends are served well.

    Only when you're working within the legal framework of the constitution does the "purpose" of a law become an important part of the discussion.

  • fart monkey||

    "When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law."
    -Bastiat

    An unfortunate consequence of using the courts to change the definition of marriage is that more people will choose their moral sense and lose respect for the law.

    I think that is one of the major problems in this country, that the law has overreached into so many things where it has no place that a growing number of people no longer respect it.

    How can you have rule of law when nobody respects the law?

  • ||

    I agree. But the way to encourage respect for the law is not to pander to popular moral outlooks. That undermines the rule of law.

    The way to encourage respect for the law is to apply it evenly, consistently, and decisively no matter what the surrounding circumstances may be.

  • fart monkey||

    The way to encourage respect for the law is make sure that the law deserves respect.

    Laws that does not deserve respect, however evenly, consistently and decisively applied, do not encourage respect for the law in general.

    It has the opposite effect.

  • Robert||

    So, I suppose black American should have just waited until public opinion had come around to support the notion that they deserved due process and equal protection under the law?


    No, but do you think it would've been a better idea for the law to say that blacks are white, or that all references to the color "black" mean "white"?

  • the gay libertarian ||

    Did someone at The Corner link to this article?

    This is nonsensical.

  • ||

    You're right. The US should invade California and kill half a million bigotted Californians because you're being enslaved.

    I think you should be able to marry who you want but don't be an ass and compare your 'plight' with black slavery.

  • ||

    Yes, I absolutely think there should be no ban on polygamy. One guy marrying two women or the other way around doesn't mean anything to me. If everyone involved is okay with it who are you to say they can't?

  • ||

    I haven't had time to read all other comments, so excuse if someone's already dealt with this. But, 1) does the constitution say ANYTHING about marriage, anywhere? 2) doesn't the 10th amendment say that stuff not covered by the constitution can be handled by the states or the people? And, to sum up, doesn't this ultimately mean that marriage is NOT a constitutional issue? In other words, as offensive as Prop 8 may be, there's no constitutional basis for overturning it?

  • MNG||

    The Constitution does say something about equal protection and due process, and it applies to the states. Somewhere around the 14th Amendment or so iirc :)

  • ||

    And there was no such thing as Gay marriage when it was passed. No one in the history of the country ever thought of such a thing until the 1980s. There are a lot of things that we are not treated equally on. I can't marry an animal. I can't marry my cousin in many states. I can't have multiple wives or husbands. None of those things have ever been held to be a "right".

    The issue is when and how does something evolve to be a "right". I am willing to concede that the concept of what a "right" is and is not can evolve as value in society change. My question is how does that happen? And why is gay marriage now a "right" when it wasn't before and the vast majority of the country doesn't want it to be.

  • MNG||

    It doesn't matter if there was gay marriage when the 14th was ratified, what matters is the text of the 14th. That text promises equal protection of the law. That it might have taken society or jurists this long to see how that would apply to gay couples wanting to get married doesn't act as an argument about whether it does or not.

  • ||

    In other words it is a right because you say it is. I shouldn't have bothered to ask the question. I should have known that you were incapable of answering it in a serious way.

  • MNG||

    The right is a right to due process and equal protection. We are talking about the application of that right, not the creation of a new right. The ratifiers of the 1st didn't foresee the internet either, but it applies to it via logic. Ditto the gay marriage thingee.

  • ||

    "We are talking about the application of that right, not the creation of a new right."

    Of course it is the creation of a new right. No ever thought of gay marriage until the 1980s. It has never existed. And further, gays, unlike polygamists, are free to marry and hold themselves out of marriage. They just don't get state sanction and the coercion on everyone else that goes with it. They are claiming the right to tell everyone in the country that they must recognize their marriages. If they have that "right" why don't polygamists or people want to marry anything else have such a "right"?

    You are just talking in circles. It is a right worthy of equal protection why? Polygamists or people who want to marry their immediate family don't get equal protection. Why are gays different?

  • MNG||

    They have not "created a new right to gay marriage" any more than Loving "created a right to interracial marriage." In both cases existing rights to due process and/or equal protection were applied to new situations. This happens with the Constitution all the time.

  • ||

    MNG, At least try to respond to the argument. If you don't have a response or don't understand, just admit so. But restating the same baseless assertions just wastes everyone's time.

  • MNG||

    Its you that are missing the argument.

    There was no creation of a "right to gay marriage." There was a finding that the state ban on same sex marriage violates the rights of due process and equal protection. Those rights were not invented in the 1980's, they were ratified in the 1860s.

  • MNG||

    When the 1st was ratified noone contemplated its application to things broadcast over mediums like radio or the internet, because noone thought of radio or the internet. When the 14th passed noone thought of it as applying to something like gay marriage, because as you say that was thought viable much later.

    But in both cases the rights that were contemplated were applied to newly emerging situations and the logic of te contemplated right provided protection to the newly emerging situation. This is how the Constitution works btw.

  • ||

    That is the dumbest most disingenuous thing you have ever written. If denying same sex marriage is a violation of equal protection and due process, then it is a right. The government denies you things all the time without implicating the equal protection clause. What they can't do is deny your rights or property without giving you due process of law. So when the judge says the denial of gays state sanctioned marriage violates the equal protection clause, he is saying there is a right to such.

  • MNG||

    That's absurd. Just as Lawrence didn't create a "right to gay sex" this ruling did not create a "right to gay marriage." It applied the right to equal protection and due process to the same sex marriage ban and found it violated both of those rights.

  • MNG||

    I mean, did Reno v. ACLU "create a right to use the internet for indecent speech?" Or did it apply the longstanding 1st amendment speech right to a newly emerging situation, namely the internet?

  • ||

    You are fucking moron making completely disingenuous arguments. Of course Lawrence created a right to practice gay sex in the privacy of your own home if you so chose to do so. Did create a right as in everyone has to provide such? No. But it created a right to engage in it that cannot be violated by the state.

  • Fluffy||

    It doesn't matter, John.

    The 14th amendment does not delineate the rights it applies to. It also goes beyond right and talks about privileges and immunities, too.

    The problem is that the term "equal" can be applied to, well, anything. As soon as they included that word, they made the implications of the 14th amendment completely open-ended and unbounded.

    Did they anticipate every context where someone would ferret out an equal protection claim? Nope. Too bad.

    If you hand me a signed blank check you don't get to complain later about the amount I fill in. It's your fuck-up and what's done is done.

    You screwed up. You trusted us.

  • ||

    Fluffy that is MNG level dumb. If all you can come up with defending the right to gay marriage is "some judge said so" then you have admitted you have no argument. You think it is a "right". Good for you. You may even be right. But a lot of people think the opposite. Why are they wrong and you are right?

  • Fluffy||

    What the fuck, John? Was your 10:44 post a response to my 10:39 post?

    Because they have nothing to do with each other.

    I'm defending gay marriage because a marriage license carries with it palpable and measurable benefits. The state can't extend any benefit to anyone under any circumstances without equal protection applying.

    It doesn't require a judge to say it's a right. It just requires that it convey a measurable benefit and that it be extended by the state.

    The state could get rid of it tomorrow by getting rid of all marriage licenses and all marriage benefits in the law. Poof. No more gay marriage.

    I was merely disputing your position that it matters what the people who ratified the 14th thought they were ratifying. And it doesn't, because of the word "equal". This is a general term and not a specific term. It can be applied to any exercise of government - and to ALL exercises of government. It can't be bounded and it can't rely on the expectations of the original legislature. Maybe it was stupid to write an amendment with such an open-ending plain text meaning, but that's really not my concern.

  • ||

    Dude, besides Chapman, I haven't seen anybody defend the prohibition of polygamy (if you could even call Chapman's discussion a defense in the first place). Stop using that argument, nobody here is advocating for legal gay marriage while maintaining the polygamy prohibition.

    The relevant question goes something like this: If gay marriage is an artificial right created without a real need, how is straight marriage any different?

  • ||

    "If gay marriage is an artificial right created without a real need, how is straight marriage any different?"

    Because straight marriage has existed for thousands of years, existed before the Constitution and throughout the entire history of the country. And further, no one to my knowledge is claiming a moral objection to recognizing it.

    Gay marriage in contrast has existed for all of 20 years. Was never even considered when any of the Amendments were passed. And a large majority of the country morally objects to recognizing it. That makes it a completely different animal.

    This is not a debate about freedom. This is a debate about state coercion. Gays want to sue state coercion to essentially make it illegal to object to their life style. And Libertarians, because culture trumps principle, are jumping on the band wagon.

  • ||

    I think I said before that I don't find tradition or pre-existing conditions very compelling arguments when it comes to legal equality. Doing something wrong for a really long time doesn't make it right.

    And whether or not anybody here is expressing a "moral objection" to recognizing traditional marriage, the fact remains that the basis for such an objection is theoretically just as valid as the basis for objections to gay marriage. I think ultimately you and I could agree that nobody should be forced by the state to recognize any relationship or contract with which they do not wish to be associated.

  • MNG||

    "Gay marriage in contrast has existed for all of 20 years. Was never even considered when any of the Amendments were passed."

    By this logic no recently emerging thing could fall under our Constitution's protections. I mean, internet speech has been around all of 20 years and was never even considered when any of the Amendments were passed...

    "a large majority of the country morally objects to recognizing it."

    Rights are not usually subject to a majoritarian test, but in this case it passes. While a large majority doubtless morally objects to same sex marriage, a large majority also ratified an Amendment promising equal protection and due process of the law. Judge Walker found the ban violative of both of those ratified rights. The people are free to ratify their objection to same sex marriage and a different result should follow.

  • ||

    "By this logic no recently emerging thing could fall under our Constitution's protections. I mean, internet speech has been around all of 20 years and was never even considered when any of the Amendments were passed..."

    But the right to say and publish whatever you like had been around forever. It was just the medium that changed. The two are not analogous and you know it.

  • MNG||

    And the right to equal protection and due process had existed before. It was applied to a new situation just as the right to say and publish was to the internet.

  • MNG||

    I don't see anywhere in Walker's opinion where he finds that Prop 8 is unconstitutional because it violates a "right to same sex marriage." He finds it violates equal protection and due process. Those are long existing rights.

  • ||

    There's no objective legal basis for applying constitutional protections to something that's been around for a thousand years any more vigorously than to something that's been around for 10 years. What matters is the philosophical basis for the application of those protections, not the timespans involved.

  • Fluffy||

    This is not a debate about freedom. This is a debate about state coercion. Gays want to sue state coercion to essentially make it illegal to object to their life style. And Libertarians, because culture trumps principle, are jumping on the band wagon.

    John, blow me.

    You know very well that I want ALL discrimination law to go away.

    I think you should be perfectly free as an employer or property owner or service provider to discriminate all you want against whoever you want. Racial minorities, gays, the handicapped - knock yourself out.

    That is a completely separate and distinct issue from whether or not the state can create an institutional association between citizens ["marriage"] and then offer it to some citizens and not others. You might as well argue that the state can declare that gay people can't form corporations.

  • ||

    You blow me first Fluffy. Discrimination law is not going anywhere an you know it. And you as much as admit my point by saying that you would like to get rid of discrimination law. The effects of this decision are going to be awful. And you don't care because you don't give a shit about principle you just care about people you like and consider acceptable of which gays are one.

  • Tony||

    John care to speculate on what these awful effects might be?

    Because the defendants in the Prop 8 case couldn't come up with any.

  • Fluffy||

    John, you're the one who doesn't care about principle.

    You're saying that because we're currently under tyrannical discrimination laws, that justifies ignoring the principle of equal protection in order to limit the damage.

    I'm the one saying that we have to support the principle of equal protection no matter what, even if the bad laws set up in other areas of the law make the whole country go down the shitter as a result.

    I consider Christians pretty much unacceptable. And if there was a law saying Christians couldn't get married, I'd be pretty fucking pissed. So it has nothing to do with who I like and don't like.

    I hate Communists. But if the CPUSA were outlawed tomorrow and its leadership thrown into camps, I'd be throwing Molotov cocktails into the windows of government buildings as soon as I could work up the nerve.

    "You just care about people you like." Puh-lease.

  • ||

    Ok, so we have equal protection under the law. I sup[pose that means that we have to treat murderers the same as innocent bystanders, the insane the same as the sane, etc, etc.

    Saying "equal protection" without explaining a justifiable legal framework to decide when it can and cannot be invoked is nothing more than useless blustering. As the article explained, this fell down to the "rational basis" test, which is supposed to be extremely deferential. Because the decision was anything but deferential, it misapplied the law and subverted democratic processes.

  • Fluffy||

    "Any citizen who murders another citizen must hang."

    Please show me the equal protection problem with that law.

    Thanks.

  • ||

    Fluffy,

    I'll respond the same way:

    "Any citizen can marry a member of the opposite sex."

    Please show me the equal protection problem with that law.

    The only way there's an equal protection argument here is if you single out gays for equal protection or, as Walker did, you defame arguments against gay marriage as "irrational" to shut down any debate.

  • ||

    "Any citizen can marry a member of his or her own race."

    Please show me the equal protection problem with that law.

  • ||

    Rhayader,

    Because race is a suspect classification under the equal protection clause. Heightened scrutiny for equal protection violations only makes sense relative to some standard.

  • Fluffy||

    Because the restriction actually takes the form, "A male citizen may only marry a female citizen."

  • ||

    "Any citizen can marry a member of the opposite sex."

    Please show me the equal protection problem with that law.

    See, this is where the disagreement occurs. Most supporters of SSM say "but they don't want to" and seem to think that makes it somehow different. They usually then compare race and sexual preference.

    So it basically comes down to if you believe homosexuals were "born that way" or not. I have seen no scientific data indicating evidence that people are born gay. Any more than I have seen evidence that people are born pedophiles or murderers or thieves, or alturists or saints or heroes. Race can be genetically identified. Sexual preference, to date, cannot. Until the time that it can be scientifically shown to be inherited instead of learned, it simply isn't the same. And, no, claiming "I was born this way" isn't scientific.

    Is there anyone who supports SSM that does not believe that homosexuals were "born that way"?

  • Tony||

    Marshall just because you haven't seen the evidence doesn't mean it's out there.

    And I don't see why you wouldn't take gays at their word. Are gays inherently prone to dishonesty? There's your genetic argument. Do you feel you have a choice in the gender to which you are attracted? What makes you think gays do?

  • ||

    And I don't see why you wouldn't take gays at their word.

    Take their word? If you say that you think you were born I gay will absolutely take your word for it. Apparently you are confused about the meaning of the word "scientific", however.

    There's your genetic argument. Do you feel you have a choice in the gender to which you are attracted? What makes you think gays do?

    The trait of sexual attraction is one genetically passed down for the purpose of pro-creation. It feels good so that you will do it as much as possible and increase the rate of genetic reproduction. For there to be a "gay gene" it would be the first gene who's mechanism was explicitly it's own demise. Even if one were to occur, it wouldn't be passed on and would disappear.

    Ever hear of crowding psychosis?

  • Tony||

    Marshall,

    There's plenty of evidence for homosexuality having a genetic basis. Just look at studies of identical twins. Finding a "gay gene" is more problematic, but no less so than finding a gene for anything else. The point is, it's obviously genetic, so the task then becomes to explain how it can persist despite seeming to be maladaptive.

    And there are plenty of theories. There's some evidence that genes for homosexuality are tied to genes for higher reproductive rates in women. Also, there may be a social role that homosexuals play that increase the fitness of close relatives' offspring. It takes just a little arithmetic to see that if having a gay relative increases the survival rate of closely related offspring, a "gay gene" can be very much adaptive. Genetics is just more complicated (and interesting) than you think.

  • ||

    So it should apply to people who want a fair chance at a job or school admission? So under equal protection affirmative action goes out the window right?

  • Geotpf||

    There was nothing called "the internet" when the constitution was passed, yet the first amendment applies to such.

  • Barack Obama||

    It does? Aw HELL no!

  • Victor||

    Haven't you heard of the commerce clause? Since individuals can engage in commerce that might have an effect on interstate commerce, the federal government can regulate anything about people. Or so it seems.....

  • The Government||

    And, if you don't engage in commerce, your non-engagement has an effect on interstate commerce still. Hahaha! You cannot escape me!

  • ||

    Then again, a reading of the 14th seems to add some confusion to the issue: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Prop 8 would seem to do exactly that. But in the very next phrase, the 14th says "nor shall any State deprive any person of life, liberty, or property, without due process of law;". Prop 8 IS "due process of law", isn't it? So first phrase says you can't pass a law abridging privileges, etc. and 2nd phrase says, essentially, unless you really want to, and you're legal about it.

  • Victor||

    The privileges and immunity clause was designed to ensure that rights of any citizen applied no matter which state a person resided. (Although the courts have ignored this area)

    The "due process" has been twisted to apply rights of all sorts, to citizens selectively since the "priviliges and immunities" section was virtually deleted by a bad supreme court ruling in "slaughterhouse". I believe the foundation for the "due process of law" can be found by examining the time in which this amendment was made. Blacks were repeatedly mistreated from a legal standpoint in various localities and they were not being granted the same due process that whites enjoyed in the court system.

  • Nim||

    To be a little glib - the Constitution's silence on the issue of marriage doesn't mean a) that it isn't a fundamental right protected through substantive due process (although this point is certainly arguable), and more importantly b) that you just ignore the equal protection clause.

    The Constitution certainly doesn't say anything about social security benefits, but that doesn't mean that the federal government can decide that only white people, or women, could receive them. Once the state starts conferring benefits or recognizing and enforcing certain privileges/rights, it has to do so in a way that is consistent with equal protection. The lines drawn have to make sense - for reasons other than "The Bible says so."

  • MNG||

    "The Constitution certainly doesn't say anything about social security benefits, but that doesn't mean that the federal government can decide that only white people, or women, could receive them."

    By John's reasoning this would declare "a right for non-whites to get social security," a right that has never been recognized before!

  • ||

    Hey libertarians - if you agree with this concern-trolling hypocrite who thinks the vox populi is allowed to deny individuals their rights, then I hope your taxes never stop going up and that the government ramps up the control of corporations even more.

  • ||

    I think it's clear from the comments that plenty of us do not agree at all.

  • ||

    So the precedent is that a small group of people can decide there is a "right" to something where there wasn't one before. And then they can use the courts to enforce that "right" over the objection of the vast majority of the country.

    That sounds good. Nothing could ever go wrong doing that.

  • ||

    @John, you do understand that Rights aren't enumerated right?

    You have the right to do anything that doesn't harm another person or their property.

  • ||

    See below. State sanctioning of marriage totally affects your property rights and your freedom to do what you like.

  • MNG||

    The court didn't base its decision on a right created from the 9th did it? It ruled on due process and equal protection grounds. Those rights are not "invented by a small group of people" they were ratified by a supermajority of Americans.

  • ||

    "Those rights are not "invented by a small group of people" they were ratified by a supermajority of Americans."

    No one was ratifying or intending to ratify gay marriage when they passed those amendments.

  • MNG||

    And noone was ratifying or intending to ratify protections to internet speech when they ratified the 1st. But they were promising protection of speech, and the courts correctly judged it as speech, so it came under its protection. Here they ratified equal protection and due process in treatment by states and the court looked at the gay marriage ban and found violations of both.

  • ||

    No one was ratifying my right to have five wives. Do I have a right to that? If not, why not? I am being discriminated against just as much as gays.

  • MNG||

    This is why they have developed levels of scrutiny analysis to apply to different cases to see if there is an equal protection and/or due process violation. Perhaps polygamy would be found to violate those rights, we'd have to do the work. When Judge Walker did the work he found this case to be a violation of both.

    Didn't you go to law school or something?

  • ||

    So we decide what is and is not a right in this society, not through debate or political process, we decide what is a right by a single judge in one court room doing various intellectual gymnastics to determine the answer for the entire country.

    No danger in that. You have no argument for it beyond "you say it is a right" and "I like it".

  • MNG||

    We decided what is a right via debate and the political process. Via that process we established a right to equal protection and due process. The same sex marriage ban was found to violate both by a federal court, which is the institution that judges whether existing rights apply to specific situations.

    So what is wrong with that picture?

  • ||

    "So what is wrong with that picture?"

    What is wrong with that picture is that you are a question begging moron. The issue is what does equal protection mean. Yeah, we agree we have equal protection. But we don't agree on what that applies to. That is the whole debate that Rayander and I are having that is going right over your head.

  • MNG||

    "But we don't agree on what that applies to."

    Ah, so we have made progress. It's not about "creating a right to gay marriage" but deciding if the long existing right of equal protection and due process apply to a state same sex marriage ban! I agree there.

  • MNG||

    I think it likely does not violate due process, but that it does violate equal protection, largely for the reasons Walker details in the opinion. If you think his reasoning is wrong you can explain why.

  • Tony||

    John why shouldn't equal protection include gay people?

  • ||

    State sanctioning of marriage totally affects your property rights and your freedom to do what you like.

    Only when a government forces you to act against your own interests. It needn't be so. If your government forces you to deal with people that you'd rather not deal with, your complaint is rightly with your government, not a gay couple you'd rather not serve in your restaurant or treat in your hospital.

  • ||

    "If your government forces you to deal with people that you'd rather not deal with, your complaint is rightly with your government, not a gay couple you'd rather not serve in your restaurant or treat in your hospital."

    They did deal with the government. The passed a law saying they shouldn't have to. And you people think it is great that the courts are now forcing them to do otherwise.

    You either believe in property rights or you don't. And if you do, that means people get to do things with their property you find objectionable.

  • ||

    State sanctioning of marriage totally affects your property rights and your freedom to do what you like.

    ....and so does state sanctioning of straight marriage. Or any marriage. Do you plan on addressing that?

  • ||

    "....and so does state sanctioning of straight marriage. Or any marriage. Do you plan on addressing that?"

    Is there even a significant group of people out there whose conscience prohibits them from recognizing straight marriage? If so, then yeah we need to address it. If not, then it is not an issue.

  • ||

    But it's not about a "significant group" or majority opinion -- it's about the legal basis for making a distinction. Constitutional protections do not boil down to pragmatic concerns like consensus or popularity.

  • fart monkey||

    I supported same sex marriage when I thought it was about the right to act without interference.

    But that is not what it is about.

    It is about initiating force through the courts, civil rights style, against anyone who insists that a marriage is between a man and a woman.

    It's about the oppressed rising up and getting revenge against the oppressors through the court system.

    It is not about acting without interference, it is about actively interfering in the lives of others.

  • kinnath||

    Get a life

  • fart monkey||

    That was insightful.

  • DesigNate||

    Great job of using collectivist thought to determine everyone supporting SSM is doing it out of some sense of revenge. I'm a straight, white, middle-class male so who exactly am I getting revenge against?

  • ||

    It may be possible to make a convincing argument that the Equal Protection Clause doesn't guarantee the right to same-sex marriage. But any argument that fails to either repudiate or distinguish the Supreme Court's decision in Loving v. Virginia (establishing a right to interracial marriage) is pretty damn weak.

  • ||

    The distinction between this and Loving is that marriage had always been between two people. The idea that it couldn't be between a black person and a white person was a perverse invention of the Jim Crow South. Loving didn't expand the definition of marriage as much as return it to what it had always been. Gay marriage in contrast is something entirely new.

  • Tina Turner||

    What's love got to do with it?

  • MNG||

    When the 14th passed many states had had interracial marriage bans for years. All the way up to Loving the states in questions had these bans. Constitutionally what did it matter that at some older date these bans did not exist?

  • MNG||

    "The distinction between this and Loving is that marriage had always been between two people."

    "Loving didn't expand the definition of marriage"

    Yup, ditto for this decision as it only ruled that bans on two same sex person marriages were unconstitutional. Still two persons, but just as Loving found the race of the person to be irrelevant, this decision found the gender to be so.

  • Ron Stringfield||

    That is not true and you might know that if you had read Loving. The court stated...

    Virginia is now one of 16 States which prohibit and punish marriages on the basis of racial classifications. [n5] Penalties for miscegenation arose as an incident to slavery, and have been common in Virginia since the colonial period. The present statutory scheme dates from the adoption of the Racial Integrity Act of 1924, passed during the period of extreme nativism which followed the end of the First World War. The central features of this Act, and current Virginia law, are the absolute prohibition of a "white person" marrying other than another "white person," [n7] a prohibition against issuing marriage licenses until the issuing official is satisfied that [p7] the applicants' statements as to their race are correct, [n8] certificates of "racial composition" to be kept by both local and state registrars, [n9] and the carrying forward of earlier prohibitions against racial intermarriage.

    ..

  • MNG||

    "Penalties for miscegenation arose as an incident to slavery, and have been common in Virginia since the colonial period."

    Did you even read what you cut and pasted? Interracial marriage bans far preceded the 14th.

  • Ron Stringfield||

    Yeah, and??? I was responding to John's claim that miscegenation laws were born during the Jim Crow era, after the 14th.

  • ||

    That's a pretty shaky distinction. I don't see why expansion versus restoration is more relevant than the question of consistent application of constitutional protections. The point is not to maintain a status quo, the point is to maintain an environment in which all people enjoy the same fundamental rights. If that means expansions or changes, so be it.

  • ||

    Loving v. Virginia involved race, which is a suspect class under the 14th Amendment insofar as that amendment was specifically understood to deal with race at the time it was ratified.

  • ||

    This opinion piece doesn't contain a Libertarian viewpoint. What is it doing on a LIbertarian web site?

    Voters do not have the right to force their view point on a minority. So gay marriage should absolutely not be decided by voters.

    Do two gay people getting married harm another person? Nope. Does it harm another person's property? Nope. Then what is the problem?

    Your analogy to polygamy is unpersuasive. If this decision was instead about polygamy I would be equally glad to see it. If multiple people voluntarily join into a marriage contract that doesn't harm another person or their property, again, what's the problem?

    The wasn't an "activist judge" decision. It was just a judge saying voters have no more right to violate the freedoms of a particular group of people than an elected body does.

  • ||

    "Voters do not have the right to force their view point on a minority. So gay marriage should absolutely not be decided by voters."

    But the minority can enforce their views via to courts on the majority?

    "Do two gay people getting married harm another person? Nope. Does it harm another person's property? Nope. Then what is the problem?"

    It totally affects my property rights. If gay marriage is legally recognized by the state, then I have to by law treat gay couples as married. That means that if I am say a Catholic hospital I have to treat gay couples just like straight couples even though I morally object to the gay lifestyle. The examples go on and on.

  • mantooth||

    Exactly right, John. Let us never forget the long drawn-out battles the Catholic Hospitals had to go through when they denied care to the divorced and to those who ate shellfish.

  • ||

    What are you even talking about?

  • mantooth||

    Here, I'll spell it out -

    Why would Catholic Hospitals deny care based on "lifestyle" choice when they haven't denied care to any one breaking any of their other sacred tenets?

    I'll leave you now to your important work.

  • ||

    "Why would Catholic Hospitals deny care based on "lifestyle" choice when they haven't denied care to any one breaking any of their other sacred tenets?"

    It is not about denying care you fucking moron. It is about how they treat gay couple. If a Catholic hospital has a spousal support group, do they have to let gay spouses in? There are lots of things you do and ways you treat married couples differently than un married.

  • mantooth||

    Oh, of course. The first thing I think of when I think of hospital services is spousal support groups. Do Catholic Hospitals deny admission to these groups if you've eaten meat on a Friday during Lent?

  • Alice Bowie||

    In my opinion, ONLY in emergency situations. Secular and Gay people have no business going to a Religious Hospitals since they are aware of the objection people with imaginary friends have to others.

  • ||

    John you're a smart guy who can carry himself in a debate without flip-flopping all around. Even when we disagree I think you do a good job of laying out your argument.

    With that in mind, there's no reason to belittle your stance by calling people "fucking morons" and the like. It serves no purpose and simply rules out the possibility of a reasoned discourse.

  • Alice Bowie||

    Anytime you bring completely irrational points (i.e. religion) into any argument, you get ridiculous results.

    Leave religion out of it and you'll see there's no problem with it.

  • ||

    We have first amendment rights in this country. That means people can hold and live by any religion they want. If you don't like that, too fucking bad. And if you won't support people's right to do that, you are an authoritarian fuck who has no business in the conversation.

  • ||

    So, once again, let's get rid of all legal definitions of marriage. That's the only place to go with this.

  • Alice Bowie||

    Your 1st Amendment rights END when they impose NEEDLESS Burdens and DISADVANTAGE to People.

    Had religious people simply minded their OWN business, there would be no issue.

    How is it what other people do in their own private lives disturb your silly religious beliefs?

  • ||

    It's not that his first amendment rights end -- it's just that they are not endangered by state-recognized gay marriage any more than they are endangered by state-recognized straight marriage. Either both types of marriage constitute a threat to free practice of religion, or neither do. There is no objective reason to draw a line distinguishing the two types of marriage in this context.

  • ||

    True enough, but many people equate gay marriage with gay sex, which they find yucky, except when it's two hot lesbians having the sex. Anal intercourse, it could be said, is a slippery slope.

  • Politically Homeless||

    The ballot box does not trump the Constitutional protections of minorities, regardless of the reasoning of the electorate. If it did, I have to doubt if women would have the right to vote today.

    I also think it's hilarious that conservatives are now clamoring about "majority rule" because of this ruling, but back when it was Bush v. Gore, it was all about the Federalism of the Constitution. Kicking majority rule via the ballot box to the curb was where it was at in 2000. Today- not so much.

    Thankfully, our government is held to only one standard, and not hypocritically opportunistic double standards.

  • ||

    I assume then that you think that the minorities who want polygamy, marriage within families, and marriage to whatever or whoever else they choose also deserve the same state sanction protection. I also assume that you think that ones right to object to marriage within their own property or business is trumped by the right to state sanctioned marriage.

  • Politically Homeless||

    You do know what assuming does, don't you?

  • MNG||

    Assuming is one of John's full time hobbies dude. New to this board?

  • Politically Homeless||

    I am new to this board! Thanks for asking and assuming I'm a dude.

  • MNG||

    Dude doesn't necessarily mean a man dude.

  • Geotpf||

    There is a rational basis for banning marriage within families (mutant inbred children are bad, mmmkay). Banning polygamy probably fails the rational basis test, but nobody has brought an action involving that to the courts using the reasoning in the current opinion. Feel free to do so.

  • Bo||

    What if me and my sister are the adopted children of a gay couple?

  • Alice Bowie||

    I agree.

    We are a democracy to an extent. If everyone votes for something that is unconstitutional, the courts can strike it down. If we are not happy with the constitution, we can change the constitution. Luckly, it is not that easy to change.

    Asking the General Population to vote on whether Gays can get married is obviously going to render a NO vote. People in America are generally cruel towards other people than themselves, are rather un-sophisicated, irrational (specifically religious), and are pretty Stupid.

    How, stupid, look at the senior citizens (on Medicare) at the Tea Party professing that they don't want Public-Sponsored Healthcare.

    Not to mention the many people that stuff their old gold into an envelope and mail it to a PO Box in Miami to get cash from John Doe.

  • kinnath||

    We are a representative republic with a judiciary established to ensure that all laws pass constitutional muster.

    We are not, and hopefully never will be, a democracy.

  • Alice Bowie||

    Agreed !!!

  • Geotpf||

    Actually, prop 8 would have probably been overturned at the ballot box soon. It didn't pass by much (4 points), and old people are heavily in favor of the ban and young people are heavily opposed. As the older people (supporting the ban mostly) die off and younger people (against the ban mostly) become old enough to vote, the vote would have been overturned within a few years.

  • DLM||

    The ballot box does not trump the Constitutional protections of minorities, regardless of the reasoning of the electorate. If it did, I have to doubt if women would have the right to vote today.

    LOL. Read the 19th Amendment. Women were given the right to vote at the ballot box, not by a judge.

  • Unmarried by choice||

    I'm not married by choice. I don't want to marry anybody. Where is my equal protection!? I want the state to validate my relationship status, dammit! Where are the forms where I can fill out "spouse=NONE"!? I want a "not married certificate"! I want tax breaks!

    I am going to whine and cry until it makes everyone else crazy or I get what I want! Waaahhhh!!!

  • MNG||

    Marriage comes with a host of legal protections and obligations. You are free to enter into both.

  • Unmarried by choice||

    Free to enter, eh!? How cruel to taunt me with the fact that I am free to enter into marriage with someone when what I want is to enter marriage with nobody! That is like telling a gay guy he is always free to marry a woman! Small comfort!

  • Politically Homeless||

    Perhaps you should marry yourself.

  • mantooth||

    Well, you've come to the right place.

  • kinnath||

    Not a single original idea today.

  • -||

    But lots of arguments. Were any un-free minds made free? No. Never.

  • Politically Homeless||

    Sorry- I'm new here. I didn't realize there was a quota and others were responsible for filling that instead of you.

  • kinnath||

    Been coming here for 5+ years. This is a recurring topic. It gets really old to see the same lame arguments being made by a series of drive-by posters who come here for one day and never come back.

  • Politically Homeless||

    You sound very put upon, and for that you have my sympathy. Fear not- I will post again tomorrow.

  • kinnath||

    Great. I would recommend a shorter handle. Otherwise, the crew here will contract you down to pH whenever they address you ;-)

  • Politically Homeless||

    "pH" is alright. You can all debate my acidity. ;)

  • -||

    Or your baseness. Somebody get me a litmus strip.

  • Politically Homeless||

    You might have to do it daily. lol

  • Ron Stringfield||

    That was a horrible article.

    When Walker cites "rational basis" he is not saying you have to be nuts to oppose gay marriage. He is referring to a test long established in legal precedent and one that is thoroughly libertarian.

    Walker’s ruling is in line with that legal precedent. Unless you would like the court to upset that precedent, established in cases like Loving vs. Virginia and Lawrence vs. Texas, then Walker’s ruling is expected and welcomed.

    Walker addressed the arguments that it harms heterosexual marriage or negatively affects out of wedlock childbirths and found it lacking. The argument that we shouldn’t touch marriage laws long established was dismissed long ago with the Loving ruling.

    As far as polygamy is concerned, there are rational basis arguments against it, but it would be a separate case.

  • Ron Stringfield||

    And...

    Though it had long been nullified by the court, Alabama finally repealed its miscegenation laws in 2000. Who is to say state law makers, through a legislature of by referendum, are not out of control?

  • Victor||

    What rational basis arguments could be made against state recognized polygamy marriage that would not also apply to state recognized gay marriage?

  • Ron Stringfield||

    I could imagine that an argument might be made that polygamous marriage is unstable by its nature and the natures of human jealousy. I am not saying it is compelling. It is a seperate case.

  • ||

    I would think any rational basis arguement against state recognized polygamy would apply to both straight and gay marriages.

  • ||

    I assume any such argument would focus on the practices of the Mormon splinter sects, where young girls of the sect are pressed into marriages with little or no say in the matter.

    Which is very different from a gay marriage voluntarily entered into by two consenting adults.

    Poly marriage would probably be fine if you're talking about three adults from different backgrounds who meet in college and start a healthy poly relationship.

    But it could be tricky separating that from the pathological cases.

    Maybe, if polygamy were legalized, polygamous religious sects could let their daughters choose freely, due to safer access to outsiders. But I wouldn't bet on it. They might prefer to stick with their traditional ways.

  • ||

    Polygamy is a red hearring. Some people don't get it. The amount you can have is a differenct subject than if you are allowed to have one at all.

  • ||

    No it is not. Either the voters have a right to decide what marriage means or they do not. If they don't and there is some right to marriage, then they can't tell people they can't have multiple spouses.

  • MNG||

    But there was no "right to marry" declared. There was a finding that a same sex marriage ban violated the right of due process and equal protection. There was a long analysis of why the judge thought so. Whether a similar analysis of a ban on polygamy would come out the same way is another question.

  • kinnath||

    Voters don't get to choose who is married.

    Judges must be able to determine who is or is not the spouse of person of interest in regards to compelled testimony.

    Beyond that, all of our problems are due to voters, or their representatives, deciding who is married and then compelling all people to recognize that marriage. It gets worse when the voters, or their representatives, start assigning benefits to being married and then compell private interests to provide those benefits.

  • Ron Stringfield||

    It's a red herring. That does not mean laws against polygamy are valid or justified, it just has nothing to do with this case.

    The courts and government have long held that marriage is a fundamental right. You talk about it as if it is some novel idea and consider what might be "if... there is some right to marriage."

  • ||

    ""Either the voters have a right to decide what marriage means or they do not.""

    Not if it runs afoul of the Constituion. In this case CA's constituion.

    The problem with equal rights is that it makes, I don't want those people to have what we have, a mostly invalid postion.

    People seem to want equal rights for all, except for that group of people they don't really like.

  • Ron Stringfield||

    Walker's ruling deals with the federal Constitution, not California's.

  • Xenocles||

    How can an amendment to a constitution, duly enacted in accordance with the procedures prescribed in that constitution, be unconstitutional?

  • ||

    Ron's note about which Constituion aside. I would think if doesn't repeal another section that it contradicts. I could be wrong.

    Can you pass a constitutional amendment to ban guns? Or would you need to repeal the 2nd amendment first?

  • Xenocles||

    In general, in case of conflict I would give precedence to the new language. For your example, such an amendment would override any pro-RKBA language already extant. Practically, I imagine any such effort would include explicit repeal language.

  • ||

    ""Practically, I imagine any such effort would include explicit repeal language.""

    I agree. but no one it's trying to repeal equal rights amendments.

    If you want to discriminate against gays, repeal any equal rights amendments especially ones cover gender. Then there would be no equal rights arugment.

  • Xenocles||

    I don't believe their intention was to repeal their ERA, just to alter the framework in which it operates. It would be analogous to an amendment defining which arms are permissible to keep and bear.

  • ||

    Except gays are a class of people. So it would be more like an amendment defining which arms are off limits for one class of people.

    CA has this in their Constituiton, which I think highlights the equal rights issue.

    " (b) A citizen or class of citizens may not be granted privileges
    or immunities not granted on the same terms to all citizens.

    Can they digress by carving out citizens for exclusion without repealing the above?

  • Xenocles||

    When you put it that way, it's not even controversial. Marriage under Prop 8 was available to all citizens on the same terms - heterosexual only.

  • Ron Stringfield||

    I agree. It is completely irrelevant to this case. It is possible that the precedent could be extended to polygamous marriage but that has nothing to do with the merits of this case. The legal precedent of Loving leads to this, should Loving have been decided differently? Should we overturn it because we don't like the result here?

  • Nihixul||

    This was a poor article.

  • ||

    an individual's rights should NEVER be contingent on the tyranny of majority. Remember segregation? Remember biracial marriage? I'm done with your homophobic magazine, goodbye.

  • Victor||

    "I'm done with your homophobic magazine, goodbye"

    You obviously have not read many articles here. There are legal questions being addressed that are not simple yet you just do a run-by rant. This issue is much different than segregation or biracial marriage.

  • Ron||

    I don't care if same sex partners want to marry under a State defined framework, however this may lead to the next step of requiring churches to perform marriage ceremonies between same sex partners even if the church believes homosexuality is wrong. This I am afraid would be wrong and is quite possibly the ultimate goal. The forcing of churches to go against their beliefs.

  • Ron Stringfield||

    ANother red herring. The courts have already dealt with the right of churches to discriminate and give them great latitude. That has nothing to do with this case either.

  • Alice Bowie||

    I don't think the ultimate goal is to get the Church to do anything. Churches should remain private membership organizations that can accept/reject whoever they please. The problem exists when the nosy-bodies start meddling into peoples affairs and try to PASS Laws against these people.

    I don't think any of these Gay people are going to go to a Mosque, Sinagogue, or Catholic Church to get married. They're gonna go to a gay-friendly church.

    I'm all for people denying other people entrance and participation in their private membership organizations. However, they should not affect other people's property, lifestyle, health, employment, opportunity, etc.

  • normcash||

    thank you

  • ||

    Exactly. This is a perfect example of state intrusion being used as an excuse for more state intrusion.

    Married status itself should not confer special privilege by the very same 14th Amendment people want to invoke.

    The government shouldn't be involved in the first damned place.

  • ||

    ""'This I am afraid would be wrong and is quite possibly the ultimate goal. The forcing of churches to go against their beliefs."""

    Not at all. Churches are not required to perform any marriage they chose not to. That will not change.

    Since a couple can go to the Justice of the Peace, a church denying is not preventing you from marrying.

  • Politically Homeless||

    We have the First Amendment and religious freedom in this country because the Founders believed in freedom of conscience. That is- that government could not compel belief. This applied not only to individuals, but religious sects as well. The First Amendment makes your fears unfounded.

  • Untermensch||

    Except that our government has a long track record of not caring about the first amendment when it doesn't want to and the courts, with some exceptions, have a long history of deferring to the government on this. I don't think this is a red herring given that it has, apparently, already happened in at least one state, that that state government has abrogated first-amendment rights in matters like this.

  • ||

    If we lived in a freedom oriented country, this wouldn't be an issue.

    I start from the premise that the state should not oppose the will of consenting adults as long as no one is harmed.

    But I believe in freedom, how silly of me.

  • Leroy||

    I have a hard time understanding why this issue is so god damned hard to figure out.

    I believe that most commenters here would agree that the state should get out of the marriage business all together. The tax incentives for marriage are nothing but more state intervention into the private lives of the citizens.

    That being said, the argument currently is whether or not the state should define marriage as being between a man and a woman.

    The most common argument from the opposition to this that I've seen is that defining marriage between a man and a woman violates equal protection.

    The argument that this definition of marriage violates equal protection by not allowing homosexuals to marry who they want does not hold water. Let me make an analogy.

    Some here argue that as a homosexual is born with their sexual orientation, that they can not marry due to the state's definition. This is wrong from a logical basis. The law here would apply equally to both homosexual individuals and heterosexual individuals, regardless of their sexual orientation. This law would have a far greater impact on homosexual individuals than on heterosexual individuals, based on a homosexuals desire to marry someone of the same gender, but the law does this in many other instances.

    For example, a person who is a polygamist can make the same argument. The basic definition of marriage does not allow them to marry who they are inclined to marry based on their sexual orientation from birth.

    Another example outside the issue of marriage could be a serial murderer . In some cases, these people are born with an inherent desire to kill other people. This is something the state has created a law against. While this law will impact people born with a disposition for killing, it has been determined (some would argue correctly) that the disproportionate impact this law has on people born with a murderous disposition is worth the positive results gained by making this law.

    I realize my analogy is not perfect, but I think its solid in its concept. If the state is going to be allowed to involve itself in the institution of marriage, then we can not get upset when it creates arbitrary rules that we disagree with. The only solution is to remove the state entirely from the process.

    Comments (good or bad) are appreciated.

  • ||

    First, I agree that the state should get out of the marriage business altogether. That's the only place to take this.

    But your defense could just as easily be applied to miscegenation laws. After all, those laws prevented all people from marrying someone of another race, so they must have been valid right? If you were black and you wanted to marry someone white, well tough luck; after all, everyone else was subjected to the same limitations.

    Also, the comparison to laws against murder makes no sense. Murder is a crime, with a definitive victim. It is not an innocent lifestyle choice. The difference is so fundamental I won't even bother explaining it.

  • ||

    Rhayader,

    As the Supreme Court has long held, race is a suspect classification under the 14th amendment. If every type of classification were as suspect as race, we may well have trouble punishing serial murders because all laws discriminate base on some classification.

    The 14th Amendment, on its face, doesn't differentiate between a crime and an "innocent lifestyle choice." Nothing in its language or history suggests that it was designed to deal with that issue. In light of the history behind the amendment, it's clear to me, at least, that is was originally understood as barring most discrimination based upon race and perhaps a few other classifications, with any other classification lacking protection if a rational policy basis could be asserted.

  • ||

    I wasn't talking about 14th amendment precedent, I was just comparing the logic behind a law against interracial marriage to that behind a law against same-sex marriage.

    And to describe a law against murder as a form of "discrimination" stretches incredulity. It is a law against a specific action that produces a victim, not a law against a harmless lifestyle choice or genetic trait.

  • Leroy||

    Rhayader,

    The same logic can be applied to almost all government intervention.

    And a law against murder is just as discriminate to murderers as a law banning same-sex marriage would be against homosexuals.

    The problem here lies in where you draw the lines. Traditionally they have been drawn based on the moral standing of the public, which is why murder, theft, prostitution and gambling are illegal.

    Do I disagree with the rationale behind the state's intervention? Yes.

    Does this make my argument any less valid based on today's society and the way the government works? No.

    Anyhow before people start getting angry and calling me a bigot, I would prefer (if the state finds it necessary to remain involved in marriage) that all restrictions be removed, other than a marriage should be between humans only.

    But, that is my opinion based on my moral standing. The majority of the public would disagree with me.

  • Tony||

    If the state allowed prostitution but only for straight people, that would be a violation of equal protection. Same with murder, theft, gambling, etc. You're missing the point. Nobody is allowed to murder. But only straight people are allowed to get married. See the difference?

  • Leroy||

    No, you're missing the point.

    Homosexuals can get married too. The same arbitrary lines are drawn for them, as for heterosexuals.

    The difference is the lines affect the actions of homosexuals more so than that of heterosexuals. If the state allowed prostitution, but only heterosexual people could be prostitutes, or could subscribe to their services, you may have an equal protection argument.

    However if the state said prostitution is legal, but can only involve a man and a woman, that is an aribtrary distinction that does not apply the law unequally to any individual.

    Simple concept really, read it slow, try to wrap your head around it.

  • ||

    And a law against murder is just as discriminate to murderers as a law banning same-sex marriage would be against homosexuals.

    No! A law against murder is a law against an action, not against a lifestyle or personal trait. The two aren't even close to the same thing.

    Traditionally they have been drawn based on the moral standing of the public, which is why murder, theft, prostitution and gambling are illegal.

    But the former two are fundamentally different because they involve victims. It is not consensual activity.

  • Leroy||

    There is a fundamental difference based on YOUR moral judgements, and YOUR ideology... that being an act which impeaches on the rights of others should be a crime.

    Not everyone feels this way, so you're saying your moral judgements should dictate law, but not the moral judgements of the population at large?

  • Tony||

    You can't see any secular purpose for outlawing murder? It's all just arbitrary morality?

  • Leroy||

    I sure can.

    Based on my beliefs, and my moral judgements, I agree that murder is despicable and should be against the law.

    Not everyone will come to this same conclusion, but because the majority of the population has held this belief for some time, the idea has become ingrained in society.

    Now apply the same concepts to gay marriage, or any other topic you'd like.

  • ||

    There is a distinct difference between the morality that says "don't hurt anyone" and the morality that says "don't put your dick there" or "don't smoke that shit." One is a violation of another's well-being, and the other is a personal choice. If you can't see the clear difference then I'm not going to waste my time saying the same thing over and over.

  • Leroy||

    Rhayader,

    To me and you there may be a difference, based on our belief system that something which infringes on another individual's rights is wrong.

    To many people this is not the case.

    If you're so blinded by your own ideology that you can't realize that not everyone looks at the world in the same light, then no amount of reasonable discussion can help you.

  • ||

    To many people this is not the case.

    Only in one direction. There are plenty of people who would consider lifestyle moralizing a legitimate function of the government, yes. There is nobody anywhere claiming that a law against murder constitutes "discrimination". It's a ludicrous claim.

  • Leroy||

    You're kind of dense, aren't you?

    Ok, to explain how societies moral judgement have influenced our laws on murder, lets take a look at a different society.

    Honor killings in the middle east... These are not illegal in some places, because according to those societies it is morally permissible.

    Those same killings are illegal in the USA. Please explain how our moral judgements as a society have nothing to do with this distinction. Also please continue to try to explain to me how the concept of 'murder' is consistent across human civilizations.

    Again, the laws boil down to the societies moral judgements.

  • ||

    I like how you started by soliciting responses to your post, and ended up calling the people who actually engage with you "blinded" and "dense". Have a nice day.

  • Leroy||

    Point taken.

    My apologies.

    Feel free to argue the logic in my final point however, if you feel it is flawed.

  • ||

    No problem, I just find it tough to continue conversations when insults start flying around.

    I don't think there is any flaw in what you're saying. I think I might be arguing a narrower point than you are -- I was just objecting to the characterization of laws against murder as "discrimination". The most unimpeachable of sources, Wikipedia, defines discrimination as "treatment taken toward or against a person of a certain group in consideration based solely on class or category". Arresting someone for murder has nothing to do with class or category; it's about an act. While underlying morality can certainly inform both discrimination and prohibition of certain deeds, I still think there is a distinction between discrimination and the prohibition of murder.

    So we're probably talking past each other a bit and arguing different points. It's also clear that you're not spouting off because you hate gays or whatever. I think ultimately we should just abandon the idea of state-sanctioned marriage.

  • Leroy||

    Ok let me ask this question then...

    Would you agree that...

    All laws discriminate against a particular group of people. Speed limits against speeders, rape laws against rapists, murder laws against murderers?

    I would say that this is a state sanctioned discrimination that is based on the moral judgements of the community. I am not using discrimination as a negative term here, but simply that there is a different treatment for a group of people based solely on their classification as a rapist, murderer, or speeder.

  • Tony||

    Leroy,

    Even if we accept your absurd argument that laws against murder discriminate against murderers, you're leaving out the fact that the state is perfectly able to discriminate if it has a rational basis for doing so (I think outlawing murder has a pretty good basis behind it). The finding in this case was that it did not with respect to banning gay marriage.

  • Leroy||

    Tony,

    "you're leaving out the fact that the state is perfectly able to discriminate if it has a rational basis for doing so"

    That was essentially my point. The state discriminates against some categories of people if it has a 'rational basis'. That rational basis is often times the moral judgements of society as stated above. Examples can range from murder and rape to prostitution and gambling.

    If you are arguing that you have to have a rational basis for the discrimination, you first have determine who the law discriminates against.

    The way you frame the argument is very important.

  • Tony||

    Leroy,

    No, the "moral judgments of a society" is not sufficient to justify a law. Every law must have a secular purpose, and every single argument put forth by the defendants about what that secular purpose might be was shot down.

  • ||

    Would you agree that...

    All laws discriminate against a particular group of people. Speed limits against speeders, rape laws against rapists, murder laws against murderers?

    Eh, that's not how I would put it. When using the definition you lay out, sure it fits -- but that's not the definition of the colloquial (or legal) use of the word "discrimination". Not that I'm too interested in semantics, but I wouldn't use that term to describe those sorts of laws.

    But yeah, I see what you're saying. I think after all of this you and I (and most people here) fall roughly in the same place on this one.

  • iamtheeviltwin||

    I was just objecting to the characterization of laws against murder as "discrimination". The most unimpeachable of sources, Wikipedia, defines discrimination as "treatment taken toward or against a person of a certain group in consideration based solely on class or category".

    Just playing Devil's advocate here, but a class or category of people includes any group of people with a similar characteristic or attribute.

    Murderers are a class of people. Rapists are a class of people. Bigots are a class of people.

    We as a society have decided to apply punitive laws or deny rights and benefits against to classes of people that we as a society find repugnant or harmful.

    It does not make our actions any less discriminatory against classes of people just because we have made a value judgement that some classes should be protected in ways that others are not.

  • ||

    I agree. The government should get out of the business of regulating marriage, particularly given that it does such a poor job of it (as with no fault divorce). However, you'll note that those who support this decision seem to think that it's adequate to simply shout "equal protection" to defend the ruling. I think the arguments as to how equal protection applies here are comically weak, but I know there are arguments to be made. Nobody is making them.

  • Robert||

    The government should get out of the business of regulating marriage, particularly given that it does such a poor job of it (as with no fault divorce).


    Do you really mean regulating marriage? Because it's hard for me to consider divorce law as a regulation on marriage, and even harder to see how gov't could divorce itself from divorce cases.

  • ||

    Contract enforcement is typically handled by civil courts, no?

  • Robert||

    Courts are part of gov't, no?

  • ||

    Divorce law is a regulation of marriage. Government could be involved in child custody disputes and property partitions pursuant to a community property agreement without the benefit of dealing directly with marriage or divorce.

  • Robert||

    In court, person A: "I'm married to person B."

    Person B: "No, you're not."

    That's the crux of the matter, and I don't see how gov't can get out of that before touching issues of custody or property. Because that's really what a divorce proceeding is: one person insisting that a marriage is in force unless certain conditions are met.

    Of course, no fault makes that really simple: either party's saying they're not married means they're not married. But you were saying that was a poor job of "regulating marriage", and I agree that it's a poor job of something.

  • ||

    Robert,

    Why does the marriage have to enter into it? A person can enter into a community property arrangement without marriage that exists according to its own terms. People can have children without being married, and the courts already determine custody in such cases.

    Now, I'm not saying that this necessarily works out perfectly, but it is an option.

  • Robert||

    Of course it's an option, but it doesn't help determine who is whose spouse when someone is alleged to be someone else's spouse.

  • Politically Homeless||

    Where to start? I guess I'll go backwards.

    First- murder infringes upon another person's right to life, so your reasoning isn't sound on that point at all.

    Second- polygamy isn't a sexual orientation people are born possessing.

    Third- claiming both heterosexuals and homosexuals are having the law applied equally isn't true since heterosexuals can marry for love and homosexuals cannot. Most people today wish to marry based on a loving commitment to each other (although others marry for differing reasons such as finances, etc.). However, gays are denied to ability to have a loving, committed relationship be legally recognized because of their orientation, and no other reason.

  • ||

    #1) Another person's right to life? The existence of a right prescribing human behavior sounds like a moral judgment borne of human tradition. The court just said we can't use those as a basis for laws.

    #2) Whether sexual orientation is something people are always "born with" is still being debated and, in any event, not something the 14th amendment deals with. It doesn't have an "inborn trait" clause.

    #3) Basically, you're arguing that homosexuals as a group should be entitled to specific protection under the equal protection clause. However, the equal protection clause was never intended or understood to protect gays as a group, thus leaving us with rational basis scrutiny. The article deals with that issue.

    As has been said before, this issue needs to be dealt with in the legislatures, not in the courts.

  • Leroy||

    Thank you. #1 more accurately describes my analogy than I was able to.

    All the state's judgements are based on the moral judgements of the population.

  • Politically Homeless||

    "Sounds like"? There is plenty of legal precedent against murder. The Constitution's Preamble even states it is government's responsibility to ensure domestic tranquility, which many would see murder as being a violation of that tranquility.

    The 14th Amendment doesn't specify anyone- it says things such as "citizens of the United States", "any person" and "any person within its jurisdiction". But Leroy's point wasn't about the 14th- it was about the definition of sexual orientation, under which "polygamy" does not fall, regardless of the 14th Amendment's wording.

    I'm not arguing for a specific protection for gays, I'm arguing for gays to have the same protection as heterosexuals. I think gay couples should have the same legal recourse to deal with property and next of kin issues as straight couples. I see gays as "any person" to which the government cannot deny equal protection.

  • Leroy||

    Politically Homeless,

    Please explain to me how this law violates equal protection for homosexuals?

    The law applies to them in the same way it applies to heterosexuals, across the board. If you want to argue equal protection, you're doing it ass backwards.

    As far as precedent on murder, the precedent is still based on the moral judgements of the population. Would you disagree with me when I say that societies laws are based on the moral judgements of the society?

  • Tony||

    My, this debate does bring out the political nihilists. If we can't start with the basic presumption that the state has an interest in preventing murder, then nothing that follows is likely to shed any light on anything.

  • Politically Homeless||

    Thank you! I like "political nihilists". I was going to go with anarchists, but yours works just as well.

  • ||

    I certainly do agree that the state has an interest in preventing murder. What we're arguing is that Judge Walker's argument can be refuted via reductio ad absurdum. If applied broadly, it carries absurd results, calling into question all laws, not just Prop 8.

  • ||

    ""The law applies to them in the same way it applies to heterosexuals, across the board. If you want to argue equal protection, you're doing it ass backwards.""

    A gay person who takes a partner is not given the same privilages as a straight person who takes a partner because the gay person is denied the procedure necessary to recieve such.

    That's why some state are moving toward civil unions.

  • Leroy||

    Trickyvic,

    A gay person who takes a partner is not given the same privilages as a straight person who takes a partner because the gay person is denied the procedure necessary to recieve such.

    Sure they are! As long as their relationship falls within the rules and regulations as defined by the state, they are eligible for all the benefits provided.

    Their sexual orientation does not change this. Their choice of partner may. Again, if you want to use the equal protection argument, you need to redraw your lines.

  • Tony||

    Do what? Please tell me this isn't the lame "well the gays have a right to marry a member of the opposite sex--ergo equal protection" argument.

  • Leroy||

    meh, sry Trickyvic screwed up my italics for that quote.

  • ||

    ""Sure they are! As long as their relationship falls within the rules and regulations as defined by the state, they are eligible for all the benefits provided.""

    You mean the rules which forbid them from marrying their life partner?

  • Leroy||

    The rules that are applied in the same way to heterosexuals as they are to homosexuals... yea, those rules.

  • ||

    So you have not problem with the lack of freedom for gays to have marital property rights as their hetro counterparts?

    While you might be a friend of the law, your friendship toward freedom is questionable.

  • Leroy||

    TrickyVic,

    If you read all my comments I've made clear my personal opinion.

    Please do not project opinions or positions on me.

  • ||

    Some would see gay marriage as violating domestic tranquility, but in any case, this is irrelevant because the preamble is not, to my understanding, legally binding.

    Furthermore, you are definitely arguing for specific protections for gays because you want a government recognized institution to be altered to suit gays on the grounds that, in its present form, it discriminates against gays. Unless gays are a suspect class under the equal protection clause or traditional marriage is completely irrational, this ruling has no basis.

  • ||

    1. ""I believe that most commenters here would agree that the state should get out of the marriage business all together."""

    2. ""That being said, the argument currently is whether or not the state should define marriage as being between a man and a woman."""

    3. ""The most common argument from the opposition to this that I've seen is that defining marriage between a man and a woman violates equal protection.""

    Comments
    1. Yes
    2. review #1
    3. what part of #1 is not being understood?

  • Leroy||

    Thanks for the comments.

    1. Agreed
    2. Is related to the current system, not the one that most people here daydream about.
    3. Again, back to reality, and out of daydream land. I'd like a libertarian system of government, but we don't have one.

  • ||

    Actually Leroy, as noted above, the judges ruling is based partly on Loving vs. Virginia, not dreamland.

  • Leroy||

    Our libertarian philosophizing takes place in 'dreamland'. The government removing itself from marriage altogether is not reality. Perhaps it could be, and that is what I would like to see, but that is not the argument at hand.

    Because you can't refute the logic in my posts, you have tried redirect the argument. It doesn't work...

    Take some time to think about the issue, then try again.

  • ||

    ""Our libertarian philosophizing takes place in 'dreamland'. The government removing itself from marriage altogether is not reality. ""

    The government never will do to property law. I see little wrong with that. But government should not be one who approves or disapproves of marital desires between consenting adults.

    However, banning gay marriage is based on gender.

    M and F = yes
    F and M = yes
    M and M = no
    F and F = no

    Therefore, government is discriminating based ONLY on gender. If an amendment is passed not to discriminate on gender, then it is in violation of that amendment.

  • ||

    Correction

    It should say The government never will due to property law

  • Leroy||

    *ding ding ding ding ding ding ding*

    We have a winner. The equal protection argument can be made based on gender, not sexual preference.

    Wow, and it only took half the afternoon.

  • Politically Homeless||

    It's not called "sexual preference" anymore because it's not a choice for homosexuals, hence the term "sexual orientation".

  • Leroy||

    eh my fault.

    I didn't use the PC term. Any arguments towards my logic or conclusions?

  • Politically Homeless||

    If there was any logic, I might have an argument.

  • ||

    Ah then you argee. Gays can get married otherwise they are not receiveing equal protection becuase government can't define which genders can marry.

  • Leroy||

    I agree that there may be an equal protection argument if you categorize by gender instead of sexual orientation.

  • ||

    The bottom line is can M marry M or F marry F. It's not really an issue of sexual orientation, although it's discussed within that light.

  • Leroy||

    TrickyVic,

    Exactly. With the equal protection clause, it boils down to gender, not sexual orientation.

    If this is your position, then we agree entirely, however the argument can not be made that this law is unequally applied to homosexuals, because it is not.

    Now whether or not this violates the 14th based on gender is a grey area that I do not have the legal knowledge to delve into...

  • DaveSD||

    The definition in statement 3 can't violate the equal protection clause because the classes "man" and "woman" include all humans above a legally defined age of consent.

  • ||

    The state should not be defining words nor deciding what god does.

  • Politically Homeless||

    The state defines words all the time, as it is necessary at times to do so in the matter of applying the law.

  • ||

    I didn't say the state doesn't define words. However it should not for mere the sake of definition.

    The state should not be giving anyone special protection. As such what 'marriage' is, or is not, is not a valid concern of the state. The government should butt out.

    But of course that won't.

  • Ron Stringfield||

    Murder, really... That's your argument? You are comparing the choice of a sexual partner to murder? If you do not understand the difference then you are not a libertarian.

  • Leroy||

    Ron,

    Please try to re-read the post and understand the argument I made.

    Obviously a murderer infringes on other individual's right to life, where as gay marriage does not infringe on any one else's individual rights. By libertarian principles one should be illegal, and the other should not.

    However the country is not run on libertarian principles. If you want to make a libertarian argument, the only one to make is that government should not involve itself in marriage. Anything else is a statist argument, regardless of whether it is for or against redefining marriage.

    Once the state involves itself, where it draws the lines of its involvement depends on the moral standing of the population, just like laws that outlaw rape, murder, stealing, prostitution etc. etc. etc.

    Now I made an argument in a previous Reason post for the equal protection clause being applied, but I do not think you can apply it if you want to make the distinction that this violates equal protection for homosexuals.

  • Ron Stringfield||

    But you are wrong. The nation does run on largely libertarian principles. This case was decided on libertarian principles. The rational basis test and the substantive due process doctrine is very libertarian.

    The state has a valid interest or rational basis for enforcing laws against murder, rape and other violent crimes (not prostitution). Protection of individual rights is the very reason for government (see the DofI). Enforcing a subjectyive morality on others is not a proper function of government.

  • Leroy||

    "The nation does run on largely libertarian principles"

    You truly believe this? That our nation, today, is run on largely libertarian principles?

  • Ron Stringfield||

    When it comes to civil liberties in the courts, yes for the most part. The substantive due process doctrine is extremeley libertarian. It has nullified numerous laws on the basis of what is and is not a proper state function. Any law designed to protect the rights of the individual from initiaition of violent force, e.g., murder, rape, theft, etc., will pass the test. Those that do not are suspect.

    Even our economic liberty is mostly intact.

  • Leroy||

    Just because some of the policies of the nation are libertarian in nature does not mean that the nation runs on libertarian principles. You don't have to be a libertarian, or believe that encroaching on an individual's freedoms should be illegal to outlaw murder.

    Yes, there are many laws that could have solid libertarian justification behind their existance, but there are many more laws that could not. To say that our system is largely libertarian is simply wrong.

  • iamtheeviltwin||

    This case was decided on libertarian principles.

    Not really, if this case had been decided on Libertarian principles it would have argued that the state has no business sanctioning any marriages and therefore all state marriage laws including prop8 were unconstitutional.

    But it didn't...this decision was based upon a certain judges interpretation of "Equal Protection", nothing more, nothing less.

    Hell, the judge even admitted if some of the arguments for prop8 were more convincing that perhaps the ruling would have been different. Some principles...

  • Tony||

    Yeah how dare a judge consider only the merits of the arguments at hand.

  • iamtheeviltwin||

    Not saying that the judge shouldn't respond to the arguments as given.

    Simply stated that the case was not decided on Libertarian Principles...

  • Tony||

    Meaning what? It's not libertarian for a judge to do his constitutional duty?

  • Leroy||

    Read the rest of the comments, then try again.

  • Ron Stringfield||

    That's not the courts job. They deal with the cases they are poresented.

    The state has a function and interests in the contractual matters of the marriage.

  • Victor||

    I love the idea of the government getting out of the marriage business entirely. If "benefits" from the state (extorted from the taxpayers) were not tied to any particular social contract one had, then the system would be much more tidy. The government used to not deal with marriage at all as it was strictly a religious issue.

  • ||

    Yeah. Those tax breaks and other legal privileges that come with marriage are just lifestyle subsidies in the end.

  • ||

    ""are just lifestyle subsidies in the end.""

    I'm not sure how a wife getting a husbands house, or vice versa, is a subsidy. Something in the family, staying in the family.

    Now a wife getting the house in a divorce seems more apt.

  • Politically Homeless||

    Really? Government has never been involved in marriage law? So much for the Code of Hammurabi, eh?

  • Politically Homeless||

    Victor- I have to say your contention that government wasn't involved in marriage because it was a religious issue ignores all history. Before the Americans established a separation between church and state, who do you think was handling marriage when the Church and State were one and the same?

  • ||

    Time to separate marriage and state...completely and irrevocably.

  • ||

    ""Time to separate marriage and state...completely and irrevocably.""

    Sounds great in theory, but the state does need to play a role, albeit contract enforcement, and upholding spousal privilege.

    The state should be greatly limited to the role it does play. Playing gate keeper as to who can, and can't should not be within the government's power.

  • ||

    The state should play no more role than they play in any other contracts law. Specifically there should be no tax or other benefit to accrue from marriage. Certainly no marriage tax penalty

  • ||

    Marriage is part of family law, not contract law. It is a necessary part as long as there exists such a thing as familial rights. Allowing gays to marry affirms their equal familial rights, including the right of a gay spouse to keep his spouses share of any property inherited from his family of origin, even after the death of that spouse.

  • ||

    It affirms another legally privileged group. There shouldn't exist one in the first place.

    You only need this status at all because the government has already intruded into our lives. You don't need special protections from government taxation, special benefits benefits, or limited inheritance confiscation if the government weren't already doing that crap.

  • Tony||

    Why is it "time"? Now that gays want in on the action, all of a sudden it's time?

  • ||

    In the same way a liberal may say it's time for everyone to have health care?

  • Tony||

    No it would be comparable if during the debate to extend healthcare as a right to everyone, all of a sudden people started clamoring for abolishing medicare.

  • ||

    No it's not. This is about adding an ability to participate like hetrosexual couples, not abolishing one.

  • ||

    You can't 'extend' a right. You have one or you don't, and you can't have a right that necessitates violating someone else's right.

  • Tony||

    faithkills,

    Blahblahblah... I presume you're operating under the faulty premise that people have a right to keep all their money and pay no taxes? Where's THAT in the constitution?

  • ||

    You think a gun plus your big idea equals a right.

    The problem is people who have thought this for a lot longer than you have control over all the guns. You thus have no valid moral objection when they do as they will.

    A right, to mean anything must exist. If you have a right to do something to someone else they must have the right to do it to you. This is a contradiction.

    You're not talking about rights.

    You're talking about guns.

  • Holy Cow||

    A spokeswoman for a gay rights group just following the judge's decision last week said: she hopes this decision will lead to a more judgment-free society.

    I'm paraphrasing. But she used the word "judgment/judgmental." It's not about equal rights. It's about legal acceptance for a lifestyle.

    Comparing black/white racism on this is somewhat silly. Race is meaningless. It's a political construct. Gender is real.

    Men and women -- by their very definition -- bring different skills to society's table. Jimmy the Greek aside, black men and white men are the same. But any man vs. any woman, much different.

    Anyway, everything the Left touches turns to Totalitarian Gold. So I'm sure this will be a disaster for gays/the homeless/the disenfranchised and Ron Kubby.

  • Xenocles||

    Other "equal protection" issues to ponder:

    -Drug laws discriminate against people who want to use each particular drug.

    -The progressive income tax structure discriminates by income. (A flat tax does, too - the richer still pay more.)

    -Several states have sales tax structures that exempt classes of product (food, clothing). Others have extra taxes on "luxury" classes of product.

    -Polygamous marriage is outlawed. (For that matter, so are incestuous unions, regardless of fertility.)

    -The President has a better security detail than me. (By law, he is afforded better protection from murder.)

    Some of these examples are terrible policies that should be altered or abolished. I don't think any of them would fall to a challenge on equal protection grounds, though.

  • Fiscal Meth||

    "Would they feel the same way if the court had ruled in favor of polygamy?"

    I certainly would. An adult should be able to get married to any adult(s) in the world as far as the state is concerned.

  • ||

    If one agrees that government should get out of marriage, isn't forbiding government for defining who can and can't get married a step in the right direction?

  • Tony||

    So much fail in this article... Polygamy is a complete red herring. Nobody is legally allowed to enter a state-sanctioned polygamous relationship. That is an entirely separate subject from whether gay couples have the same rights as straight couples.

    And I seriously doubt this will lead to unending culture wars the same way abortion has. True, the anti-abortion movement is based primarily in religious beliefs, but at which point during gestation legal rights begin is a question for the ages. Whether gay people are second-class citizens is something that will be resolved, sooner rather than later, because neither this court nor, increasingly, the American people can come up with a good argument why this should be so. Chapman certainly hasn't, and the ridiculous slippery slope nonsense about polygamy is basically an admission of that.

  • Xenocles||

    It's not a red herring. A group of people who want to get married can't. Two heterosexuals can. In some places two homosexuals can. Any objections to the idea of polygamous marriage can only be founded on the definition of marriage (which, incidentally, provides more historical support to polygamy than it does to SSM).

    It's only a slippery slope argument if you think recognized polygamy is a bad thing.

  • Tony||

    I do think so, for complicated reasons. I still think it's a completely irrelevant distraction. If the state allowed white people to engage in polygamy but not black people, there might be an equal protection problem there.

  • Leroy||

    But you see, polygamy is against the law.

    This means no one can engage in polygamy, whether they are a polygamist or not.

    Now lets apply this to gay marriage... If gay marriage is illegal, that means no one can engage in man to man or woman to woman marriage, regardless of if they're gay.

    Your equal protection argument does not work. Please try again.

  • Politically Homeless||

    The equal protection being denied to homosexuals IS marriage, in that marriage allows partners certain rights pertaining to each other and how as a couple they are viewed by the law- such as property transfers, power of attorney rights (like medical emergencies), other legal rights like testifying against each other. They are being denied access to enjoying these privileges whereas heterosexual couples aren't.

  • Leroy||

    Homosexuals are not being denied the opportunity to marry, they are just being held to the same rules and regulations as every other individual in the country.

    Your argument fails. Try again.

  • Tony||

    Your argument fails from pure unabashed stupidity. How is it equal rights if gay people have the right to marry only people they by definition aren't interested in marrying?

  • Leroy||

    The law is applied equally to heterosexuals and homosexuals.

    Your argument is flawed. If you redrew your lines, and rethink your argument, you may be able to form a valid point.

    Unabashed stupidity? Well thank you. However you've yet to refute the logic behind my conclusions, both on this post and others where the same argument has come up.

  • Tony||

    All you have to do is reframe the argument in a way that actually applies to reality. Do gay people have the same right to marry the person they love as straight people?

  • ||

    Leroy has spoken below.

    It's not about homosexuality. It's about men who want to marry men and women who want to marry women.

    Semantics? or nitpicking? I'm going with the latter.

  • Leroy||

    Maybe it is nitpicking...

    But from my POV, if you frame the argument as heterosexual v. homosexual there is no logical standing. However if its framed Male v. Female then your argument has some legs.

    And Tony, your argument still doesn't hold water. How do you suppose the government can determine 'love'?

  • Tony||

    Leroy,

    It doesn't matter, because straight people can get married for practically any reason. Gay people in most jurisdictions simply don't have the right to marry at all. The right to marry implying the right to marry someone you have an interest in marrying.

  • Leroy||

    Tony,

    You are being dishonest. With this law, homosexuals can get married just the same as heterosexuals, under the rules and regulations set forth by law.

    The law is no different for homosexuals as it is for heterosexuals.

  • Tony||

    Leroy you are being obtuse. Laws forbidding interracial marriage are also technically no different for people of different races.

  • Leroy||

    "Laws forbidding interracial marriage are also technically no different for people of different races."

    Ok Tony, I think you're getting closer. This is a step in the right direction.

    Ok, you have a White Male (WM) a White Female (WF) a Black Male (BM) and a Black Female(BF)

    WM can marry WF
    BM can not marry WF
    BM can marry BF
    WM can not marry BF

    A law against interracial marriages draws its distinction down racial lines.

    Please apply this forumla to the law against same sex marriage and come back. There may still be hope.

  • Tony||

    But it's the same law for everyone. Just stick with your own race!

    Similarly, laws restricting gay marriage merely clarify that everyone has to obey the same law, right? Just stick with the opposite sex!

  • Leroy||

    Ok, Tony, let me take you through this step by step.

    First of all, a law restricting interracial marriages would be the same law for everyone, but it would not be applied equally to everyone based on race alone.

    For example a white man could marry a white woman, but a black man could not.

    This would be an example of a law being applied unequally.

    Now, lets take that and apply it to your interpretation of the gay marriage law.

    A straight man can marry a woman.
    A gay man can marry a woman.

    So far its equal.

    A straight man can not marry a man.
    A gay man can not marry a man.

    Applied equally.

    There would be an application for equal protection I believe, but you would have to frame your argument differently. (I've described it above)

  • Tony||

    I think it's the same, framed differently:

    A straight man can marry the person of his choosing.

    A gay man cannot marry the person of his choosing.

    Unequal rights based on sexual orientation.

  • Leroy||

    Sure they can Tony, they just have to choose someone who would fit within the regulations set forth by the state... the same way a heterosexual would.

  • Tony||

    Sigh. Nevermind. You do know that people don't choose to be gay, right?

  • Leroy||

    There is still debate about that, but it is a premise that I accept.

    Tony, simple logic will lead you to the correct conclusion. Just try (and I know this will be hard) putting all your emotional impulses about the issue aside, and think of it logically.

  • Tony||

    Leroy I don't know what the hell you're talking about because we're like 6 posts deep into your telling me just to calm down and thing logically. I think I am calm and thinking logically, and I think you're being obtuse. But what was the question again?

  • Politically Homeless||

    Government regulations of marriage goes back as far as Hammurabi because of issues involving property. It will continue to be a legal issue because of property laws. The issue is whether gays are entitled to the same ease of property transfers that heterosexuals enjoy via marriage contracts. Gays want the same right to be at a hospital bedside, and pass property to their partner.

    For a group supposedly so concerned about property rights, it's surprising to me so many here wouldn't see this issue in that light, nor do you see marriage in that light and why it is a matter the government is involved in and why.

  • DesigNate||

    Amen.

  • Tim||

    If California (or any other jurisdiction) voted democratically to institute slavery I would expect and demand that the Courts intervene.
    But replace slavery with gay marriage and suddnely this becomes (for some) a terrible injustice.

  • Xenocles||

    Since introducing slavery would be explicitly contra the 13th Amendment, it would be an extremely appropriate place for the courts to intervene. SSM requires a little more interpretive of a reading.

  • Alice Bowie||

    That because the truth is that many (if not most) people in America (that are not coloured) would private support the slavery or atleast turn their heads during the implementation.

  • Xenocles||

    Too stupid, shouldn't have read.

  • Michael Ejercito||

    That because the truth is that many (if not most) people in America (that are not coloured) would private support the slavery or atleast turn their heads during the implementation.


    So how did the 13th Amendment ever get ratified?

  • ||

    They already do. They are quite willing to compel other people to work a sizeable fraction of their lives and take the fruits of that labor.

  • Politically Homeless||

    You're comparing slavery to taxation?

    See- this is why the government defines words.

    The government has always had the power to collect taxes- they can compel you to pay them, but it is a far cry to call taxation "slavery" because they are not forcing you to work against your will without compensation. In a way- they compel you to pay them for the labor of governance they provide.

  • ||

    Well the founding fathers seemed to have fought a war because they felt that way. They killed people, I assume they felt pretty strongly about the issue?

    The government has always had the power to collect taxes

    I have the power to burn your house down. So that makes it legitimate?

    but it is a far cry to call taxation "slavery" because they are not forcing you to work against your will without compensation.

    Really? They aren't forcing me? So I can opt out?

    If I make you work 100% of your life for me are you a slave?

    What about 80%?

    60%?

    What percent of your labor may I take and you call yourself free?

    In a way- they compel you to pay them for the labor of governance they provide.

    I pay them for.. the trouble of tossing me in jail if I don't pay? What a bargain!

    If what they provided was worth the cost they would not need to compel 'payment'.

    I pay Fedex and UPS freely because they are prompt and never have lost a package.

    I am compelled to pay for the USPS, which I never use anymore because I've had multiple packages lost.

    I voluntarily pay into my retirement fund.

    I am compelled to pay into Social Security which is broke and I will never see any return from.

  • Politically Homeless||

    Have you actually read the Declaration of Independence? Taxation was only one point in a lengthy indictment against George III. Reducing our independence to one talking point is an insult to our Founders, imo.

    Yeah- you pay taxes for things like fire departments and roads, and if you don't want to pay taxes here you're free to pay them elsewhere. And if you read the Constitution, you'll see the document gives the government certain rights, and reserves the rest to the people. The power to collect taxes is granted to the government. The power to burn my house down isn't there, but arson laws tell me you are entitled to go to jail for that and tax evasion too.

  • ||

    Yeah- you pay taxes for things like fire departments and roads

    No. I don't pay for those things. They take the money. If I paid for them and they don't do a good job I can use a different service.

    you'll see the document gives the government certain rights

    Right but it can't legitimately grant rights to the government that the people do not have to begin with. Do I have the 'right' to point a gun at you and take your money? What if I give some of the money back? Or bought you something with some of the money?

    If that's not right then how is 3 people doing it to 2? Or 100 doing it to 90?

  • ||

    Governments have powers, not rights.

  • ||

    Um, absolutely not. You really think slavery -- I'm talking slavery slavery here -- would be tolerated to any significant extent, even ignoring legal objections?

  • ||

    They do it now.

  • Politically Homeless||

    I think this is a gross smear on a large majority of Americans. There is no way this country would revert to slavery, even if race issues are tense these days. It's not true- it's a proggie fantasy.

  • ||

    Tell that to undocumented workers who were sold to their employers by coyotes and who now cut meat at IBP and pick your oranges.

  • Michael Ejercito||

    There is more litigation pending.

    Even as I write this, the Texas Fifth Court of Appeals is hearing an appeal of In the Matter of the Marriage of J.B. and H.B. .

    The lower court ruled that the Texas state constitutional amendment that prohibits same-sex "marriage" violates the 14th Amendment's equal protection clause, meaning that the couple could get a divorce.

    The appeals court could rule in the following ways.

    1. Full affirmation of the lower court ruling.

    2. Partial affirmation, affirming the divorce on the grounds that the laws of Texas do not prevent the courts from granting a divorce, and vacating the ruling that the Texas DOMA is unconstitutional on the basis that it does not prevent the state of Texas from granting the divorce.

    3. Partial overturn, ruling that the Texas DOMA is constitutional, and does not prohibit the state from granting the divorce, so the court has the authority to grant a divorce.

    4. A full overturn of the lower court ruling, ruling that the Texas DOMA is constitutional and that it prevents the couple from getting a divorce.

  • ||

    Interesting, especially if the appeals court uses Perry as precident.

  • ||

    Actually, the federal DOMA case in Massachusetts is more relevant. If that is used as precident, Perry need not be cited.

  • normcash||

    Quite a debate. I sympathize with cultural conservatives who oppose same-sex marriage. It must feel terrible to lose another round to freedom. First it was the non-property owners, then the women, then the blacks, my God. Freedom is a terrible thing when you just want to keep things the way they are or were. I view this as a simple marriage between two people. If one can take ones sex out of the equation then most arguments fall mute. All the talk about polygamy, coercion, redefinition, and murder make little sense to me. Freedom should be pushed and pushed to the farthest extent compatible with a well functioning society and no victimless action between adults should ever be up to majority rule.

  • ||

    You lost me when you said you would have voted against Proposition 8.

    It was the same case that you now find over-reaching at the federal level.

    Out of control California state judges manufactured a right to gay marriage out of general language in the state constitution, and despite an earlier ban by proposition that didn't explicitly amend the constitution.

    So in fact, the courts in California did it twice, forcing the voters to do it twice as well, the second time explicitly amending the constitution.

    The federal lawsuit was the third bite at the apple, after a litany of failures at the ballot box.

    Why not simply get it on the ballot again, and try to win this time?

  • ||

    Are you inferring that you believe that heterosexuals should have the right to sever familial relations with their family of origin and form a new family while gays cannot?

    Domestic partnership is a form of second class citizenship. It is Plessy v. Ferguson with lavender curtains. Separate cannot be equal, not in schools and not in marriage.

  • BeesinTheBrain||

    One side effect of this ruling is that it also means that California's domestic partnership laws are also unconstitutional.

  • ||

    How so? Explain yourself? Are straights prohibited from registering as domestic partners? If so, you are correct. However, if domestic partnership rights acrue to either sexual orientation, this ruling would not change that - and should not because the question was not at issue.

  • DMC||

    Neither the voters nor the courts should be involved. It is a religious issue. If a religious group allows marriage between gay people, neither the courts nor the people have any say. End of issue.

  • Leroy||

    This would be 100 percent correct if their wasn't tax incentives built into a government recognition of marriage.

  • ||

    It's not so much about tax incentives as it is property and spousal rights and/or privilages.

    Would we want to remove that?

    The prevention of states to dictate who can and can not marry should be considered a step in the right direction by those who want government out.

  • Leroy||

    Yes, I would want that. Marriage should be a private contract that is legally binding.

    There should be no government incentives involved. The private contract, agreed to before hand, can delegate property rights in the case of a divorce.

  • ||

    Yeah, that's the way to do it.

  • ||

    Only if all family law is reduced to contract law. If such a thing as family law exists in its own right, marriage must be a component in it, as marriage is the permanent formation of a new family and a severing of ties to the family of origin. This includes the right to retain inherited property, which is not found in contract law.

  • Ron Stringfield||

    It's not simply a religious issue. The state is charged with resolving contractual disputes and therefore has an interest in whom may and may not marry in relation to that. For instance, not allowing a child to marry is in keeping with the state's position that a child is not yet capable of understanding a contract and that forcing the child to comply would therefrore be an unjust violation of the child's rights.

    Further, there are property issues of inheritance that have long been tied to marriage for the spouse and child. The state has an interest in protecting those rights as well.

  • ||

    There's nothing there that would require state-sanctioned "marriage" as currently defined. Enforcement of legal private contract would be sufficient.

  • ||

    Marriage is an essential component of family law. Unless you are willing to classify all family law as contract law, anything less than what was done is insufficient.

  • Ron Stringfield||

    The state would be able to ignore a marriage contract to a minor, correct?

    I assume the courts would have the right to refuse the enforcement of some unjust provisions of a contract. For instance, if the contract states that the husband will be staked to an ant pile if guilty of adultery the court could reject that, right?

    Answer yes to one or both and that means the contract is subject to some sort of sanctioning.

    Marriage contracts often result in a dispute that requires state intervention. Denying the state the power to regulate the general form of the contract and having an abundance of different marital contracts would result in overburdening the courts and society.

    The state does have a legitimate interest in some regulation, but not just any/or every regulation. The regulation must only be allowed to relate to the state's valid interest as the arbiter of contractual disputes.

  • Jim||

    It's unclear whether you think the Perry decision is incorrect as matter of constitutional law or if you just think than in an ideal America (perhaps one with a different Constitution and a different body of Supreme Court precedent) this issue would be decided by voters rather than judges. In the actual America, there is a federal Constitution which contains an Equal Protection Clause and a Due Process Clause. There is also a very old, and by this point uncontroversial, Supreme Court decision called Marbury v. Madison which established that federal judges not only can, but must, void laws which offend the Constitution. Judge Walker, exercising his authority under Marbury v. Madison, quite sensibly held that a law which confers special advantages on straight Californians and inflicts unique harms on gay Californians violates the Equal Protection Clause and the Due Process Clause, and is therefore void. That's all.

    Now, you may disagree with Judge Walker's legal analysis (and I'd be curious to hear exactly how you disagree with it), but that is something very different than what you have done, which is to characterize his decision as "overreaching" -- suggesting that Judge Walker illegitimately arrogated to himself a power properly belonging to voters. He did not. He did what many reasonable federal judges would do if presented with this question. (Other reasonable federal judges might, of course, rule differently).

    To the extent that the (tired) analogy to polygamy is persuasive at all, it is persuasive only if constitutional law is ignored. Over the last century and a half, the Supreme Court has helpfully provided a number of tests that judges must apply when deciding whether a given law violates the Due Process or Equal Protection clauses. (The purpose of these tests, of course, is to cabin judges' exercise of the power of judicial review, and to minimize the likelihood of arbirtrary "overreaching" in a given case). For example, one element of the Equal Protection Clause test asks whether the law divides citizens based on a "suspect classification" -- such as race or sex. Although there is of course room for disagreement on this, I think Judge Walker has the better of the argument that discrimination on the basis of the immutable characteristic of sexual orientation is suspect, while discrimination on the basis of an individual's preference for multiple marriage is not. In any event, it is a point at which a line may reasonably be drawn between gay marriage and polygamous marriage; the logic of one does not lead inexorably to the other. Similarly, it is an element of the Due Process and Equal Protection tests that the state's interest in the law must be at least rational (and in some cases compelling). Again, there is room to disagree, but certainly it was not "overreaching" for Judge Walker to conclude that California has no rational (much less compelling) interest in denying gay couples the right to marry, but that it does have a rational basis for not conferring the many legal benefits of marriage (such as favorable tax treatment, default rights under the intestacy laws, etc.) on each of the numerous members to a multiple marriage. (And let's also remember that the question of polygamy was not presented to Judge Walker, and it would, indeed, have been an act of judicial "overreaching" for him to opine on a question not properly before him).

    Finally, the fact that this decision was controversial does not mean that it was wrong. Certainly it does not mean that Judge Walker should simply have shirked what he reasonably concluded to be his duty as a judge presented with a constitutional challenge to a statute. The same, of course, goes for Roe.

  • Robert||

    Judge Walker has the better of the argument that discrimination on the basis of the immutable characteristic of sexual orientation is suspect, while discrimination on the basis of an individual's preference for multiple marriage is not.


    If it's stipulated that our desires are not of our own conscious making, how is preventing someone from marrying one's object of desire not OK when it's someone of the same sex, but OK when it's the 2nd person of either sex? Do you think it any less an "immutable characteristic" that an already married person is attracted to someone else than that an unmarried person is attracted to someone of the same sex? Either way, you want to marry that person. Looking at it on the basis of attraction to classes of persons isn't going to get you anywhere when you realize there are always classes of persons that reflect one's preferences in that regard: blondes, tall people, people who speak Spanish, etc.

  • ||

    Polygamy was not at issue in the case and could not have been ruled on. There is a religous freedom aspect to such a case if brought by a member of one of the offshoots of the Mormon Church to whom it is an article of faith. Perry should help them in this.

  • ||

    Specious. As if heterosexuals haven't done enough to discredit marriage. Currently a 50% failure rate/divorce. But so what? Traditions and customs change. My two boys, in their late Twenties, have no interest in getting hitched. I'm almost 70 and have been married four times. So what? I've lived in sin with my sweetie Diane for 24 years. And we haven't been struck by lightning yet. I don't quite understand the interest gays have in marriage. The bennies are better, but again, so what? All that for a tax deduction?

  • ||

    Marriage severs the tie to the family of origin. You can't give heteros the right to do that and not give it to gays.

  • ||

    "But it's silly to believe only nut jobs and bigots could rationally oppose same-sex marriage, or that millions of Californians who accept other laws protecting gays were acting irrationally."

    Your argument falls flat on that statement alone. The USA (and the UK) went to war against Afghanistan and Iraq based on scaremongering and lies. The lies and scare tactics used by the Prop 8 proponents were extreme to say the least. From pamphlets to radio and TV adverts that declared the end of society as we know it (including the decriminalization of pedophilia) was about to happen!! You only need a basic grasp of Chomsky, Pilger and company to know that a large portion of people of the USA have been 'controlled' by fear and ignorance (mainly through the conduit of religion) for decades now!

  • J_L_B||

    Citing chieftains of the communist left as proof of American ignorance is also a time-honored tradition. We will not accept the rule of those who believe they are intellectually superior to the general populace, and attempt to implement paternalistic policies accordingly. I also cannot accept that conclusion, considering that these self-avowed geniuses come from the same ignorant public they despise and seek to control.

    Note: they usually begin their attack on the freedom of religion.

  • PicassoIII||

    If CA domestic partnership or civil unions are not financially and legally equivalent to 'marriage' (next of kin, power of attn, tax rates, etc) then Judge Walker did the right thing.
    At the shrill end of the LGTB movement there are those that demand the 'name', governmental 'approval' and societal acceptance.
    While there can be the overreach argument and there is no doubt some trampling on 'states rights', but CA Props can verge on 'tyranny of the majority' to me. Denying the entitlements of marriage.
    I've heard that it can cost hundreds of dollars to draw up/file all the documents to get all those things that 'city hall' provides for a few bucks and a 24 hour wait period.
    That's wrong.
    Oh and individual 'rights' trump the mobs and states rights any day IMHO.
    More intividual liberty by hook or crook i say.

    Now if the fringe of LGBT wants to use such lawsuits to compel churches or other private organizations to 'codify' such unions, we need remind them that 'separation of church and state' cuts both ways. So does freedom of speech for that matter.

  • ||

    They are the same, actually. Judge Walker still did the right thing. There is no need to be polite to bigots by simply creating new words for what is essentially the same thing.

  • Richard||

    One of the most poorly reasoned articles I've ever read under the guise of 'reason'. Those people opposed to gay marriage are not making a rational application of Equal Protection. Your attempts to obfuscate this basic issue are disappointing.

  • Leroy||

    Richard,

    Please explain to me how you would apply equal protection to this issue.

  • DesigNate||

    If you would allow me, I'll try. If my lesbian friends go to Vermont to get married, their marriage (thanks to DOMA) is recognized only in the states that also allow and recognize SSM.

    If, however, I were to hop on a plane right now and fly to Vegas with a stripper named Lexus, assuming she didn't lie to me about her gender, we could be married and fly back to the great state of Texas and our union would be recognized.

    If you follow this through Equal Protections, at the very least all the states must recognize the SSM. This does not mean they have to allow them to be performed, but all the government benefits and entitlements should apply.

  • Brian Sorgatz||

    Chapman should take a lesson from Damon W. Root and learn to accept "judicial activism" as a healthy component of liberal democracy as opposed to pure majoritarianism. When the majority places unfair restrictions on individual liberty, the will of the majority ought to be thwarted. Let's not forget that the majoritarian democracy of Athens denied Socrates his freedom of speech and freedom of religion.

  • ||

    "Are those concerns persuasive? Not to me. But they are plausible enough to contradict Walker's assertion that the only real justification for the ban is "the notion that opposite-sex couples are superior to same-sex couples.""

    They are not plausible at all. In fact all the reasons you gave are just code for opposite-sex couples are superior, and that same-sex couples are infectious and damaging to culture, therefore inferior to society's purposes and needs.

    "Those who applaud this ruling should ask themselves: Would they feel the same way if the court had ruled in favor of polygamy?"

    YES!

  • ||

    So, would Mr. Chapman apply the same logic to interracial marriage that he is applying to same-sex marriage, that this should NOT be a federal issue? Should Loving v. Virginia be repealed? Should we simply have waited 30 or 40 more years, or never, for Southern states to legalize interracial marriage?

    Mr. Chapman mentions California's domestic partnership law, which is essentially marriage without the name. But only a handful of states have this, and they're not recognized at the federal level. Some 20 states have amendments that ban BOTH civil unions and same-sex marriage. Are these amendments constitutional? Can states legally prohibit benefits for same-sex couples? Civil union bans are clearly intended to do this.

    Mr. Chapman may be right that Judge Walker went over the line in judging the intention of the voters. But the intention of the drafters of the amendment was clear: codification of personal (and arbitrary) religious views of morality into law.

    Another point: Mr. Chapman points to marriage as an “age-old” institution. What is in question here, though, is the validity of the MUCH younger GOVERNMENT institution of marriage. It's the government institution that is at question here, not the tradition of marriage itself. And that distinction changes things quite a bit.

    And as for the red herring of legalized polygamy, all I can say is that the “slippery slope” “argument” is a logical fallacy. Giving women the right to vote didn't lead to dogs voting. Giving 18-year-olds the right to vote didn't lead to toddlers voting. Recognizing same-sex marriages won't lead to legalized polygamy. That's another debate that won't be addressed with this issue. Still, we have to realize who irrational it is to bring up the “slippery slope” point (which certainly is no argument against same-sex marriage, indeed!). We have to go by the facts of this case.

    And as for the supposed “backlash” against same-sex marriage: well, I see many differences between this and Roe v. Wade. Roe v. Wade dealt with a subject of the definition of life, as well as an implied right to privacy in the constitution, while recognition of same-sex marriage clearly deals with the issue of recognition of a relationship between two consenting adults.

    Moreover, same-sex marriage is clearly a question of application of equal protection under the law, which is clearly delineated under the 14th Amendment. When it's legalized nationally, yes: many people will be upset. But it will fade: just like it did in Iowa, which is not the most liberal state in the country. Abortion never faded away because it deals with a question of who is human. Same-sex marriage will fade away because it deals with how consenting adults should be treated under the law.

  • Earl Clovis||

    Judicial review encompasses three levels of scrutiny. Depending on the nature of the law being challenged, it's gonna have to pass one of those three levels. From weakest to strongest these are rational basis, intermediate scrutiny, and strict scrutiny.

    Laws that discriminate based on gender, like Prop 8, oftentimes just have to pass intermediate scrutiny. But prop 8 doesn't just discriminate based on gender...it denies people a fundamental right. Marriage has been described time and again by the courts, including the Supreme Court, to be a fundamental right, and laws that deny fundamental rights warrant strict scrutiny.

    Judge Walker additionally found gays and lesbians to constitute a suspect class. To be a suspect class, you must

    1. be a discrete or insular minority
    2. with a history of persecution
    3. who is powerless to protect themselves by the political process
    4. whose defining characteristic is immutable

    Laws that discriminate based on suspect classification must also pass the strictest scrutiny under judicial review.

    Walker found Prop 8 to fail even the rational basis test, let alone intermediate or strict scrutiny.

    Here's a link that describes the criteria a law reviewed under strict scrutiny must pass:

    http://en.wikipedia.org/wiki/Strict_scrutiny

  • Cytotoxic||

    This article is a freedom fail. The judiciary is doing exactly what it should. We've had enough of majoritarianism overturning individual rights for some time now.

  • Marshall||

    What a horrible article. Libertarianism does not defer to majoritarianism. It's shocking to see an article like this when Reason was just supporting judicial activism and substantive due process moments ago (as any libertarian should).

  • ||

    marriage is for a man and a woman.
    Same sex marriage is not a marriage it's a relationship choice but not marriage.
    http://www.wnd.com/index.php?pageId=24528

  • ||

    Marriage is the right to sever familial relations with the family of origin and form a new family unit. It is tyranny to tell gays that they cannot exit their family of origin.

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  • ||

    This article sounds like more of a diatribe from an ultra-conservative populist than from a libertarian. Judge Walker upheld the due process and equal protection clause from the tyranny of majority. Yet this article is written from the standpoint that the majority has the right to determine who gets to marry whom. That is NOT a Libertarian or even little l libertarian viewpoint. If the majority voted tommorrow to ban Scientology or Judaism, or if the majority voted tommorrow to cease the property of all millionaires, I serious doubt you'd support "the democratic process". This article sounds as if it was written by a damned Bolshevik not a Libertarian. I believe I know why, homophobia.

  • ||

    The Supreme has ruled multiple times that marriage is a fundamental right. Gays are entitled to the same rights as everyone else, hence, gays have the right to get married. What other ruling can the Supreme consistently make?

  • bill||

    if the government without a vote is going to offer many benefits to married couples, then one part of said government can go ahead and extend the ability to get those benefits. plebiscites are a terrible way to decide about anything. 50.1% should not decide what the other 49.9% are allowed to do. we don't vote on what a burglary consists of. government is not a grade school class deciding whether or not to play kick ball or hide and seek. that's why we have elected representatives and that's why the only original directly elected body or official was the house of representatives.

  • Julian Finn||

    Oh Reason, allow me to retort. :D

    http://dearthey.com/2010/08/08.....-new-deal/

  • HK||

    We should have put women's Voting right's up to a vote to the American voting population at the time! And Black peoples equal rights too!

  • Beelzebud||

    As a liberal, I'm rather amused to see an article like this at Reason.

    Even I can tell you it's not a libertarian (big or small L) position at all. Sounds more like a feeble argument a religious right wing conservative would make.

  • soupwell||

    I generally feel that the writers at reason "get it right", but I disagree with this article more than any I have ever read on this site.

    The constitution and the judicial review process exist specifically to protect us from the tyranny of the majority. It does not matter if 99.99% of the country supports bans on gay marriage and/or polygamy. The heart of the matter is that it is morally wrong to grant people different rights before the law based on personal preferences or based on conduct that does not directly harm another. It remains morally wrong regardless of how many people think it's a good idea. The constitution and the courts are there to defend that morality against the people at large. This ruling may well create an uproar, but the judge absolutely got it right.

  • soupwell||

    I didn't read any of the previous comments before I posted my own.

    It is extremely heartening to see that the vast majority of reason readers can in fact reason.

    My favorite from above: "This article is a freedom fail."

    Bravo people!

  • pete||

    i thought all the branches of government were co-equal with an intent to provide " checks and balances." The right wing is a funny bunch- always worrying about how to worship invisible beings, gun ownership( though on this one i wholeheartedly concur) and gays.
    the point here is that gay marriage does not infringe on straight marraige. No one is denying we straight people anything. This all harkens back to the worsiping of invisible beings and the pandering to the writings of a semi barbaric, semi literate people from the iron age- so what do you expect.

  • ||

    Hmm. I guess I disagree with Steve Chapman on something after all.

  • ||

    The author says that opponents of same-sex marriage "might reasonably fear" that it "may gradually weaken the appeal of marriage among heterosexuals" or "modestly increase out-of-wedlock childbearing." This concern (a) is not rational, since states and nations with same-sex marriage either do not suffer an increase in these behaviors or have not traced the blame to the presence of gay married couples, and (b) is indeed based on bigotry, since it presumes that the mere presence of married gay couples has a deleterious psychic effect on heterosexual couples, and its solution is to blame the victim and constrain the victims' behavior rather than ask the bigots to change their attitudes for the sake of their own marriages and families.

    The author says he disagrees with this position but that he thinks it is reasonable. I do not think it is reasonable. If marriage is assumed to be a good institution, then it would be bigoted for anyone to refuse to participate in it solely because he or she is uncomfortable with the fact that some gay couples have enjoyed the same institution, and irrational for anyone to assume without data that the rejection of marriage rooted in this particular bigotry occurs on a wide scale.

    The author also says that opponents might believe we don't know enough about marriage's effect on society and thus we "shouldn't tinker with an age-old institution". We do know, however, that marriage has been tinkered with endlessly over the millennia, sometimes in radical ways. Marriage in the United States in 2010 is not an "age-old institution". It is a modern creation, even excepting gay marriage.

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