Gay Marriage and the Law

The battle over Proposition 8 inches closer to the Supreme Court

Towards the end of his landmark majority opinion in Lawrence v. Texas (2003), where the Supreme Court struck down that state’s anti-sodomy law as a violation of individual liberty, Justice Anthony Kennedy inserted a reference to the looming legal battle over gay marriage. The present case, Kennedy wrote, “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”

“Do not believe it,” snapped Justice Antonin Scalia in an angry dissent that accused the majority of having “largely signed on to the so-called homosexual agenda.” In Scalia’s view, Lawrence threw the door wide open for gay marriage. “Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.”

Was Scalia correct? We may soon find out. On December 6 a three-judge panel of the federal 9th Circuit Court of Appeals will hear oral arguments in the case of Perry v. Schwarzenegger. At issue is California’s Proposition 8, the controversial voter initiative which added the phrase “only marriage between a man and a woman is valid or recognized in California” to the state constitution. In August, federal district Judge Vaughn Walker—a Ronald Reagan appointee championed by conservative legal hero Edwin Meese—prompted the appeal by striking down Prop. 8 as a violation of the Equal Protection Clause of the 14th Amendment, which commands that no state may “deny to any person within its jurisdiction the equal protection of the law.”

As for Monday’s proceedings, the outcome looks likely to be favorable to Prop. 8’s opponents. Earlier this week the 9th Circuit announced that Judges Michael Hawkins, Stephen Reinhardt, and N. Randy Smith will hear the appeal. Hawkins and Reinhardt are both widely known as judicial liberals. Indeed, National Review’s Ed Whelan promptly denounced Reinhardt as arguably “the most aggressive liberal judicial activist in the nation.” But perhaps more importantly, as George Washington University law professor Orin Kerr pointed out, “Reinhardt writes like there is no Supreme Court, and as a result his opinions have a remarkable ability to annoy the Justices.” That makes the chances of Perry reaching the Supreme Court even higher.

Assuming that happens, much will depend—as it often does—on the swing vote of Justice Anthony Kennedy. And when it comes to gay rights, Kennedy leans libertarian. In Lawrence v. Texas, for instance, Kennedy declared that “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” Similarly, in his 1996 majority opinion in Romer v. Evans, Kennedy struck down a Colorado constitutional amendment forbidding state officials from taking any action designed to protect gays and lesbians from discrimination. As he wrote, “the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.” Together, these decisions suggest Kennedy will once again join the Court’s liberal bloc.

As well he should. If the state is going to be in the marriage business at all—which it shouldn’t be—then it has to treat same-sex couples the same way it treats heterosexual couples. There’s no legitimate constitutional reason to do otherwise. Supporters of Prop. 8 claim that banning gay marriage advances a state interest in procreation. But if that’s true, why not ban infertile individuals from getting married as well? Or perhaps the government should require childbirth as a condition of the marriage license? Similarly, Prop. 8 supporters say the amendment is necessary to protect and promote “traditional” marriage. Yet there’s no persuasive evidence that a committed gay couple poses any sort of threat to heterosexual unions. In short, the plain text of the Constitution requires Prop. 8 to fall.

Damon W. Root is an associate editor at Reason magazine.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Fist of Etiquette||

    I don't know about Scalia's assertion, but there is a slight jump from affirming the lawfulness of consensual intercourse to forcing the expansion State benefits to yet another group of entitled citizens. Like Bill O'Reilly and his duck, the two issues should not be married.

  • ||

    Standard libertarian response:

    Consensual relations between Bill O'Reilly and his duck are nobody else's business.

    (I have heard that the duck has a weally big quack.)

  • Weasel Stout||

    I too have heard this.

  • Fist of Etiquette||

    I find the idea of a consenting duck blasphemous! But, I guess if they can get a duck to agree to hawk for an insurance company, the slippery slope has already begun.

  • ||

    I heard that the duck was unsatisfied with Bill O'Reilly and left him for a mouse.

  • dunkel||

    That's just fowl.

  • LeSigh||

    I bet the same judges could find against the same argument if it was brought up against some other entitlement, like welfare or affirmative action.

  • Zeb||

    There are plenty of moral wrongs that are civil rights and damn well should be. Why don't these people run their signs by me first.

  • ||

    My first thought on reading those signs was "How many of them are Larry-Craigs-in-waiting?"

  • Arf?||

    The problem is you're not a theocrat.

  • ||

    Not sure what the big issue is - this country is already pretty gay and fast on its way to becoming even gayer.

    Examples - smoking a cig in your car if there's a kid in it is now illegal, cig smoking in general is forbidden almost everywhere, congress is trying as we speak to dictate what we can eat and when, it is illegal to ride an ATV without a helmet, buying a dirtbike for a kid under the age of 12 is a crime, PC rules in the workplace, the list goes on and on. I rest my case.

    Why not let men marry men, and let them join the military too? This is already a country of nancies. Why not seal the deal?

  • ||

    Go tell the Spartans.

  • ||

    Mmmm, that's tasty bigotry.

  • Mudpuppy||

    Epi you're a faggot.

  • ||

    There is a much higher percentage of cigarette smokers among gays than the general population. If anything, smoking bans are another indicator of neo-puritans pushing other folks around. About as far from "gayness" as you can get.

  • ||

    So anti-smoking laws are really targeting gay people! More institutional bigotry!

  • ||

    Weak attempt at humor.

    Please don't confuse being gay with being weak or a "nancy". There are in fact gay men already serving in the military, and many of them could probably kick your ass.

  • jacob||

    Hold on there voice of reason! Internet tuff guy St. Louis Bill is no nancy!

  • More Like a Shirley||

    ...

  • jacob||

    Why not let men marry men, and let them join the military too? This is already a country of nancies. Why not seal the deal?

    You're preaching to the choir. Tell this to the dipshit rightwingers who voted in favor of Prop 8.

  • You Mean The||

    Naggrahs?

  • jacob||

    Right. Because blacks are the only ones who supported prop 8.

  • Heterosexual Marshall Bill||

    "I've been going door ta door looking for examples of the homosexual agenda. Mind if I give your place a little inspection? It's free."

  • BradK||

    The Homosexuals aren't home, they're out trying to recruit your children.

  • Heterosexual Marshall Bill||

    They're still at 3-5% gay so they're really shitty recruiters.

    Maybe they need the gay Urban Meyer or gay Jim Tressel.

  • Les||

    Why not equate granting equal rights to everyone with nanny-state silliness? This is already a country of idiots. Why not seal the deal?

  • Barney The Frank||

    "The battle over Proposition 8 inches closer to the Supreme Court" Now that's the kind of heaadline that makes me stand up!

  • ||

    There's a lot of talk about 'special rights' being given to gays. I'm a guy and I have a boyfriend whom I love. But, I do NOT support hate crimes laws nor do I support employment laws that specifically protect minorities. I also don't support state operated 'marriage.' But, if the state is going to offer special rights to people simply because they claim to be mutually compassionate, then they have no right to block certain people from it. You either have it all or you don't have it period. I think it's a fact that RINO's and CINO's (Conservatives In Name Only) need to get over.

  • Steve||

    Specify the "special rights" you are talking about.

    Do these rights also benefit Joe Shmoe when he let's Aunt Nancy become his "partner" (for the bennies) or does he have to sodomize her?

  • ||

    Your hatred causes you to be incoherent. Try again, asshole.

  • Weasel Stout||

    I've noticed that too.

  • Steve||

    It's a serious, simple and logical question. Aunt Nancy is a nice old lady, why do you hate her so? Doesn't she deserve consideration?

  • ||

    I said try again; I didn't say fail at humor. You're not very good at this, are, you?

  • 0x90||

    I am aware of no law prohibiting marriage with one's aunt. There may be various laws against practicing sodomy with her, depending on where you reside, but that would really be beside the point, wouldn't it?

  • Steve||

    Should corporations be required to treat Mr. Schmoe & his Aunt (or anybody he chooses to claim as a "partner") the same as this "married" couple? Ted & Nancy are shacking up and will so for life, don't they deserve the bennies?

  • 0x90||

    Should corporations be required to treat anyone in any particular way?

  • ||

    Only if they sodomize them first.

  • Steve||

    While I have problems with some aspects of civil rights laws on a libertarian level, I believe the good far outways the bad.

    Irregardless, they exist. If When the courts create this "right," they will be forced to, thus my question.

  • ||

    Hey! Now you're sodomizing the English language.

  • Steve||

    Ain't is a word! (So should "Irregardless")

  • 0x90||

    Curious that you did not simply state it that way initially. Ostensibly, we agree that laws which confer special privelege are unjust, and should not exist. Nevertheless, some do exist. As such, I see three possible positions:

    1) advocate for the elimination of priveleges
    2) advocate for the status quo
    3) advocate for additional, equalizing priveleges

    Guess where I stand.

  • SIV||

    Widely?

  • ||

    ""I believe the good far outways the bad.""

    Who decides what's good?

  • Hundocumented||

    ahem, i could be wrong but isn't it "outweighs"?

  • ||

    No! and they should not be required to treat the "married" couple any different than the single person.

  • ||

    Ah, but you guys are forgetting that guys already DO have a right to get married. You should be lucky that we haven't criminalized that! Why, every gay has the right to marry someone of the opposite sex, just as every god-fearing, ObamaoMarxasocialist-hating straight person does.

    Every evil, disgusting, GayAgenda™ pushing peter-puffer should be restricted to their homes and workplaces since we know they're all out to GET YOUR CHILDREN.

    Also, gays are known cylon conspiractors.

  • ||

    Wait, let me get ahead of all the usual suspects with their unbelievably tired "argument": hey, gays can marry women if they want, so they're equal under the law!

    That logic is so tortured it qualifies as a war crime.

  • ||

    That is the exact definition of equality under law. Your problem isn't that people are treated exactly the same regardless of their sexual orientation, rather what constitutes marriage legally.

    The state of California defined in legal terms what constitutes a marriage.

    If you want to ensure "civil liberties" get the state out of the business of marrying people. Contract law is beyond sufficient for all potential relationships between people.

  • ||

    +1 Ragnarok

    I don't object to gay marriage, but I think it's a terrible thing that gay marriage is a political issue at all, since marriage should not be.

  • Steve||

    If the people of California (by vote or in the legislature) create such a redefinition, THEN a constitutional argument can be made under the Full Faith and Credit Clause of the United States Constitution.

  • Corporation||

    Steve? Steve!

    It's time for you to be sodomized. Mr. Schmoe and his Aunt will be there to offer support.

  • ||

    ---"If you want to ensure "civil liberties" get the state out of the business of marrying people. Contract law is beyond sufficient for all potential relationships between people."---

    I think a large percentage of people who comment here regularly would not have a problem with that.

  • ||

    Thanks for being exactly what I said; I was starting to get worried that none of you would show up.

  • Shorter Episiarch||

    Do what I want or the nice g-man will shoot you.

  • ||

    HAHAHAHAHAHAHAHAHA

  • Wind Rider||

    Would you still be laughing if he wanted to sodomize you instead of shoot you? Huh? HUH?

  • Miku||

    The definition argument seems silly to me, it seems that taking it to its logical conclusion if one defines criminals to not be people then they don't have constitutional rights. It seems to me that how one decides to define marriage has to have some kind of bounds given by the 14th amendment. It seems to me that involving sex or gender in marriage laws is outside of such bounds.
    I may be talking complete shit as I am no legal scholar but it seems to hold up philosophically to me.

  • Robert||

    And if in common parlance, people when they used the word "people" or "person" did not mean to include criminals, then that understanding of the meaning of the word should apply when used in legal documents. When the word "spouse" occurs in a legal document, and then 2 interested parties dispute whether person A is a spouse of person B, the dispute should be resolved by the facts as they relate to the understanding of the word "spouse" to the parties who agreed to that document. The only judicial inquiry should be as to the facts of that understanding, not as to what old or new meaning of "spouse" would be nice to person A or B. And no legislature, functionary, or plebiscite should get to redefine words in existing legal documents.

  • ||

    This whole Prop 8 issue is one of the reason our Founding Fathers, in their infinite wisdom, made this country a republic and not a democracy. Every historic milestone in the history of civil liberties was at the time opposed by the majority of citizens. We'd probably still have slavery in this country had the United States been made a direct democracy.

  • ||

    That's correct. And it's something entirely lost on majoritarian "liberals" who think that the votes of the many outweigh the rights of the few.

  • BradK||

    Lost as well on the majoritarian "christians" no doubt.

  • ||

    I'm not sure they're majoritarian. I think they truly believe that our nation's laws must reflect match their religious rules, or else God will punish the entire nation.

    It's eerily similar to Islamic fundamentalism and Sharia.

  • Miku||

    I think that such nutty Christians feel that the reason their crazy ideas are not implemented is not that the majority disagrees with them but that a minority of hedonistic liberals has hijacked the country or some bullshit like that.

  • Adolf Hitler||

    For there is one thing we must never forget… the majority can never replace the man. And no more than a hundred empty heads make one wise man will an heroic decision arise from a hundred cowards.

  • BWM||

    Sadly, Scalia is right; this is an example of the common situation where the answer of liberty is clear, but that pursuing that answer in courts destroys liberty by over-riding the legislatures designed to, well, legislate. The Supreme Court now is basically a bunch of wizards, and just an agreement of bare majority of them is enough to completely eradicate almost any given foundation of our government. I am absolutely for gay marriage, just like I naturally support the now-accepted right for women to vote, but women organized and debated and convinced people to give them equal standing; what reason is there, now, for homosexuals, or any other group, to bypass all of that and just ask a few judges to shove their ideas down everyone's throats? Do we really want to further destroy checks and balances by supporting unconstitutional decisions just because we like them?

  • ||

    Equal protection under the law should not be up to a popular vote.

    Democracy is two wolves and a sheep deciding what is for dinner. We are a constitutional republic, with a court in place to strike down unjust laws which fail to provide Equal Protection to all citizens.

  • RyanXXX||

    If you really think Equal Protection guarantees gay marriage, you should go back to school.

  • ||

    If you see marriage as a contract, with many legal ramifications as with any contracts of great significance, then it certainly IS an equal protection issue.

    If you see marriage as a religious rite, or anything else that is defined according to one or more religions, it would run afoul of the 1st Amendment.

    In fact, it's probably both, among other things. But only the contractual part is anything resembling a proper role of government in a country with freedom of association.

  • BWM||

    You're right, we are a constitutional republic. And this is unconstitutional; first off, federal court has no right to even hear this case. The things they ARE allowed to review are spelled out in the Article III and in the 11th Ammendment, and this is nowhere close to one of them. Second, the very reason we had a Constitution was so we could have a strictly confined federal government, leaving the vast majority of all decisions to the states. In fact, James Madison proposed a provision that would have allowed federal courts to review state law, and it was immediate struck down.

    Besides, what about all the BAD decisions the Supreme Court makes? Why should we want them to have more power and authority?

  • MNG||

    Are you trying to argue the SCOTUS can't hear cases arising under the 14th Amendment? You know, that Amendment directed at...the States?

    WTF?

  • BWM||

    They can, yes, however, they've completely altered the 14th ammendment. It does not, nor did it ever, make the bill of rights and other limitations on the federal government applicable to the states, and it certainly didn't do that by removing limits on the authority of the federal government. Nowhere in the arguments over the ammendment did either it's supporters or opponents bring up this massive inversion of all consitutional law, and the Supreme Court even said that interpretation was WRONG in the earliest cases involving it.

  • Botox Porcupine||

    Actually, the 14th Amendment was passed specifically to apply to states. The Constitution is a contract between the people of the United States and the federal government, not the states and the federal government.

    "We the people..."

  • BWM||

    "We the people" is shown in the convention record to be merely a stylistic choice. The idea that the Constitution is between the people and, well, no one, because the federal government didn't exist yet (a different one did) didn't come into vogue until 30+ years later. Both the federalists and the anti-federalists clearly stated that it was a compact among the several states, and in fact, three states wrote into their ratifications of the Constitution that they could leave at any time. This is clearly preposterous if the contract had nothing to do with the states and focused only on people (which also begs the question why it was ratified by the states at all, instead of by popular vote). Now, I agree that the 14th ammendment applies to the states, there is no doubt about that; but according to both sides of the debate, the ammendment only applied to a very limited number of items, like voter disenfranchisement. In fact, in, I believe, the Slaughterhouse cases, the Supreme Court, just a decade after it's ratifcation, flat-out said the ammendment only applies to blacks. This was the contemporary understanding, and it wasn't until we started looking at cases like forcing kids to say the pledge in school that someone decided to bring up the bill of rights on a state law. So, sorry, what I said earlier was wrong, I admit, but that still doesn't mean that the Supreme Court has authority in this instance.

  • Alt. Universe Administrator||

    You are correct, federal courts have no right to hear the case in libertarian law fantasy land. We've made a note of that here.

  • BWM||

    You think the US Constitution is imaginary? That's probably the worst conspiracy theory I have ever heard.

  • ||

    """You think the US Constitution is imaginary?""

    Maybe that part about the pursuit of happiness. Two gays trying to marry are pursuing their happiness. Of course married folk may disagree.

  • Mzilikazi||

    Many civil rights, such as the right for people of Asian descent to become citizens or own property, or for Native Americans to vote, came through Supreme Court cases.

    Was the Loving vs. Virginia ruling against miscegenation laws a bad thing, given the broad popular opposition in the south? Has the nation, or liberty in general, suffered as a result of this new freedom?

  • ||

    ---"Has the nation, or liberty in general, suffered as a result of this new freedom?"---

    New freedom? As in the Government granting Rights. These decisions were the proper removal of impediments to individual rights by the power wielded by the government. Had the government (local, state, federal) not denied these groups their rights to begin with, then these SC decisions would not have been needed.

    The Government does not grant you freedom or rights. You have them as a person.

  • sevo||

    "The Government does not grant you freedom or rights. You have them as a person."
    Which is exactly the reason the state has no business denying gays their marriage.

  • Apogee||

    Which would imply that the state has no business regulating marriage whatsoever.

  • ||

    Ding!

    But as long as the law is there, it should apply equally. If a man is allowed to take a wife, and a woman is not, then that is unequal application of the law based on gender.

  • ||

    Ding!

    But as long as the law is there, it should apply equally. If a man is allowed to take a wife, and a woman is not, then that is unequal application of the law based on gender.

  • ||

    """The Government does not grant you freedom or rights.""

    But the government does decide if you get to practice that freedom or those rights, and they absolutely have the power to remove them.

  • BWM||

    Again, I agree with the results of many cases. But the same Supreme Court that passes these good decisions is the same one that condemns people to die who can't take their medication without marijuana, and the same one that, on the basis that empires the world over do it, it's okay to forcibly drag our young men to foreign hell-holes to die against their wills, or become murderers. Eventually, every good decision the Supreme Court made could have been done the proper method; but when they make a BAD decision, well, we are stuck with it for as long as they feel like it. We did not fight against one king just to get nine.

  • Slap the Enlightened!||

    Was the Loving vs. Virginia ruling against miscegenation laws a bad thing, given the broad popular opposition in the south? Has the nation, or liberty in general, suffered as a result of this new freedom?

    I don't know.

    Ask these guys.

  • Ken||

    Page down http://www.Libertarian-international.org for efforts on Gay marriage in Costa Rica by Libertarians in public office there.

  • Stretchy||

    All marriages must produce a biological child from the two spouses within one year of the date of marriage. All existing marriages must either already have one biological child from the two spouses or, produce one within one year. Any marriage failing to meet these conditions will be annulled.

  • The Bearded Hobbit||

    And, I'm guessing that you will be the Head Asshole In Charge (HAIC) of checking up on all of this procreation?

    ... Hobbit

  • ||

    Hello, Tiberius Julius Caesar Augustus, I thought you were dead these last 2000 years.

    I see you haven't thought of anything new in all that time though.

  • ||

    (That was in reply to Stretchy @ |12.2.10 @ 5:35PM|#)

  • ||

    If the state is going to be in the marriage business at all—which it shouldn’t be—then it has to treat same-sex couples the same way it treats heterosexual couples. There’s no legitimate constitutional reason to do otherwise.

    This is why conservatives can't take libertarians seriously. You make all the right noises on economic issues, but then you come out with utter garbage like this, and prove that you simply don't understand what government is for.

  • BWM||

    Actually, it's why conservatives are even worse than liberals; liberals honestly believe their hair-brained schemes will work, and that people don't need freedom in the economy. Conservatives crow about freedom, but then are too busy filibustering civil rights or crying over abortion to actually DO anything that has lasting effect. At best, you retard liberal efforts for a few years, trading in our economic freedom for liberal support in ineffectual social controls. And in the end, you drive people away from your good message of freedom in the economy with your hypocrisy over control of the individual.

  • Botox Porcupine||

    Well said.

  • ||

    And your comment shows why libertarians don't take conservatives seriously. You talk about liberty, but then come out with utter garbage like this, and prove you simply don't understand that some things are none of your business.

  • Steve||

    Agreed, it's none of my business. Then why pass a law? Bam, you're married.

  • ||

    you simply don't understand what government is for

    You're right; I don't understand why we have government at all. It's funny when you say something correct but meant something completely different, isn't it?

  • ||

    And this is why it's not hard to paint some conservatives as "fascist": because you think the government exists to dictate personal behavior in order to achieve a uniform society that conforms to your latest image of how that should look.

  • ||

    "This is why conservatives can't take libertarians seriously. You make all the right noises on economic issues, but then you come out with utter garbage like this, and prove that you simply don't understand what government is for."

    He's right. If government isn't for discriminating against gay people--then what is it for?

    Some of you don't seem to understand what's at stake here--do you know how many gay people there are out there who refrain from gay activity because they can't get married?

    You watch. The very second gay marriage goes legal? All those formerly straight guys are all gonna start fuckin' each other...

    And you know whose fault that's gonna be?

    That's right. The libertarians.

  • ||

    The answers are all right there in the soil. Look at the soil, Stewart.

  • dunkel||

    Now, Stuart, if you look at the soil around any large US city,
    there's a big undeground homosexual population. Des Moines, Iowa,
    for an example. Look at the soil around Des Moines, Stuart.
    You can't build on it; you can't grow anything in it. The government
    says it's due to poor farming. But I know what's really going on,
    Stuart. I know it's the queers. They're in it with the aliens.
    They're building landing strips for gay Martians, I swear to
    God.

    You know what, Stuart, I like you. You're not like the other
    people, here in this trailer park.

  • Thomas O.||

    No, YOU don't understand what "individual liberty" means. True "get-government-off-our-backs" conservatives would be more than happy to allow same-sex marriage, as long as the government doesn't force their churches to marry gay couples if they don't want to. As it stands now, conservatives are the worst of hypocrites when it comes to limited government and individual liberty.

  • MMS||

    I take the "do it if it'll help the rest of us" stance, and in a weird sense, I think the country NEEDS gay marriage. We need to open the floodgates and let as many people share insurance benefits and take care of children as possible, regardless of their sexual orientation. Hell, if it helps just give those benefits to polygamists as well. Step right up and get insured! Here's a free orphan!

    Humor aside, we've confused "love" for "marriage". Marriage as it really is, is more of a business alliance between two families by a matrimonial bond between two people who agree to share wealth and property. Having kids and sex doesn't even figure into it, realistically. These notions of "nuclear families" with a mom and a dad are a relatively new and unrealistic idea put forth by social conservatives who couldn't deal with anything too "icky" to their warped puritan minds. It's about time we shed the remnants of an ignorant and tragic past and embraced the future.

  • ||

    Personally, I think that the family as we think of it can be a nice thing. But you are absolutely correct: that's not what marriage has looked like in history.

  • MMS||

    I think there's another freedom to be had here: the freedom for families to decide how they should exist. I've heard of families where the husband and wife openly have extramarital relations, and even share them with each other. It's not a sexual fetish, it's a social choice. Love who you love, and marry who you marry. If they happen to be the same person, good for you. If not, no skin off my back. Marital virtues like Fidelity and trust are about far more than sexual relations, and love is defined in a myriad of terms.

    In that sense, ANY definition of marriage only serves to be an exclusion. It would be far easier to define what marriage is not.

  • ||

    It's not for me to say whether it's a social choice, a sexual fetish, or anything else. It's none of my business.

    And there is likely to be a better or worse way to do things, even a right or wrong way, but that's not for me, nor the government to dictate.

  • ||

    ""It's not for me to say whether it's a social choice, a sexual fetish, or anything else. It's none of my business.""

    I'll take things the government will not say for $100.

  • ||

    And you don't think it's ok for a community to decide against creating incentives for certain social choices?

  • Alt. Universe Administrator||

    Short of things that objectively injure others? Absolutely not.

  • ||

    If a community has to go to the point of offering incentives for males and females to fuck each other, I'll buy you a coke.

  • BradK||

    And marriage as it really WAS, was more of a business (and/or political) alliance between two families as agreed upon -- and dictated by -- the patriarchs of each family.

    And it was done with absolutely no regard for the wishes or happiness of the betrothed. "A curse on both your houses!"

  • MMS||

    It's just as comedians have often said, "Sure we should let gays be married. They have a right to be miserable as well"

  • BradK||

    Misery Loves Matrimony?

  • CJ||

    I take the "do it if it'll help the rest of us" stance, and in a weird sense, I think the country NEEDS gay marriage. We need to open the floodgates and let as many people share insurance benefits and take care of children as possible, regardless of their sexual orientation. Hell, if it helps just give those benefits to polygamists as well. Step right up and get insured! Here's a free orphan!

    Humor aside, we've confused "love" for "marriage". Marriage as it really is, is more of a business alliance between two families by a matrimonial bond between two people who agree to share wealth and property.

    I agree. I want all or nothing. Either nobody can have any marriage recognized by the state, which is what I'd prefer, or anyone can freely marry anyone else and reap all the associated benefits (that should never have existed anyway), as well as freely divorce.

    I have a feeling neither will happen, though.

  • Almanian||

    Newcular. Titties.

    There - it needed to be said.

  • MNG||

    +1

  • IceTrey||

    Gays have always been able to marry. They just have to marry someone of the opposite sex. Tons of them have. If the squares ever found out how many dudes are living on the "down low" their heads would explode.

  • Leon M. Brazile||

    Damn straight. Just like them nigras gots the right to marry any nigras they wants. And white folks gots the right to marry any white folks they wants.

  • ||

    "The Government does not grant you freedom or rights. You have them as a person."

    Which is exactly the reason the state has no business denying gays their marriage.

    AFAIK, two gay people can marry each other in any church that will perform the ceremony.

    What the state does is refuse to recognize the marriage. I know its convenient shorthand to say that gay marriage is illegal, but I'm not sure it is. What's not done is state recognition of the marriage. If you think that a marriage is meaningless unless the state says different, that's cool. I'm just trying to be clear, here.

  • BWM||

    You are right. Or you should be, at least. That's what marriage ought to be; totally private. But there are numerous legal benefits to being married that gay couples either can't get, or require them to go through a whole seperate process. The state refuses to see your marriage as a marriage; it's just some ceremony, and then maybe you can become bonded by civil union. The difference is honestly small as long as the civil union option exists, but that's what makes it so stupid that it's a big fight.

  • ||

    Why shouldn't there be a civil union contract that is as blind to the personal characteristics as who enter into it as any other contract? I.e., people have to be aware of what they are doing, adults as defined by law, etc.

    There's no reason to have the term "marriage" be defined by government, at all.

  • BWM||

    I agree. But again, if people insist on the government being involved in marriage, they can't discriminate.

  • MlR||

    Yes they can, if they don't think a man and a man or a woman and a woman constitutes a marriage.

  • sevo||

    "They" (whoever "they" are) are welcome to do so; the government may not.

  • Robert||

    Until very recently, marriage (basically the terms "spouse", "wife", and "husband", actually) were not defined by gov't. It was simply understood by all what the words meant. What's gone on recently is an attempt by some to use gov't to adopt an official definition of those words at odds with the customary understanding of them, resulting in an attempt by others to officially adopt a definition comporting with the customary one.

    Marriage itself predated gov't, predated religion, predated words, predated humanity itself. All the words do is name a behavior pattern that has existed for millions of years.

  • Hundocumented||

    something tells me if want to call something tomato soup when you used pumpkins in the recipe... it's a free country ... i guess?

  • ||

    But there are numerous legal benefits to being married that gay couples either can't get

    At least in California, this is false. Even the plaintiffs in the Prop 8 case agreed that under California law gay couples registered as domestic partners enjoy precisely equivalent rights and benefits as married couples, at least at the state level (and California can't do anything about the Feds).

    The entire fight is about the name "marriage."

  • BWM||

    Okay, I'll take your word for it. But legalizing gay marriage in any state also has a strong effect for pushing it everywhere, since other states are obligated to recognize it, even those that DON'T have an equivalent civil union option.

  • Hundocumented||

    exactly, tomato soup! no pumpkin!

  • sevo||

    "I know its convenient shorthand to say that gay marriage is illegal, but I'm not sure it is."
    Look here:
    http://www.ballotpedia.org/wik.....osition_8_(2008)
    "Proposition 8, before it was declared null and void by the federal courts, created a new amendment to the California Constitution which said, "only marriage between a man and a woman is valid or recognized in California"."

  • sevo||

    Sorry, you are correct that there is no law which specifically denies gays from marrying.
    But to equalize conditions between one class of people and another, the alternative is to deny state-recognized 'marriage conditions' to all.
    I'd prefer that, but reality gets in the way.

  • MlR||

    Either way it is moralizing by government.

  • MJ||

    The government recognizing homosexual relationships would be moralizing also. A lot law has a moralizing component to it. What is annoying is the denial that their policy prefereneces have a moral stance associated with it.

  • BWM||

    No, it wouldn't, unless you count de-moralizing something as moralizing. All it would do would be to get rid of an existing moral distinction that has no other basis; it would turn a blind eye. How can that be moralizing?

  • MJ||

    If your argumnet for homosexual marriage is that there exists a right under equal protection, then yes it is moralizing. An assertion of rights is a moral assertion.

    What is so difficult to understand about that?

  • BWM||

    Alright, I see what the problem is; I was mistaken for hoping you weren't one of those disingenous conservatives who tries to argue that there is no difference between the morals inherent in the philosophical basis that conservatives claim to support, and their individual and contradictory morals they try to somehow shove into that framework. Unless I'm wrong and you aren't for freedom at all, but if you are, what you are trying to do here is establish an exception to the whole foundation based purely off of your moral and subjective feelings on a subject, hence, "moralizing." I am simply trying to explain the morals you necessarily already accept if you support freedom, and how you are attempting to support contradictions.

  • ||

    One thing that a lot of people do not think about it Social Security, but as we age, it becomes more important. My parents in their 80s share in this, even though my mother stopped working at age 29 to start having kids. Gay couples have no survivor rights to social security benefits from their spouses. This is a very pragmatic need. Think about the ramifications of this if you've been with the same man or woman for many years and depend on their benefits. Think down the road.

  • Botox Porcupine||

    This is true, though social insurance is a Ponzi scheme.

  • SIV||

    Your "mo' bennies from da gubmint" argument fails to persuade me.

  • ||

    It's not a "mo' bennies" argument. It's a "same entitlements" argument.

    Social Security is a stupid idea, but if we're going to have it the rules for collecting need to be the same for every family, regardless of the gender(s) involved.

  • MJ||

    The reasons couples survivor benefits exist in the first place is a nod to the gender roles in heterosexual relationships that homosexual marriage supporters deny are in any way germane to the issue.

    There is a different dynamic to heterosexual relationships and that difference means that homosexual couples are not equal to them.

  • ||

    "There is a different dynamic to heterosexual relationships and that difference means that homosexual couples are not equal to them."

    I know a lot of hetero couples where the woman is the breadwinner.

    I also know a lot of gay couples where one works and the other is a home-maker. In fact, that's incredibly common among such monogamous pairings.

    What was your point again?

  • ||

    I think the point was his wife should be cleaning the toliets.

  • BWM||

    Survivor benefits exist for the survivor. It's not like, when they were created, there were no households anywhere, ever, where the woman worked and the man did not. Or that they specifically require that the man worked but the woman did not.

  • theunknown||

    The equal protection clause is being misapplied here. The keyword is protection in which a law that protects one person from the actions of another has to apply equally to everyone. This was back in the day when the government only was suppose to protect your individual interest against other people. This is why its equal protection which implies any law that protects one individual must protect all.

  • Alt. Universe Administrator||

    Uh, no.

  • Bucky||

    civil unions and socialism for all and to all a good night!

  • ||

    I fail to see the gay marriage benefit to society. I think it has to be demonstrated to be as generally beneficial to society as traditional marriage before it's given the same incentives, and I don't think it has. In several ways, it's worse.

  • ||

    Gay or straight, married or single no one has an obligation to "demonstrate that their actions are beneficial to society."

    The only 'obligation' is a negative one: Don't hurt others.

  • Slap the Enlightened!||

    Gay or straight, married or single no one has an obligation to "demonstrate that their actions are beneficial to society."

    When they're asking that society to make a special dispensation to their circumstance, yes they do.

  • BWM||

    Which is the opposite of what's happening here, where they are asking society to take away a special discrimination.

  • Slap the Enlightened!||

    Bullshit. Gay marriage is not illegal, it is simply not recognized. What you are doing is demanding the government create an institution that does not currently exist. If that's not demanding special dispensation, I don't know what would be.

  • BWM||

    That's a shocking statement, since if a gay couple I knew went and had a wedding, and while there filled out a marriage contract, it would be struck down as non-binding because it doesn't apply to gay people. By that exact same token, a court could have prevented Obama from becoming president on the basis that he is black. No law specifically says blacks can be president, even though he did meet all the stated requirements; it'd be a "special dispensation" to the black people to grant it to them as well.

  • ||

    Oh, okay. So, in order for something to be allowed to exist (according to the government), it has to be proven to be beneficial to "society", whatever the fuck that means.

    And, naturally, government would be the arbiter of what is 'beneficial' to "society".

    How is "society" being harmed by allowing gay marriage to be recognized by OurBlessedGubmit?

    Do tell.

  • MJ||

    You do realize that an institution can be not beneficial without being necessarily considered harmful. The contention is that the larger society has no interest in defining responsibilities of long term relationships between homosexuals, unlike heterosexual couples.

  • ||

    To what interest are you referring?

    Gay couples can raise children, and straight couples can remain childless, so there is no difference based on a responsibility to raise children in a stable home environment. It applies to both types of couples or it applies to neither. What else have you got?

  • ||

    and non-married couples can raise children too.

  • Slap the Enlightened!||

    Gay couples can raise children, and straight couples can remain childless, so there is no difference based on a responsibility to raise children in a stable home environment. It applies to both types of couples or it applies to neither. What else have you got?

    Are those typical circumstances, or exceptional ones? The distinction is important. I'm sure you can find situations where murders and thefts were beneficial too. That doesn't necessarily mean our laws should be based on the exceptional circumstances.

  • BWM||

    That's irrelevant, and practically circular; since gay couples rarely raise kids (since gay couples are a vast minority and don't have the same legal rights as straight couples), we don't need laws relating to that area. Our laws should not be based on any circumstances, but on individual rights. Period.

  • Slap the Enlightened!||

    So you don't see a need to distinguish between 1st degree murder, 2nd degree murder, manslaughter and killing in self-defence?

    Fry 'em all!

  • BWM||

    Your plan is to not make murder illegal at all, being an "exceptional" circumstance, after all. But you are right, I went too far.

  • MJ||

    Homosexual couples cannot have children together.

  • BWM||

    No, but they can adopt, or use a surrogate, or invitro fertilization.

  • ||

    How is "society" being harmed by allowing gay marriage to be recognized by OurBlessedGubmit?

    The usual argument is that it has effects not too unlike the spread of "no fault" divorce in the 70s, namely that it spreads and reinforces the notion that the "family" is just a sexual shack-up, a pair of people who really like boning each other. (It's obviously not about two people who love and cherish each other, because the state affords no special recognition to a pair of spinster sisters who live together and are deeply devoted to each other, take care of each other, et cetera.)

    That, in turn, reduces the social value that says a "family" is primarily about child-rearing, and that the terms of its formation or dissolution should be strongly predicated on what is best for those children, real or hypothetical. By reducing the social pressure to raise children within an intact family, you negatively impact those children.

    That is, in other words, the argument is that the only reason the state favors heterosexual marriage is that it finds an advantage to the quality of the next generation if men and women are pressured to work things out together once they have children together. If the state now starts saying the goodies are actually just to encourage sexual fidelity, or a celebration of love, or whatever other practical definition one can make of a marriage that involves only the adults and no offspring, then you have effectively destroyed the ability of the state to put pressure on mothers and fathers to work things out with each other for the sake of their children.

    I think the argument has merit, but that it is 50 years too late. Marriage has long ago ceased to be about mothers and fathers raising children, and has become nothing but a bowdlerized celebration of adult sex. Whatever pressure society once exerted to keep men and women from taking their roles as mother and father lightly has long evaporated. Even if "gay marriage" would damage marriage as a child-rearing environment, that kind of marriage is already dead, and shooting its corpse in the head won't matter a bit.

  • BWM||

    I don't even agree that it would have ever helped. 50 years ago, we just had loveless marriages with infidelity instead of divorce. Kids aren't stupid; they know when their parents are upset, they know when there is no more love there. True, making divorce harder might sometimes make couples try harder, but it'll also trap people who simply can't work it out. It's much better for a kid two sets of parents, so to speak, that love each other and have a happy household, than anger and fighting between their parents at home.

  • Hundocumented||

    your tomato soup recipe is different than mine.

  • ojj||

    loveless marriages with infidelity and divorce seems more accurate. at least kids are much luckier now with all that fighting gone though, seeing as divorce just sweeps it all away.

  • MJ||

    That is complete and utter bullshit. The parents continue sniping at each other through the kids, it is even worse on the children.

  • BWM||

    How can it possibly be worse to hear comments from time to time, maybe even vicious ones, than to hear the same comments mixed in with hostile stares, yelling, and accusations right in front of them? And even if it's POSSIBLE to be worse, I don't see how it would be on net; if a couple splits, they can, over time, learn to work together for the kids. They can find new spouses they actually get along with better, and maybe even become friends with their exes. If we force them to stay together, 99 times out of 100 it will just be years of fighting, or smoldering and bitter resentment.

  • ||

    I fail to see the gay marriage benefit to society

  • shiroi neko||

    OMG.

  • defeatedcreek||

    I haven't read this article or the comments yet, but when I first saw "proposition 8 inches" I almost fell out of my chair. I know... very sophomoric.

  • ||

    GAY marriage will make for some fine t.v. viewing on divorce court.

  • ||

    My response to Damon's question is here:

    "Why not ban infertile couples?" is here: http://nomblog.com/wp-admin/po.....message=10

  • Slap the Enlightened!||

    Er, maybe a password to the website would be helpful?

  • Slap the Enlightened!||

    Supporters of Prop. 8 claim that banning gay marriage advances a state interest in procreation. But if that’s true, why not ban infertile individuals from getting married as well? Or perhaps the government should require childbirth as a condition of the marriage license?

    In that case, let's ban stoplights because some stoplights have never been shown to prevent an accident. Or, if we're going to have stoplights at all, let's put them out in the middle of cornfields, in the interest of treating all locations equal, the fact that cornfields never have traffic be damned.

    The point here, is that the measure of a policy or institution is not whether it will produce the desired outcome in every case (no law ever has), but whether it will produce it a desirable outcome more often than not.

    Sure, some stoplights have never prevented an accident, and some heterosexual marriages have never produced children. That is not a justification for putting them in the middle of cornfields, and it is not justification for creating "marriages" that will never, ever under any circumstances produce children.

  • BWM||

    But that WOULD allow us to ban anyone shown to be infertile from marriage, because then there is no chance of a kid being born. Of course, the whole argument is silly, because we seem to have a hell of a lot kids that didn't come from marriages.

  • Slap the Enlightened!||

    Sure we could. The problem is, there's no real benefit to making and enforcing laws to exclude a rare and exceptional circumstance, other than appeasing a handful of spiteful twits throwing a tantrum over not getting their pony for Christmas. Don't hold your breath.

  • BWM||

    Uh, that's what law IS. It's precisely for the minority of issues that are not peaceful, typical business-as-usual. We wouldn't even have criminal law, for example, since crimes are rare occurances compared to the millions and millions of peaceful exchanges a day. I'm not sure why you are so bent on this one issue that you'd obliterate one of the pillars of human progress just to uphold it.

  • Slap the Enlightened!||

    But we don't legislate on issues just because they're unusual. In this case, given that the consensus is that heterosexual marriages are a Good Thing, and serve a social purpose, what is improved by excluding the infertile? How would infertility be verified? What do we get in return for the bureaucratic overhead of performing and enforcing the verification?

    Nothing.

    As I pointed out, no law has ever produced a perfect result, so that would be a ridiculous object of law. The measure of a law is whether you are better off for having the law than not having it. What is improved by excluding the infertile? What benefit is provided to offset the overhead cost of enforcement? I'll give you that they may be "free riders" on the institution, but I fail to see what benefit accrues from banning it.

  • BWM||

    That's a good question, but it's one you need to answer, not me. What IS improved by banning any marriages among consenting adults? I don't know, which is why I don't support such notions. I will say this, though; at least among libertarians, the idea of "social purpose" is a fiction. "Society" is an abstraction; as such, it has no rights or goals or focus or anything else. It is simply a word, like "forest," to describe a bunch of individuals. One could only say, really, that something is "good for society" if it was good for every single individual making up that society, not good for some and bad for others. That's just mob rule based on force, not republicanism based on individual rights.

  • ||

    Do a search: The First Scandal Adam and Eve.

  • Yaz||

    me 2..wats the point..just be a stright better..

  • nike shoes UK||

    is good

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