Gay Marriage: The Victory After the Defeat

Brian Doherty | December 3, 2008

Spinning off of Jacob Sullum's column today on gay marriage and gay rights, a couple of recent analyses of the meaning of gay marriage's electoral defeats last month point out, accurately I think, that gay marriage is seeing its last wave of defeats presaging likely complete victory.

From Michael Brendan Dougherty in the November 17 American Conservative:

Superficially, 2008 seems like a....success for social conservatives. Following the passage of marriage amendments in Arizona and Florida, as well as California, Maggie Gallagher wrote at National Review Online, “when it comes to marriage, there is no such thing as a blue state or a red state. Americans support marriage as the union of husband and wife.” But a closer look at the election results and the legal developments in the past year suggests that 2008 is in fact the year the marriage debate tipped in favor of same-sex marriage.

Only Arizona passed its traditional marriage initiative by 2004-like margins. While only 38 percent voted against the Florida initiative, the measure passed the required 60-percent threshold by just 2 points. In California, Proposition 8 passed by a bare 52 percent of the vote, and exit polls seem to attribute its success to an abnormally high turnout of socially conservative black voters. In Connecticut, voters had the chance to resist their state’s pro-gay-marriage Supreme Court decision, Kerrigan v. Public Health, by voting for a constitutional convention. That initiative failed by 20 points.

.........

Exit polls reveal that without the overwhelming support of voters over 65, neither the Florida nor California marriage initiatives would have passed. Younger voters turned out overwhelmingly against them. Absent an incredible shift in attitudes, same-sex marriage will soon command majority support. Shrinking majorities voting in favor of traditional marriage will encourage similar rulings to the Connecticut court’s. And the legal precedents used in Kerrigan will be used to challenge the 29 state laws restricting marriage to a union of one man and one woman.

The minor victories for marriage traditionalists this year point to defeats in the near future. Unless social conservatives find a way to appeal to voters under 40, [San Francisco Mayor Gavin] Newsom’s prediction, “It’s inevitable,” is unassailable.

Dougherty isn't thrilled by this conclusion; he just thinks it's accurate. And in Rolling Stone, in an article that excoriates the opponents of Prop. 8 for a feckless and slow campaign (which points out that merely saying that the No on 8 forces raised more money than the Yes forces is misleading, since the Yes campaign got moving and raising big bucks much faster), the conclusion is similarly optimistic:

Since 2000, the margin of voters in the state who oppose gay marriage has plunged from 23 points to only four.

"The speed at which this issue is moving is unprecedented in my personal political experience," says Bill Carrick, a prominent Democratic consultant who worked on the presidential campaigns of Bill Clinton and Ted Kennedy. "Support for gay marriage has moved so far, in such a short period of time, that I think we're going to look back at Prop 8 as an aberration. History is headed in a very pro-gay-marriage direction, and it probably is going to happen in a much shorter time than anybody imagines."

It does help pro-gay marriage forces to be of good cheer and remember that we have seen remarkably quick shifts in public perception on this issue; it has gone from the kind of fear of a nightmare future a Falwell would use in a fundraising letter 20 years ago to something supported by many courts and near-majorities of state voters. What's happening now is not a wickedly powerful and on-the-grow religious right taking away some fundamental right we've always known, but a matter of the last fading shows of force from a mentality battered and on the ropes, not one vital and getting stronger, electoral victories notwithstanding.

Comments

|12.3.08 @ 12:44PM|#

I think you got it right Brian. The anti-gay crowd gets most energized just before they become obsolete. Remember the "backlash" to Ellen coming out? Will and Grace premiered the following year.

Once we straighten out (npi) civil marriage and shitcan Don't Ask Don't Tell, they we'll see if homosexuals can just be gay without needing to be a minority.

Naga Sadow|12.3.08 @ 1:03PM|#

People who support gay marriage are gay.

Brian Doherty|12.3.08 @ 1:10PM|#

Naga---Knock it off!

Naga Sadow|12.3.08 @ 1:19PM|#

Sorry.

|12.3.08 @ 1:22PM|#

This analysis is probably correct, but I'm worried that libertarians don't object to the legal arguments activists use to get courts to legalize same-sex marriage. Up until maybe 15 years ago, nobody thought "equal protection" meant "same-sex marriage." Now, anyone who doesn't believe that is a troglodyte. So in another 15 years, what else will that phrase supposedly mean to activists and judges working for "progressive causes"? For example, how can criminal defendants be said to have equal protection if some can hire top-notch defense attorneys and others get a public defender? (I know, lawyers would never want to upset that apple cart, but you see my point.)

Regardless of whether you think same-sex marriage is good or bad, I think same-sex marriage mandated by judges on equal protection grounds is a slippery slope libertarians will eventually regret.

|12.3.08 @ 1:23PM|#

The one sure way to keep homosexuality and gay marriage in all the papers is to continue to oppose it. Once marriage is allowed in all 50 states, that will be the last you hear of it. Does anyone ever hear much of anything about mixed race marriage today? No, even though 30 states had laws banning it at one time. The anti-marriage crowd seems to be the ones harming their own cause. The more they keep the issue alive the more people will simply say, enough, let gays get married and move on.

Abdul|12.3.08 @ 1:25PM|#

Remember the "backlash" to Ellen coming out?

I thought the backlash was because her show sucked.

Elemenope|12.3.08 @ 1:28PM|#

The more they keep the issue alive the more people will simply say, enough, let gays get married and move on.

They're Christians. Not Buddhists.

|12.3.08 @ 1:29PM|#

PapayaSF you seem to forget that integration came about as "equal protection" by "activist" judges against the general publics' will. That is the way this country works. That is why people want to live here. When I was a kid, so many people thought that allowing integration was a slippery slope to God only knows what. They claimed it would destroy the morals of the country, ruin the population etc. etc. I am sure the same was said when the US Constitution was amended to give women the vote. Thank heavens for our judicial system or we would be a land of mob rule.

highnumber|12.3.08 @ 1:29PM|#

That's a very happy analysis.

Brian Doherty|12.3.08 @ 1:30PM|#

Naga--- Not sure if you were just playing along, but I was being cheeky. See
http://www.youtube.com/watch?v=sWS0GVOQPs0
for what I was referencing...

|12.3.08 @ 1:30PM|#

They're Christians. Not Buddhists.

Many Christian churches already perform same sex marriages. Most Christians I know welcome same sex marriage.

|12.3.08 @ 1:41PM|#

I thought the backlash was because her show sucked.

ZING!

Don't get me started on Will and Grace.

Abdul|12.3.08 @ 1:48PM|#

If gays want social conservatives to accept same sex marriage, they should start selling it as a concept that converts gays into social conservatives. Married gays with kids start objecting to things like assless chaps parades, start recognizing the value of stay-at-home parents, etc. The best way to end the objectionable parts of gay culture is to marry the gays off.

Naga Sadow|12.3.08 @ 1:51PM|#

Doherty,

LOL! I'm afraid my strain of geekiness pertains to chemistry, math, and the classics. Computers and teh Tubez aren't my bag, baby. I only posted on this thread cuz know one else had and it's only a matter of time before some troll shows up. A pre-emptive trolling, I suppose.

Elemenope|12.3.08 @ 1:53PM|#

Many Christian churches already perform same sex marriages. Most Christians I know welcome same sex marriage.

Has *everyone* had a humordectomy today? It was a joke about how zen the situation of religious rightists harming their own cause through bring attention to it was.

In fairness to your point, the joke was at the expense of a group some of whom are quite good on this issue. Jokes are, generally, not nice, and making them nice ruins the joke.

Elemenope|12.3.08 @ 1:54PM|#

(sigh)

...through bringing attention...

|12.3.08 @ 2:00PM|#

Papaya,
And all men once meant all white men and the First Amendment didn't include false, scandalous, and malicious writing against the government or its officials*.

* See Alien and Sedition Acts.

|12.3.08 @ 2:09PM|#

* See Alien and Sedition Acts.

in other words, people have always abused government to prevent people from doing things that they think is gross, wrong, or counter to their own goals.

gee whiz, libertarians are a righteous bunch, but there's so few of them.

cls|12.3.08 @ 2:21PM|#

It should be noted that there is nothing in libertarianism that makes it opposed to, what conservatives call "activist judges". One role of a judge is to protect the rights of people against majoritarian tyranny. Conservatives, on some issues, can only push their authoritarian agenda through "majority rule" -- much like a lynch mob votes on the rights of their victim. So, of course, they whine about activist judges preventing the lynching. Tough.

In a review of the film Milk here I present an argument as to how the Prop 8 vote completely revitalized the gay rights movement. Younger gays were not interested in doing the "Harvey Milk thing" before. Most never faced laws that could imprison them for being gay. They came out younger and had more supportive friends, etc. For them things were pretty good and they didn't know the real impact of being told they are second class citizens. Then when Prop 8 came along it really hit them up the side of the head. It angered them and suddenly they joined the "movement". One difference is that a lot of their friends and family joined with them.

The Mormon financed proposition has done more to revive the gay movement than any thing in the last 25 years. I argue that this revitalization may actually speed up gay marriage victories.

Fitz|12.3.08 @ 2:23PM|#

I love opinion pieces like this….
Its called a "trend article" and its transparent cheerleading.
Trend articles like this presuppose 2 things…

#1. The trend is Good
#2. The Trend will continue.

This one is even more ridiculous when it talks about Florida winning by "only 2 points beyond the margin"

My God people - 30 states have Constitutional Amendments that protect marriage…
Its overwhelmingly popular - one of these countries must successful constitutional drives EVER…

No state has enacted same-sex "marriage" on its own. It has always been imposed by the courts on narrow and legally incoherent opinions. Now California has (twice) struck back against this transparent attempt to COHERCE this agenda.

Yes - calling all opposition bigots & calling same-sex "marriage" INEVITABLE… is a good fate accompli strategy.

But it is neither respectful of democracy, classically liberal or intellectually honest.

Elemenope|12.3.08 @ 2:29PM|#

But it is neither respectful of democracy, classically liberal or intellectually honest.

I could go either way on the second two, but "respectful of democracy"? Why on earth would I respect democracy? You know, in an intellectually honest way? Just cause it's the best crud out there doesn't mean it isn't crud, and it certainly shouldn't be elevated or worshiped.

|12.3.08 @ 2:30PM|#

I'm confident that the California Supreme Court will destroy prop 8. It doesn't have the legal strength to withstand "judicial scrutiny." This legal term means that any law that effects a legally protected class, such as sexual orientation is a legally protected class, will be held to extreme judgement. I could go on into details, but read the 150 page ruling legalizing gay marriage, it's very interesting, and re-assuring. Also note the unanimous decision against a fertilty doctor and his lesbian patients in August 08'! Make you reservations for your gay weddings at San Francisco City Hall in June 09'! We're in for another amazing gay pride!

|12.3.08 @ 2:40PM|#

"I'm confident that the California Supreme Court will destroy prop 8.

Its straight to SCOTUS if that happens. Many opponents of same-sex "marriage" want this scenario.

Elemenope|12.3.08 @ 2:46PM|#

Fitz:

Why would SCOTUS grant cert? I see absolutely no federal Constitutional issues in play.

|12.3.08 @ 2:47PM|#

On the bright side (from the moralist perspective), it's waking a lot of the Religious Right up to the dangers of getting in bed [sic] with the state. A government that has the power to impose morality on others, is also a government that has the power to impose the morality of others on you.

Twenty years ago I used to argue that the state needs to get out of the marriage business, and everyone looked at me like I had just escaped the looneybin. But I know several fundamentalist Christians are are now arguing the same thing. I think we're going to see formal religious weddings being touted in much the same way that formal Mormon Temple weddings are. As in: "You're not really married until you get a church wedding." It's still discrimination, but it's a private discrimination that harms no one.

Timothy Kincaid|12.3.08 @ 2:49PM|#

Fitz,

You seem rather uninformed about Californian action on this issue.

Twice the legislature voted to provide equal access to marriage protections for same-sex couples. And twice the Governor said that he couldn't sign the bills without a decision by the Court. Since the court weighed in, the Governor has been consistently supportive.

Currently, both houses of legislature are considering resolutions to express to the court that they consider Proposition 8 to be a constitutional revision rather than amendment and thus both uninforcable and a violation of the constitutional rights of the legislature. These resolutions are quite likely to pass. The Governor has already stated that he believes that Prop 8 should be invalidated (as have 44 legislative signatories).

So in California we have a scenario in which all three branches of Government were in allignment for five months (and perhaps will be after the CASC decision in March).

If the courts do not invalidate the proposition, they will be the only branch of government that is not of that mind. In light of the facts, your statement about "coersion" by the courts seems either ignorant or dishonest.

Also, if the measure of a movement's validity is whether it is the result of legislative action, you won't have long to wait. Within the next year you can look forward to either New York, Vermont, New Hampshire, Connecticut or New Jersey (or perhaps more than one) enacting marriage for same-sex couples by means of legislative vote.

Timothy Kincaid|12.3.08 @ 2:52PM|#

Fitz:

No one thinks that all opponants are bigots. But we can pretty well tell the ones who are.

Fitz|12.3.08 @ 3:19PM|#

"Fitz:

No one thinks that all opponants are bigots. But we can pretty well tell the ones who are."

Is this a veiled reference to me or not?

I was going to engage further - but now I'm not so sure.

When you say "No one thinks that all opponents are bigots" you a incorrect in this sense. Both legally and politically that has what has carried this movement this far.

Without the courts declaring ALL opposition arguments irrational & bigoted, even civil unions would have a hard time getting traction in Vermont.

This is what I mean when I speak of cohesion. In that sense (like anti- iraq war protestors I am part of the 'reality based community")

From the beginning this approach has been….
#1. Necessary - for them to use (as they have) the courts as wedge to make their agenda politically feasible it is was (and remains) necessary to call any argument against there agenda "irrational".
But for that they would have had a hard time getting anyone to even co-sponsor a civil union's bill in Hawaii or Vermont.
On this central point I urge you all to read Conciliating Hatred by Steven D. Smith 2004 First Things (June/July 2004).
http://www.firstthings.com/article.php3?id_article=356
#2. Effective In the Leninist rhetoric strident sense of the term. Its moral blackmail and demagoguery. It co-opts the moral weight of a different kind of thing and turns all opposition into mindless bigots. This has always been an effective approach for demonizing all opposition. I'm sure many a Californian voted no on 8 simply because they did not want to think of themselves as bigots, or segregationists, or hateful people.
A reasoned, cogent, well thought out argument for same-sex marriage doesn't lend itself to success. They know this and actively chose the demagogic tract.

Horselips|12.3.08 @ 3:26PM|#

My God people - 30 states have Constitutional Amendments that protect marriage…
Its overwhelmingly popular - one of these countries must successful constitutional drives EVER…

Yes, and 30 states is pretty close to the 2/3 required to pass a constitutional amendment. Which will probably have plenty of support if judiciaries continue to usurp popular opinion.

|12.3.08 @ 3:33PM|#

And 30 states had laws against mixed race marriage, but America saw the error of its ways. There will always be bigots and those who base their lives on hate and prejudice, but history shows that they always lose in the end. America is based on "Freedom and Justice for All".

|12.3.08 @ 3:40PM|#

"A reasoned, cogent, well thought out argument for same-sex marriage doesn't lend itself to success."

Actually it is the reasoned, cogent, well thought out argument for same sex marriage that is winning people everyday. Those opposed to same sex marriage have no reasonable facts to support their postion. They have emotion, not logic. It is the lack of logic that is costing the anti-marriage crowd the game. 25 years ago, same sex marriage wasn't even thought about let alone discussed. Today, it is legal in 2 states with more considering it. Civil Union is availabe in a number of others. It has been an issue in presidential campaigns and been on ballots or legislatures in all 50 states. Churches have changed their minds about it and currently perform same sex marriage. That is a long way to come in a short 25 years. It is the fact that there is NO logical reason to stop same sex marriage that is winning the game.

|12.3.08 @ 3:44PM|#

Timothy Kincaid: Welcome to the free-for-all that is H&R. Most folks here are not bigoted, but they are principled. Fitz is new here, AFAIK.

BTW, I was going to make some snarky box turtle comments on this thread, but you showed up and ruined it. [shakes fist] Damn homos, suck the fun right out of everything. (/irony)

Joe Public|12.3.08 @ 3:47PM|#

Can't we just go back to burning them at the stake?

Timothy Kincaid|12.3.08 @ 3:55PM|#

Fitz,

You are mistaken. There is no one that I have ever heard of (and if you disagree please document it) who thinks that all of those who oppose marriage equality are bigots. For heaven sake, man, I don't hear any pro-marriage equality folk saying that Barack Obama or Hillary Clinton are bigots, do you?

And there are plenty of folk who believe that marriage should only be sacred and not secular. And folks who have just never really thought about the impact on others. And those who truly are favorable to gay marriage but oppose judicial intervention.

There are a lot of folks who are not bigots who disagree with equal access to the institution. And absolutely no one whatsoever is accusing them of bigotry.

However, some who oppose marriage equality do so out of bigotry.

I know that it may offend you to even remotely suggest that your own motives are not exempt from consideration, but frankly each person truly needs to look at themself and ask if bias and animus is their motivation.

I'm not outright accusing you of bigotry, but please let me advise you of some red flags you are waving (perhaps unintentionally) that would cause others to think that you might well be coming from a perspective of bias:

Use of scare quote or quote of derision: This is the tactic used when you refuse to allow even a meeting of terms. For example, you put the word "marriage" in quotation marks - this is a clue to the reader that you so hold in contempt those who disagree with you that you refuse to even allow them use of common language. That is often a sign of bigotry.

Demonizing your opponent. You claim that those who disagree with you resort to "moral blackmail and demagoguery". You dismiss the notion that persons may choose to hold less animus towards gay people and claim instead that only threats of social stigmatism could motivate their inclinations towards equal access under the law.

Another - to which you have not yet resorted - is the "what they really want" level of accusations. Usually it consists of "destroy society", "harm the family", "defy God", or "attack the Church", but it could be most anything I suppose.

Finally, behind any flags is the one determinant that you need to decide for yourself:

Are you opposed to gay marriage because it gives gay people an equal standing to you? Is it the "gay" part of gay marriage that you oppose? Do you find yourself objecting to pretty much anything that gay people seek?

If so, you are motivated by bigotry.

|12.3.08 @ 3:56PM|#

"Can't we just go back to burning them at the stake?"

Don't give them any ideas.....

|12.3.08 @ 4:01PM|#

You are mistaken. There is no one that I have ever heard of (and if you disagree please document it) who thinks that all of those who oppose marriage equality are bigots. For heaven sake, man, I don't hear any pro-marriage equality folk saying that Barack Obama or Hillary Clinton are bigots, do you?

Outside of those politicians like Obama and Clinton who oppose marriage equality out of political expediency, I have yet to hear an argument against marriage equality that doesn't rely on bigotry.

|12.3.08 @ 4:03PM|#

Effective In the Leninist rhetoric strident sense of the term.

Not quite a Godwin, since calling "commie" instead of "nazi," but the equivalent thereof.

Its moral blackmail and demagoguery. It co-opts the moral weight of a different kind of thing and turns all opposition into mindless bigots. This has always been an effective approach for demonizing all opposition. I'm sure many a Californian voted no on 8 simply because they did not want to think of themselves as bigots, or segregationists, or hateful people. A reasoned, cogent, well thought out argument for same-sex marriage doesn't lend itself to success. They know this and actively chose the demagogic tract.

Utter bullshit.

Calling people out on their bigotry isn't blackmail, moral or otherwise. This is effective because anti-gay bigotry is becoming morally indefensible for all but a small minority of ultra-religious types, and a miniscule minority of non-religious bigots. It's not like anyone knew how those people voted; any individual could have lied about his vote and nobody would know. The reasoned, etc, argument IS winning. The only people it doesn't work on are the religious types who are immune to any form of argument except that from scripture, and they of course control their own interpretation of their texts.

Timothy Kincaid|12.3.08 @ 4:09PM|#

Horselips,

Yes, and 30 states is pretty close to the 2/3 required to pass a constitutional amendment. Which will probably have plenty of support if judiciaries continue to usurp popular opinion.

You are mistaken as to the requirements for passage of a US Constitutional amendment.

It require a 2/3 vote of both houses of Congress and ratification of 3/4 of the state legislatures.

In the last go round, the Federal Marriage Amendment could not get half of the Senators to vote yes so it not likely that it will get 2/3rds any time soon.

And should that occur, there need be only 13 state legislatures that refuse to ratify. And several of the states that have passed constitutional amendments do not have legislatures that would ratify a US amendment. California, for example, certainly wouldn't.

Incidentally, even in states where legislators have taken a stand for marriage equality, this doesn't seem to have a cost at the polling booth. Even those constituents that may not vote for gay marriage themselves don't seem to think that this is worth voting out a representative - so legislatures don't necessarily feel threatened to "follow the vote of the people".

I think that the chance of a US anti-gay marriage amendment passing is very small.

Timothy Kincaid|12.3.08 @ 4:16PM|#

Dr. Kenneth

Outside of those politicians like Obama and Clinton who oppose marriage equality out of political expediency, I have yet to hear an argument against marriage equality that doesn't rely on bigotry.

I'm calling your bluff. Kindly point to the mainstream gay community argument that you are referring to - and no, I'm not interested in "some guy held a sign in a protest" type of evidence.

The argument for marriage equality, in its simplist term is this:

1. All persons should have equal access to the services and benefits of their government.

2. We do allow some exceptions when the state can show that great harm comes from allowing equal access.

3. There is no evidence that allowing same-sex couples the same access to government as opposite-sex couples would cause harm.

See.... no claims of bigotry.

Now, of course, we all reserve the right to point out bigotry when we see it, but it is not at the basis of our demand for equality under the law.

|12.3.08 @ 4:29PM|#

I'm calling your bluff. Kindly point to the mainstream gay community argument that you are referring to - and no, I'm not interested in "some guy held a sign in a protest" type of evidence.

I'm not sure what you're asking for here. I think you've misunderstood what I wrote. My claim isn't about the arguments of supporters of marriage equality. My claim regards the arguments from opponents of marriage equality.

I have yet to hear an argument AGAINST marriage equality that doesn't rely on bigotry. Yours is an argument FOR marriage equality.

|12.3.08 @ 4:34PM|#

MikeNYC and Mo, bringing up integration etc. reminds me of the logic of an old gag.

"They said Edison was crazy! They said Einstein was crazy! They said my Uncle Herbie was crazy!"

"Who was your Uncle Herbie?"

"Oh, nobody. He really was crazy."

The fact that activist judges previously reinterpreted the Constitution in ways we all now agree on does not validate every subsequent instance of judicial activism.

Mad Max|12.3.08 @ 4:36PM|#

"I could go on into details, but read the 150 page ruling legalizing gay marriage, it's very interesting, and re-assuring. Also note the unanimous decision against a fertilty doctor and his lesbian patients in August 08'!"

You mean that the decision legalizing gay marriage, and the decision forcing fertility clinics to assist unmarried lesbians (regardless of the clinic owner's religious beliefs), are both part of the same "progressive" and "inevitable" trand?

Shh . . . not so loud! This is a libertarian Web site, and the posters here are still under the comforting delusion that the gay-liberation movement simply means a less-intrusive government. Don't alert them to the fact that the same movement which wants state-recognized gay "marriage" also wants to interfere with the decisions of private business owners, and to interfere with the anyone's religious conscience.

Your arguments undermine the key libertarian point that there is *no connection* between the gay-marriage movement and the movement to restrict private autonomy and religious freedom in the name of gay liberation.

"For heaven sake, man, I don't hear any pro-marriage equality folk saying that Barack Obama or Hillary Clinton are bigots, do you?"

They think HRC and BHO are *really* on their side, but have to make the right noises to placate the fundies and Christers. If Clinton and Obama really *meant* the stuff they said, then they, too would be castigated as bigots.

Note, too, that Obama used the dog-whistle phrase "personally opposed" to describe gay marriage. That's the same phrase the pro-abortionists use to describe their stance on abortion - they're only *personally* opposed, but they will support pro-abortion policies in the public arena.

Fitz|12.3.08 @ 4:37PM|#

Timothy Kincaid

You have completely ignored my entire post above.

"You are mistaken. There is no one that I have ever heard of (and if you disagree please document it) who thinks that all of those who oppose marriage equality are bigots. For heaven sake, man, I don't hear any pro-marriage equality folk saying that Barack Obama or Hillary Clinton are bigots, do you?"

It's is the various court's themselves that are calling ALL arguments preserving the traditional definition of marriage bigoted….

As the Washington decision illustrates…


The plurality makes strong criticisms of the concurrence and two of the dissents at the outset of its opinion, including charging the main dissent with "sadly overstep[ping] the bounds of judicial review" for suggesting that supporters of marriage laws are bigots. Besides calling the lower court decisions "transparently result-oriented" and a reflection of "the dominant political ideas of their legal community," the concurrence says: "[t]hough advanced with fervor and supported by special interests loudly advocating the latest political correctness, the arguments (and the dissenters) cannot overcome the plain legal and constitutional principles supporting Washington's definition of marriage."

To expand….

"We vigorously reject any attempt to link the discriminatory Anti miscegenation laws in Loving with this State's DOMA. The Washington Court of Appeals in Singer correctly noted:the Loving and Perez courts [Perez v. Sharp, 32 Cal. 2d 711, 198 P.2d 17 (1948)] did not change the basic definition of marriage as the legal union of one man and one woman; rather, they merely held that the race of the man or woman desiring to enter that relationship could not be considered by the state in granting a marriage license. 11 Wn. App. at 255 n.8. Numerous other courts have all rejected the claim that the decision in Loving somehow challenged state laws reaffirming marriage as the union of one man and one woman.25 Careful review of the historical context of Loving further undermines the dissents' disturbing attempt to link constitutionally void, racist laws with a historical definition of marriage as between a man and woman. Anti miscegenation laws were anathema to the "color-blind" constitution articulated in Justice John Marshall Harlan's dissent in Plessy v. Ferguson.26 Anti miscegenation laws infringed upon the union of one man and one woman by injecting racial status as a qualification. Such laws contradicted the fact that a man and a woman of any race have the natural right to marry and have children. This right is protected by the United States and Washington State Constitutions. Racially discriminatory anti miscegenation laws also violate the right to marriage between a man and a woman. Here, in contrast, the State's DOMA simply confirms the common law understanding of marriage as a union of a man and woman. It is the dissent that would abrogate the common law understanding through judicial fiat.

Andersen v. King County. Washington Supreme Court

As stated (above)

From the beginning this approach has been….
#1. Necessary -
& #2. Effective

|12.3.08 @ 4:53PM|#

Timothy Kincaid: Oh, Dude, they're eating you alive, and not in a good way. Really bad of you to slam Noisewater who's on our side. Hope you will be a stand up guy and apologize.

Please read for comprehension, not speed, when responding to posts here.

Timothy Kincaid|12.3.08 @ 4:59PM|#

Dr. Kenneth,

Yes, I misunderstood you. Sorry.

But though we are presumably on the same side of the issue.... I have to disagree. There are some few arguments that are not based on bigotry.

They just aren't very convincing.

Timothy Kincaid|12.3.08 @ 5:04PM|#

Fitz,

In your zeal to play martyr, you are making large leaps of logic.
Linking "constitutionally void, racist laws with a historical definition of marriage as between a man and woman" is not at all the same as calling all of those who oppose marriage equality "bigots".

I'll remind you that your original assertion - that which we are discussing - was:

Yes - calling all opposition bigots & calling same-sex "marriage" INEVITABLE… is a good fate accompli strategy.

Now it seems that you wish to get as far away from that assertion as possible.

Timothy Kincaid|12.3.08 @ 5:06PM|#

Tonio: Oh, Dude, thank's for the advice.

Formerly Jennifer|12.3.08 @ 5:08PM|#

Mad Max,

Divorced Catholics are not allowed to have a second (or more) marriage sanctified by the church unless they obtain a statement from church officials that basically says that their first marriage didn't really count (annullment).

Should Catholic hospitals discriminate against married couples where one or both parties had been divorced? "Sorry, you can't make any decisions on behalf of your 'spouse'; you aren't really married." How about Catholic judges? "Well, you're not really entitled to any of your 'marital' possessions; you're not really married." Or " Those aren't really your children; you're not really married." Or " You must testify against your 'spouse'; privilege doesn't apply; you're not really married."

Why is okay to discriminate against homosexual couples in a civil union, and not heterosexual couples in a civil marriage? Oh that's right, you can't tell a heterosexual couple is in a civil marriage just by looking at them.

Virgil|12.3.08 @ 5:14PM|#

"Shh . . . not so loud! This is a libertarian Web site, and the posters here are still under the comforting delusion that the gay-liberation movement simply means a less-intrusive government. Don't alert them to the fact that the same movement which wants state-recognized gay "marriage" also wants to interfere with the decisions of private business owners, and to interfere with the anyone's religious conscience."

Wow, Mad Max, you're approaching Lonewacko levels of delusional condescension; that's some pretty impressive company you're keeping. In this particular case you seem to be under the delusion that there's a single movement advocating for gay marriage, when in fact there are many. And some of them, especially the ones coming from a libertarian point of view, actually consider the difference between gov't and private organizations/institutions to be rather important.


"Your arguments undermine the key libertarian point that there is *no connection* between the gay-marriage movement and the movement to restrict private autonomy and religious freedom in the name of gay liberation."

This is such a baffingly stupid strawman that I'm amazed you'd even try to pass it off. I'm sure it's fun to pull "key libertarian points" out of your ass and pretend they bear some resemblance to reality, but it doesn't reflect too well on your reasoning skills. Again, there's no single "gay marriage movement." Some people advocating for gay marriage also advocate for restrictions on private groups, and some (especially those coming from a libertarian point of view) don't. I don't think you'll find too many libertarians who deny that both groups exist, which seems a little odd since according to you that denial is such a "key libertarian point."

|12.3.08 @ 5:14PM|#

"The fact that activist judges previously reinterpreted the Constitution in ways we all now agree on does not validate every subsequent instance of judicial activism."

LOL. So in your opinion, if judges don't mirror the opinions of the majority, their opinions shouldn't be validated? Thank heavens you have only one vote.

|12.3.08 @ 5:21PM|#

Fitz if it walks like a bigot, and talks like a bigot....

You're still invited to my gay wedding at San Francisco City Hall. I have a lot of hot gal pals, but you must promise to be nice from this point on.

Elemenope|12.3.08 @ 5:21PM|#

OT: Why is Jennifer not Jennifer anymore?

Formerly Jennifer|12.3.08 @ 5:25PM|#

LMNOP,
The original Jennifer hadn't posted for a while when I first did. When she came back, I changed, because i wasn't trying to spoof her.

Fitz|12.3.08 @ 5:31PM|#

So far on this thread alone - (since I have posed my argument) Five different people have called me or my arguments (or all defenders of marriage) bigoted…

Without this strong-arm tactic intimidation - Proponents of same-sex "marriage" end up simply having to argue the base question : Should we change the definition of marriage into a genderless construct?

Tonio - Calling people out on their bigotry isn't blackmail, moral or otherwise. This is effective because anti-gay bigotry is becoming morally indefensible for all but a small minority

Dr. Kenneth Noisewater- Outside of those politicians like Obama and Clinton who oppose marriage equality out of political expediency, I have yet to hear an argument against marriage equality that doesn't rely on bigotry.

MikeNYC |- And 30 states had laws against mixed race marriage Those opposed to same sex marriage have no reasonable facts to support their postion. They have emotion, not logic. It is the lack of logic
Joe Public - Can't we just go back to burning them at the stake?
Timothy Kincaid- I have to disagree. There are some few arguments that are not based on bigotry. They just aren't very convincing.

Note: How popular the approach (above) & http://www.ringospictures.com/index.php?page=20081115
As stated : From the beginning this approach has been….
#1. Necessary - for them to use (as they have) the courts as wedge to make their agenda politically feasible it is was (and remains) necessary to call any argument against there agenda "irrational".But for that they would have had a hard time getting anyone to even co-sponsor a civil union's bill in Hawaii or Vermont.

On this central point I urge you all to read Conciliating Hatred by Steven D. Smith 2004 First Things (June/July 2004).
http://www.firstthings.com/article.php3?id_article=356

#2. Effective In the Leninist rhetoric strident sense of the term. Its moral blackmail and demagoguery. It co-opts the moral weight of a different kind of thing and turns all opposition into mindless bigots. This has always been an effective approach for demonizing all opposition.

This is done most often with the (false) comparison to anti-miscegenation statutes The problem with the (horribly over used) Loving example is its power comes from mere analogy. The problem with analogy is it is exactly that: an analogy. Its weight raises and falls on the strength of the analogy. Courts have been quick to dismiss this characterization of marriage law with racial segregation. The point of ant-miscegenation laws were to keep the races apart. No one would seriously argue that that is the point of marriage law. Quite the opposite, the intention of marriage law is to bring the two sexes together.

Note this quote rebuke of same-sex "marriage" offered by the plurality in Hernandez v. New York, Justice Smith, when confronting the idea that marriage as historically defined was analogous to Loving.

"[T]he traditional definition of marriage is not merely a byproduct of historical injustice. Its history is of a different kind."

The use of the term kind is telling. Not a matter of degree, mind you. Rather a different of qualitative substance…a difference of kind.

As dismissals of the Loving v Virginia case goes, this is rather mild. However - I like it for precisely that reason. It dismisses casually a analogy that doesn't hold up precisely because it is not the same kind of thing being compared.

Formerly Jennifer|12.3.08 @ 5:48PM|#

Fitz,

But WHY is it a different KIND? If you can give me a reason besides "God says so", please do!

If your answer is "But it's for the children!", please reconsider. People often say that the ideal family structure for raising children is one (biological) mother and one (biological) father. This may be true, on average. However, this is manifestly NOT true for all children, or we wouldn't have so many in foster care. This also completely disregards the fact that two parents are not (usually) the only people to raise their children. Unless the parents are complete shut-ins, there is a t the very least, a baby-sitter involved somewhere. This can be relatives (usually female), older siblings, neighbors, or complete strangers (daycares, nannies, etc.) This also disregards schools, churches, other neighbors. I see no reason why an opposite-sex role model MUST be a parent, and in many instances, it's better that it isn't.

Many studies also say that children with the best educational outcomes (however those are measured - that's not my point) are middle-class or higher. Should we then ban poor people from having babies? "It's for the children!"

The fact that some religions consider homosexuality to be immoral does mean that I have to pay attention to them. That is ALSO freedom of religion. Why does yours trump mine?

Formerly Jennifer|12.3.08 @ 5:58PM|#

-does NOT mean-

Fitz|12.3.08 @ 6:08PM|#

Jeniffer -

I could answer your questions and we do everyday at
http://opine-editorials.blogspot.com/ (just click on my link)

At this point I'm just arguing that the same-sex "marriage" movement has ONLY gained the success it has because it dismisses cogent, factual, lucid and social important (as well as scientifically verifiable) arguments as "irrational bigotry"

My point is that this is

#1. Necessary - Judicially - to disregard the clear law & precedent in order top wedge it in
&

#2. Effective - Politically, to strong arm opposition,, gain (false) sympathy on a false analogy & obscure the true radical nature of the change being proposed .

All while the true nature the danger of redefining marriage to genderless "marriage" is ignored.

Its approach has been (and remain) Anti-intellectual, ill-liberal, and un-democratic.

people often say that the ideal family structure for raising children is one (biological) mother and one (biological) father. This may be true, on average.

Well "on average" is social science...

It is also a damn good rational basis on which to prefer the traditional redefinition of marriage to any other definition be it same-sex "marriage", polygamy, polyamory or abandoning marriage as a legal category all together.

But …Yes there is a solid scientific consensus about the intact natural married family as compared to every other adequately studied family form (as stated below same-sex marriages -jury still out) including step families, adopted families, divorced families, single parent families, and so forth.

However the good science requirement -says at this point that there really is not enough solid data on same-sex families to make an adequate scientific consensus. This point is conceded by gay advocates as well as social science in general. Sure you could point to studies & I could point to studies…. But the field itself admits that not enough solid evidence exists to make a sound scientific judgment at this time.

Timothy Kincaid|12.3.08 @ 6:15PM|#

Fitz,

Fine. Let's just make you a martry and be done with it. Shall we call you Saint Fitz from now on?

But for the record, I didn't call you bigoted. I distinctly allowed that you may have just been expressing yourself in a manner that left us thinking that you were operating from a sphere of animus.

I did however lay out the parameters that would make your arguments bigoted and you conveniently ignored them.

And I pointed out some behavior that was suggestive of bigotry - and you expressed no interest in why these red flags might be viewed as a sign of animus or any indication of even the slightest desire to avoid them in the future.

So, OK. We get it.

You really really really don't want to be called a bigot... you just want to behave as one.

So far - other than comment after comment after comment about how you the big mean nasty pro-gay folk are calling you a bigot - you haven't said anything at all.

Which makes me think that the entirety of your position is:

1. Pro-gay folks called you a bigot
2. That's a bad thing to do
3. So gay marriage should be banned.

I'm not finding that very compelling.

Maybe you have some other point to make, but this "you called me a bigot" thing is getting tiresome. I'm beginning to think you're trying to convince yourself more than us.

|12.3.08 @ 6:28PM|#

So in your opinion, if judges don't mirror the opinions of the majority, their opinions shouldn't be validated?

Not at all. I'm saying that just because activist judges did something once that we can agree on, does not validate every subsequent "civil right" they discover. And more importantly, that this sort of argument will come back to bite libertarians sooner or later. Just wait until some Obama appointees declare government health care a "civil right."

Fitz|12.3.08 @ 6:31PM|#

Timothy Kincaid

Your being childishly obtuse. (you can call me a bigot all you want - I don't care)

I'm saying it is the organized rhetorical, political, and legal strategy of the same-sex "marriage" movement.

My point is that this is

#1. Necessary - Judicially - to disregard the clear law & precedent in order top wedge it in
&

#2. Effective - Politically, to strong arm opposition,, gain (false) sympathy on a false analogy & obscure the true radical nature of the change being proposed .

Without this strong-arm tactic intimidation - Proponents of same-sex "marriage" end up simply having to argue the base question : Should we change the definition of marriage into a genderless construct?

Fitz|12.3.08 @ 6:36PM|#

PapayaSF

"Not at all. I'm saying that just because activist judges did something once that we can agree on, does not validate every subsequent "civil right" they discover. And more importantly, that this sort of argument will come back to bite libertarians sooner or later. Just wait until some Obama appointees declare government health care a "civil right."
Nice... (great point)

There is also the argument that multiple times when SCOTUS did do this they were validly applying the Constitution (and people just call it judicial activism)

However your point is correct…. Even more so, Once structuralism, originalim , textualism, have been (proven) inadequate in stopping judicial activism… conservative judges will be forced to start practicing there own brand of activism.

Mad Max|12.3.08 @ 6:36PM|#

"Should Catholic hospitals discriminate against married couples where one or both parties had been divorced?"

By "married couples," do you mean "adulterous couples recognized as married by the state, even if the state's definition does not meet the Catholic Church's definition?" If that's the question, the answer is "hell, yeah, a Catholic institution should discriminate against adulterous couples and refuse to give them the same benefits as married couples." I doubt, however, that they would actually have the guts to do this, so you probably shouldn't spend too much time worrying about it.

Now permit me to ask you: Should the government *force* Catholic hospitals to accept the government's definition of marriage, in the (unlikely) event that a Catholic hospital has the courage to defend the traditions of the Church? I won't automatically dismiss your answer if you say the government should exercise compulsion - I'm not a kneejerk libertarian, so I certainly don't want to act like one no matter how tempting it may on this forum. If you argue that there's a compelling interest for the government to override private preferences, then by all means make your case.

Incidentally, if I'm unconscious and bleeding, the consent of my spouse isn't needed for the hospital to perform lifesaving care. Spousal consent comes into the picture if I'm on a feeding tube and the hospital wants to issue some kind of "do not resuscitate" order. In that case, as between by former wife (current wife by Catholic doctrine) and my current wife (recognized by the govt but not the Church), the hospital will definitely want to call the ex-wife, not the current wife, if it wants permission to let me die. (This is a hypo, by the way - I don't have an ex-wife). So I am willing to live under the regime I propose. If my ex-wife wants to pull the plug, the way for me to deal with it is to make a living will saying "don't let the ex-wife decide; let X [some trusted person]" make the decision."

"Wow, Mad Max, you're approaching Lonewacko levels of delusional condescension; that's some pretty impressive company you're keeping. In this particular case you seem to be under the delusion that there's a single movement advocating for gay marriage, when in fact there are many. And some of them, especially the ones coming from a libertarian point of view, actually consider the difference between gov't and private organizations/institutions to be rather important."

The supporters of gay-marriage can be distinguished between (a) the gay-lib leaders, who want to force their ideas on public institutions and many private ones as well, and (b) libertarians who support gay marriage while reserving the right to be indignant and shocked when it forseeably and inevitably leads to restrictions on private autonomy.

You see, it is quite true that there are libertarians who support government-sponsored "gay marriage," and they indignantly reject the idea that the policies they support would lead to infringements on the freedom of private companies and private employers, or lead to restrictions on the religious freedom of Catholic hospitals, religiously-motivated businesspeople, etc.

This is a very effective form of compartmentalization. It is a method of compartmentalization which Professor Thomas Reed Powell is supposed to have associated with lawyers: "If you can think of one thing without thinking of something else to which it is inextricably connected, then you have a legal mind."

If you can think "government-issued marriage licenses for same-sex couples" without thinking of the inextricably-connected concept of "forcing private institutions to recognize all government-recognized marriages without 'discrimination,'" then you have Powell's "legal mind."

Timothy Kincaid|12.3.08 @ 7:05PM|#

Saint Fitz,

This is sounding like, This is sounding like, This is sounding like, This is sounding like a broken record.

Okily dokily, I guess I'll just have to be childishly obtuse. Because for some strange reason I don't mind answering your oddly worded question: Should we change the definition of marriage into a genderless construct?

Yes, if the change to civil marriage is to allow equal access under the law.

Timothy Kincaid|12.3.08 @ 7:14PM|#

MadMax

Now permit me to ask you: Should the government *force* Catholic hospitals to accept the government's definition of marriage, in the (unlikely) event that a Catholic hospital has the courage to defend the traditions of the Church?

Sure, unless:

1. The hospital accepts payments from the government for services. If it does, then it must adhere to the definition that includes non-Catholics or stop taking public funds.

2. The hospital accepts private insurance for services. If it does, then it must adhere to the definition as covered by the insurer.

3. We're not talking about emergency care.

If the Catholic hospital really wants to be a charitable institution and provide care for those less fortunate, I have no problem with their restriction on whom they choose to provide care.

For example, in Massachusetts the Catholic Church ran an adoption agency that received public funds. They decided to stop services rather than allow adoption by gay couples.

However, also in Massachusetts the Mormon Church continues today to run an adoption agency that refuses gay couples. They don't accept public funds.

I'm fine either way.

Formerly Jennifer|12.3.08 @ 7:18PM|#

Why do they have the "courage of their convictions" when it comes to homosexuality, but not "adultery"? It seems to me that both would be almost equally immoral (one being labeled an abomination, the other directly violating at one of the Ten Commandments). Perhaps it's just easier to recognize one than the other?

I don't know about "forcing" hospitals and the like to cater to beliefs they don't hold, except that they already do, it's just not "in your face". I am generally in favor of anti-discrimination laws, but I don't really have to deal them in practice (except as a smoker) ;)

I am a left-libertarian who voted for Barr, despite his atrocious recoed on freedom of religion in the military.

BTW, I am not trying to pick on Catholics, specifically, I just know a little more about their matrimonial requirements than I do about other religions. One of my best friends is a divorced Catholic, on her second marriage. My other best friend is an un-partnered lesbian. :)

I notice that you completely ignore my question about judges, who are explicitly tasked with upholding secular law. Would it be okay for them to discriminate against couples who are married by civil law, but not by the standards of the judge's religion?

Formerly Jennifer|12.3.08 @ 7:19PM|#

Also, what Timothy Kincaid said.

Mad Max|12.3.08 @ 8:16PM|#

'Why do they have the "courage of their convictions" when it comes to homosexuality, but not "adultery"? It seems to me that both would be almost equally immoral (one being labeled an abomination, the other directly violating at one of the Ten Commandments). Perhaps it's just easier to recognize one than the other?'

I appreciate your ultramontane-style insistence that the Catholic Church in American has been strictly upholding Catholic principles where homosexuality is concerned. Would that were true!

As to your insistence (and you're not alone) that institutions which accept public funds must accept a definition of family which includes adulterous and gay couples - that begs the question what the government is doing taking money from the taxpayers (and bondholders) and using that money to force what is at the very least a controversial definition of marriage and family on the public. Again, this shows that the question of redefining marriage is not a question of libertarian "white hats" defending gays, on the one hand, and authoritarian "black hats," repressing gays, on the other.

Could you rephrase your questions about judges?

Virgil|12.3.08 @ 8:16PM|#

"If you can think "government-issued marriage licenses for same-sex couples" without thinking of the inextricably-connected concept of "forcing private institutions to recognize all government-recognized marriages without 'discrimination,'" then you have Powell's "legal mind.""

If you can't see that those two things are not in fact "inextricably-connected," then you don't have much of a mind at all.

Mad Max|12.3.08 @ 8:17PM|#

"Sure, unless:

"3. We're not talking about emergency care."

Again, hospitals don't need spousal consent to give emergency lifesaving care. They only need spousal consent to *refuse* extraordinary lifesaving care.

Mad Max|12.3.08 @ 8:18PM|#

I am thinking in terms of the real world, not the cloud-cuckoo-land of libertarian philosophy, in which the concepts can certainly be separated.

Horselips|12.3.08 @ 8:21PM|#

You have to laugh - here's a cohort of "libertarians" cheering on a massive, and clearly unwelcome, government intrusion into the habits and customs of the people, one which creates obligations on the part of parties that aren't even signatories, and can't even name a single public interest to justify doing so. All they have is an appeal to equality using a truly tortured definition of equal.

And spare us the comparisons to anti-miscegenation laws - those were in fact a short-lived and regional aberration, and nobody ever argued that permitting inter-racial marriages was a fundamental redefinition of marriage, it was simply deemed to be undesirable.

Everywhere in western civilization, in contrast, the definition of marriage has consistently been one man and one woman for several millennium at least, even in countries that never passed any anti-miscegenation laws, even in countries like ancient Greece that were extremely tolerant of homosexuality, all the squid ink generated by gay marriage proponents notwithstanding.

If I was ever tasked with establishing an actual free society, the first thing I'd do in pursuit of that end is drive the libertarians out of the country at the end of bayonets.

Formerly Jennifer|12.3.08 @ 9:35PM|#

If it is allowable and admirable for some people (such as health care workers) to uphold their moral viewpoint at the (not specifically financial) expense of others, then would we allow judges to do the same? For example in a divorce, would it be acceptable for a judge to refuse to split marital property equitably (not going to go into the definition of "equitable") because the couple was not "married" according the standards of his religion? Or to refuse a divorce altogether because his religion believes that divorce is a sin? Why or why not?

"[T]hat begs the question what the government is doing taking money from the taxpayers (and bondholders) and using that money to force what is at the very least a controversial definition of marriage and family on the public."

The government has ALWAYS been involved in recognizing marriage! The only times and places I know of where religious authority took precedence over civil authority in marriage and its attendant rights and responsibilities has been when the civil and religious authorities were basically the same.

Why should that change now?

Virgil|12.3.08 @ 9:55PM|#

"I am thinking in terms of the real world, not the cloud-cuckoo-land of libertarian philosophy, in which the concepts can certainly be separated."

Riiigghhhttt...that's exactly what you're doing. How special it must make you feel to keep repeating that to yourself.


"All they have is an appeal to equality using a truly tortured definition of equal."

Actually, it's a fairly straightforward definition of equal. Whether you're willing or able to understand it may be a different question.

"And spare us the comparisons to anti-miscegenation laws - those were in fact a short-lived and regional aberration, and nobody ever argued that permitting inter-racial marriages was a fundamental redefinition of marriage, it was simply deemed to be undesirable."

If by "short-lived" you mean "through most of the history of the United States, dating to well before the U.S. even existed as an independent country," then yup, they sure were short-lived. And sure, no one considered it to be a fundamental redefinition of marriage, unless you think its repeatedly being described, including by US congressmen, as enslavement of white women to be a redefinition of marriage. Really, slavery's not fundamentally different from marriage, is it? (Insert tired joke here.)

Many people seem to have a very specific, rather odd, and completely unjustified notion of what does and does not constitute a fundamental definition of marriage. The gender of the two people involved is part of the fundamental definition, but their reasons for choosing to be married, or the question of whether or not they both even have a choice, is not? I think a strong case can be made that two men or two women choosing to be married out of their love and respect for each other are a lot closer to our understanding of marriage than a man and a woman in a marriage of political or economic convenience, or an arranged/forced marriage. I've certainly never seen anyone make a coherent case for how those changes in marriage practices don't constitute fundamental differences from how we view marriage today.

"If I was ever tasked with establishing an actual free society...."

If you were ever tasked with establishing anything, I don't think you'd have to convince too many people to walk quickly in the other direction.

|12.4.08 @ 4:30AM|#

MikeNYC - "Most Christians I know welcome same sex marriage."

Except all the ones that go out and vote in the 30 states the amendment has passed. FAIL.

Mad Max|12.4.08 @ 5:35AM|#

"If it is allowable and admirable for some people (such as health care workers) to uphold their moral viewpoint at the (not specifically financial) expense of others, then would we allow judges to do the same?"

Yes, if there is no distinction between public officials (judges) and private parties (employers, private hospitals, etc). Of course, if you believe there are no relevant differences, you would (I hope) have a difficult time persuading people on this forum, who are strongly committed to defending the distinction. In fact, one of the key arguments for government-recognized gay marriage is that "private people can do whatever they want, but the government should't 'discriminate' against gay couples." Now it seems that you're rejecting these libertarian assumptions.

"The government has ALWAYS been involved in recognizing marriage!"

Quite true. So now we're back to the question - which "marriages" should the government recognize? And what penalties (if any) should be imposed on those private parties who don't share the government's definition?

Horselips|12.4.08 @ 5:40AM|#

Actually, it's a fairly straightforward definition of equal. Whether you're willing or able to understand it may be a different question.

Well, I understand this much - if hetero-sexuals cease forming relationships, that's pretty much the end of any human society. If gays cease forming relationships, the impact will be - what?

I'd like to know what understanding of "equal" puts boutique life-style accessories in the same class as biological imperatives.

I notice none of these protests of unequal treatment are accompanied with any explanation as to how the situations are equal. There seems to be a great deal of reluctance to articulate what's meant by "equal".


If by "short-lived" you mean "through most of the history of the United States, dating to well before the U.S. even existed as an independent country," then yup, they sure were short-lived.

Considering our current conception of marriage pre-dates Columbus sailing by at least 2500 years, yup, I don't have a problem calling them short-lived.

Our current conception of marriage has been operative a helluva a lot longer than the United States has been.

Many people seem to have a very specific, rather odd, and completely unjustified notion of what does and does not constitute a fundamental definition of marriage.

Indeed. They're called "gay-marriage advocates".

The gender of the two people involved is part of the fundamental definition, but their reasons for choosing to be married, or the question of whether or not they both even have a choice, is not?

Yep. The last I heard, a house is still a house, regardless of the reasons for which it was built.

I think a strong case can be made that two men or two women choosing to be married out of their love and respect for each other are a lot closer to our understanding of marriage

ROFLMAO!!!! Who's "we", Kimosabe? IIRC, the whole reason for the furor is that voters have repeatedly expressed that this is *not* "our" understanding of marriage.

I think a strong case can be made that two men or two women choosing to be married out of their love and respect for each other are a lot closer to our understanding of marriage than a man and a woman in a marriage of political or economic convenience, or an arranged/forced marriage. I've certainly never seen anyone make a coherent case for how those changes in marriage practices don't constitute fundamental differences from how we view marriage today.

Nice sleight-of-hand there. First, you list a number of *reasons* people have gotten married, then apply them to the entirely unrelated question as to what constitutes a marriage.

Ridiculous! As I pointed out before, a house is a house is a house, the reasons it was built have absolutely no effect on what it *is*. A marriage, at least in this civilization, has always been a union of a man and a woman, regardless of whether or not some of the specific motivations for forming that union have varied.

If you were ever tasked with establishing anything, I don't think you'd have to convince too many people to walk quickly in the other direction.

I suppose that what direction people walk in would be influenced with what I'm competing with. We've already seen what direction they walk in when confronted with what you're trying to establish. Suffice it to say I think I have reasons to be optimistic. ^_*

Art-P.O.G.|12.4.08 @ 9:08AM|#

A marriage, at least in this civilization, has always been a union of a man and a woman

And traditionally, D 1-A football doesn't involve teams from Alaska, but I don't think that alone is an argument against the inclusion of a football team from Alaska.

Elemenope|12.4.08 @ 9:22AM|#

And traditionally, D 1-A football doesn't involve teams from Alaska, but I don't think that alone is an argument against the inclusion of a football team from Alaska.

"Everything I need to know is in the Bible!"

"Really? Where's the passage on the proper use of a copy machine?"

"..."

Mad Max|12.4.08 @ 10:43AM|#

LNNOP,

Conflating civilization with the Bible? You must be a Protestant.

Virgil|12.4.08 @ 10:47AM|#

Horselips, leaving aside most of the drivel in your post since it's been shot down repeatedly on these threads and really isn't worth the trouble any more, I'll just point out that you have a very, very special understanding of the definition of marriage if it doesn't even include the reason(s) why people get married. And by special, I mean incoherent and, frankly, flat-out stupid. A relationship between two people for the purposes of political or economic expediency is pretty obviously fundamentally different than one for the purposes of love, emotional fulfillment, etc., as a direct result of the reasons for which those relationships are entered into. Or, to improve upon your poorly thought-out analogy, a building built to play basketball games in and a building built to live in may both be buildings, but they're still fundamentally different from each other, in large part because of the reasons they were built.

Fitz|12.4.08 @ 12:59PM|#

Horse lips is on to something as elemental as

The Law
History
Biology

This is something quite clear and genuinely immersed in our law. It doesn't get much discussion but multiple State Supreme Courts got immersed in the discussion of

Q. How you consummate a homosexual relationship - there are multiple state statutes and common law tradition that says a marriage is not valid until consummation.

A. You cant…

If a man or woman refuses to have sex with their wife/husband after marriage he/she is legally entitled to an annulment (rather than file for divorce) because the marriage was never consummated.

Homosexual couples cannot perform what is called (variously) the "conjugal act" the "marital act" or (more commonly called) they cannot "consummate a marriage"


Quoting Professor Germain Grisez

"Though a male and a female are complete individuals with respect to other functions - for example nutrition, sensation, and locomotion- with respect to reproduction they are only potential parts of a mated pair, which is the complete organism capable of reproducing sexually. Even if the mated pair is sterile, intercourse, provided it is the reproductive behavior characteristic of the species, makes the copulating male and female one organism"

"it is a plain matter of biological fact that reproduction is a single function, yet it cannot be carried out by an individual male or female human being, but by a male and female as a mated pair…."

Note a though experiment by Grisez

"Imagine a type of bodily, rational being that reproduces, not by mating but by some individual performance. Imagine that for these beings, however, locomotion or digestion is performed not by individuals, but only by biologically complementary pairs that unite for this purpose. Would anybody have any difficulty understanding that in respect to reproduction the organism performing the function is the individual, while in respect of locomotion or digestion the organism performing the function is the united pair?"

homosexual couples simply cannot co-opt the language of marriage anymore than a hill can claim to be a valley..

The good professors elemental biology lesson helps explain this….

If an apple is different than an orange…
Than two apples are different than two oranges
& each is distinct from an apple an and orange.

Fitz|12.4.08 @ 1:15PM|#

Horselips (writes)

"As I pointed out before, a house is a house is a house, the reasons it was built have absolutely no effect on what it *is*. A marriage, at least in this civilization, has always been a union of a man and a woman, regardless of whether or not some of the specific motivations for forming that union have varied."

Put another way...

Justice Cordy wrote in dissent, the majority of the court had -

"transmuted the "right" to marry into a right to change the institution of marriage itself."1

"only by assuming that 'marriage' includes the union of two persons of the same sex does the court conclude that restricting marriage to opposite-sex couples infringes on the 'right' of same-sex couples to 'marry'."2

"[i]n context, all of these decisions and their discussions are about the 'fundamental' nature of the institution of marriage as it has existed and been understood in this country, not as the court has redefined it today." 3

Maintaining that marriage's - "'fundamental' nature is derivative of the nature of the interests that underlie or are associated with it" -and that a an - "examination of those interests reveals that they are either not shared by same-sex couples or not implicated by the marriage statutes."4


1,2,3,4, - Goodridge v. Dept. of Pub. Health,798 N.E.2d 941, 955 (Mass 2003)
(Justice Cordy dissenting)

|12.4.08 @ 7:01PM|#

"Homosexual couples cannot perform what is called (variously) the "conjugal act" the "marital act" or (more commonly called) they cannot "consummate a marriage""

So if a man and woman fuck, they're married?
Sorry to say, but in this day and age, that argument does nothing for your case.

Take some time to read "traditional" (ie, modern) marriage vows. There isn't a whole lot in there about having sex or bearing children, its about caring for and taking care of each other. All of that is pretty gender-neutral. In fact, its so gender neutral that the man and the woman usually make the exact same vow to each other.

Now, I am sure you could pull some vows out of the 19th century that define the roles of the man and the woman separately, but thats not the way our civilization works anymore. Sorry.

If you reduce every political down to tradition your a conservative. You become a libertarian when you finally realize that liberty trumps tradition.

By the way, aren't you glad we abolished the several thousand year old tradition of slavery?

Fitz|12.5.08 @ 4:09PM|#

"So if a man and woman fuck, they're married?

Uh -no, (i never even said that) I said that it was LEGALLY a requirment of marriage that it be consumated (fuck) or your entitled to an unullment.

"Take some time to read "traditional" (ie, modern) marriage vows." No -legal obligations..

|12.5.08 @ 7:36PM|#

Fitz, its a myth that sex is a legal requirement of marriage. It may have been at one time, but it is no longer. Handicapped couples who are incapable of having sex are just as able to marry as any other couple.

Horselips makes the oft-debunked argument that gay couples don't deserve marriage equality because those relationships aren't equal to opposite sex couples because they can't procreate. Clearly procreation has never been a requirement for a valid marriage or infertile couples or those past menopause would also not be allowed to be married. If such heterosexual couples deserve the equal right to marriage, so do same sex couples.

Regardless, many same sex couples do have children, so the idea that they shouldn't be allowed to marry because marriage is for child-rearing is doubly preposterous. The children of same sex couples deserve the benefits of legally bound parents just as much as do heterosexual couples. That they may not be both the couple's biological children is irrelevant, never in law has a family with adoptive children been declared less of a family than those with biological children - it would be considered obscene to suggest, just as logically it is obscene to suggest gay families are in any way less of a family than a heterosexual couple raising biological children.

The right to equality demands that gays have the same access to marry the one they love most that heterosexuals do. The fact that gay couples may differ in some respects from heterosexual couples is irrelevant, just as its irrelevant to the righ to marry that one couple is bi-racial and one is not.

That Fitz and horselips cling to such a pathetic "justification" for denying same sex couples equality only serves to concretely demonstrate that there is no reason for such objections beyond bigotry.

Fitz|12.6.08 @ 4:30PM|#

"Horselips makes the oft-debunked argument that gay couples don't deserve marriage equality because those relationships aren't equal to opposite sex couples because they can't procreate. Clearly procreation has never been a requirement for a valid marriage or infertile couples or those past menopause would also not be allowed to be married. If such heterosexual couples deserve the equal right to marriage, so do same sex couples."


"That Fitz and horselips cling to such a pathetic "justification" for denying same sex couples equality only serves to concretely demonstrate that there is no reason for such objections beyond bigotry."

Men and women are members of a class that can produce children. While any member of that class may not or cannot produce a child, they remain members of a class that can produce children. Same sex pairings can never produce children. They are members of a class that always and everywhere are incapable of producing children."

Therefore same sex "marriage" necessarily severs marriage from procreation. It both androgynizes the institution and separates it from any necessary link to childbearing.


From the Washington State Decision

"But as Skinner, Loving, and Zablocki indicate, marriage is traditionally linked to procreation and survival of the human race. Heterosexual couples are the only couples who can produce biological offspring of the couple. And the link between opposite-sex marriage and procreation is not defeated by the fact that the law allows opposite-sex marriage regardless of a couple's willingness or ability to procreate. The facts that all opposite-sex couples do not have children and that single- sex couples raise children and have children with third party assistance or through adoption do not mean that limiting marriage to opposite-sex couples lacks a rational basis. Such over- or under-inclusiveness does not defeat finding a rational basis."

BIGOTS?

"Constitutionally protected fundamental rights need not be defined so broadly that they will inevitably be exercised by everyone. For example, although the ability to make personal decisions regarding child rearing and education has been recognized as a fundamental right (see, e.g., Pierce v. Society of the Sisters (1925) 268 U.S. 510, 534- 535), this right is irrelevant to people who do not have children. Yet, everyone who has children enjoys this fundamental right to control their upbringing. A similar analogy applies in the case of marriage. Everyone has a fundamental right to "marriage," but, because of how this institution has been defined, this means only that everyone has a fundamental right to enter a public union with an opposite-sex partner. That such a right is irrelevant to a lesbian or gay person does not mean the definition of the fundamental right can be expanded by the judicial branch beyond its traditional moorings." 2

1- In re Marriage Cases, Cal. App. 2006, McGuiness, P. J. (writing for the majority.)


BIGOTS?

Only the sexual relationships of men and women together produce children. Therefore, only the sexual relationships of men and women together require governmental regulation because of (1) THEIR CAPACITY TOGETHER TO CREATE SOCIAL DISORDER, and (2) that reproduction is a fact and does have important and inevitable consequences on society both good and bad if it is not regulated. Thus, it inevitably must implicate the political and public aspect insofar as the production of future citizens is not only vital to the survival of a nation, but that the REGULATION OF THIS PRODUCTION OF FUTURE CITIZENS IS JUST AS VITAL.

|12.6.08 @ 6:29PM|#

Fitz, Washington state court decision was in the minority, California, Conneticut, and Massachusetts courts ruled that marriage was not about procreation and that gays were entitled to equal rights under the law.

Once again, clearly marriage is not about procreation because if it were we would not allow infertile couples, or those who are beyond child bearing age to marry. That we do shows that everyone deserves the equal right to marry regardless of whether or not they can have their own biological children. Nowhere does the law declare a family with adoptive children lesser than a family with biological children, to do so would be unacceptable bigotry.

Once again, your claim to be concerned for child rearing is obviously a smoke screen for your bigotry just as it was for the Washington state court. 30% of gay couples have children, if you were truly concerned about the "vital regulation of the production of future citizens" you'd want the children of same sex parents to have the same rights, obligations and stable family that only marriage can provide. You don't want this because you clearly aren't sincere about concern for children - its just a smoke screen to cover your bigotry. Providing the children of gay couples with the stability of married parents greatly improves their lives while in no way having any effect whatsoever on the children of married heterosexual couples. You're a bigot Fitz and you just don't want to accept it. Accept who you currently are and repent.

Fitz|12.7.08 @ 4:43PM|#

Priya Lynn

Washinton, New Jersey, New York, Maryland... Your in the minority..

You are misreading the Supreme Court case law on the subject of marriage: you are making the same mistake the New York Court points out in its recent decision. Discussing the Supreme Court precedents of Turner v. Safley, 482 U.S. 78 (1987); Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965); Skinner v. Oklahoma, 316 U.S. 535 (1942)

Judge Graffeo noted….

"To ignore the meaning ascribed to the right to marry in these cases and substitute another meaning in its place is to redefine the right in question and to tear the resulting new right away from the very roots that caused the U.S. Supreme Court and this Court to recognize marriage as a fundamental right in the first place."2

2 - Andersen v. King County (J. Graffeo concurring)

bigot

The Maryland Supreme Court ruled...

In terms of the justifications for the current marriage law, the court ruled "fostering procreation is a legitimate government interest" and the "'inextricable link' between marriage and procreation reasonably could support the definition of marriage as between a man and a woman only, because it is that relationship that is capable of producing biological offspring of both members (advances in reproductive technologies notwithstanding)." The court held "the fundamental right to marriage and its ensuing benefits are conferred on opposite-sex couples not because of a distinction between whether various opposite-sex couples actually procreate, but rather because of the possibility of procreation."

bigot?

|12.7.08 @ 5:23PM|#

Yes, you're a bigot Fitz. Not only that, but you're a liar. New Jersey ruled that gay couples are entitled to the same rights as heterosexual couples just as Vermont did. New York never ruled that procreation was the purpose of marriage and that this justifies limiting it to heterosexuals California, Massachusetts, Conneticut, New Jersey, and Vermont all ruled that gays are entitled to the rights of marriage, only Washington state and Maryland used that bigoted excuse - they are in the minority.

Allowing gay couples to marry in no way interferes with fostering procreation. The idea that couples that can't procreate are members of a class that can procreate is an oxymoron. Clearly those that cannot procreate are not members of the class that can. Contrary to what the Maryland supreme court falsely proclaimed opposite sex couples that are infertile or past the age of menopause DO NOT have the possibility of procreation By the same token humans can procreate and gay men and gay women are members of that class which can procreate. That both are not the biological parents is of no more more effect than that adoptive parents are not both biological parents. The law HAS NEVER ruled that adoptive families are lesser than biological families and the same applies to gay families.

Many gay couples do have children and those children deserve the protection of married parents. Procreation by itself is not sufficient, children must be raised to 18 and gay couples do that just as well as heterosexual couples. If you cared about children, and obviously you don't, you'd want the children of gay couples to have the protection of married parents. You oppose this because you're a bigot and your twisting, spinning, and torturous "logic" is just a smoke screen to cover your bigotry.