California's Gay Marriage Ban Overturned

Today a federal judge in California overturned that state's ban on gay marriage, ruling that it violates the 14th Amendment's command that no state may "deny to any person within its jurisdiction the equal protection of the laws." In response to a lawsuit filed by two same-sex couples, U.S. District Judge Vaughn Walker concluded that Proposition 8, a 2008 ballot initiative that amended California's constitution to prohibit gay marriage, "unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation."

The arguments for banning gay marriage are so weak, Walker said, that they fail even the highly deferential "rational basis" test, which applies in equal protection cases that do not involve a "suspect classification" such as race. "Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians," he wrote. "The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite sex couples." In addition to accepting the plaintiffs' equal protection claim, Walker agreed that Proposition 8 violates a "fundamental right" protected by the 14th Amendment's Due Process Clause—i.e., the right to marry the person of one's choice.

The decision is bound to be appealed and may ultimately reach the Supreme Court. The text of Walker's opinion is available here. The Los Angeles Times has excerpts here. I discussed the equal protection argument for federal recognition of state-approved gay marriages here and here. More to come.

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  • Jeffersonian||

    Is there some evidence that equal protection of the laws was not being applied?

  • ||

    You mean the fact that homos couldn't get married but straights could? That unequal protection?

  • Jeffersonian||

    Well, "homos" could get married to the same people straights could. Not even straights could marry someone of the same sex.

    Don't get me wrong, I think gays should be able to get married. I just don't think it should come about via decree. I don't see kritarchy as preferable to democracy.

  • ||

    It's not via decree, it's equal protection under the law. Why is this so hard for people to fucking understand?

  • Jeffersonian||

    Because, Epi, as I just showed, it isn't under equal protection. Absolutely everyone, regardless of sexual orientation, was able to marry precisely the same class of persons. To suggest that it's an issue of equal protection is to say that the "right" is to marry whomever or whatever you wish. I don't think we want to go there.

  • Tim||

    Are you really convinced by this argument? Doesn't sexual orientation have *something* to do with whom you partner up with? Gays don't want to marry the opposite-sex any more than straights want to marry members of the same sex. Ignoring this essential part of attraction is a wilfully shitty thing to do.

    Then, on top of that, you throw in that it will open up a "right...to marry...WHATEVER you wish". I know us gays are sub- or non-human in the eyes of the haters, but cut us a little slack. Or were you just exercised that the decision will open up marriages between people and cinderblocks or pocket wrenches?

    What a fucking asshat.

  • robc||

    Historically, marriage had very little to do with sexual orientation. Or even sex.

    Hell, historically?

  • Jeffersonian||

    Tim, I understand what you're saying and I'm sympathetic to it. But the idea behind this decision is far broader than just letting you and your beau marry. This is why I'm all for letting legislatures, not judges, work these things out.

  • Tim||

    And, as a persecuted minority who faces an inherently uphill battle at the ballot box, I would prefer to have my rights protected by judges in a constitutional republic, not the mob.

    (I don't know how black people got through the Civil Rights struggle without losing their minds. I get so angry that the commentariat view my rights as recreational sport. I need to go lie down...)

  • Jeffersonian||

    And, as a persecuted minority who faces an inherently uphill battle at the ballot box, I would prefer to have my rights protected by judges in a constitutional republic, not the mob.

    That just begs the question, it doesn't support your assertions.

  • ||

    Because that worked out so well in school desegregation, right?

  • ||

    ""Absolutely everyone, regardless of sexual orientation, was able to marry precisely the same class of persons. ""

    We are all able to go to the bathroom, and eat, so having blacks sit in one area, and use their own bathroom doesn't mean we are violating equal rights, does it?

    ""To suggest that it's an issue of equal protection is to say that the "right" is to marry whomever or whatever you wish. ""

    No one is aruging "whatever". People should be able to marry the one they want regardless of gender.

  • Michael Ejercito||

    People should be able to marry the one they want regardless of gender.


    But that right is not deeply rooted in our nation's history and tradition. To the contrary, laws imposing adverse consequences for people marrying whomever they pleased were upheld in Reynolds v. United States and Davis v. Beason .

  • ||

    "People should be able to marry the one they want regardless of gender."

    No one has the "right" to be married to the one they want. I know a lot of men who'd like to be married to Kate Beckinsale, but married someone else instead.

  • ||

    In Maine, first cousins can marry, in New Hampshire they can't. Denial of equal protection to NH first cousins who wish to wed?

  • ||

    Exactly. There is a rational basis for denying first cousin marriage. Some states choose not to deny it, some do. Under this judge's reasoning, away with those restrictions!

  • Geotpf||

    There is a legitimate reason not to allow cousins to marry (mutant children). There isn't one for gays.

    As for the fact that the laws are different in different states, that doesn't change anything. Just because there is a justified reason for banning something doesn't mean that thing has to be banned. But if there isn't a justified reason for banning something, it can not be banned.

  • Michael Ejercito||

    To suggest that it's an issue of equal protection is to say that the "right" is to marry whomever or whatever you wish. I don't think we want to go there.


    At least, not by judicial reinterpretation of the Constitution.

  • CJ||

    To suggest that it's an issue of equal protection is to say that the "right" is to marry whomever or whatever you wish. I don't think we want to go there.

    I do. That would expose government-sanctioned marriage for what it really is.

  • Death Panelist||

    You may not like it, but objectively Jeffersonian's take is valid for an argument of equal protection.

    (And it has to be said: We shouldn't crave the state's approval for our romantic/logistic entanglements.)

  • Tim||

    Valid if you place no weight on sexual orientation. Or just view the world as "straights only".

    But we've heard these dumb back-and-forth arguments a million times. Who cares. We won one, even if eventually we get returned to second-class status. I'm celebrating.

  • robc||

    A "win" would be ending state sanction of marriage altogether.

  • Rich||

    This.

  • Rich||

    @ robc's "win".

  • TXLimey||

    +100

  • Death Panelist||

    robc's "win"

    Hey! I said it first!

  • Brian E||

    Valid if you place no weight on sexual orientation.

    Why should I? Are you looking for validation or just consistent treatment in the eyes of the law? If you want the former, argue for gay marriage. If you want the latter, fight for the elimination of state marriage (or "civil unions" or whatever they want to call them) entirely.

  • Death Panelist||

    Valid if you place no weight on sexual orientation.

    Focusing only on the equal protection argument, I do not.

    The law applies equally to everyone. It prohibits anyone from marrying a close relative, more than one person and a person of the same sex. If everyone is going to think unions must be state-sanctioned, I have zero problem including gays in the lunacy, but I don't think it's an equal protection issue.

    But even if you do see it as an equal protection issue, objectively you have to at least acknowledge the argument against as valid, even if it's not as persuasive to you.

  • Fluffy||

    Then a law saying that no one could marry a person of a different race would also not violate equal protection.

    As would a law mandating that all members of the Republican party pay a special tax. After all, it would equally apply to everyone: "All persons who join the Republican party must pay a special tax."

  • ||

    O Rly? So straights being able to marry who they want, but gays not being able to, is valid?

    This line of argument is so strained it looks like Warty on the toilet trying to shit out the 72 oz. steak he ate the night before.

  • robc||

    Straights cant marry who they want. Sometimes because they say No. Sometimes because they are already married. Sometimes because they are a sister or first cousin. Sometimes because it would be advantageous to marry that same sex person for tax reasons.

  • Brian E||

    O Rly? So straights being able to marry who they want, but gays not being able to, is valid?

    No. Neither choice there is valid. I don't see how the state saying that two and only two people of either sex can get married is any better than saying that one man and one woman can be married.

    And please explain to me what a "straight" or a "gay" is anyway. Did I miss the branding ceremony where everyone else got one of those two labels stamped on their ass?

  • Warty||

    Dude, you must not be eating enough meat. That shit slides right out.

  • Brian E||

    Because it isn't. People who don't want to marry at all still bereft of equal protection, as are people who want plural marriages.

  • Michael Ejercito||

    It's not via decree, it's equal protection under the law. Why is this so hard for people to fucking understand?


    Gays have the same right to marry as Mormons do.

    The Supreme Court never ruled that the government could prohibit Mormons from marrying anyone - just people who are already married. Similarly, the Supreme Court dismissed an appeal that alleged that men had the right to marry men. They did not go so far as to issue a ruling that men, or homosexuals, could not marry anyone .

  • ||

    Same argument that was struck down in Loving v. VA (Blacks could only marry other blacks, whites could only marry other whites, no problem because blacks can't marry whites and whites can't marry blacks).

    Courts are a needed anti-majoritarian force. Without them, we suffer from the tyranny of the majority.

  • Some dude||

    It isn't the same thing. A man and a woman are different in ways a white man and a black man aren't.

  • ||

    This is your fucking argument? Holy fucking shit, could you reach a little more? You're almost to the moon.

  • cynical||

    Wait, so you're saying that having separate male/female bathrooms is as vile as having separate white/black bathrooms?

    Yes, differences between the sexes are handled differently, because our legal system still has some basis in reality, where males and females are by nature quite different, much moreso than people of different races.

  • Brian E||

    That statement is both obviously true (duh, sex is different from race) and facile. There's no principled way in which using sex to classify people is different than using race.

  • Government of Wolves||

    Yes there is, if you take the unique roles of men and women in a child's life as determinative, and child-rearing as the reason for state-licenced marriage.

  • Fluffy||

    Maybe, but the state doesn't get to do that if it violates equal protection.

    "Wah, we want to support the unique roles of men and women and child-rearing and blah blah blah".

    Since none of that crap is in the constitution, and equal protection is, I guess child-rearing gets to lose out today. Oh well.

  • Michael Ejercito||

    Since none of that crap is in the constitution, and equal protection is, I guess child-rearing gets to lose out today. Oh well.


    The Supreme Court rejected that argument in Baker v. Nelson , when they dismissed an appeal alleging that denying a marriage license to a same sex couple violated the equal protection and due process clauses of the 14th Amendment. A dismissal for want of a substantial federal question is a decision on the merits ( Hicks v. Miranda )

    Only the Supreme Court can overrule or limit the scope of Baker - or Reynolds v. United States, Davis v. Beason , and Loving v. Virginia .

  • Government of Wolves||

    Except an 'understood public meaning' interpretation of 'equal protection' would not apply to sexual orientation and the writers of that clause did not mean it to apply to that. They, did, however, understand 'that crap', considered it crucial and set up a constitutional amendment meant to ensure that that institution was not closed to blacks.

  • Geotpf||

    But sterile straight people can marry other sterile straight people of the opposite sex, so the "OMG gheys can't have kids" argument doesn't work.

  • Michael Ejercito||

    Courts are a needed anti-majoritarian force. Without them, we suffer from the tyranny of the majority.


    Michael M. v. Superior Court

  • Michael Ejercito||

    Courts are a needed anti-majoritarian force. Without them, we suffer from the tyranny of the majority.


    The historical and traditional definition of marriage is not tyranny. Much less so in California, where same-sex couples have the right to enter into officially recognized and committed family relationships.

    By the way, how did the Supreme Court rule on legal challenges against laws that imposed adverse consequences on polygamists and advocates of breaking laws against polygamy?

  • ||

    They have ruled wrongly, thats how.

  • Cytotoxic||

    Sorry, you don't get to have your definition of marriage enforced by the state. Too fucking bad.

  • Michael Ejercito||

    Sorry, you don't get to have your definition of marriage enforced by the state. Too fucking bad.


    We will when the Ninth Circuit stays the ruling pending appeal, and when it ultimately follows the Eighth Circuit's lead.

  • I, Kahn O'Clast||

    Look at it this way: rather than giving gays a new "right" to marry members of their own sex, it's actually giving you that right as well. You can now marry a member of your own sex.

    This concept that simply because gays could marry opposite sex partners made them equal under the law has always struck me as moronic.

  • Fist of Etiquette||

    ...it's actually giving you that right as well.

    This right of which you speak, it is more a right to government benefits, no? I mean, take favors granted by the government out of the equation and anyone can act the role of a married person, in effect be married, can they not?

  • I, Kahn O'Clast||

    Not in the "legal" sense. E.G. when a man claims to be married to a woman (and even if she believes it to be true and claims the same) yet he is married to someone else, that man and his non-wife are not entitled to the benefits of that man and the wife to whom he is married. Should he die, the one to whom he is legally married would be entitled to his estate as well as his social security benefits. The non-wife may sue, but under the law she would be facing a serious uphill battle.

  • Fist of Etiquette||

    But it seems to be a right to benefits, granted by the government, to all those licensed to be married solely because they chose to wed.

    My point is, the right to free speech doesn't get you a soapbox from the government, it prevents government from shutting you up. The right to bear arms doesn't get you a government-provided gun, only protection from government disarming you. Even the right to due process is preventing government from holding you indefinitely and without cause (an action government initiated).

    The "right" to marry is not like any of those enumerated rights. It doesn't stop government from encroaching on your liberty, it compels government to hand you a benefit (be it built-in estate entitlements or legal compulsion to insurance benefit sharing or whatever). Is there another right that I'm missing that does that?

  • FTFY||

    But it seems to be a right to benefits, granted protected by the government, to all those licensed to be married solely because they chose to wed.

    A wedding in a legal sense is two people entering a contract. It's a very specific contract with stupid rules governing it (most of the stupidity meant to control sex, which is why we're having this conversation at all), but a contract none-the-less. Enforcing contracts is one of the few things I want the government to do. But I don't want them telling me who I can and can't enter a contract with.

    As for tax benefits, etc., it's not any different than any of the other handouts. It should be stopped, but if it's allowed, sexual orientation (which, 14th amendment aside, government does not have the explicit power to regulate) shouldn't be a factor.

  • Fist of Etiquette||

    Enforcing contracts is one of the few things I want the government to do.

    I agree with most of what you've said, however I still cannot see this as a rights violation. From government's point of view, it should just be a contract like any other. It's not a right.

    I stand by my original "granted". They are benefits handed out because of the ridiculous notion that people need extra incentives to form a family structure or civilization will collapse from familial ennui.

  • Michael Ejercito||

    This concept that simply because gays could marry opposite sex partners made them equal under the law has always struck me as moronic.


    Why would this be moronic?

    The anti-bigamy laws did not prevent Mormons from marrying- they had the right to marry one person of the opposite sex just like Protestants.

  • Leroy||

    Jeffersonian,

    Could it be argued that because the law would ban marrying someone of your same gender, could it be argued that the law does not afford equal protection to males and females?

    For an example, a woman could marry a man, however for a man to do the same, it would be illegal.

    I don't think you could argue this if you use homosexuals as the group not receiving equal protection, as the law would apply to homosexuals in the same way it is applied to heterosexuals.

  • Death Panelist||

    Objectively, this is a valid argument for equal protection violation.

  • Michael Ejercito||

    Objectively, this is a valid argument for equal protection violation.


    But remember that gender discrimination is held to a lower level of scrutiny than racial discrimination. See Minor v. Happersett , Baker v. Nelson , Michael M. v. Superior Court , and Rostker v. Goldberg .

  • #||

    the caviet with equal protecion clause though is that the restriction being overturned must be denying a right that is "deeply routed in the history and traditions" of the country.

    If you do use the equal protection clause as the argument for same sex couples, then why is the retriction on multiple marriages more legitimate then a single marriage of either sex?

    Extend to other government extended benifits based on interpersonal relationships. I can only claim a child tax credit for my child. If i have another relative living with me, is that other relative being non-equaly treated by me not being able to claim the same credit for him?

    No, because we have no societal concept of "child" that is inclusive of my uncle.

    This is why there is this criteria for equal protection clause arguments. Up until very recently, the notion that marriage was anything but a single man and women was considered absurd. And currently I dont think there is a consensus notion of the relationship either way.

    Another way of looking at this would be if a judge determines that a 2 celled fetus is indeed a person and is not being equally treated in the "extension of benifits and protections" and overturns roe based on it. But he could not do this on equal protection clause grounds because there is not a societal consense that a 2 celled fetus is indeed included in the concept of a "person." It is not "deeply routed in the traditions and history."

    I like the result outcome of this case - i was against my own state's gay marriage ban amendment, but I am weary of the means and what the broader implications are of this precident.

  • Leroy||

    Ok you lost me on this one.

    My argument wasn't that equal protection applied due to homosexuals being unequally protected. My argument was that men and women should have equal protection to marry both men and women.

    So in the case of women not being able to marry men, women were not afforded equal protection under law. Vice-versa with men.

    In the case of polygamy this would not apply, as the law would be applicable to men and women of all sexual orientations and genders equally.

    As far as the child tax credit, that would hinge on whether or not the government classifying 'minors' and using the classification in this way is in violation of equal protection. I don't know the law well enough to tell you if the government is within its authority to do this.

    As for the 2-celled fetus, the law defines the point in which a fetus is a human (I believe). This is the same concept as regulations dealing with minors.

  • Jeffersonian||

    That's interesting. I hadn't thought of that. Good post!

  • Sirkowski||

    You fail logic forever.

  • ||

    One question: Don't you have to at least have one husband and one wife to have a marriage? Who is which in a same sex marriage?

  • JSinAZ||

    Why should you care?

  • Bob||

    Seems kind of valid to me... wouldn't "marriage" sort of require that you have a husband (man) and a wife (woman)? So is two husbands or two wives a marriage?

    Since when can the government change the definition of the word "marriage" to mean something that it has not meant in the past? Kind of a dangerous precedent don't you think?

  • JSinAZ||

    When did governments start licensing the state of marriage? This was not always the case, and I suspect has more to do with the combination of official religions with nation-states.

  • Skid Marx||

    "The decision is bound to be appealed and may ultimately reach the Supreme Court."

    That's a feature not a bug.

  • Government of Wolves||

    This is just ridiculous. I support gay marriage, within limits, but Californians should be allowed to define a voluntary institution that involves no coercion or force for themselves.

  • DesigNate||

    The Government is explicitly set up to protect the rights of the few against the mob of the many. People tend to forget that we aren't supposed to be a "rule of the majority democracy" but a "republic".

  • Government of Wolves||

    This isn't a 'rights' issue - it's a created institution, not a disability imposed on your natural rights to life, liberty and property.

    This is one of those mercifully few issues where the shape of the institution really is for society to decide, within democratic government or without..

  • ||

    As long as your "created instituation" isn't a government program you're fine but you can't have government giving out favors to the married and denying those favors to a certain class. The "definition" of marriage is a crock and at one time miscegenation laws were defended with the same rhetoric people are using now for straight marriage laws.

  • Michael Ejercito||

    The "definition" of marriage is a crock and at one time miscegenation laws were defended with the same rhetoric people are using now for straight marriage laws.


    And anti-bigamy laws were defended with the same rhetoric- successfully.

  • Government of Wolves||

    I support gay marriage, but for much the same reasons as those who oppose it do so. Marriage is not a state institution because of any state interest in love, or even partnership, but in child-rearing.

    The panoply of social science literature shows that marriage-raised children, even when adjusted for socioeconomic status etc, were less likely to suffer psychological problems, to engage in crime, and were more likely to earn more in the future. These benefits reduce social and government costs in the future, creating a lower-taxing, safer society. I think that for the state to maintain such a beneficial program, which operates by forgiving tax obligations, not redistribution, is excellent.

    I think that gay marriage is an excellent, but not if it is just another loosening of the bonds as no-fault divorce laws were. I would rather see a tighter, more family-designed marriage contract that permits gays to join.

    Emphatically, marriage is NOT a vehicle for personal fulfilment - if it were, the state would have no business in it.

  • Brian||

    The equal protection nonsense baffles me. All citizens may apply for and receive their license under the rules set forth by the law. This is the equivalent of a 12 year old crying foul over not getting a drivers license or a layman being made he/she can't get a medical license. One man and one woman can always get this license. Gay or otherwise.

    Love is not a requirement of the license.

  • ||

    This line of argument baffles me. Anyone who isn't a disingenuous asshole can realize how retarded it is to say "homos can get married just like straight people, to people they have no interest in marrying" and act like that's a serious argument. Gay or otherwise.

  • Some dude||

    "Only retarded people think it is a serious argument" has to be some kind of logical fallacy.

  • Jeffersonian||

    Sorry, it is a serious argument. You can't just wave it away.

  • ||

    O Rly? Really? You think that "technically they can get married" is a serious argument.

    I literally don't know what to say to people like you. I can't tell if you're just fucking stupid, homophobic and disingenuous, or something else.

    This is like me saying "technically, you can murder people in self defense, so you have the right to murder people just like people who are defending their lives do". It makes no sense.

  • Jeffersonian||

    O Rly? Really? You think that "technically they can get married" is a serious argument.

    Not only is it a serious argument, it's iron logic. It's why you cannot refute it.

    As I said, I'm all in favor of gay marriage coming about via the democratic process. I have zero problem with states that have done so. I have a big problem with judges imposing their sophistry on an electorate that has made its voice clear.

  • ||

    Who gives a flying fuck what the electorate wants? Tyranny of the majority isn't a winning argument, dude.

    You can either have the law, or mob rule via democracy. Pick one or the other.

  • Jeffersonian||

    Who gives a flying fuck what the electorate wants? Tyranny of the majority isn't a winning argument, dude.

    You can either have the law, or mob rule via democracy. Pick one or the other.

    But, as I've shown conclusively, this decision has precisely zero to do with the law.

    What, exactly, is the principle you're defending here, Epi?

  • ||

    The law, long settled, says that when you're looking at an equal protection case, that most anything that doesn't involve a "protected class" is looked at under the "rational basis" test. Meaning, that in order to overturn a law, the party fighting against the law must prove that the law is not "rationally related to a legitimate public purpose". It's not a high burden to meet.

    That being said, it has been done before. Look up Romer v. Evans. This isn't a unique ruling.

  • Michael Ejercito||

    The law, long settled, says that when you're looking at an equal protection case, that most anything that doesn't involve a "protected class" is looked at under the "rational basis" test. Meaning, that in order to overturn a law, the party fighting against the law must prove that the law is not "rationally related to a legitimate public purpose". It's not a high burden to meet.

    That being said, it has been done before. Look up Romer v. Evans. This isn't a unique ruling.


    Romer dealt with a law that had a "sheer breadth" that was "so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests."

    On the other hand, the Mormon anti-polygamy cases, including Reynolds v. United States , Murphy v. Ramsey , and Davis v. Beason clearly show that protecting the traditional definition of marriage is a legitimate state interest.

  • ||

    "On the other hand, the Mormon anti-polygamy cases, including Reynolds v. United States , Murphy v. Ramsey , and Davis v. Beason clearly show that protecting the traditional definition of marriage is a legitimate state interest."

    And just like the supreme court cases upholding japanese internment, for example, those cases are simply wrong.

  • ||

    "Conclusively" does not seem to mean what you think it means. In no way have you convinced a number of us that the decision has nothing to do with the law.

    And your appeals to the majority are disturbing, no matter how much you say "kritarchy".

  • Jeffersonian||

    "Conclusively" does not seem to mean what you think it means. In no way have you convinced a number of us that the decision has nothing to do with the law.

    You haven't even tried to refute it, Epi.

  • ||

    It's your argument and you have failed to make it in any way that convinces me. There is nothing to refute, as I do not even recognize your argument as being anything other than barely masked homophobia; I am not saying this as an insult (though it might be taken as one)--I am saying it because I cannot see how one can put forth your argument honestly without underlying homophobia. It boggles my mind.

  • ||

    If the 4th Amendment were to be put up to a nationwide vote tomorrow, I guarantee you it would be overturned, by a wide margin. Given that the people would have "made their voices clear", would you support the loss of 4th Amendment protection?

    Why is it that courts are seemingly encouraged to ignore the supreme law of the land if it's what the people want?

  • James C Bennett||

    "Given that the people would have "made their voices clear", would you support the loss of 4th Amendment protection?"

    I would not support an amendment that repealed the 4th Amendment, but, if it such an amendment was adopted lawfully via the amendment process described in the Constitution, I would also not support the SCOTUS striking down that amendment. I would instead advocate passing an amendment that reinstated the 4th Amendment protections, and, if that campaign failed, violent revolution. Process matters.

    For the same reason, I am very glad that the California Supreme Court based its decision on the federal Constitution rather than the argument that Prop 8 violated the California Constitution, which had been proposed. Though I voted against it, Prop 8 was passed through the lawful (and horrible) amendment process described in the California Constitution, and is therefore "constitutional" under the California constitution by definition. Again, process matters.

  • Tim||

    Well, today's decision made short work of all that mighty-strong "iron logic." Pwned.

  • Jeffersonian||

    Well, today's decision made short work of all that mighty-strong "iron logic." Pwned.

    Ever hear of "appeal to force," Tim?

    I'm a libertarian, but I'm not too comfy of the idea of a libertarian kritarchy.

  • robc||

    Not at all. Court decisions are idiotic the majority of the time.

  • Scott||

    +100

  • ||

    Uh, no, Jeff, it's not a serious argument. It's just smugness. Which is why this is the only response you'll get from me, and others like me on this.

    And you earn extra derision points for pissing on our parade.

  • Government of Wolves||

    It is, because they see the marital bond as being forged primarily for the raising of the young, and see the complementary natures of men and women as being essential to that endeavor.

    Actually, it's within this line of reasoning that I support gay marriage, not as an expression of love (the state has no business there) but as a stable environment for those gay coulpes interested in raising a family.

  • Michael Ejercito||

    Actually, it's within this line of reasoning that I support gay marriage, not as an expression of love (the state has no business there) but as a stable environment for those gay coulpes interested in raising a family.


    Of course, gay couples can have that stable environment under a different name.

  • Government of Wolves||

    True - I would prefer 'civil unions' if that was less divisive. The only issue would be whether the alternate name encouraged gay couples to treat the alternate institution as less serious than 'marriage', which would defeat the point.

  • robc||

    Epi,

    What the fuck do "sexual orientation" or "love" have to do with marriage?

  • ||

    Nothing, in the eyes of the state.

  • robc||

    Why the fuck is the state involved at all?

  • BakedPenguin||

    This is a good question, without a good answer.

  • Jeffersonian||

    But even you said "consenting adults," BP. Doesn't that involve the fucking state making those distinctions?

  • BakedPenguin||

    Again, is it in the Constitution as an enumerated power? It may fall to the states, but then you'll have 50 (potentially) different decisions.

  • Jeffersonian||

    Again, is it in the Constitution as an enumerated power? It may fall to the states, but then you'll have 50 (potentially) different decisions.

    Exactly. It's not an enumerated power and thus a state issue.

  • BakedPenguin||

    And up to the courts for the final determination. That you didn't like this state's court's determination is too bad.

  • Robert||

    The state is involved because people take cases to court that hinge on whether person A is person B's spouse.

  • Government of Wolves||

    Exactly, which is why it is not a denial of 'equal protection' to restrict marriage to M + F, given that the only state interest in marriage, and the only reason for various civil benefits attached to it, is the preservation of an institution that has proved to be an excellent incubator for child-raising precisely because of its restrictive nature.

  • Michael Ejercito||

    This line of argument baffles me. Anyone who isn't a disingenuous asshole can realize how retarded it is to say "homos can get married just like straight people, to people they have no interest in marrying" and act like that's a serious argument. Gay or otherwise.


    And what about Mormons?

    Is it not enough that they can marry one person of the opposite sex who is not married to someone else, just like gays?

  • JSinAZ||

    In what way is the state attitude toward homosexual unions not as illegitimate as it's previous attitude regarding miscegenation? You repeatedly reference polygamy as an obviously analogous situation, when it obviously is not. Marriage is a contract drawn between two parties, which was the fundamental issue decided with respect to polygamy.

    As to progeny, the license I received from the state says nothing about children as a prerequiste to marriage (and the syphilus testing requirement was removed years ago). Additionally, my wife and I knew we would never produce offspring. Given the ugly utilitarianism being offered in this thread regarding marriage, did we commit fraud?

  • DesigNate||

    Yes. How dare you!

    (sarcasm if anyone is confused)

  • Michael Ejercito||


    In what way is the state attitude toward homosexual unions not as illegitimate as it's previous attitude regarding miscegenation? You repeatedly reference polygamy as an obviously analogous situation, when it obviously is not. Marriage is a contract drawn between two parties, which was the fundamental issue decided with respect to polygamy.


    No.

    At the time, marriage was defined as a contract drawn between two parties of the opposite sex .

    In fact, one of the antipolygamy cases (upholding the law against an equal protection challenge, among other challenges) quoted another decision that stated that marriage was between a man and a woman.

  • John Galt||

    Rational basis you idiot.

  • ||

    Although I support gay marriage, I can't help but think this decision is one more gift to Republicans in an electoral season that seems to be the gift that keeps on giving to Republicans...

  • Tim||

    Gay-baiting is ALWAYS a gift to Republicans -- until it isn't. So let's find out.

  • Jeffersonian||

    As I recall, this was a judge appointed by Bush I, so I don't see Republicans being particularly positioned to use it. That said, if they do, they should harp on the fact that a judge overstepped his authority yet again, not that gays should not be allowed to marry. That's the issue.

  • Michael Ejercito||

    That said, if they do, they should harp on the fact that a judge overstepped his authority yet again, not that gays should not be allowed to marry.


    He was bound by Baker v. Nelson and Adams v. Howerton .

  • ||

    Well, the fact that the judge is a Republican appointee is a pretty fine point. What they are going to say is that this shows the need for the Constitutional Amendment, since the judge is legislating from the bench, and Republicans need to elect socons to do that. I don't agree with that rationale, but it is clearly going to be effective in motivating the social right to come out to vote.

  • Michael Ejercito||

    Well, the fact that the judge is a Republican appointee is a pretty fine point. What they are going to say is that this shows the need for the Constitutional Amendment, since the judge is legislating from the bench, and Republicans need to elect socons to do that. I don't agree with that rationale, but it is clearly going to be effective in motivating the social right to come out to vote.


    The problem with an amendment is that we have a history of circuit level judges interpreting the Second Amendment out of existence.

  • ||

    Dude, I'm gay. I am happy about the decision. But I think people are deluding themselves if they don't think this will pump up the Republican base this November. That is just a political fact.

  • ||

    Don't forget that the Democrats consistently tell gays "we'd like to help you but this is a crucial election and you'll just have to be patient..."

    So they reap the harvest of their own cowardice. Too bad.

  • ||

    Agreed. They have done absolutely nothing in the past two years on gay issues (they will almost certainly let don't ask don't tell slip through the cracks before leaving town for the election campaign). A republican judge and a republican former solicitor general have done more for gay rights than the Democrats have ever shown any inclination to do.

  • Michael Ejercito||

    Don't forget that the Democrats consistently tell gays "we'd like to help you but this is a crucial election and you'll just have to be patient..."


    Where, outside of San Francisco and West Hollywood, do gays themselves constitute a significant part of the electorate?

  • SIV||

    Decatur GA, Atlanta GA, Pine Lake GA...

  • Geotpf||

    Palm Springs.

  • Geotpf||

    I don't quite see how it will help Republicans, except maybe in getting more fundraising dollars from fundies. Gay marriage was a close call in California to start with. If Prop 8 was on the ballot this November, it might fail. (That is, the people who are most against gay marriage are old people who are dying off and the people who are most for gay marriage are young people who are just now becoming old enough to vote.)

    If this ruling wasn't issued, Prop 8 would almost certainly have been overturned by another proposition in Nov 2012, IMHO.

    It will be interesting to see how the Supreme Court rules on this. There is/will be a 5-4 conservative majority, but Kennedy could possibly swing towards the pro-gay marriage side. Of course, if it reaches the Supreme Court, gay marriage would be legalized nationwide.

  • Pink Cosmotarian||

    Raaaaci...

    Er... Homophooobe!!

  • Jeff P||

    FABULOOOOUS!

  • Some dude||

    It... never... ends...

  • mj86||

    If a government can redefine a universal human institution to include something it has never included - without the support of the public - what limit does government authority have?

  • Government of Wolves||

    Uh, no limit, idiot. Haven't you read the Commerce Clause?

  • mj86||

    Thanks Pete Stark.

  • ||

    Yeah, and the public didn't support civil rights for blacks, either. So, your point is majoritarinism?

  • Robert||

    No, the point is the spontaneous order that makes language and common law. Like the recognition of terms that referred to weights of precious metal such as thaler/dollar, which were later redefined unilaterally by gov't.

    "Spouse", "married", etc. have a customary meaning that predates any human institution such as state or church. Marriage probably predates even humanity among hominids! Only in a world where people assume the state invented and regulated such things would consideration be given to legally redefining marriage to include same sex couplings.

  • JSinAZ||

    Are you concerned that your priest will be forced to marry the queers at the point of a gun? You do seem all sorts of righteously indignant!

    In the ideal world, there would be no governmental benefit derived from a marriage contract. In the real world, there is - and the judge found no rational basis to distinguish between the pairings of individuals who wish to be party to this kind of contract.

    Console yourself with the thought that there were plenty of outraged race-purists upset about the incipient mongrelization of the species, and yet now most would argue that repeal of the miscegenation laws was an expansion of liberty. Perhaps you feel differently,

  • Robert||

    What I'm mostly concerned about is that libertarians have been so easily suckered into support for exactly the sort of thing that, for the reasons I go into in this thread among other places, is a most insidious encroachment by the state against the rule of law, which has worked much harm in the past. It's so insidious that when I first looked at the issue in the 1990s, I thought, sure, why not "marriage equality"? It invites a facile, and so very wrong, analysis.

  • JSinAZ||

    Personally, I liked how the state encroached upon the law of the Confederacy, and kicked the living shit out of it.

    Are you a fan of bad law, too? Are you the sort who disconnects the frontal lobes when authority says "do not", or "you must"? How tightly constrained is your existence, and how dependant on the will of others.

    Now, I'm sad.

  • Michael Ejercito||

    Yeah, and the public didn't support civil rights for blacks, either. So, your point is majoritarinism?


    How did equal protection become enshrined in the Constitution without public support?

    Remember, only a quarter of the states plus one could have prevented the 14th's ratification.

  • Keith||

    I think that happened after the southern states found themselves looking down the barrel of a gun. The civil war, remember?

  • mj86||

    Homosexual relationships have never been considered marriages in the recorded history of the institution, even in times and places where homosexual relationships were open and accepted. I don't believe the government has the power to wave its magic wand and erase 5,000 years of history. Government should not be used to shape culture.

    Your apparent belief that there are only two possible worlds, one with unlimited government power and one where blacks don't have civil rights, is utterly bizarre, should be beneath any american, and shows the complete lack of integrity of those arguing your side of the issue.

  • random internet user||

    Once again, Reason commentators prove themselves to be bigots and conservative sympathizers. Which is a shame, because Hit & Run is one of the most intelligent blogs on the internet.

  • random internet user||

    The blog commentators, that is

  • ||

    How exactly do you come to that conclusion, since we've already seen both sides of this argument with a couple of different lines of thought supporting each side?

  • BakedPenguin||

    Because not everyone agrees.

  • ||

    Ooooooh, am I a bigot, too?????/? Yay. Whee.

  • be-boppin||

    I thought some of the other comments here were stupid...until I get to this.

  • ||

    If government must involve itself in marriage, where it has absolutely no business, then the least that it can do is treat everyone equally and let people marry whomever they wish. I don't get why anyone is bothered by gay marriage. If you aren't gay, don't marry somebody of the same sex. Why should you get to tell other people they can't marry somebody of the same sex? Of course, all this could be solved if government got itself out of the marriage business altogether- then voluntary groups could define it however they please.

  • Robert||

    That's like arguing that if gov't must involve itself in money matters, it must let the meaning of "dollar" be flexible.

    As long as gov't is involved in some way with such things as blood banks, why can't everyone be equal and declared to have blood type O, which everyone must accept equally in transfusions, rather than letting the vagaries of genetics intervene?

  • DesigNate||

    -10

  • Davey B||

    Oh goody! It's time again to watch "libertarians" cheer on the black-robed petty tyrants as they rape the Constitution and wage cruel war on the will of the people. Just like after Lawrence v Texas.

  • random internet user||

    Shut up conservative idiot

  • Davey B||

    "Rule by decree" libertarianism shows itself again.

  • random internet user||

    What if the will of the people is to raise taxes and impose overburdening regulations on free enterprise? Would that be wrong? and why?

  • Jeffersonian||

    It's not a matter of what's right, RIU, it's a matter of what is legally correct.

  • BakedPenguin||

    Why does the government have any right to tell any consenting adult they cannot get married to any other consenting adult?

    Fucking gay marriage, polygamy, polyandry, group marriages. Where in the fucking Constitution is the power given to the government to define marriage? Did I miss that part in POS 1041?

  • robc||

    Nowhere, which is why the solution is to get them the fuck entirely out of the marriage business.

    Adding extra people in the loop is additional tyranny.

  • BakedPenguin||

    ...the solution is to get them the fuck entirely out of the marriage business.

    Agreed.

  • Jeffersonian||

    Why does the government have any right to tell any consenting adult they cannot get married to any other consenting adult?

    Why do you limit your range to consenting adults, BP? Why aren't the rights of those who love children included in this equal protection argument?

    See where we're going here? By saying "consenting adults" you immediately invoke the power of government, do you not?

    Fucking gay marriage, polygamy, polyandry, group marriages. Where in the fucking Constitution is the power given to the government to define marriage? Did I miss that part in POS 1041?

    The Tenth Amendment.

  • BakedPenguin||

    The 10th amendment argument won't hold water. It depends on the decision of the Supreme Court as to whether the "power to determine marriage" is something that should be held by the individual states, or by the people.

    Same with the definition of an "adult" for that matter, since neither of those are explicitly addressed by the Constitution.

    Meaning that 50 different courts could find 50 different results. Which is why robc is absolutely right in saying the government should get the fuck out of the marriage business.

  • Jeffersonian||

    The 10th amendment argument won't hold water. It depends on the decision of the Supreme Court as to whether the "power to determine marriage" is something that should be held by the individual states, or by the people.

    Huh???? And where would the SCOTUS look for guidance on making this decision?

  • James C Bennett||

    Themselves. The 9th and 10th amendments, probably unintentionally, grant massive amounts of power to the judiciary branch. They are, of necessity, extremely vague, and the judiciary gets to interpret the laws. Now, the Supreme Court has been too frightened of this power to ever make use of it, instead couching their decisions in the "penumbras" of other amendments. I don't think that's a necessarily a good thing though. 200+ years of a "SCOTUS decision based on the 9th or 10th Amendment/Constitutional amendment if they go to far" feedback loop would have been more honest and might have robbed them of their mystique, making people view them as just another group of politicians, which is what they are.

  • Government of Wolves||

    Try the STATE constitutions. Which is exactly why this is none of the Federales' business.

  • BakedPenguin||

    So it would wind up decided at the state Supreme Court level?

  • ||

    The Constitution grants the federal government powers, not states. State governments predate the Constitution and can exercise whatever powers are consistent with their own constitution and are not forbidden by the federal constitution.

  • Slap the Enlightened!||

    "Rule by decree" libertarianism shows itself again.

    Silly Davey. Don't you know that liberty means putting a thumb in eye of everyone who's white, straight and male?

  • Scott||

    How the hell is this a thumb in the eye of straight people? If anything, this is a removal of thumbs out of the eyes of gay people.

  • Michael Ejercito||

    How the hell is this a thumb in the eye of straight people? If anything, this is a removal of thumbs out of the eyes of gay people.


    Except in California, the thumb was not really there.

    Same-sex couples had the right to enter into officially recognized and committed family relationships, even before this ruling.

  • ||

    I've been waiting for this day, Davey B, the day when socons like you throw tantrums because it's the beginning of TEOTWAWKI.

    Enjoying your sweet, sweet tears of rage and impotent frustration.

  • ||

    If marriage was a private matter between two people, or a religious rite of a church only, then the gay's would have no argument. But it is not that way in our society. Marriage has a lot of legal benefits that can be had without marriage, but only if you want to drop several thou in legal bills to arrange all the paper. Even then, the tax issues still persist.

    A gay couple here in town did the lawyer thing. Cost them $1500 in legal fees. My wife and I got a marriage license for $25. Nebraska's motto is "Equality Before the Law". This was a hard fought motto and if it means anything, then it means that $1500 is not equal to $25. Either make gay marriage legal or take away the civil benefits of marriage.

  • robc||

    Marriage is a relgious rite only.

    Period.

  • ||

    Hahahahahahaha....

  • Robert||

    Marriage predates religion. All the church, and the state, did was acknowledge marriage.

  • JSinAZ||

    So? The church and state were big on acknowlegding slavery as well. As an institution, it had much history and acceptance everywhere in the world.

    Fortunately, western civilization eventually moved in a different direction.

  • robc||

    take away the civil benefits of marriage.

    I agree.

  • ||

    Don't you ever fall in love with a foreign girl. She won't be able to settle with you in the States. Or you're perhaps a true open-border-type libertarian.

  • robc||

    I am, at least WAY WAY WAY more open than now. I see no reason for any quotas at all for people coming to US to live/work.

  • Brian E||

    Why am I allowed to sponsor someone because I'm sleeping with them, but not because I just really like them and think they'd make a good neighbor, friend and citizen?

  • JSinAZ||

    The phrase you want is "skin in the game", although maybe not appropriate in context...

  • Brian E||

    Either make gay marriage legal or take away the civil benefits of marriage.

    The second of those options is the right fix. It's stupid to have marriage or civil unions recognized in law at all.

  • robc||

    ++++++

  • Nephilium||

    Or make Civil Unions recognized, but with no limits on them. Let those Civil Unions be what decides things like hospital visitation, inheritance, benefits, etc...

    Limit marriage to being just a religious ceremony...

  • robc||

    Why do we need civil unions at all?

  • BakedPenguin||

    Because the social engineers of the right (or left, for that matter) are very unlikely to take away the "benefits" of marriage anytime soon, when their political opponent is just waiting to say "he's anti-marriage!!!11!!"

  • Brian E||

    For any case where there's a benefit to marriage that isn't available by contract or agreement to any two random people, there's an injustice. People who choose not to get married notably either get shafted or have to use contracts and living wills to accomplish much the same thing. Fix these injustices and state marriage becomes irrelevant.

  • Government of Wolves||

    Because of those pesky things - children. Quite apart from the numerous and well-documented psychological and future-based (chances in life) advantages of marriage for children, even correcting for socio-economic status, etc, some form of legal structure is necessary to sort through disputes over parental separation, responsibility for welfare, etc.

  • robc||

    advantages of marriage for children

    Im not opposed to marriage. Im opposed to state sponsored marriage. My opposition to state licensing of marrigage is based on this:

    "Therefore what God has joined together, let man not separate." -- Matthew 19:6

    That, to me, makes marriage a religious rite that the state has no business in. Licensing grants the power to not license, allowing man to separate.

  • ||

    "Matthew 19:6" is some sort of reference to xtian mythology, right? So, you think that your preferred fallacies, mountebanks and hobgoblins is the basis for a rational system of government.

    That's special.

  • Brian E||

    OK, try this one on for size: a woman sleeps with a man whose name she doesn't know and who she'd rather not have a child with. Through no fault of her own, the protection fails and she winds up pregnant. She's personally opposed to abortion and doesn't want to give the child up for adoption. Her parents and her best friend agree to help her raise the child.

    How do we "sort through disputes over parental separation, responsibility for welfare, etc."? If you can figure this out, then you can accommodate the more common two-parents-only case without legal marriage.

  • Government of Wolves||

    It's not about the specific cases, it's about having a generally accepted structure that helps people to know what they're getting into, and helps courts to protect the welfare and stability of a child's life WITHOUT interfering too much in parental rights.

    If you accept a role for government in protecting children's welfare, then having a clear structure reduces the scope for governmental abuse, as it clearly delineates the situation and what the adults' role is. Your hypothetical, is exactly the kind of situation where the courts could trample on self-determined arrangements with capricious decisions over differing persons' rights to access and obligations to support the child.

  • Brian E||

    What? You no make sense. Figure out how to make the hypothetical I posed work WITHOUT allowing the courts to trample all over the situation, and the solution for the ordinary case will fall right out.

  • Government of Wolves||

    The point is: if your situation goes south, by what standard will a court assign custody, responsibility, etc for the child? While the woman, her friend, and her parents have self-organised for the child, if they fall into a dispute, how is the court to respect the rather structureless arrangement they formed in resolving it? Legal structures for child-raising, that assign roles based on life, biology and free contract allow people to know what they are doing, and know how the courts will treat them. In a legal desert with no structure, the court's reach is unlimited - when people form a contract, including a marriage, they are declaring how they wish a court to treat them in the future.

  • The Angry Optimist||

    Pregnancy happens to women. Therefore, women are solely responsible for pregnancies.

    Problem solved.

  • Nephilium||

    To cover the current legal crap that's currently associated with marriage (besides the tax differences... just kill those completely).

    I can see them eventually going away... but that's a different fight.

  • Brian E||

    Let those Civil Unions be what decides things like hospital visitation, inheritance, benefits, etc...

    I don't want to assign all of those things to the same person. Some I want to assign to multiple people. Where's my equal protection now?

  • Nephilium||

    Then write up all of the legal documents that grant limited rights to all of the various things. And where did I say a Civil Union would be limited to two people?

  • Michael Ejercito||

    A gay couple here in town did the lawyer thing. Cost them $1500 in legal fees. My wife and I got a marriage license for $25. Nebraska's motto is "Equality Before the Law". This was a hard fought motto and if it means anything, then it means that $1500 is not equal to $25. Either make gay marriage legal or take away the civil benefits of marriage.


    According to the Eighth Circuit in Citizens for Equal Protection v. Bruning , that is permitted under the Constitution.

  • CJ||

    Either make gay marriage legal or take away the civil benefits of marriage.

    Definitely the latter. It's quick and clean, reduces the reach of government, and would be the option that doesn't lead to another several decades of bickering about polygamy and incestuous marriages. (For what it's worth, I think both should be allowed if the chosen route isn't to just take away the benefits.)

  • ||

    Why not take away the benefits of marriage granted by government?

  • ¢||

    Hmmm.

    The finding that domestic partnership law violates equal protection shouldn't survive. Gay marriage isn't banned; it's just not legally recognized as such, terminologically. And CA's DP law should be found a sufficient not-really-separate thing...

    ...except that it includes a strange, seemingly gratuitous age restriction on opposite-sex DP status—apparently put there for the purpose of making a separate-but-equal case against it?

    Cunning plan, assholes.

  • Michael Ejercito||

    The finding that domestic partnership law violates equal protection shouldn't survive. Gay marriage isn't banned; it's just not legally recognized as such, terminologically. And CA's DP law should be found a sufficient not-really-separate thing...

    ...except that it includes a strange, seemingly gratuitous age restriction on opposite-sex DP status—apparently put there for the purpose of making a separate-but-equal case against it?


    Then this age restriction would be struck down.

  • Old Mexican||

    Today a federal judge in California overturned that state's ban on gay marriage, ruling that it violates the 14th Amendment's command that no state may "deny to any person within its jurisdiction the equal protection of the laws."

    The decision is cogent and correct. IF the State is in the business of marrying people, then it cannot deny such service to people of the same sex.

    However, the main argument behind Prop 8 in California was to protect churches from being SUED by gay activists over THEIR refusal to marry gays. It was a very clumsy way of doing it, but at least it stopped a flurry of lawsuits and wholesale harrasment of churches, especially the Catholic and Mormon churches, for now.

    Even if Prop 8 is overturned, at least the DEFINITION of marriage will not be set in stone either way, so as to give legal amunition to gay activists to TRAMPLE ON the right of free association that churches, like any other human institution, should enjoy.

    I don't give a rat's ass about to whom somebody marries, but I *DO* take umbrage when anti-freedom activists use the power of government to abridge people's rights.

  • Handsome Dan||

    However, the main argument behind Prop 8 in California was to protect churches from being SUED by gay activists over THEIR refusal to marry gays.

    Is this something that people are seriously worried about? Lots of churches have lots of restrictions about who they will and won't marry (or include in some other rite or ritual); have any of them ever been successfully sued by someone who didn't meet the standard in question? Has (say) a Catholic church ever been taken to court for refusing to marry divorcees? I'm seriously asking...

  • Old Mexican||

    Re: Handsome Dan,

    Is this something that people are seriously worried about? Lots of churches have lots of restrictions about who they will and won't marry[...]

    CRA 1964. Once marriage is legally defined as between two people regardless of sex, gays can and will sue churches for their "right" to be married in church.

  • Michael Ejercito||

    CRA 1964. Once marriage is legally defined as between two people regardless of sex, gays can and will sue churches for their "right" to be married in church.


    Read about the lawsuit against eHarmony.

  • Handsome Dan||

    Read about the lawsuit against eHarmony.

    I appreciate the answer to my question, but could you (or somebody) explain the legal vagueries to me? Is eHarmony a public accommodation? If so, I kinda doubt a church would be in the same way...

  • Law Student||

    I would hope that the 1st amendment would take precedence over the CRA.

  • Geotpf||

    Bingo. Churchs that don't want to marry gays won't have to, due to freedom of religion first amendment reasons.

  • Handsome Dan||

    CRA 1964. Once marriage is legally defined as between two people regardless of sex, gays can and will sue churches for their "right" to be married in church.

    Yeah, but has anyone actually done this before? That's what I wanna know. Its been almost 50 years since CRA, surely somebody must have thought to sue a church into marrying (or whatever) them before now, at least if this is a valid legal thing...

  • ||

    No, no court has ever held that a church must ignore its canonical law and marry two people who don't meet the canonical requirements of the church. Any argument to the contrary is disingenous. The First Amendment protects a church's decision about who it marries and under what circumstances.

  • Michael Ejercito||

    The decision is cogent and correct. IF the State is in the business of marrying people, then it cannot deny such service to people of the same sex.


    Why not?

    Gender discrimination has never been held to the same standard as racial discrimination.

    The Supreme Court upheld laws denying suffrage on the basis of gender ( Minor v. Happersett ); Minor's relevance to suffrage was made moot by the 19th Amendment.

    The Supreme Court upheld laws that required men, but not women, to register for the draft ( Rostker v. Goldberg )

    The Supreme Court upheld laws that forbade underage boys from having sex with underage girls, but not underage girls from having sex with underage boys. ( Michael M. v. Superior Court )

    The last case is especially egregious, as a discriminatory law that imposed criminal penalties was upheld. By contrast, Proposition 8 did not even take away the right of same-sex couples to form "officially recognized and protected family relationships".

    Why would the greater discrimination be justified, but not the lesser?

  • Robert||

    Don't write "gender" when you mean specifically "sex". "Gender" just means "type".

  • ||

    OM, AFAIK, nobody has ever sued a church for refusing to marry any couple. There is ONE case I know of where a church leased out their a boardwalk gazebo as a place of public accommodation and refused to rent to a same-sex couple (who were going to have their own priest/rabbi/imam/whatever marry them) for a wedding. That's it. Period.

    Please stop listening to right-wing agitprop. Really. There are enough denominations and congregations that recognize gay weddings and are happy to perform the religious mumbo-jumbo for them that they don't need to sue "straight" churches. Really.

    You're normally pretty rational. Had thought better of you than to buy in to the paranoia and half-truths that define the world of John, robc, et als.

  • Jeffersonian||

    The decision is cogent and correct. IF the State is in the business of marrying people, then it cannot deny such service to people of the same sex.

    If the principle at the core of this decision was as narrow as that, OM, I'd be a lot less exercised about it. It's much broader than that, and it is going to cause much more mischief than you realize.

  • ||

    What was I just saying about paranoia and half-truths?

  • Jeffersonian||

    It's not a slippery slope if the consequences of the applied principle are within the scope of said principle.

  • Brian E||

    I don't understand why the remedy is to allow same sex couples to get married. Why not just deny marriage to everyone until the law is fixed?

  • ||

    I'm down with that.

  • Judge Susan Bolton||

    Apparently, so am I.

  • robc||

    Why not just deny marriage to everyone until the law is fixed?

    FTFY

  • robc||

    Well, technically, it wouldnt be "denying", it would be "refusing to license".

  • Brian E||

    Well, sure. My version of the fix would be just to get rid of it entirely. I'm just saying I don't understand why the remedy rewrites the law to grant the license to same-sex couples instead of just preventing the license from being given to anyone at all.

  • PR||

    Congrats to the gay couples. Now on to single people getting equal tax law treatment too.

  • ||

    Hear, hear.

  • Government of Wolves||

    Except that the reason marriage gets special tax treatment is to aid and encourage the raising of children in an environment proven to be beneficial to them and to society.

    Single parents get Child Tax Credits, but marriage is encouraged because it is good for the children.

  • ||

    "It's for the children". You've gone beyond parody.

  • Government of Wolves||

    If you look at the social science and psychology literature, that marriage is good for chilhood development is settled fact. If you paid any attention to what I said upthread, you'd see that is why I SUPPORT gay marriage, within a context of strong legal bonds to encourage a healthy and stable environment for gay couples seeking to raise well-adjusted children with good life chances.

    Saying that I'm 'beyond parody' doesn't address the reality-based logic of my argument, nor does it offer a concrete reason why the preservation of a healthy institution that costs no liberty and affords multiple social benefits (not least the reduced propensity of marriage-raised children to engage in crime, with attendant government costs) is a bad thing.

  • JSinAZ||

    Marriage is also good for the two participants, as shown by longevity and personal satisfaction surveys.

  • MJ||

    You do realize that the Dems intention to let the Bush tax cuts expire means that the marriage penalty will be back in force next year, don't you?

  • KingTaco||

    From the ruling:

    "The evidence shows that Proposition 8 was a hard-fought campaign and that the majority of California voters supported the initiative. . . . The arguments surrounding Proposition 8 raise a question similar to that addressed in Lawrence, when the Court asked whether a majority of citizens could use the power of the state to enforce “profound and deep convictions accepted as ethical and moral principles” through the criminal code. 539 US at 571. The question here is whether California voters can enforce those same principles through regulation of marriage licenses. They cannot. California’s obligation is to treat its citizens equally, not to “mandate [its] own moral code.” Id (citing Planned Parenthood of Southeastern Pa v Casey, 505 US 833, 850, (1992)). “[M]oral disapproval, without any other asserted state interest,” has never been a rational basis for legislation. Lawrence, 539 US at 582 (O’Connor, J, concurring). Tradition alone cannot support legislation. See Williams, 399 US at 239; Romer, 517 US at 635; Lawrence, 539 US at 579. Proponents’ purported rationales are nothing more than post-hoc justifications. While the Equal Protection Clause does not prohibit post-hoc rationales, they must connect to the classification drawn. Here, the purported state interests fit so poorly with Proposition 8 that they are irrational, as explained above. What is left is evidence that Proposition 8 enacts a moral view that there is something “wrong” with same-sex couples."

    The key line is... "whether a majority of citizens could use the power of the state to enforce “profound and deep convictions accepted as ethical and moral principles” through the criminal code."

    The Judge says no. While I don't mind gay marriage, I don't understand the decision as anything more than elite opinion fiat. People above have pointed to the fallacy of bringing up 'Equal Protection'. But more to the point, did I miss some scientific test that indisputably determines (outside of arbitrary social norms) when/where people can drive, drink, build a home, enter into contracts, etc.

    Our whole system of law is based on 'deeply enshrined moral and ethics'. So I don't get how an arbitrary, but democratic, restriction (no same-sex) on a socially arbitrary arrangement (marriage) is now null and void. By this light, polygamy should be completely legal. The only way I've heard this argument rejected is that 'well, marriage has always been between two people, so twisting outside those well defined confines...', but hey, marriage was also always defined as 'between and man and woman'.

    If socially developed ethics and morals are no longer a basis for laws, then shit just got pretty crazy.

  • Michael Ejercito||

    The Judge says no. While I don't mind gay marriage, I don't understand the decision as anything more than elite opinion fiat. People above have pointed to the fallacy of bringing up 'Equal Protection'. But more to the point, did I miss some scientific test that indisputably determines (outside of arbitrary social norms) when/where people can drive, drink, build a home, enter into contracts, etc.


    Indeed, it goes against the original public understanding of the 14th Amendment.

    “[M]oral disapproval, without any other asserted state interest,” has never been a rational basis for legislation. Lawrence, 539 US at 582 (O’Connor, J, concurring).


    Since he relied on her concurring opinion, he missed this little gem in that exact same opinion .

    Unlike the moral disapproval of same-sex relations–the asserted state interest in this case–other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.


    What is left is evidence that Proposition 8 enacts a moral view that there is something “wrong” with same-sex couples."


    And yet he forgot to mention that same-sex couples in California have the right to enter into an "officially recognized, and protected family relationship".

    By this light, polygamy should be completely legal.


    Only if the Supreme Court discards Reynolds v. United States , Murphy v. Ramsey , and Davis v. Beason .

  • ||

    If socially developed ethics and morals are no longer a basis for laws, then shit just got pretty crazy.

    Awesome. Since it's been used now to take out one BS moralistic victimless nanny-state law, hopefully we can use the same precedent to take care of the rest of the BS moralistic victimless nanny state laws.

  • Jeffersonian||

    Hahahahahahaha!! Good luck with that!

  • ||

    Andrew S.,

    So it's the harm principle, now? Ok, I'll bite.

    The idea that harming another is "wrong" is a moral principle in and of itself. This principle evolved as a traditional social understanding based on human empathy and shared understandings. On the other hand, there are some cultures where harm to others is punished less or not at all, particularly depending on individual circumstances.

    Ultimately, though, the notion of harm to others as being "wrong" and "immoral" goes back to the "golden rule" and other such societal maxims. This traditional understanding, standing alone, is an insufficient basis for legislation.

  • ||

    But the rational basis test, again, states the law has to be rationally related to some legitimate governmental purpose. This doesn't overturn that principle.

    "Societal maxims cannot be the only reason for a law's existence" is far, far different than "societal maxims cannot be one reason for a law's existence".

  • ||

    Yes, but at the root of the law is the societal maxim. Without it, everything else crumbles.

    Also, there's no way to judge whether a government purpose is "legitimate" without speaking in terms of what society values and accepts, so this all just winds up being a circular argument. If I would prefer the social equivalent of a cage match, then laws prohibiting me from harming others would be objectionable to me. A government asserting its "interest" in protecting others would, at its core, be relying entirely on moral principles in judging the interests of others in that regard as more worthy than mine.

  • ||

    Hello, you just made the case for Obamacare.

  • ||

    No, I didn't, because Obamacare fails on federal enumerated powers. Those don't restrict the states. Could an individual state constitutionally pass Obamacare? Certainly.

  • ||

    KingTaco,

    If socially developed ethics and morals are no longer a basis for laws, then shit just got pretty crazy.

    Clap, clap...

    Thank you for saying this. It's what I've been screaming in these debates all along. Even if a person supports gay marriage, or is merely indifferent to the idea, they have to recognize that these decisions declaring that moral understandings cannot be the basis of laws are completely ridiculous and ultimately have to be restricted to their facts. If we applied the same reasoning everywhere, it would be difficult to sustain a wide variety of laws.

  • ||

    If we applied the same reasoning everywhere, it would be difficult to sustain a wide variety of laws.

    That's a feature, not a bug.

  • Robert||

    Marriage has customarily meant a type of tie between exactly 2 people, but that says nothing about the number of marriages a given person may be involved in at one time. Polygamy has usually (and conceptually more simply) been conceived as having more than 1 marriage at a time, not as a single marriage involving 3 or more persons.

  • KingTaco||

    "Marriage has customarily meant..."

    1. I can't believe this even has to be pointed out, but marriage 'has customarily meant' union between a man and a woman. There can't be an argument about the invalidity of customs and the validity of customs in the same reasoning.

    2. The Judges decesion, and what the crux of my problem is with this, explicitly rejects social customs/moral/ethics as a base of law. So again, if you're for this decision you can't base anything on custom or social construct. *That's what the decision refutes* You'll have to e-mail Judge Walker for the math equation he used to determine the arbitrary social custom of marriage was okay, the arbitrary social custom of marriage being between just two people was okay, but the arbitrary custom of marriage being between a man and a women was not okay.

    "Polygamy has usually (and conceptually more simply) been conceived as having more than 1 marriage at a time, not as a single marriage involving 3 or more persons."

    Honestly not meant as snark, but that seems a little hogwash-ish. In fact, it sounds a lot like complete BS. If that's how polygamy has 'usually' been perceived (a series of 2 person marriages as apposed to one big family grouping), then you'll have no trouble linking to illustrations as to that effect.

  • Robert||

    1. I can't believe this even has to be pointed out, but marriage 'has customarily meant' union between a man and a woman.


    Did you think I meant otherwise? But, one point at a time.

    2. The Judges decesion, and what the crux of my problem is with this, explicitly rejects social customs/moral/ethics as a base of law.


    My problem is that this and similar decisions (as well as effective or attempted edicts via legislation, plebiscite, or administrative fiat) ignore language as a basis for law.

    As to evidence of the understanding of polygamy, you need look no further than this thread, wherein it's written that traditionally when polygamy was discovered, the 2nd and successive marriages were invalidated.

    Or just consider common sense: How does polygamy come about? A marries B, then A marries C without divorcing B, resulting in A's being married to B and married to C -- not B & C's being married to both A and each other in addition. Poly-gamy = multiple marriages.

    There have probably been a few rare cases wherein some triple got together and got married all together -- just not the commoner situation. Note also that such a triple would necessarily include same-sex marriage, given that there are 3 persons and at most 2 sexes involved!

  • Geotpf||

    Polygamy was not an issue brought before the court. Therefore, whether or not the logic of this ruling also applies to it is not relevent.

    Personally, I see no reason why polygamy should be banned, assuming all parties can legally consent (are adults) and agree (somebody can't marry again without permission of his current spouse or a divorce). There are some "dominant male holding power over weaker females in a conservative religious situation" issues here, but polygamy doesn't neccessarily have to be that type of situation and even if it is, if everybody is adults, the state shouldn't stop it.

  • Michael Ejercito||

    So Judge Vaughn Walker has followed in the footsteps of Judge Joseph Battailon .

    The arguments for banning gay marriage are so weak, Walker said, that they fail even the highly deferential "rational basis" test, which applies in equal protection cases that do not involve a "suspect classification" such as race. "Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians," he wrote. "The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite sex couples."


    First of all, Judge Walker was bound by the Supreme Court precedent Baker v. Nelson and the Ninth Circuit precedent Adams v. Howerton . Only the Supreme Court can overrule Baker , and only the Supreme Court and the Ninth Circuit can overturn Adams . There should not have been a trial; he should have kicked the ball the the Ninth Circuit the moment the complaint landed on his desk.

    If one wants to find a rationale for banning same-sex "marriage", one must look to the Mormon anti-polygamy cases. From Reynolds v. the United States ,

    Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.

    Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void, and from the earliest history of England polygamy has been treated as an offence against society....


    An exceptional colony of polygamists under an exceptional leadership may sometimes exist for a time without appearing to disturb the social condition of the people who surround it; but there cannot be a doubt that, unless restricted by some form of constitution, it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.

    From Davis v. Beason :

    Bigamy and polygamy are crimes by the laws of all civilized and Christian countries. They are crimes by the laws of the United States, and they are crimes by the laws of Idaho. They tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman, and to debase man. Few crimes are more pernicious to the best interests of society, and receive more general or more deserved punishment. To extend exemption from punishment for such crimes would be to shock the moral judgment of the community.


    The real kicker is Murphy v. Ramsey , quoted in Davis :

    Certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the coordinate states of the union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement. And to this end, no means are more directly and immediately suitable than those provided by this act, which endeavors to withdraw all political influence from those who are practically hostile to its attainment.


    There were reasons to uphold Proposition 8. And yet, Judge Walker has refused to follow the law and relevant precedent. He has been biased ever since he decided to start a trial on his own, without the cases being remanded from appeal to a higher court.

    Will the Ninth Circuit slap him down like the Eight Circuit slapped down Judge Battailon?

  • Brian E||

    Assholes like Michael Ejercito are the reason why this decision was a bad idea. It's taken what, 20 or 30 years to get gay marriage in a few states? And when it's all over the next 20 or 30 years will be spent fighting for plural marriages and flexible marriages. Screw that. Let's just ban marriage outright and skip to the end.

  • Michael Ejercito||

    Assholes like Michael Ejercito are the reason why this decision was a bad idea. It's taken what, 20 or 30 years to get gay marriage in a few states? And when it's all over the next 20 or 30 years will be spent fighting for plural marriages and flexible marriages. Screw that. Let's just ban marriage outright and skip to the end.


    There is more to the issue than marriage, or if people can even enact initiative constitutional amendments.

    It is about courts following precedent, sticking with the original interpretation of the law.

    This is basically a de facto amendment of the Constitution. That is much more dangerous to our system of government

  • Brian E||

    I don't give a rat's ass about bad precedent. This isn't fucking Free Republic. Prohibition of plural marriage is as much a violation of equal protection as prohibition of gay marriage.

    Your scare quotes around "gay "marriage"" tell me everything I need to know.

  • Michael Ejercito||

    I don't give a rat's ass about bad precedent. This isn't fucking Free Republic. Prohibition of plural marriage is as much a violation of equal protection as prohibition of gay marriage.

    Your scare quotes around "gay "marriage"" tell me everything I need to know.


    If precedent is bad, the law behind the precedent is bad.

    I wonder why your side never bothered to campaign for a constitutional amendment, like the suffragettes did.

  • Brian E||

    A constitutional amendment isn't necessary. And don't tell me what "my side" is. My side is in favor of eliminating state recognition of marriage entirely. It doesn't take an amendment to remove a bad law.

  • Rich||

    the union for life of one man and one woman in the holy estate of matrimony [is] the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement

    Wow. Better *require* everybody to marry someone of the opposite sex.

  • Michael Ejercito||

    Wow. Better *require* everybody to marry someone of the opposite sex.


    The Supreme Court said so.

    Who are we to declare the Supreme Court to be wrong?

  • Rich||

    Guess I didn't make my point cleanly. I rephrase.

    Wow. Better REQUIRE EVERYBODY TO MARRY someone of the opposite sex.

  • ||

    You should leave legal analysis to lawyers. I'll leave it at that.

  • ||

    These judgments are archaic, bigoted and wrong. Using them as a defense for more archaic and bigoted laws is a disgrace. You might as well point to Korematsu v. United States

  • Michael Ejercito||

    These judgments are archaic, bigoted and wrong. Using them as a defense for more archaic and bigoted laws is a disgrace. You might as well point to Korematsu v. United States


    Prove it.

  • Geotpf||

    How about this comment in the ruling you quoted:

    Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.

    Translated: White people don't traditionally enter into polygamist marriages, only niggers and chinks do.

  • ||

    I have multiple problems with this decision, one of the most stark examples of judicial overreach in recent memory. I would argue that the most important factor here is that nobody ever ratified any amendment to the US Constitution that was ever even vaguely conceived to require states to recognize gay marriages. The equal protection clause only implicated a small number of classifications, particularly race.

    Of course here, the judge argues based on the "rational basis" test and, citing Lawrence v. Texas, declares that the only reason for not recognizing gay marriages is traditional morality and traditional morality doesn't satisfy rational basis scrutiny. This is extremely problematic. Our entire society is based on traditional understandings, and every law is ultimately justified by them. If you accept this reasoning, one could at least credibly argue that the institution of marriage itself is unconstitutional because it discriminates against single persons, and is ultimately based on traditional understandings of family and personal relations. A person could retort that marriage provides other social benefits, but that argument would be susceptible to the arguments similar to those employed in this decision, writing them off as post hoc rationalizations that don't hold water.

    Ultimately, rational basis scrutiny is supposed to be extremely deferential for a reason -- it is intended for cases where a law is simply absurd has no reasonable basis. We can disagree on whether we should keep marriage exclusively heterosexual, but it really boils down to a disagreement on policy on philosophy. "Rational basis" scrutiny is not supposed to be the battleground upon which we resolve these issues.

    This is a terrible decision, and the only reason I can see to support it is if you support the outcome. The reasoning, however, is horrible.

  • Michael Ejercito||

    Of course here, the judge argues based on the "rational basis" test and, citing Lawrence v. Texas, declares that the only reason for not recognizing gay marriages is traditional morality and traditional morality doesn't satisfy rational basis scrutiny.


    And Lawrence v. Texas was not about:

    minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.


    For Judge Walker to broaden the scope of Lawrence is to once again, ignore precedent.

    This is a terrible decision, and the only reason I can see to support it is if you support the outcome. The reasoning, however, is horrible.


    It is at least as horrible as Citizens for Equal Protection v. Bruning , 4:03CV3155. PDF format

  • Jeffersonian||

    And Lawrence v. Texas was not about:

    Exactly. The judge invoking LvT is either dishonest or idiotic.

  • Michael Ejercito||

    Exactly. The judge invoking LvT is either dishonest or idiotic.


    Both, but it was obvious when he did not summarily dismiss this case.

  • ||

    If he is invoking Lawrence v Texas for the broad proposition that each individual has certain liberty interests the invasion of which by the state the 14th amendment forbids, then it is not dishonest or idiotic.

    If he cites the case for the proposition that it requires the state to recognize same sex marriages, then, yes, it would be dishonest or idiotic.

    However, the text of the amendment is all that is necessary. I do not see any exceptions permitting a state to deny marriage to same sex couples.

  • ||

    I don't see any exceptions permitting a state to put murderers in jail while allowing innocent people to run around free, either. The equal protection clause does not prohibit states from treating different groups of people differently. It was intended to deal with certain classifications, particularly race.

  • ||

    No, it was not. Have you read what John Bingham thought and wrote? Are you familiar with the ideas of the reconstruction founders? They had no intention of limiting the reach of the 14th amendment to "suspect classifications"; the judiciary has created that claptrap.

  • ||

    libertymike,

    I completely disagree. The equal protection clause was created to protect certain classes; it would lose coherency if it did not. At the very least this is how it was commonly understood, even if some individual ratifiers had grander notions.

  • Michael Ejercito||

    If he is invoking Lawrence v Texas for the broad proposition that each individual has certain liberty interests the invasion of which by the state the 14th amendment forbids, then it is not dishonest or idiotic.


    And these liberty interests include a right to a marriage license?

    It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.


    The state supreme court had ruled, after Proposition 8's adoption, that same-sex couples "have the right to enter into officially recognized and committed family relationships." No liberty interest was denied.

  • ||

    You do realize even Scalia agreed that Lawrence v. Texas calls for broadening the scope to gay marriage?

  • Michael Ejercito||

    You do realize that Scalia's opinion was a dissenting opinion, right?

    But since you want to cite dissenting opinions, we can cite concurring opinions, starting with O'Connor :

    Unlike the moral disapproval of same-sex relations–the asserted state interest in this case–other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.
  • Jeffersonian||

    Pwn3d

  • ||

    Rational basis, itself, is an unconstitutional judicial vitiation of individual and associational rights. The text of the 14th amendment does not admit of any exceptions; nor is there any textual support for the contention that it was intended to apply to a small number of classifications. The legislative history of the amendment squares with my point as well. Read what Howard Bingham thought and wrote.

  • ||

    Correction, John Bingham.

  • Geotpf||

    I would argue that the most important factor here is that nobody ever ratified any amendment to the US Constitution that was ever even vaguely conceived to require states to recognize gay marriages.

    The counter argument would be that nobody ever ratified any amendment to the US Constitution that was ever even vaguely conceived to require states to recognize any marriages. But if they do, they can't descriminate. Another option here would be to have the state get out of the marriage business completely (which is a popular option around these parts).

  • Paul||

    I wish I could have told my wife "I'd love to marry you, but it's not legal!"

  • ||

    Look. I see more than one of you arguing the old, tired "BUT THEY CAN MARRY PEOPLE OF THE OPPOSITE SEX!" argument. To those libertarians conservatives who make that argument, I want to ask you to take a step back and think for yourself for one second. Do you really believe that's a valid argument? Honest and true?

    Look. The government shouldn't be in the "marriage" business. But as long as it's going to be, there's no way in hell it should continue to discriminate like this.

  • Michael Ejercito||

    Look. I see more than one of you arguing the old, tired "BUT THEY CAN MARRY PEOPLE OF THE OPPOSITE SEX!" argument. To those libertarians conservatives who make that argument, I want to ask you to take a step back and think for yourself for one second. Do you really believe that's a valid argument? Honest and true?


    As far as the Constitution and relevant case law is concerned, yes.

    The case was not about the merits or demerits of same-sex "marriage", it was a case about the applicability of the 14th Amendment.

  • ||

    Which is based on the rational basis test. The rational basis test isn't exactly a hard thing for the government to meet.

    The only thing I wish this judge would've done would've been to apply intermediate scrutiny, as with gender-based equal protection cases.

  • Jeffersonian||

    So, Andrew, you're okay with Chester down the street marrying your 7 year-old daughter?

  • ||

    No, because my daughter (who is about 5.5 years away from being 7) does not have the capacity to consent. That's the same argument as the "if you allow gay marriage, you have to allow people to marry their dogs" silliness. Dogs can't consent.

    We're talking about something by two adults, each of whom consents to the activity. Not a 7 year old who cannot consent. Please tell me you can see the difference.

  • Jeffersonian||

    And who, exactly, is going to enforce the consent laws, Andrew, now that the government has gotten out of the marriage bidness, as you've implored it to do? Isn't Chester's desire to marry your tot a right that trumps these arbitrary age-of-consent laws?

    Think about what you're saying, and you can avoid these knotty questions.

  • ||

    The government getting out of the marriage business would not trump other laws, such as laws defining the age at which one can legally consent to a contract, or laws regarding the abuse of children (both of which clearly meet the rational basis test).

    Pick a better disingenuous argument please. This one makes no sense.

  • KingTaco||

    'Consent' is an arbitrary socially construct. There isn't a math equation that proves consent. There isn't a scientific test that spots the presence of consent. Consent is a concept developed along moral and ethical lines by our culture, and applied to law.

    Judge Walker just said that's a no-no. His ruling just *explicitly* denied that laws can be determined by socially developed moral and ethics (which is what I made note of in my previous post, and why I think his ruling is Queen-of-Hearts-level crazy). So sorry, you can't have it both ways. If this ruling stands, then you're little social construct of 'consent' holds no sway.

  • Jeffersonian||

    If age of consent laws are somehow okay and constitutional, then why aren't those that limit marriage in other ways? Your limits seem, well, arbitary and capricious.

  • JSinAZ||

    You wanna be child molesters make me sick - always trying turn an adults' liberty into some excuse to legalize child rape.

  • ||

    Jesus fucking tapdancing Christ, could you get more disingenuous? WHAT THE FUCK does getting the gov out of the marriage business -or- making it totally equal -- have to do with marrying children?

    Your social con is showing, dude, and it ain't pretty.

  • Jeffersonian||

    Well, it would seem that your bigotry about who can marry whom is showing through, Epi. Again, all I am doing is applying your principle.

  • ||

    Dude, I'm a fucking anarcho-capitalist. I don't think there should be any government at all, so don't try your stupid little games about "my bigotry about who can marry whom".

    What I see with your argument is someone straining, against all logic, to maintain a position against gay marriage without seeming to be against it for anti-homosexual reasons, yet obviously being against it for anti-homosexual reasons, because your argument is fucking retarded.

  • ||

    Epi, may I remind you that Jeffersonian has often demonstrated his anarcho-free enterprise-individualist bona fides; on this issue, not so much.

  • Jeffersonian||

    Then what was your objection to the idea that a 7 year-old would get married to a nice man down the street? IOW, what's to prevent it, Epi?

    Make up your mind.

  • ||

    The usual wholesale support of state tyranny in all aspects of life by invoking radical edge cases. "Someone MIGHT do something I find distasteful if we allow the freedoms you propose! Unacceptable! We must have tyranny instead"

  • ||

    Epi, Epi, Epi...

    Keep tilting at those windmills,dude.

  • India||

    So, Andrew, you're okay with Chester down the street marrying your 7 year-old daughter?

    Yes.

  • Jeffersonian||

    There's an honest answer. Insane, but honest.

  • ||

    I'm ok with the government having no say in the matter even though I personally would find it objectionable. Recruiting the government's guns to handle strange edge cases like 7yr old brides is not worth the cost of having leviathan excercise total control over every aspect of your life, as we have now

  • ||

    Once again, Reason comes down on the liberal side of an issue libertarians disagree on. Anyone surprised?

  • ||

    Reason has never claimed to be anything but socially liberal and economically conservative.

    You know what you call somebody who's socially conservative and economically conservative? I'll give you a hint: It's not "libertarian".

  • Government of Wolves||

    Not your Momma's Libertarian.

  • ||

    That's a bastardized definition of libertarianism. Where does gun control fit on that spectrum, for instance?

    Libertarianism is about favoring individual choice over government control wherever possible. Once government control is accepted as legitimate (as in the case of marriage, national defense, and punishment of those convicted of crimes) it is silent as to how that control is to be implemented.

  • ||

    You didn't seem to be annoyed when they came out in favor of a mosque at the Ground Zero.

  • ||

    That was an issue on which libertarians all agree, at least on the legal questions. The only debate was over the morality of the opponents of the mosque's actions, and that's not really a political question.

  • Fluffy||

    Libertarians don't disagree on it.

    And yes, I'm going there.

    Too bad.

  • ||

    True-to-form, Tulpa comes down on the social conservative side of an issue upon which Libertarians disagree.

  • ||

    Hey, Tulpa's not a conservative. He's an authoritarian. Subtle differences and all that.

  • ||

    On the mosque thread, everyone was calling me a bleeding heart liberal. What can I say, I'm all things to all people so that I might save some.

  • ||

    Granting people a license to marry based on homosexism, sexual fetish and thus a mind disorder, as all fetishes are, is most bizarre.

    Ah, the 21st Century -- what a bizarro time.

  • I, Kahn O'Clast||

    Evidence has been mounting for decades that homosexuality is rooted in biology and is not a choice. Do you believe that left-handedness, once the hallmark of a sinister nature, is something other than biologically based?

    As we progress society becomes increasingly inclusive of those who are different from the majority. Hence slavery went out of fashion, as did Jim Crow laws. To make the case that different is disorder puts you forward as a bigot.

  • ||

    Left handedness is also necessity based-if you want to have a better bullpen.

  • Hank||

    Or if you wipe with your right!

  • Allah||

    That's a no-no. Doesn't anyone fucking read anymore??

  • Michael Ejercito||

    Evidence has been mounting for decades that homosexuality is rooted in biology and is not a choice. Do you believe that left-handedness, once the hallmark of a sinister nature, is something other than biologically based?


    There is no magic force that compels homosexuals to commit same-sex sodomy, any more than there is a magic force that compels Mormons to practice polygamy.

  • Hank||

    Dude, wtf, you have never heard of magic underwear?

  • ||

    There is no magical force that compels heterosexuals to make kids either, but there sure is a heck of a lot of biology and we enshrine that and masturbate our society to it apparently.

  • I, Kahn O'Clast||

    Michael Ejercito circa 1952:

    There is no magic force that compels a white man to have intercourse with a black woman, any more that there is a magic force that raises the negro to the level of a white.

  • Robert||

    Do you think that any choice is anything other than biologically based? Do non-living things have the capacity to choose?

  • ||

    You amuse, I, Kahn O'Clast.

    Homosexism is a fetish and thus a mind disorder as all fetishes are.

    The homosexist is all-consumed with obsessive thoughts over those of the same sex.

    The obsession runs so deep in the mind that the homosexist gears his or her life around homosexist acts.

    But you can keep playing that "bigot" card all you want while you deny truth with your idiocy.

    If homosexism were based in biology, then it is a defect. Thus granting a license of marriage based on a mental defect is most bizarre.

    We don't grant licenses to retardeds, do we?

  • I, Kahn O'Clast||

    Actually, depending on the level of retardation we do....

    Glad I amuse you Al, but I suspect the majority of people here do not support your view on this.

    Do you know any homosexuals personally? I suspect that you do not since your cartoon-character image of them is rather far from reality.

  • ||

    Most amusing I, Kahn O'Clast, you suffer the typical problem of most persons with mediocre IQs.

    You assume that false beliefs garnered from your teeny-tiny experiences are the correct ones.

    Also, you clod handling of the ploy of consensus gentium -- "the majority of people here do not support your" -- is most amusing.

    Quit while you're oh so far behind.

  • I, Kahn O'Clast||

    No, I assume that beliefs must be based on logic, reason and experience. I seem to have all three on my side where you do not (in this case I would wager you have none).

  • I, Kahn O'Clast||

    Al Wayswright circa 1950

    You amuse, I, Kahn O'Clast.

    Miscegenation is a fetish and thus a mind disorder as all fetishes are.

    The race-mixer is all-consumed with obsessive thoughts over those of the opposite race.

    The obsession runs so deep in the mind that the race-mixer gears his or her life around acts of miscegenation.

    But you can keep playing that "bigot" card all you want while you deny truth with your idiocy.

    If miscegenation were based in biology, then it is a defect. Thus granting a license of marriage based on a mental defect is most bizarre.

    We don't grant licenses to retardeds, do we?

    FIFY

  • Geotpf||

    I love people who use odd terminology. "Homosexist"? WTF?

  • Gary Chartier||

    The state at all levels ought to get out of the marriage business. As an anarchist, I think the state ought to get out of all other kinds of business, too, and that the US constitution is no more valid than any other constitution.

    But until the state stops recognizing marriages, it has to treat everyone as equal with regard to marriage. Otherwise, it sends the message that some people are second-class citizens. Equal citizenship is the basic message of the Equal Protection clause. This decision is a rational expression of that message.

  • ||

    Agreed, but let's keep the emphasis on the first paragraph.

  • Michael Ejercito||

    But until the state stops recognizing marriages, it has to treat everyone as equal with regard to marriage. Otherwise, it sends the message that some people are second-class citizens. Equal citizenship is the basic message of the Equal Protection clause. This decision is a rational expression of that message.


    It violated precedent on this issue.

  • Fluffy||

    So what?

  • ||

    If precedent were everything, then there'd be no point to having judges or a Supreme Court. We'd just do everything the same way we have been for years.

  • Michael Ejercito||

    If precedent were everything, then there'd be no point to having judges or a Supreme Court. We'd just do everything the same way we have been for years.


    No.

    If current statutes are inadequate, we make new statutes or repeal some of them via the legislative process.

    If the current Constitution is inadequate, we amend the Constitution.

    What is wrong is courts de facto amending the Constitution to achieve a desired result. Before McDonald v. Chicago , there were circuit court rulings that interpreted the Second Amendment out of existence.

    If you do not think that overruling Baker v. Nelson is a bad idea, how would you feel about the Supreme Court, or even a lower court, overruling Mc Donald , or Citizens United v. FEC , or even Lawrence v. Texas ?

    We need to stick with the original public understanding of the constitutional provisions; otherwise judges can de facto amend the Constitution to suit their policy preferences.

  • Tony||

    But what you really mean is whenever the law agrees with Michael it is legitimate, and when it doesn't, it isn't.

  • ||

    McDonald and Citizens United uphold the plain meaning of the amendments in question. The laws they struck down literally infringed a right to bear arms, and literally abridged the freedom of speech. There was no Berkeley style gender studies deconstruction required to justify those decisions.

  • Michael Ejercito||

    But what you really mean is whenever the law agrees with Michael it is legitimate, and when it doesn't, it isn't.


    That is your reasoning.

  • MJ||

    Prop 8 was treating everyone equal with regard to marriage. It was not treating the circumstances of homosexual relationships the same as heterosexual ones, but the Equal Protection does not mandate treating different relationships equally.

  • ||

    What a joke. Don't like the game, change the rules.

  • Michael Ejercito||

    Is there anyone here that believes the government should not define marriage on the basis of gender, and yet disagrees with the ruling as a matter of law?

  • Jeffersonian||

    [raises hand]

  • Michael Ejercito||

    Defending the integrity of our Constitution (which includes judges sticking to the original interpretation of constitutional provisions) is more important than how society defines marriage.

    We disagree on how marriage should be defined, and we agree on how the Constitution should be interpreted.

  • Jeffersonian||

    I agree completely. We should stop defining "constitutional" as "shit I like." There are plenty of crazy things that are perfectly constitutional and probably a fair number of lovely things that are not.

  • Brian E||

    We should stop defining "constitutional" as "shit I like."

    This does not stand in opposition to defining "unconstitutional" to mean "shit I don't like". A court that rules laws to be unconstitutional for flawed reasons is better than one that rules them to be constitutional for similarly bad reasons.

  • Jeffersonian||

    I disagree. A court that twists the Constitution in any way to achieve a desired social outcome is lawless and an affront to his job and destructive to the document he has sworn to uphold.

  • Michael Ejercito||

    I agree completely. We should stop defining "constitutional" as "shit I like." There are plenty of crazy things that are perfectly constitutional and probably a fair number of lovely things that are not.


    Denying women the right to vote was constitutional ( Minor v. Happersett )

    That deficiency was fixed by amending the Constitution.

  • Jeffersonian||

    Which, when you think about it, is amazing given how broadly the 14th Amendment is applied these days. Such a restriction would scarcely survive a moment in court these days. I suppose people were more honest about what the Constitution was - and wasn't - back in the day.

  • Michael Ejercito||

    Which, when you think about it, is amazing given how broadly the 14th Amendment is applied these days. Such a restriction would scarcely survive a moment in court these days. I suppose people were more honest about what the Constitution was - and wasn't - back in the day.


    I agree.

    Still, gender discrimination is still not held to the same level of scrutiny as racial discrimination. The Supreme Court upheld a law that forbade underage boys for having sex with underage girls, but not underage girls from having sex with underage boys ( Michael M. v. Superior Court ) Such a law is a bunch of bullshit (and since it was a California law, it would be declared in violation of Article 1, Section 7 of the state constitution if it were ever re-enacted by statute) And yet, it did not violate the 14th Amendment.

  • Tony||

    Separate but equal is still acceptable with regard to the sexes in some cases. You can't have a whites only bathroom but you can have a women only bathroom. Discrimination is actually legal given a rational basis. Hence the reasoning behind this ruling regarding same-sex marriage. No rational basis.

  • Michael Ejercito||

    Hence the reasoning behind this ruling regarding same-sex marriage. No rational basis.


    Only if you ignore precedents like Baker v. Nelson and the Mormon anti-polygamy cases.

  • Geotpf||

    I believe this ruling stated that the reasoning behind banning gay marriage was so weak that it didn't matter even if it didn't involve a protected class at all.

  • James C Bennett||

    Maybe. I think the Court's argument here is a weak one, and I think that your presentation of the Mormon precedents is much more persuasive. But I'm just happy they didn't strike Prop 8 down because it violates other parts of the California constitution, which was, I believe, one of the arguments proposed early in this mess.

  • ||

    You were persuaded by the excerpts of the mormon precedents? Anyone who values a free and open society should be disgusted by the language of those precedents.

  • Michael Ejercito||

    You were persuaded by the excerpts of the mormon precedents? Anyone who values a free and open society should be disgusted by the language of those precedents.


    If the foundation (the Constitution) is inadequate, amend it.

  • Josh Blackman||

    I pulled some of the key quotes from the opinion in my instant analysis here http://joshblackman.com/blog/?p=4961

  • Oso Politico||

    No State - No Problem

  • Tony||

    You're right. With no state you're free to stone homosexuals to death with impunity. No problem whatsoever.

  • ||

    No, you are not. Can you even begin to conceive of why that might be?

  • Tony||

    Only if the homosexual has the bigger rock. Ah anarchy, it's so free!

  • BakedPenguin||

    Yes, every hetero hates homosexuals, and dreams about killing them with rocks. None of us have gay friends or relatives or anything.

  • MWG||

    You mean like the anarchist state of Iran?

  • Tony||

    If I had a nickel for every time some libertarian here bitched about "50%+1" deciding things for them... surely none of the same people are now calling for deference to democratic majorities over equal protection.

  • Michael Ejercito||

    If I had a nickel for every time some libertarian here bitched about "50%+1" deciding things for them... surely none of the same people are now calling for deference to democratic majorities over equal protection.


    As long as it is the original public understanding of equal protection.

  • Tony||

    Fuck that. It's not possible to discover ways in which equal protection hasn't been achieved yet? It's not equal protection just for black and white people, it's equal protection period. Gays with respect to marriage have lacked equal protection and it's that simple.

  • Jeffersonian||

    So have pedophiles, when you think of it. Why should these citizens be denied the loving, nurturing relationships they crave just because of some antiquated notion of sexual contact?

  • Michael Ejercito||

    Gays with respect to marriage have lacked equal protection and it's that simple.


    Laws punishing bigamy were upheld by the Supreme Court against equal protection challenges ( Davis v. Beason )

    Mormons and Protestants were free to marry one person of the opposite sex.

    Homosexuals and heterosexuals were free to marry one person of the opposite sex.

  • Tony||

    Let polygamists have their day in court. Gays don't have to answer for them. If you're only allowed to marry someone you by definition can have no interest in marrying isn't exactly equal rights.

  • Michael Ejercito||

    Let polygamists have their day in court. Gays don't have to answer for them. If you're only allowed to marry someone you by definition can have no interest in marrying isn't exactly equal rights.


    They already did.

    And the opinions of the Supreme Court will be used as a basis for appeal.

  • ||

    I'm patiently waiting for someone to explain to me why polygamous gay marriage should not be a Constitutional right.

  • mb||

    exactly. why can't 5 consenting adults of varying sexes and genders- male, female, tranny, hetero, homo, bi- get married? why is marriage only restricted to 2 people?

  • Michael Ejercito||

    I'm patiently waiting for someone to explain to me why polygamous gay marriage should not be a Constitutional right.


    They tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman, and to debase man. Few crimes are more pernicious to the best interests of society, and receive more general or more deserved punishment.

    Of course, if the constitution is amended to make it a constitutionally-protected right, I would oppose judges interpreting that amendment out of existence, the way some circuit court judges had interpreted the Second Amendment out of existence prior to McDonald v. Chicago .

  • ||

    "They tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman, and to debase man. Few crimes are more pernicious to the best interests of society, and receive more general or more deserved punishment."

    Surely you realize that there are people who make the exact same claims about gay marriage... and with about as much supporting evidence as you cite. You don't want to adopt the propaganda techniques of bigots, do you?

    My sexual orientation leads me to want to have intimate relations with many, many partners, ALL of whom I deeply love. Who the hell are you to denigrate my sexuality? Prick.

  • Michael Ejercito||

    Surely you realize that there are people who make the exact same claims about gay marriage... and with about as much supporting evidence as you cite. You don't want to adopt the propaganda techniques of bigots, do you?


    I adopted the reasoning by the Supreme Court in Davis v. Beason .

  • ||

    Sorry, but marriage is all about having and raising offspring, not screwing in general.

  • Tony||

    Which is why no straight couple can get married without first pledging under oath that they will reproduce. Infertile couples need not apply, also.

  • Mike Laursen||

    Yes, we should at least make all couples that want to get married post a bond, to be forfeited if they fail to produce progeny within five years. Or maybe just stone them in the public square.

  • Jeffersonian||

    Oh, and to those that reflexively curse and condemn people that don't toad the lion, let me say that, when I ran for my state's legislature some 15 years ago (LP ticket), the three main platform planks I had were A - privatization of the state's worker's comp system, B - abolishing various licensure boards and C - allowing same-sex marriage.

    Don't lecture me on what a so-con I am. I've been on the front lines of this, taking the arrows, for a decade and a half.

  • Jeffersonian||

    You must be new here.

  • DesigNate||

    I would like to say thank you for trying to fight the system. Also, while I may not agree with you, at least you present a reasoned, honest rebuttal to the equal opportunity claims.

  • ||

    Jeffersonian:
    "Toad the Lion" Ah, your name-sake, Thomas Jeffersonian, must be so proud.

  • Jeffersonian||

    Shit!

    You must be new here.

  • Fist of Etiquette||

    Marriage benefits aren't rights, they're entitlements. I'm not even sure this whole mess is a constitutional issue.

    There, I said it.

  • Hank||

    Word. This issue is so fucking old. Fuck all of you marriage conforming fucks. What about non-breeding, single mofos (straight or gay) who get fucked by marriage/children entitlements?

    David Boaz at Cato has an interesting post about Walker. He almost didn't make it to this point because of liberal/progressive advocacy groups and legislators.

  • MJ||

    How are you "getting fucked" by marriage/children "entitlements"?

  • Hank||

    Are you familiar with fucking tax credits when you have critters? How about gifting your spouse? Really, the fucking social engineering done with taxes is fucking absurd.

    Every topic posted on this blog and others are fucking meaningless without tax reform. More specifically, removing the power Congress has to discriminate through the tax system is what's needed. Fair tax, flat tax, no tax - something has to give.

  • MJ||

    I agree that the tax code is gamed considerably, but that not marraige's fault. I don't think there are as many tax benefits to marraige as you think there are, and many of them come the progresive income tax being inherently unjust (there literally is no way to treat singles and all variations of how married couples can file justly).

  • ||

    I'm not exactly 100% opposed to gay civil marriage, but the equal protection argument really doesn't hold water AFAIC, because it totally sweeps under the rug the question of what marriage *is*.

    It's not about partnering up with someone you 'love' -- how do we choose whom to marry is a different question than 'what is marriage'.

    'Marriage' regardless of the myriad variations, is fundamentally about family -- men and women having children together, with the community recognizing and supporting their special status as a way of stabilizing and strengthening the tribe, as the presumption of paternity in return for the exhcange of sexual fidelity for the resources is so tied up in questions of child support, inheritance, and, yes, reducing intra-tribe violence.

    This is all bound up in the very nature of sex between opposites, in a way that it is *not* in the fundamental nature of same-sex. As I read someone once put it, it takes special effort or circumstances for het couples to *not* have offspring, whereas same sex couples can only have them by special means.

    Or as it has also been put, everyone does already have an equal right to marry someone of the opposite sex. Whether they want to exercize it is beside the point.

    One may as well claim an equal protection argument for mandating driver's licenses be issued to the blind in the name of 'fairness'. You might say that's hogwash, becasue there's a safety issue in that case, but that's true only insofar as the safety issue requires one to take seriously the nature of the thing being licensed.

    A non-legal argument for opposing restrictions on same-sex marriage is that the claims it will weaken the instituion further are trivial given the het divorce rate. However, the fact that liberals have largely succeeded in weakening marriage by making divorce easier with no-fault etc and destigmatizing it in the culture actually supports the conservative POV, not the liberal one as assumed.

  • Tony||

    Yeah liberals are undermining families... by nefariously plotting to make divorce rates highest in red states they don't control.

    Inasmuch as marriage is a civil institution it should be available to people equally. Welcome to enlightened liberal society, where equal rights trump religious prejudices in the eyes of the law. Let churches discriminate. Let them drink snake venom or poisoned kool-aid for all I care. This is about equal rights under the law, very simply.

  • MJ||

    A heterosexual couple's circumstances and issues are not the same as a homosexual couples. There is no equal protection for non-equivalent relationships.

  • Tony||

    If a straight couple can get married for any damn reason they want I fail to see why a gay couple shouldn't be able to as well. Don't feed me bullshit about reproduction. There is no legal requirement for married couples to produce children.

  • Robert||

    Actually until fairly recently infertility was sufficient legal reason to annul a marriage.

    The stakes are different now. For most of history there was in the great majority of cases no reason for people to marry if they didn't want to have children. So now that add'l stakes have been added, you want the terms of the "bet" to change?

  • Tony||

    I agree that throughout time heterosexuals have morphed marriage from one thing to something else. That something else comes with a lot of legal protections and benefits, which should be enough, but it's also simply a more liberal institution. The way heteros treat marriage it's a little hard to argue that it should be denied to gays. In fact, maybe gays can strengthen the institution. They can certainly bring a little taste back to weddings.

  • DesigNate||

    For most of history women were the property of their fathers and were sold, I mean married, to their husbands so that one or, usually, both men gained financially and/or socially. It wasn't about propogation of the species, it wasn't about raising a family, it was about money. Plain and Simple.

  • MJ||

    Then take that argument to the voters or the legislature, there is nothing that requires a jurisidiction to accommodate homosexuals under marriage law. Stating a false equivalency between heterosexual and homosexual relationships do not cut it.

  • Tony||

    There's also no rational basis for denying them marriage rights like prop. 8 did. Read the decision, or at least a summary. It's a logical, conservative argument based on facts.

  • MJ||

    It is based on the same tired reasonong that male & female are perfectly interchangable and inconsequential. It is only logical if you accept that glaringly wrong premise.

  • DesigNate||

    One could argue that in the age of science and technology we live in (what with invitro, surrogacy, and adoption) that male & female are kind of interchangeable.

  • Tony||

    MJ, that's not true. It's saying that heterosexual and homosexual couples are 'interchangeable'. Do you disagree?

  • Robert||

    newscaper sees & frames this issue clearly AFAICT. Marriage came about to help solve certain recurring (pre-historic, even pre-human) problems and disputes. Taken out of its previous context and put into one where marriage status interacts with taxes, insurance, and a slough of legal-economic forms, pressure has developed to take advantage by distorting the customary understanding.

    Same thing with money. It came about to solve certain recurring societal problems. But then gov't, in the guise of protecting money, proclaimed itself in possession of the measure of money, with the right to delegate that measure to...whomever. And then the pound, or peso, or drachma, or whatever, that was settled on by the widespread understanding of the people to mean that weight of silver or whatever, came to mean...well, yeah, that, and/or whatever the politically favored banker said.

  • DesigNate||

    The previous context of marriage was destroyed when we started a new country with complete freedom of religion. Before that, the church and state were intertwined so there was no need for the state to be directly involved with the marriage process.

    But if you're going to start a society with complete religious freedom, you have to be prepared that some may not choose to follow any religion. If there are citizens that do not proscribe to any religion, how then can they be be married? (Seeing as how that was the domain of the church)

    The only solution is to have the state be directly involved in the marriage process. Of course if they are involved, they get to set the rules.

  • Robert||

    No, you've merely bought the lie that marriage was a product of religion. It wasn't, so freedom of religion had nothing to do with it.

  • MJ||

    A few weeks ago Sullum praised a federal court for overturning DOMA on the basis that the federal government cannot dictate marriage policy to the states.

    Today a federal court dictates to the State of California that it must allow homosexual marriage.

    So much for the social liberal libertarians committment to States' Rights.

  • Mike Laursen||

    "social liberal libertarians"? There's some other kind?

  • Jason||

    So now a man can marry someone who isn't wolfman?

  • ||

    People here keep stating that "You can't always marry who you want." That's not the issue here.

    The issue is whether two consenting adults can enter into a legal marriage. This idea that "Straight dudes can't marry other straight dudes" is completely irrelevant, because they are not asking to get married. Neither gives their consent.

  • Clint Wayne||

    Don't both straights and gays have EXACTLY the same marriage rights, right now, in EVERY state? They have the right to marry someone of the opposite sex. If gay marriage advocates want SPECIAL rights, I suggest that they be honest about it for s...tarters. And not only that, I'd LOVE to hear them limit the definition of marriage in any way shape or form after they carve out a little special right for themselves.
    It's entirely possible that those "bigots and idiots" have also thought through this in the same manner?

    To me this is simply logic vs. emotion. It's emotionally easy to say that we should all have the same rights. Right now we do. If you want special rights, then make the case, and then please explain why that is the ONLY special right that should be allowed where marriage is concerned.

  • Jim Treacher||

    Today I've seen the strongest argument for gay marriage yet: If we don't have it, Episiarch will throw a fit.

  • Thom||

    There seem to be a lot of people here who are attacking this decision based on intellectual arguments alone. Can't this just be one of those issues that people let go? I can never understand why people who are opposed to marriage equality care about this issue so much.

  • Geotpf||

    Because gays are icky! The Bible tells me so!

  • Michael Ejercito||

    There seem to be a lot of people here who are attacking this decision based on intellectual arguments alone. Can't this just be one of those issues that people let go? I can never understand why people who are opposed to marriage equality care about this issue so much.


    There is more to this case than just the definition of marriage.

    It has to do with the integrity of our Constitution. This ruling is completely inconsistent with the original public understanding of the 14th Amendment, and in fact the Supreme Court had already rejected the idea that the 14th Amendment forbids states from denying marriage licenses to same-sex couples.

    If we abandon original public understanding as our guide to interpret constitutional provisions, we will have a results-oriented jurisprudence where judges twist the meaning of constitutional provisions to enact their favored policies.

  • ||

    The obvious solution is to get the states out of defining the sacrament of marriage and leave it to the religions. Let people of any persuasion choose from a variety of social/contractural arrangements that don't take into account a person's sexual proclivities, gender, or even limit the number of other people that person can contracturally be linked to unless that is what is desired.

    The state's only role should be in upholding the respective parties' contractural rights.

  • DesigNate||

    The fact of the matter is there are more than just tax benefits bestowed upon married couples.

    It would be awesome if we could get the state out of the marriage business but it would be easier to get Bill O'Reily to suck Pat Buchanan's cock. Since we realistically know that's not gonna happen, let's move on to what we should do about it.

    In my mind there is only one viable option that covers all of the bases. Henceforth "marriage" should be the sole province of religions. The state is only involved in handing out "civil union" certificates. Everyone goes to the state to get said license. These "unions" are the only thing recognized by the state to confer benefits upon the parties. Upon receiving the certificate you can perform whatever kind of mumbo jumbo ceremony your particular flavor of religion does.

  • ||

    No self-respecting libertarian supports the granting of marriage licenses for homosexists to marry homosexists.

    In short, no libertarian supports government expanding government.

    And another protected class of people based on conferred status by politicians does nothing but expand the welfare rolls, in this case, Soc. Sec. and thus size of government.

    The correct act of the authentic libertarian is to oppose licensure for marriage for gays.

    The authentic libertarian opposes income taxation. Short of getting a repeal of income taxation, the authentic libertarian opposes tax breaks based on classes of people, such as marrieds.

    The authentic libertarian fights to get all laws applied equally to each individual adult because of the concept of the individual.

    A homosexist man is an individual, but gays are a group. Elevating the status of individuals who form a group because of the group stands in opposition to the whole concept of libertarianism.

    Good luck you faux libertarians, supporting Collectivist, progressive action that further crushes libertarianism -- idiocy like licensure for marriage for homosexists and illegal immgration amnesty.

  • Geotpf||

    Libertarians tend to get caught up in the "the state shouldn't be involved in marriage at all". Of course, that's not the question on the table-at all. The question is "Since the state is involved in marriage, should it arbitrarily ban certain groups from getting married?" Libertarians are against the state preventing people from doing stuff, so the answer should seem clear. But some people who claim to be Libertarians (like yourself) use the first question to support their own personal or religious belief that gays are icky.

  • Robert||

    It's not that states "arbitrarily ban" marriage. It's just that the words "married", "spouse", etc. had a customary meaning. It's like a municipality that sells dog licenses; you could get one for a cat, for all the municipality cares, but that doesn't make the cat a dog. This has nothing to do with being anti-cat or anti-dog, it's just an understanding that cats are not dogs.

  • ||

    Homosexists aren't icky. Homosexists suffer from mind disorder, however. They're defective humans, crippled in the mind, inferior.

    Yet so are most on this planet. That's why most voluntarily become slaves to elites who rule over them easily with smooth-talking rhetoric.

    The superior don't abuse, beat up, or trick the inferior, including homosexists.

    Expanding government is anti-libertarian.

    You've confused libertine with libertarian.

  • mj86||

    "Of course, that's not the question on the table-at all."

    That's right. It isn't the question, it's the resolution. If government believes it is giving out benefits based on a flawed institution its recourse is to stop handing out benefits based on that institution.

  • ||

    When two people get married, it is because they love each other.
    They want to be together in a bond that makes them one with each other forever.
    It is a wonderful thing to have such a bond.
    It is special.
    It is love.
    When a man and a woman get married, no one blinks an eye.
    If two men or two women do the same, then many people do not approve.
    They claim that it is not right or that it soils the real meaning of marriage.
    What is the real meaning of marriage?
    The answer to that question is in line one of this article.
    It is because they love each other.
    Does it matter if the couple is gay or straight?
    Should it matter?
    No!
    After all, why should it.
    Gays want their equal rights and among those equal rights is the right to be married.
    I agree with wanting equal rights.
    We are all people which means we are all the same.
    It does not matter if someone is gay, white, black, a man, a woman, tall, short, young, old or whatever.
    We all want our equal rights.
    That is our right.
    However, we need to go beyond equal rights when it comes to gay marriage.
    Society needs to understand that any marriage is not about the right to be married.
    It is about wanting to be married as a loving couple.
    Love is not something that should be decided on by voters.
    It is not a court issue either.
    It should not be an issue at all.
    Marriage is between two people in love.
    It is not between two people, the voters, the courts and anyone else who has an opinion.
    Gay marriage does not bring down the meaning of marriage.
    It makes the true meaning of marriage even better.
    That is what love does.
    It makes things better.
    Society has come a long way in the last fifty years in terms of equality, but we still have a long way to go.
    It is a shame that love is something that needs to be fought for.
    I am not gay, but I am the same as you as you are to me.
    May love conquer all.

    George Vreeland Hill

  • دردشة||

    thanks

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