Why Gay Marriage Will Win Regardless of SCOTUS Rulings

Today is the first of two consecutive days of oral arguments about marriage equality cases at the Supreme Court. Come back to Reason.com later today for an interview with our own Damon Root, who is covering the arguments for us.

Here's a snippet from a Wall Street Journal op-ed by lawyers David Boies and Ted Olson, liberal and conservative legal eagles, on why California's Proposition 8, which killed same-sex marriage in the Golden State, should be overturned:

...laws like Proposition 8 cause devastating harm to gay and lesbian couples and their children. Exclusion from the institution of marriage marks those couples and their children with a badge of inferiority. The damage this does to their hearts and minds is immeasurable—and the damage it does to all of us and our belief in the nation's ideal of equality is incalculable.

For one to say that the Supreme Court should leave the question of marriage equality to the political processes of the states is to say that states should remain free to discriminate—to impose this pain and humiliation on gay men and lesbians and their children—for as long as they wish, without justification. The Constitution forbids such an indecent result. It did not tolerate it in separate schools and drinking fountains, it did not tolerate it with respect to bans on interracial marriage, and it does not tolerate it here.

Whole thing here.

(Hat tip: Instapundit)

Boies and Olson specifically argue that the 14th Amendment, which essentially applies the Bill of Rights to the states, means that state and local jurisdictions can't deny basic rights to individuals regardless of majority will or local preference. The 14th Amendment is a check on the states' power to be "laboratories of democracy" to allude to Justice Louis Brandeis' evocative phrase. And it's a good thing that power is checked, since as Root and many other have pointed out, the states are probably as often "laboratories of repression" as they are of anything else. Progressives such as Oliver Wendell Holmes Jr. and conservatives such as Robert Bork agree that, as Holmes' once put it, very little should get in the way of “the right of the majority to embody their opinions in law.” As Holmes put it back in the day, the 14th Amendment is "perverted...when it is held to prevent the natural outcome of a dominant opinion.” Yeesh.

There is real and ultimately irresolvable tension between the idea that individuals have certain rights that cannot be legislated away and the idea that the federal government's power should be limited. That's one point of disagreement among libertarians about marriage equality and a host of other issues, ranging from drug prohibition to college entrance policies and more. What counts as a fundamental right that should always and everywhere be respected - and what counts as something that can modified or even proscribed by a given unit of government (and under what circumstances)?

But in the end, the legal arguments being made at the Supreme Court today and tomorrow aren't why marriage equality will prevail (nor will contested social scientific findings matter in the long run). It's because public opinion is swinging definitively in favor of treating gays and lesbians as citizens with full rights in every possible situation. That process began first and foremost because gays and lesbians refused to be denigrated in all sorts of social, cultural, economic, and political situations, ranging from the anti-police riot at Stonewall through books, plays, movies, and even sitcoms that defended sexual preference as an individual right that the state or society writ large could dismiss either as pathological or criminal. Joe Biden, it turns out, was absolutely right when he said the Will & Grace had "probably did more to educate the American public [about tolerance for gays and lesbians] than almost anything anybody's ever done so far."

As can be seen from the growing number of national legislators - Republicans and Democrats alike - who are coming out in favor of same-sex marriage, law is often a trailing indicator of where public opinion is either headed or where it's already arrived. As law professor Mark Tushnet once told me, "The Court can have some influence on the margins, pushing things a little further in the direction that they're already moving or sometimes retarding the direction. But 10 years down the line, the society's going to be pretty much where it would've been even if the courts hadn't said a word about it."

The end of de jure racial segregation in post-War America is testament not just to how long and overdue the process of change can be; it also shows how messy it is, often bouncing back and forth between legal decisions,  public opinion, and politics. But once large numbers people fall on one side of an issue - especially to a point where public denunciation and vilification of the minority group is no longer tolerated in polite society - the law will fall into line one way or another. And sooner rather than later.

Watch last year's Why Gay Marriage is Winning:

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  • sarcasmic||

    Exclusion from the institution of marriage marks those couples and their children with a badge of inferiority. The damage this does to their hearts and minds is immeasurable—and the damage it does to all of us and our belief in the nation's ideal of equality is incalculable.

    It's not about equality under the law. It's about feeeeeeeeeeelings.

  • thom||

    Yes, unequal treatment under the law and the denigration of people to second class citizenship is needlessly emotionally harmful.

    The driving force behind the anti-SSM argument seems to be that we *should* continue to, intentionally and deliberately, hurt gay people's feelings.

    It's not soft or weak to resist that motivation as a matter of policy.

  • wareagle||

    It's not soft or weak to resist that motivation as a matter of policy

    but it is both soft and weak to pretend that hurting feelings is the sole motivation of the antis. I really don't care who marries whom and would rather the govt be asked where it got the right to make that determination, but this does not mean everyone who disagrees with me is a sinister mean ass filled with hatred.

  • sarcasmic||

    You don't understand. Raw hatred of homosexuals is the only possible reason why someone would oppose redefining marriage, and supporting the redefining of marriage is the only way to prove you don't hate homosexuals.

  • thom||

    I've never been able to identify any other reason why somebody would oppose same sex marriage.

    Since legal marriage isn't going anywhere, it hurts nobody to extend the privilege to gays. You say it best: "raw hatred of homosexuals is the only possible reason why someone would oppose" such an extension.

  • Randian||

    The opposition comes into all of the private violations of freedom of association.

  • thom||

    "The opposition comes into all of the private violations of freedom of association."

    Oh, yeah, if we extend equal rights to everybody then other laws will make it so homophobes have to do business with homos!

    When SSM becomes the law, I hope you realize that you're problem should be with the laws that force that kind of stuff on people, not the laws that extend equal rights to everybody.

  • sarcasmic||

    I've never been able to identify any other reason why somebody would oppose same sex marriage.

    All you can understand as a motivation to do something is hatred. Interesting. That says more about yourself than about those with whom you disagree.

  • thom||

    "All you can understand as a motivation to do something is hatred."

    Negative. But the only motivation that I can see for trying to prevent the extension of legal rights to other people, in a way that will have zero effect on yourself, is hatred.

    If you could name one actual way that SSM would impact you negatively in any material way, I might give you the benefit of the doubt. But you can't seem to do that, so I won't.

    You do realize that you can still hate gay people even if they're allowed to get married, don't you? Nobody will take that away from you.

  • JohnD||

    Can we still hate you?

  • wareagle||

    two reasons are semantics and tradition. For a long time, marriage has meant two people of opposite sex who are unrelated. At least in this country. The term gay marriage didn't even exist until very recently.

    Marriage is being redefined and not everyone is okay with that. You will find a good many SSM opponents who have no issue with civil unions when, on paper, they are much the same thing. Opposition to things is not always driven by hatred.

    By the way, sarc is living up to his name with the 'raw hatred' remark.

  • thom||

    "two reasons are semantics and tradition."

    Maybe. But I'm a libertarian. I don't consider semantics or tradition to be valid reasons for the government to do or not do certain things.

  • sarcasmic||

    thom - you're acting like a progressive liberal and engaging in a fallacious argument. The burden of proof is on those who want change. Not those who are defending the status quo. What you are doing is switching the burden of proof.
    The burden of proof is on you since you are the one who wants change.
    It's easy to ask for reason to defend the status quo and then then smugly dismiss every answer. That's why progressive liberals do it.

  • Calidissident||

    Sarcasmic, your argument would make sense if government wasn't already using force to define the word in the first place. If traditionalists don't want to government to redefine the word, then they should support the end of government marriage licenses. But you damn well know that outside of libertarian circles, there aren't many people who are ok with that.

  • thom||

    "thom - you're acting like a progressive liberal and engaging in a fallacious argument. The burden of proof is on those who want change"

    I'm acting like a progressive liberal? Which one of us is the one who wants the government to be in the business of defining words? (Hint: it's not me.)

    The idea that we should grant different levels of privilege to different groups is very...statist.

    My guiding principle of libertarianism is that of doing no harm and desiring no harm from others. Since gay marriage affects my life not at all, and since fiercely opposing it will actually harm gay people who want to get married, it seems like an open and shut case to me.

    That said, I don't hate gay people. Not even a little bit. There's nothing irrational that is making me look for lame excuses (like the government's definition of certain words, or dubious arguments related to biology, or baseless appeals to "tradition") to oppose it.

  • cavalier973||

    Marriage, by definition, is a heterosexual union. The "heterosexual" part of marriage is a defining characteristic. For one to be in a marriage, one must be bound to a person of the opposite sex.

    An analogy: Apple pies, by definition, must contain apples. One could say that he is going to bake an apple pie, but substitute peaches for apples. He could call the finished product an apple pie, but he would be incorrect. What he would have is a peach pie. Because, by definition, apple pies contain apples.

    Of course, our hero in the analogy might petition the government to legislate that the definition of apple pies now includes pies made with peaches, as well. He might succeed in getting such legislation passed. But the definition of apple pie does not depend on gov't legislation.

    So here's the argument: the attempt to redefine marriage to include relationships outside the definition of marriage is nothing more than an Orwellian attempt to destroy the meaning of words, which is one method that the gov't has to increase its control over our lives. When everything is meaningless, then no real information can be transmitted, because no one really knows what anyone else is saying.

  • sarcasmic||

    Why do you hate peaches? I mean, the only possible reason why you don't want apple pies to be redefined to mean apple and peach is hatred of peaches. What did a peach ever do to you? Hater.

  • cavalier973||

    Funny you should bring that up; a gay acquaintance of mine asked the same thing when I presented this argument.

    Anyway, it's not about peaches vs. apples. It's about using legislation to change the meaning of words. Peaches may be more popular than apples, and more widely consumed. But if you make a peach pie, call it what it is; or, even, call it an apple pie, if you like. Just don't petition the government to allow you to change the definition of "apple pie", so that you can then compel other people to also call your peach pie an apple pie.

  • cavalier973||

    I should also add that the definition of marriage includes the idea of exclusivity. "Open marriages", whether they are heterosexual in nature or not, don't qualify as true marriage, definitionally speaking.

  • Calidissident||

    Does that apply to polygamous marriages?

  • mad libertarian guy||

    The problem with the whole "definition of marriage is changing" bit is that marriage has NEVER had a constant definition.

  • Pippers||

    Marriage has been around longer than Christianity. Your modern "American" definition, while popular in the USA, is still only a speck in time compared to the amount of time marriage has been around with no definition that have allowed same sex to marry.

    Your argument is not valid. At all.

  • sarcasmic||

    It's about using legislation to change the meaning of words.

    Yep. That's what I've been saying all along.

  • ||

    Of course, our hero in the analogy might petition the government to legislate that the definition of apple pies now includes pies made with peaches

    That's why I put tomatoes in my fruit salads. I refuse to let the Supreme Court redefine my fruits!

  • Barnstormer||

    Thank you, Cav. Sincerely. I think you're the only person in the nation who effing gets it.

  • Brandybuck||

    It's not raw hatred. You don't have to agree with other people, but you could at least try to understand where they're coming from. Conservatives are about protecting traditions. Gay marriage is not traditional. Conservatives will ardently defend the goal posts, even when the goal posts move. Just as soon as gay marriage becomes the norm conservatives will be there defending it. You just have to give them time to come around.

  • sarcasmic||

    Just as soon as gay marriage becomes the norm conservatives will be there defending it.

    No they won't. It will become like the abortion debate.

  • Harvard||

    Only if the homosexuals commence murdering one another and claiming it's a noble act of privacy and the act is due them for a homosexual's body is his/hers/its own.

  • Tony||

    80% of young people support full gay marriage rights. And old people do eventually die. If anything I'd keep your eye on abortion.

  • KPres||

    You couldn't be more wrong. If you let it be about people getting their feeewings huwt, then the next time, when the pro-liberty position happens to huwt some poor wittle peoples' feeewings, guess what's going to happen?

    Gays have the right to marry because it's a voluntary contract that in no way affects any 3rd party, so those 3rd parties need to STFU. Nobody's feelings, one way or the other, are important to the issue.

  • DJF||

    “””’it's a voluntary contract that in no way affects any 3rd party,”””

    If it has no effect on 3rd parties then you don’t need a law. That is what most laws are about, not about getting people who agree about something to do something, its about making all the people who don’t agree do something.

  • VG Zaytsev||

    Except that marriage (as it exists now and as progressives want to expand it) is not a private contract and it does impose obligations on 3rd parties.

  • wareagle||

    and the question no one will dare ask is why marriage should not be private like many other contracts, with the state only called upon if one party believes the other has violated the terms.

  • VG Zaytsev||

    Marriage, in the us, is a basket of privileges and obligations. It is a set of incentives that encourages two people to form long term relationships and makes ending those relationships difficult.

    The only rational motivation for that government policy is more family formation as a public policy goal.

    Removing the goal of family formation removes any justification that existed for the government granting those privileges and enforcing those obligations.

  • Randian||

    That isn't the only rational motivation. Orderly merger and division of property springs to mind. Legal powers of attorney over life and death decisions are good ones too.

  • sarcasmic||

    Orderly merger and division of property springs to mind. Legal powers of attorney over life and death decisions are good ones too.

    Marriage is the only way to handle these things?

  • Randian||

    No, but that isn't what was asked. And it may not be the only way, but it is the most efficient one I can think of.

  • VG Zaytsev||

    You can privately contract for those things. Besides your post does not address the centrality of assertion that marriage as government policy exists to incentivize certain behaviors related to child rearing.

  • ||

    I do enjoy contracting for my ability to sponsor a spouse VG, it's a very cool quirk of contract law.

  • KPres||

    Are you claiming the opposition GM is based on objections to the obligations marriage puts on 3rd parties?

    I think not. The objections are based on superstitions.

  • Eduard van Haalen||

    And I can't help but notice that many SSM supporters seem to think *marriage* is a superstition.

  • Eduard van Haalen||

    "Gays have the right to marry because it's a voluntary contract that in no way affects any 3rd party"

    I would have thought that bakers, wedding photographers, owners of wedding pavillions, bed-and-breakfast owners and T-shirt makers would qualify as third parties.

  • ||

    Guess what, Eduard. Imagine an unmarried gay person wants to go have a professional photo taken, and makes it clear for whatever reason that he or she is homosexual. The photographer disapproves of homosexual behavior and says he is uncomfortable taking the pictures.

    Do you think that doesn't also fall under anti-discrimination laws in many states?

    Get a new complaint that actually has something to do with marriage and not anti-discrimination laws, which almost everyone here would do away with regardless.

  • wareagle||

    Do you think that doesn't also fall under anti-discrimination laws in many states?

    if you don't want to provide someone with service and if you are willing to deal with the repercussions of being called out over it, then what does a law accomplish? If the photographer disapproves, the gay patron is free to take his/her business to a more friendly business AND to let friends know about the first photog.

    This complaint goes back to the argument Rand Paul was making about coerced association between parties. The freedom to make unpopular, controversial, or even bad choices and decisions is also part of a free society.

  • cavalier973||

    Right, Eduard.

    Why would you oppose the gov't forcing an individual to work for someone else?

    I'm guessing, Eduard, that you're one of those stinky "13th Amendmenters"

  • Eduard van Haalen||

    Nikki,

    SSM laws tend to make the discrimination laws stricter. In states which don't recognize SSM, it would be awkward to force private businesses to do what the govt itself won't do. But with a SSM law, which (as with most such laws) exempts only *some* private institutions, the necessary implication is that other private institutions are to be forced to recognize these new marriages. Saying that churches and religious nonprofits won't (at least in all cases) be required to perform gay weddings suggests that other institutions, especially secular for-profit businesses, *will* be required to help in such weddings, just as a law saying it's legal to fish in the creek on Tuesdays suggests that it wouldn't be legal to fish there on other days.

    I get the impression that not everyone here has actually *read* the various SSM bills.

    The newest "human rights" complaint in New York seems to coincide with the introduction of SSM:

    http://reason.com/blog/2013/03.....nt_3609453

  • ||

    Your problem is still with anti-discrimination laws and the state's complete lack of respect for freedom of association. And that has been a problem a lot longer than gay marriage has even been an issue.

  • Eduard van Haalen||

    I repeat - the SSM laws make the situation you're complaining about *worse.*

    I mean, if you're committed to the right to fish in the creek all days of the week, why on earth would you support laws saying that "fishing is permitted on Tuesdays"?

  • ||

    I seriously doubt they make it worse. I find it hard to believe that any state that has passed a gay marriage law hadn't already added homosexuals to its list of protected classes.

  • Eduard van Haalen||

    The specific issue I'm addressing has to do with forcing private businesses to help out at same-sex weddings. States which compel this tend to have some kind of SSM law, if only a civil union measure.

    If the state doesn't recognize SSM, how could it consistently force private businesses to do so?

    The Seattle *Stranger* gets it - in this story about a florist accused of anti-gay discrimination, the case is "teeing up what could become the state's first big test of its anti-discrimination law since voters approved gay marriage last fall."

    Also:

    "The [gay] couple [which was "victimized" by the "discrimination"] has reason to be wary of becoming poster children and risking the religious right's backlash if they litigate. As we saw during fights last fall in four states voting on gay-marriage proposals, campaigns funded by the National Organization for Marriage cited anti-discrimination cases to argue that business owners, parents with kids in schools, and others could be forced to violate their religious mores by recognizing same-sex marriage laws. It was a clever ploy to cast anti-gay conservatives as the victims of discrimination themselves. So as the country considers future gay-marriage laws, filing a lawsuit against Arlene's Flowers could arguably make this couple the whipping boys of the far right."

    http://slog.thestranger.com/sl.....ay-wedding

  • Randian||

    ugh. The Stranger is the godfather of Gawker.

  • GlenchristLaw||

    It takes a special kind of stupid to suggest that the cure for a bad law is to make it worse.

  • Calidissident||

    Eddy, your argument could have just as easily been used against interracial marriage or the Civil Rights Movement in general. The problem is the anti-discrimination laws, not gay marriage. The fact that you're perfectly ok with government licensing straight couples tells me what your true motivation is

  • rxc||

    If it is not about children, then should borthers and sisters be permitted to marry, if they do not intend, or are not capable of having children? What about Fathers and daughters, or mothers and sons? If they can't make any children, but just want to demonstrate their love for one another, then why can't they get married, as well?

  • ||

    I don't know, should couples do fertility tests before they get married, and sign a statement saying they definitely plan to reproduce before the state will give them a marriage license?

  • ||

    I know you think you're being clever, but if they are both consenting why the fuck should you have a say in what they do with their fucked up lives?

  • buybuydandavis||

    Policy is one thing, pretending the constitution says things it doesn't is another.

    Policy, i.e., legislation, is the proper way to protect gays from discrimination until a change in the constitution is made.

  • ||

  • lap83||

    "It's about feeeeeeeeeeelings."

    Yeah, never mind that heterosexual marriage has not traditionally been about feelings.

  • John||

    I think we need another gay marriage thread. Reason has really been ignorning this issue.

  • Chris Mallory||

    Maybe a puff piece about a gay married couple who own a food truck.

  • $park¥||

    Maybe a puff piece

    HATER!!!

  • Suki||

    And a cop shoots their dog.

  • Heroic Mulatto||

    Maybe a puff piece about a gay married couple who own a food truck.

    Why? To distract us from the fact that you molest your daughter, Chris Mallory?

  • Loki||

    And I have it on good authority that he fucks sheep and then pimps the sheep out to other beastiality inter-species erotica enthusiasists.

  • cavalier973||

    And who have to endure protests by the Westboro Baptist crowd EVERY.DAY

  • buybuydandavis||

    Make them "undocumented".

  • Capt Ace Rimmer||

    It's simple. As long as the gov't is handing out free bus rides then everybody gets to ride the bus.

  • ||

    But that would change the definition of bus-riding...! Or something.

  • Capt Ace Rimmer||

    which would destroy civilization.

  • thom||

    It would make the existing bus rides not be bus rides.

  • VG Zaytsev||

    Yep, that seems to be the idea.

    So when do i get my welfare checks?
    It's unfair that I don't, just because I'm not a deadbeat loser. And not getting free money like poor people do, hurts my feelings and makes me a 2nd class citizen.

    If the government is going to give welfare to anyone it's only fair that it gives it to anyone.

    Sure it'd be better if government got out of the welfare bidness altogether, but until they do, it's only fair that everyone gets it.

  • Calidissident||

    Would you support a law that restricted welfare benefits to people of a certain race (or sex, religion, hair color, eye color, etc. if you prefer)?

  • Fist of Etiquette||

    Exclusion from the institution of marriage marks those couples and their children with a badge of inferiority.

    Badges? We don't need no stinking badges.

  • John||

    Yeah because unmarried people with children are so rare these days.

  • Zeb||

    Having children when not married is certainly not perceived negatively as it once was. But if an unmarried straight couple has a kid, they are both still legally parents. If a gay couple wants to raise a child together, unless they can get married, only one parent can legally be a parent. I think that is the argument. The child being "illegitimate" or whatever is beside the point because no one cares about that anymore.

  • VG Zaytsev||

    Except when one of them changes their minds. Then it's not fair to imposed parental obligations on that person.

  • Eduard van Haalen||

    The question of parental rights would arise mainly when the gay couple splits up. Even in a scenario where one partner is the biological parent, the ex-lover would, under SSM, be able to claim parental rights - eg, visitation, potentially even custody.

  • VG Zaytsev||

    There was a recent story in Reason about a gay couple that artificially conceived a child. Then one of the partners bailed on the marriage and wanted to be absolved of parental obligations because she was not the biological parent of the child.

  • ||

    I think part of the point of that article was that one of the spouses was in no way legally bound because it wasn't a gay marriage state. The biological spouse had no legal claim and so they went after the biological father.

    It was a terrible decision, but does point to a need for legal recognition of gay marriages to enforce the obligation end of marriage.

  • Fist of Etiquette||

    Don't you have to adopt a stepchild to have parental rights?

  • John||

    Not unless you adopt them.

  • GW||

    Yep. The above argument is a red herring. The fact that gay couples, by definition, can't have children together pretty much guarantees that both partners can't be parents with adoption taking place.

  • John||

    But the rule is that if you are married to someone who has a child, you are presumed to be the parent of that child. Apply that rule to lesbians and the other lesbian is on the hook.

  • GW||

    That's not true. If you divorce, it's like nothing ever happened.

  • ||

    Yeah, cause no gay people enter into a gay relationship with existing children. Nope, none whatsoever.

  • John||

    Zeb,

    There have been several cases where lesbian couples later got divorced and the sperm donor was on the hook for it.

    http://www.nydailynews.com/lif.....-1.1232394

    This case makes a good argument for gay marriage. The dead beat lesbian who didn't have the kid walks away without any obligation and the sperm donor is being sued. Under gay marriage, the lesbian deadbeat doesn't get away with it.

    Reason number 100 why gay marriage won't be as bad as SOCONS think it will be and won't be nearly as great as gay activists think it will be.

  • lap83||

    But if unwed parenting has been increasing even though heterosexual marriage has always been legal, why would legalizing homosexual marriage increase the chance of homosexual parents being married? To me that signals that society increasingly does not associate raising a family with marriage.

  • John||

    I don't know that it would. But gay marriage would prevent gays from walking away from their parental responsibilities.

  • jessie||

    I think this is kind of an optimistic view to take. Interracial marriage wasn't voted into by all 50 states, that took a supreme court decision. It seems pretty stupid now, doesn't it? The idea that it should be left for the states to decide? Can you imagine how stupid you'd look today if you suggest that interracial couples in Texas should be less deserving of the right to marry than an interracial couple in Washington, simply because the public voted differently?

    Gay marriage will be allowed in all 50, and it will likely be a supreme court decision that does it.

  • VG Zaytsev||

    I hope not, at least not yet.

    If SCOTUS forces the issue now we'll spend the next 40 years with it being the central point of political campaigns all over the country, the same way that Roe did with abortion.

    It's better for everyone to let it win in the states and become a settled political issue.

  • wareagle||

    and, my two cents, it's better to have states do it legislatively - wherein lawmakers are rewarded/punished by their constituents at the next election - than by public referendum.

    Could just be me, but the referendum process strikes me as political cowardice. Running for office means being willing to make choices on tough issues, too, not just ribbon-cuttings.

  • jessie||

    That still leaves the issue of people's rights up to a vote. Why should people be allowed to vote away the rights of others? If we hold a vote on whether or not the WBC should be allowed free speech, would the people vote to protect their constitutional rights?

  • Randian||

    Because when possible it is a good idea to leave things to the states.

    I understand that's a circular answer. Too bad. I also understand that gay couples currently suffer under certain backwards regimes. That is also too bad. The separation of powers is more important to the long-term health of the Republic than licensure of your marriage. That's just a judgment call I'm making.

  • jessie||

    Your judgment sucks. The bill of rights restricts not just the federal government, but the government at all levels. The bill of rights would be pointless if we allowed the state government to deny equal protection to gay couples.

  • wareagle||

    the Bill of Rights is uninterested in your sexuality and says nothing about marriage involving either gays or straights.

  • Randian||

    It wouldn't be "pointless" at all. The amendments are still by and large operative. Promoting federalism in this sphere does not render all of the other protections moot.

    You're wildly exaggerating your case to support your hobbyhorse.

  • Randian||

    The bill of rights would be pointless if we allowed the state government to deny equal protection to gay couples.

    I would counter that cramming a top-down definition on States acts in furtherance of the undesirable policy of rendering the states as simple vassals or administrative districts to the Fed.

    I am picking which one I prefer, and I think liberty is furthered more by the separation of powers.

  • jessie||

    That's interesting that you gave abortion as your example of an ongoing state vs supreme court struggle, when the more comparable example of interracial marriage was right there in my post. Why would this be like Roe V Wade, which is still fought over, and not like interracial marriage, which is a done deal?

  • buybuydandavis||

    Lacking a constitutional amendment making genders a protected class, the analogy to race fails.

  • thom||

    No. If recent polling holds up, it will be an issue that we can use to quickly identify extremist candidates, since opposition to SSM will be an extremist position. Since our system gravitates towards moderate candidates, you'll never hear about it during an election.

    There are a lot more similarities to race 40 years ago than there are to abortion. The primary issue with abortion is there is an innocent victim. SSM does not have innocent victims. Interracial marriage does not have innocent victims. People who oppose interracial marriage now are correctly identified as loons. It will be same for SSM very shortly.

  • BGJr||

    This wouldn't have been such a big deal if the LGBT community would have accepted "Civil unions" but they have to use the word "marriage" so the religious are going to fight it.

    I personally am very torn. My social libertarian side says "I don't care what they do as long as it doesn't affect me". My small government libertarian side says "Why is the government involved with marriage in the first place?" Oh that's right ... it all comes back to collecting taxes. That is the ONLY reason that the Fed cares at all.

  • Brandybuck||

    Government IS NOT AN EXCUSE to deny gays the right to marry.

    As long as government is involved in marriage, then the marriage laws need to be applied uniformly. This is the libertarian ideal.

  • buybuydandavis||

    In my eyes as well, but there is another libertarian ideal: the rule of law.

    When sexual preference is enshrined as a protected class in the constitution, then the Supreme Court can so rule. Until then, they shouldn't be making shit up.

  • GW||

    Me thinks that the LGBT community will wish they had never started this marriage nonsense when they see what happens during divorces.

    MARRIAGE: Betting someone half your shit that you'll love them forever.

  • John||

    Yup. See my link above about the divorcing lesbians and the sperm donor. Without gay marriage, the lesbian who didn't give birth walks away with no obligation. In a gay marriage state, she goes to family court and pays the rest of her life.

    And just wait until they apply palimony to gays. That is going to be fun.

    And what if the nonbirthing lesbian partner says she never wanted the kid? Think about this case. Lesbian wife cheats on lesbian whatever and gets pregnant. She then has the kid. Two years later the couple divorces. If the two are married, the lesbian partner's name is on the birth certificate. Seems to me she is going to be on the hook to support said kid even though, she didn't want to have a kid and had nothing to do with its birth.

  • cavalier973||

    So...same-sex marriage legalization is a way to...punish...gay people?

    Has this argument worked with any of the SOCONS in your circle of influence?

  • ||

    John, palimony already gets applied to gays. It's a portmanteau of pal and alimony. Alimony is a standard part of divorce proceedings, palimony is the resolution of a lawsuit between partners (straight or gay) with disparate incomes.

    Liberace and Martina Navratilova are examples of palimony cases.

    If a lesbian were to cheat and get knocked up there would be a clear indication that adultery had occurred There would be no legally binding reason to have the other partner's name on the certificate. That wouldn't be a case where it would be easy to conceal that the child was from an extra marital affair.

  • John||

    There would be no legally binding reason to have the other partner's name on the certificate.

    Yes there would be. The law in every state I am aware of is that the mother's spouse is legally presumed to be the parent of the child. If you are married to someone and they have a child, you must go to court and prove why you should not be the parent. And if you don't, you will be on the hook through a legal doctrine called constructive parenting.

  • ||

    Dear judge, I have a vagina, my wife also has a vagina. I am not the parent.

    Biology, how does it work?

  • John||

    Then you are saying lesbians can't be parents? Are you denying nonbirthing lesbians the right to be parents?

  • VG Zaytsev||

    That's actually not true.

    In every state in the country the spouse is legally assumed to be the father of the child.

    That should apply to SSM too, since you're all about equal enforcement of the laws.

  • ||

    John was suggesting that there had been cheating involved. If a straight couple has a clear indication that a child is a product of adultery (say two blue-eyed parents have a brown-eyed kid, or two white parents have an Asian kid) I think the father is within his rights to deny paternity. He may choose to put his name on the birth certificate and then he's made a choice and is on the hook.

    In the case of two lesbians there's a very clear biological limitation and so whether or not adultery had occurred is reasonably obvious. I DON'T think that that at two years down the road a parent should be able to opt out. They should act on the adultery immediately by not allowing their name to be put on the birth certificate even if that requires a court order.

  • John||

    Yeah, that is my whole point. Thanks to gay marriage, the lesbian now has to go to court and play mother may I with a judge and prove that she didn't want the kid. Without gay marriage, she can just leave.

    And gay marriage is doing gays a favor how?

  • GW||

    The names on the birth certificate don't matter. That doesn't establish paternity.

  • Wholly Holy Cow||

    The Left is religiously fervent toward SSM because it serves their god of big government. I can't believe so many of you nitwits are falling for this BS. Oh wait I'm not surprised. Increasing government is cool if it makes you feel good, says Reason.

    Just wait for all the new laws and sanctions. Might as well start blaming R Santorum or G Bush before the line gets too long.

  • Randian||

    go die in a fire.

  • thom||

    On the one hand, you say this has nothing to do with government. On the other hand, you claim that government doing something you dislike is the same as "society" condoning and/or promoting that behavior.

    You're completely transparent.

  • thom||

    Well, maybe not in your head. My comment was based on the actual words you wrote.

  • thom||

    That the commenters comments who we were responding to have been deleted, it makes us all look a little crazy.

  • SusanM||

    Criticism is one thing. Criticize me all you like, call me a slut, an abomination a threat to the moral fabric of this great republic or anything else you choose. As soon as you want to add government guns to the mix you've crossed a line.

    But this is not at all one-sided. I think our society has passed a point where we can't separate "what we don't like" from "what should be illegal". I have little good to say about drugs or guns and I'm not all that shy about saying the bad stuff but as a matter of principle support the right of people to have them if they want.

  • wareagle||

    maybe a lot of folks here think govt should work on the things it was set up to do rather than attempt to micro manage every aspect of human behavior. And I seriously doubt that half the country sees homosexuality as a sin, let alone that half would oppose gay marriage.

    You are welcome to criticize whatever behavior you want and folks here criticize all sorts of things. The common thread is they don't expect or want govt dictating what is or is not acceptable with regard to basic choices that have no impact on 3rd parties. Criticize, yes; regulate, not so much.

  • Randian||

    the bigoted troll goes in the filter, folks.

  • cavalier973||

    O/T I've noticed an increase in the use of of the word "parent" to describe pet owners. What is the deal with that? Are people stupid, or are they really birthing dogs and cats from human wombs?

  • Eduard van Haalen||

    +1 Minotaur

  • Capt Ace Rimmer||

  • Mopiav||

    Unless it is scientifically proven that someone can be born homosexual, isnt arguing that homosexuals don't have the same rights, equal to a white person changing his skin black before civil rights and arguing he doesn't have the same rights as a white person? Yes black people deserved equal rights and got them but my point albeit not necessarily a good one, is that you can't voluntarily make a choice that is outside your known established rights, and then complain you don't have rights.

  • Capt Ace Rimmer||

    gay is normal.

  • SusanM||

    The science of that is still being established but I think the universal incidence of homosexual and transgender expression across cultural and ethnic lines argues that it is an innate characteristic.

    Which is beside the point, really. What is an established right? Even if being gay isn't a right in itself there's still the question of rights to privacy, association and expression.

  • ||

    there is next to none among orthodox Jews.
    Trembling Before G-d

    So rare they made a documentary about them!

    Also that's a dumb argument. Purely because some cultures have harsher penalties for a particular behavior doesn't mean that it doesn't exist, it's just going to be harder to find it expressed because people are better at hiding from the penalties.

    Also Eyes Wide Open was an enjoyable movie.

  • SusanM||

    Did someone go down the memory hole?

  • ||

    Seems so. He was arguing that there were virtually no gays in the Orthodox community to disprove your universal incidence claim.

  • Tony||

    Not a legitimate argument. Religion is a choice, and has many protections. And it is scientifically proven that homosexuality isn't a choice. Ask any gay person if he chose it. They can't all by lying. Or ask yourself when you chose your sexual orientation.

  • Randian||

    your hateful rhetoric totally undermines your point and caused me to stop listening.

  • Randian||

    I suppose the invective "faggots" was used out of love? Don't be deliberately dense.

  • Capt Ace Rimmer||

    You cry me a river. Big deal if two men or two women are allowed obligate themselves to the govt. Let them fuck themselves.

  • Calidissident||

    I don't think the SCOTUS should declare gay marriage legal in all 50 states, as I don't think it's the Constiutional thing to do, but it's all ready been ripped to shreds. Not sure where you've been

  • Jon Lester||

    Abolish no-fault divorce? Why? So I can have a chance to serve on a divorce trial jury again? No thanks. I want no-fault divorce available for everyone, gay and straight.

  • Jon Lester||

    Well, it certainly helps the cause to have someone like Debra Messing in the presentation, which is what the court proceedings and gallery will be sorely lacking.

  • Gladstone||

    Well at least Nick can get gay married while high in the gulag before his execution for being a wrecker.

  • Calidissident||

    Yes, cause writing an article about gay marriage or pot totally means you can't also focus on the economy and the budget. And it's not like the War on Drugs has any effect on the police state that could eventually use the gulags you mention.

  • Gladstone||

    I'm more that the whole "things are getting better and progress is on the march" attitude is stupid. Libertarianism is one of those "reactionary" philosphies that are losing ground.

  • ||

    You forgot to call him a cosmo.

  • Calidissident||

    On this one issue, it is. I didn't see him say anywhere that libertarianism in general is gaining ground. And I think that in today's context, libertarianism could be described more as "radical" than "reactionary."

  • Gladstone||

    As long as you ignore all the other anti-liberty parts of the gay rights agenda.

    You don't see how getting rid of the welfare state, medicare and no free abortions and contraceptives can be seen as reactionary?

  • Calidissident||

    "As long as you ignore all the other anti-liberty parts of the gay rights agenda."

    Until Reason defends those parts of the "gay rights agenda" then there's nothing to call them out on. There were some anti-liberty aspects to the Civil Rights Movement, doesn't mean Jim Crow should have been defended.

    "You don't see how getting rid of the welfare state, medicare and no free abortions and contraceptives can be seen as reactionary?"

    Given how long the welfare state has been established, and how accepted it is, I'd say you could make just as easy a case that it's a radical view. I don't think no free abortions or contraceptives is either radical or reactionary at this point.

  • ||

    There is a more important issue than gay marriage that should be addressed by the political puppets on the Supreme Court it is the age of consent; it must be raised to at least twenty five years of age. My 24 year old daughter agreed to have sex with an unemployed bum; she became pregnant and now lives with me. I reported the incident to the cops who laughed me out of the station house. The Issue of gay marriage can be decided next year.

  • buybuydandavis||

    I guess if we're dependent children until 26 for the purposes of health care, why not age of consent too?

  • buybuydandavis||

    "Boies and Olson specifically argue that the 14th Amendment, which essentially applies the Bill of Rights to the states, means that state and local jurisdictions can't deny basic rights to individuals regardless of majority will or local preference."

    By my standards, gays have a basic human right to get married. But clearly those were not the standards under which the 14th amendment was passed. In fact, it was clearly quite the opposite.

    Until the constitution is amended to include gays as a protected class, the proper protection for them is through legislation or state constitutional law. I don't approve of the Supreme Court shouldn't just be making shit up any time I find the constitution lacking.

  • Calidissident||

    I agree with this, although I support gay marriage as long as the state is granting marriage licenses. I do think the part of DOMA where the feds refuse to recognize gay marriage licenses granted by states is unconstitutional and should be struck down.

  • mgd||

    There is real and ultimately irresolvable tension between the idea that individuals have certain rights that cannot be legislated away and the idea that the federal government's power should be limited.

    There is? Because I have a firm belief in both ideas (that individuals have rights that cannot be legislated away, and that the federal government's power should be limited) without any cognitive dissonance. Is that weird?

  • ||

    Wait a minute, if this article's argument is that gay marriage is going to win (by public appeal) regardless of what the Supreme Court says, then why are they willing to depart from the meaning of the 14th amendment to accomplish it?

    This is why I don't really consider anybody but classical liberal constitutionalists as libertarian. Just about everything libertarians complain about regarding federal power has come about in this country because of the Supreme Court's extremely revisionist interpretations of the Constitution.

    Then, suddenly, I find Reason magazine screaming about how the writers of the Civil War-era 14th amendment were worried gay people couldn't get state benefits given to couples for child rearing.

    SAY WHAT!!!! Reason magazine has utterly failed to be libertarian this time.

  • Tony||

    The argument was about a social right to the definition of marriage vs. an individual right to marriage (entailing privacy, liberty, pursuit of happiness, etc.) The libertarian position is to defend the individual right against the social right, right?

  • coradaved||

    Natalie. true that Andrew`s article is great... on saturday I bought a great new Lotus Carlton since I been making $7595 this past four weeks and more than $10k last-month. it's actualy the most comfortable work I've had. I started this four months/ago and pretty much immediately started bringin home at least $81 per-hr. I work through this website,,
    http://jump30.com

  • jeffcng||

    If you think Marvin`s story is impossible,, 5 weeks ago my boyfriend basically also made $7683 grafting eighteen hours a week from home and they're buddy's sister-in-law`s neighbour was doing this for seven months and errned more than $7683 parttime from a labtop. applie the information available on this page... http://www.fly38.com

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