Take This Civil Union and Shove It


The Mass. high court says equality demands full-blown marriage rights for same-sex couples. I suggest grabbing a beer and a tub of popcorn and kicking back to watch the heads explode.

NEXT: Habit of Command

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  1. I couldn’t find any of the TAUA Kurtz posts. S’ok I wish we’d stop linking to NRO anyway. Those assholes always ruin my day. The thought of them going apoplectic over this was amusing though. Of course they disappointed and made only the briefest of mentions.

    That the Mass. court got it right is Intuitively Obvious To The Most Casual Observer if you ask me (I knew you wanted to, so I just told you to save you the trouble). The solution is to let people get married in whatever church, coven, what-have-you they choose. The state can recognize civil unions for all couples. That would be a huge triumph for libertarian principals.

  2. The Vatican should connect a turbine to the Pope’s soon-to-be-deceased corpse. It will spin for eternity, providing cheap electricity to the poor.

  3. A good guy, really:

    Ha ha ha. 🙂 You know anti-Pope humor is very popular in France; you could make a fortune. 🙂

  4. JB

    I need an agent…

  5. The Mass. SJC is wrong in its interpertation of equal protection as it applies to gay marriage, but that said, I’m not going to protest this case too loudly. As this debate has progressed (or disintegrated) over the years, I’ve come off the fence in support of fully legalizing gay marriage as a step towards privatization. As Kurtz conclusively demonstrates, the only logically consistent arguments against gay marriage are rooted in bigotry and fear.

  6. Warren: you may not care but here is the link to Kurtz’s piece in The Weekly Standard:


    Andrew Sullivan takes this apart on his Daily Dish of 01/28/04 “Kurtz Again”.

    And with no NRO links even!

  7. “The Mass. SJC is wrong in its interpertation of equal protection as it applies to gay marriage”

    Skip, could you elaborate on this?

  8. What if a man and woman marry and then he(or she) gets a sex change operation? Is their marriage nullified? Or what if someone has sexual organs from both sexes, do they have to get one set removed before they can marry?

  9. What if a man and woman marry and then he(or she) gets a sex change operation? Is their marriage nullified? Or what if someone has sexual organs from both sexes, do they have to get one set removed before they can marry?

  10. awesome! now i can move to mass and marry a dog! o’reilly said that’s what would happen and i can’t wait!

  11. What is the legal definition of ‘man’?

    What is the legal definition of ‘woman’?

    If you can’t define those terms, any attempt to restrict marriage to one woman plus one man is meaningless.

    If you do not define these terms, you create a condition in which the law is too vague for ordinary folk to follow. True hermaphrodites are only one extreme example of people who defy easy classification; intersex people cover a wide spectrum of phenotypes (means physical appearances).

    If you define these terms by invoking distinctive phenotypical features, you will either leave someone out (women with beards, etc.) or produce a classification in which some people are classified to a gender which they do not consider their own.

    If you define these terms by invoking distinctive genotypical features (specific genes), you have the same problems as above, plus you introduce a basis by which ordinary folk have no means available to them to ensure that they follow the law; it becomes impossible for the common law-abiding (wo)man to ensure s/he acts in compliance with the law. You also admit the possibility of placing a person into a gender which is demonstrably incorrect on a phenotypic basis.

    If you leave it to each person to define and declare gender, you’ve flung the door open; “I am a man in a woman’s body,” says the person on the left, and the happy couple marries on the spot.

    All good reasons for the gub’mint to get the hell out of the marriage business. Current law knows no means of adequately protecting the commoner from the tyranny of the majority.

  12. A tangental point brought to mind by EAWNN’s comment above…

    I just finished Jeffery Eugenides’ book “Middlesex”, which is about a hermaphrodite. Though the book is a work of fiction, it is about very real genetic abnormalities the result of which can be people who are not neatly classified as male or female for scientific purposes, much less legal ones (eg, XY chromosomes, but female phenotype; presence of both male and female genitalia, etc…)

    One has to wonder how such people would be affected by a federal marriage ammendment or similar legislation, and if an equal protection argument could be made on their behalf…

    BTW, the book is pretty good…

  13. Brian,

    No Puritan I, but there are some subjects I just don’t really want to read about. No offense, I have the same problem with Faulkner …

  14. heh2k,

    Lots of guys are married to dogs.

  15. While the outcome is an improved state of affairs, I’m very concerned about the judicial activist approach that reached it. If the Court’s basis is that marriage gives legal benefits to some people that are denied to others, then shouldn’t it have ruled against marriage as such, or at least ruled that any group of two or more adults can “marry” for any reason, including non-sexual ones? Such a union would be a “civil union,” which is as much as the government should be concerned with; why does the SJC insist that it be called “marriage,” restricted to couples, and at least implicitly associated with sex?

    The SJC has decided the Commonwealth has to keep marriage, but redefine it so as to include a new category of married couple. This seems to have less to do with removing tax inequalities than with a politically-driven picture of social equality.

  16. A couple years back we had a little tempest down here in Texas. Two women showed up at the Bexar County office asking for a marriage license. “Can’t do it,” the clerk snapped.

    “Not so,” their attorney replied. (They came prepared.) “This one of the pair used to be a man before the sex change operation. And since Texas law defines sex genetically, she is still ‘male’ for purposes of this law.”

    The fact that the attorney had also had a sex change added to the legal hooraw, but at the end of the day the law is the law. The two women were subsequently legally married.

    I happened to know their attorney as a young man in college. He seemed to be a perfectly normal, conservative guy. We both sang in a men’s chorus, and made many bus tours together. Years later, after his transformation, I met her at a reunion. I was shocked, and truth to tell a little disturbed that she had chosen to become a lawyer.

  17. Dogs cannot give consent, so you should not be able to marry a dog (even in MA).

    I wonder whether other states will recognize gay marriages from MA? What if a gay couple marries in MA, then moves to CA? What if a CA couple visits MA on holiday and marries there?

  18. I don’t think that homosexuals or any one else has the RIGHT to marriage.

    Marriage began with organized religion. Churches, synagogues, temples, and other religious organizations have historically and traditionally defined marriage. That definition has almost always consisted of a man and a woman, although many religions recognized polygamy. But even polygamist religions still regarded marriage as a solemn and sacred vow between a man and a woman. Only after the Mormon separation or revitalization began did states start defining and recognizing marriages legally.

    I believe that we all have the right to partner with whom we love and to whom we pledge our property and to whom we sacrifice other rights willing.

    Partnerships have long been recognized by governments as legal entities. This is where civil unions come into play. Once California and other states began to recognize palimony as a common law right, the right to partner became a state affair. Although marriage has now become a state affair, maybe it should be moved back to the religious community from whence it came.

    States could be free to regulate and define civil unions/partnerships (having to Constitutionally recognize the privileges and immunities of other states) while defining when a marriage meets the requirements of a civil union/partnership, and religious organizations could still perform and define marriage (all states license officiants of marriage just switch it to civil unions) and as long as the marriage comports with civil union law, the state will recognize the marriage as a civil union…all laws that refer to marriage would have to be changed to reflect the nomenclature…but religions still get to define marriage while the state and IRS will still get to punish those who are civilly unioned…anyone confused yet?

    SHORT AND SKINNY…Civil unions would replace all marriages. Marriage would be defined by each religion that people choose to follow (if they follow any). Marriage would have no legal meaning. However marriages that follow the law for civil unions would have legal meaning. This should make everyone happy. Each church will be able to define whether or not that church recognizes homosexual unions or even polygamy, but the state would only have to recognize that marriage if it comported with the state law governing civil unions as being between two persons of age, and homosexuals who choose to become civilly unioned (or if they are members of a church that recognizes homosexual marriage…married) would finally have to pay the same amount of taxes as the rest of us married folk.

  19. Nice to know libertarians are all for a handful of unelected people (are SJC judges elected?) bossing around the people’s representatives. What a blow for freedom! A mighty advance for self-government! Oh, but we agree with the tyrants’ orders, so it’s okay!

    BTW, at the risk of drawing anyone’s ire, Kurtz responded to Sullivan’s supposed take-down with a convincing take-down of his own. Here’s the dreaded link:


    Julian, you mentioned on Hit & Run last week that you’d respond with “glee” if Kurtz posted a response to Sullivan. Kurtz posted this Monday. Still waiting.

  20. What happens if a “woman” has an XY chromosome combo with a defective Y chromosome (this does happen). This would make her a female, but genetically she would be a male. Is she allowed to marry men or women?

  21. Mo-

    A person who is XY but who is missing the SRY (the Sex-determining Region of the Y chromosome) will be phenotypically female. Generally, science considers that person genotypically female as well. A Barr body test will be negative, indicating the XY signature generally associated with men, but a genetic test for the SRY would also be negative, because the genes just aren’t there. There are also conditions in which a 46,XY person has a complete Y chromosome, including the SRY, and the person is still phenotypically female due to other genetic anomalies that prevent normal formation of testosterone receptors. Science generally considers these people genetically female as well.

    (In a person with two X chromosomes, one of the two X chromosomes in each cell forms a clump that can be stained and found under a microscope. This procedure is called a Barr body test. A positive Barr body test indicates that at least some cells have at least two X chromosomes in them. Whether that means the person is 46,XX or 47,XXX or 47,XXY or mosaic 46,XY/47,XXY or some other variant is not within the scope of the Barr body test. The Barr body test also does not address the phenotype of the person.)

    As a matter of law, it would depend on whether the law is written to examine the phenotype, the chromosomes, or the genes.

    In any case, such a person is highly unlikely to be aware of her genetic abnomaly unless she’s a participant in a women’s sports league that uses Barr body tests to screen for male ringers.

  22. Mo,

    That’s what you get for asking.

  23. Glaringly absent from both the Goodridge case itself and the recent memo in response to the Mass. Senate’s request for an advisory opinion on the constitutionality of their civil union bill is actual legal analysis, citations to authority, constitutional doctrines, you know, substance. Goodridge is absolutely laughable from a constitutional law perspective. The Mass Supremes said that the common law definition of marriage as “the union of one man and one woman for life to the exclusion of all others” is, er, somehow in violation of the Massachusetts constitution, but the opinion never clearly states why the constitution forbids it. And they applied the rational basis test, which is supposedly the most lenient, easy to pass test for legislation that is challenged as being a violation of the equal protection clause. Hey, I’m happy the courts have decided to give some teeth to the rational basis test. Maybe if someone challenges the law making marijuana illegal because there is no rational basis for disallowing it while at the same time allowing whiskey, then some other innovative judge will say, “you know, that’s right! there’s no rational basis, so gimme gimmme gimme power and usurpation of the legislature’s role, and I’m gonnna overturn the fucker!”

    You all should go to findlaw, read the goodridge opinion, read the recent advisory opinion, and ask yourself if you are comfortable with four unelected, politically connected lawyers deciding an issue of such fundamental importance to our society. Marriage in Massachusetts has been fundamentally altered.

    That is all.

  24. “What a blow for freedom!”

    Indeed. Imagine all those gay people oppressing the masses by marrying each other. Who gave the Massachusetts Supreme Court the right to interpret the constitution of the Commonwealth of Massachusetts anyway? If the people’s elected representatives want to engage in unconstitutional discrimination, those activist judges should not tyranically stand in their way.

  25. Eric,

    Tyranny of the majority is hardly liberty; to be frank, judges are there to vindicate individual rights, and as a curb against the excesses of the majority.

    Massachusetts judges are picked by the Governor.

  26. Abu and Eric, would you please explain to me what role the mass. supreme court should play if, according y’all, they shouldn’t serve as a check against the legislature? if the mass. constitution makes it clear that all laws will be applied equally, but in the case of marriage it obviously isn’t, then doesn’t it become the judges’ duty to “overturn the fucker”? And all this shit about the people getting no input–what a bunch of crap. They have the power to amend the constitution if they see fit, just like they did when they created the equal protection clause in the first place. The people *will* have the final say in this…

  27. Marriage began with organized religion.

    No, it didn’t.

    There! Now we’ve both made a groundless assertion. You prove yours first.

    For once, I agree 100% with Jean Bart

  28. “Julian, you mentioned on Hit & Run last week that you’d respond with “glee” if Kurtz posted a response to Sullivan. Kurtz posted this Monday. Still waiting.”

    Taken from Sullivan’s article:
    A “mere” 67.29 percent of all children born in Nordland in 2002 were born out-of-wedlock.

    It’s not in context, but the little quotes mean that he’s being sarchastic.


    By Sullivan’s standards, Blacks in the US have never known how to marry… or maybe they just love queers too much.

  29. I misnamed names, I meant Kurtz.

  30. Jean Bart,
    If “tyranny of the majority is hardly liberty,” then tyranny of the minority is not an improvement. In fact, I’d say it’s quite worse. But if you want to subject yourself to the rule of seven or nine unelected pinheads who think they know best how we should live our lives or how society should be organized, suit yourself. Just don’t complain when they issue an edict that isn’t to your liking. After all, you’ve willingly subjected yourself to their whim and fancy.

  31. “But if you want to subject yourself to the rule of seven or nine unelected pinheads who think they know best how we should live our lives…”

    The judges aren’t telling you how to live your life- they’re telling you not to tell other people how to live their lives. When judges stick up for the rights of minorities it is not “tyranny of the minority”.

    Please explain to me how this decision hurts your liberty. Is there some man whom you won’t be able to resist the urge to marry now that those activist judges have made it legal?

    I really don’t get why people are so determined to deny rights to gays. What does anyone have to lose?

  32. Eric, the seven or nine pinheads you refer to aren’t dictating how society should be organized–that was already done by the folks who wrote equal protection into the constitution–i.e. the people of massachusetts through their elected representatives. The minority isn’t tyrranizing the majority here. The majority always has the ability to legitimize their bigoted laws through a constitutional amendment.

  33. Norman,
    I knew the science (I was a bio major at first)and remember hearing about a female Olympian (or maybe it was the world championships) who was dqed because of the test (though not sure it was true). I was mostly making the comment as a facetious comment along the lines of the sex change comments.

  34. To those who say the people can amend the constitution, what a great strategy! Let’s take it national.

    To reverse the McCain-Feingold ruling, let’s amend the constitution to say Congress can’t tamper with free speech. Wait! It already says that. Oh well.

    To reverse the ruling that allows the University of Michigan to discriminate based on race, let’s amend the constitution to say states can’t discriminate based on race. Wait! It already says that. Oh well.

    I suppose we have to bend to the will of our unelected masters, adjust the chain around our neck, and meekly accept our fate.

    Does everyone now see why the concept of judicial supremacy threatens our liberties and even self-government? That when you give such awesome powers to the branch that is most immune to public pressure, you’re inviting tyranny? Sure, an issue may come along that you agree with. But what about the ones you don’t? Amend the constitution? See the issues above. And what’s the point of amending it if we leave it to the judiciary to decide what it “really means?”

    If we’re going to enact huge social change, which is what gay marriage would be, then let’s leave it to our elected representatives, so we have the most power over the results. You may lose a few rounds, but at least your basic right to self-government is intact.

    This issue is bigger than gay marriage. It’s about how we choose to govern ourselves. We can either leave it in the hands of the unelected few, or reserve that power for ourselves. In the long run, which option will ensure a free society?

    I say the latter.

  35. Eric, with all due respect, your argument is inconsistent. In the gay marriage case, the mass. supreme court is enforcing the constitution.

    In the two cases you cite, the US supreme court failed to do just that. In the instances of McCain-Feingold and Michigan, I wish the courts had acted to constrain the power of the legislature, and, correct me if I’m wrong, so do you.

    How can you complain about the courts doing nothing when a law shits on the first amendment, and at the same time complain when the courts act to throw out a law that shits on the fourteenth?

    The constitution, and the courts, are there to protect us from the misdeeds of the legislature. the courts seriously dropped the ball on mccain-feingold

  36. Eric, ever see an polls on interracial marriage, black voting rights, and desegregated public schools in the South in the 1950s?

    I don’t really care to let the public decide which innocent people should have their heads cut off.

  37. The best parts are the Stanley “Tortured Arguments and Useless Analogies” Kurtz posts. I don’t doubt he firmly believes what he writes and that he believes Gay Marriage is a huge social mistake, but the correlation of specious statistics (see: Scandinavian Gay Marrige discussion) is just hilarious.

  38. Thoreau: Why do you think that “activism” is limited to the left? Judge Moore’s activism in insisting on a “no other gods allowed” display in the Alabama Supreme Court comes to mind just as one instance of conservative judicial activism. (Though conservatives tend not to call it that.)

    As for why this case gets so much attention: It’s entertaining, if nothing else. In my case, I’m sitting in Massachusetts at the moment and it’s getting a lot of publicity here. Am I going to commit actual “resources,” other than the time I waste typing these messages, to the issue? Probably not.

  39. The Mass SJC says “seperate but equal is inherently unequal”. Fine.
    Going forward there should be no more “girls” sports teams (or similar orgnizations)at any government funded institutions. There should be no government funding of any endeavor that singles out one sex for “favorable” treatment in any way.

  40. “When you’re capable of mustering a serious argument rather than hate-filled and bigoted ranting, I’ll take you seriously.”

    Hate-filled? Bigoted? I’m not the one who wants to treat homosexuals like pariahs. Is that SERIOUS enough for you?

  41. “Funny how all this constitution and checks&balances stuff becomes inconvenient for liberals when they don’t get to push people around with their leftist ideas”

    Excuse me, but who is pushing whom? Does gay marriage suddenly make all straight marriages null and void? NO! Does it mean that the state is going to FORCE people to be homosexual or to marry someone of the same gender against their will? NO! Does gay marriage deprive anyone of life, liberty, and property? HELL NO!

    The liberals and libertarians who support the fact that homosexuals are people too aren’t the ones trying to use state power to cram anything down anyone’s throat. It’s the Right, with their narrow definition of marriage, who are trying to push people around (e.g. the proposed “Defense Of Marriage” amendment).

  42. Eric, you say that in mccain feingold, the courts should have stepped in and overturned the actions of congress, but they didn’t. (i wholeheartedly agree with you on this point) but in the case of gay marriage, you say that congress should be able to do what it wants, without interference from the courts. if you really fear the power the courts have over the legislature, why did you berate them for restraining that power in the case of mccain feingold?

    On a different note, you say that a ban on gay marriage doesn’t violate the ideals of equal protection. How did you come to this conclusion? There are real families out there that are headed by same-sex couples. They’re currently relegated to second-class citizenship, and placed at a legal and financial disadvantage to their neighbors. This isn’t just bad for the couples, but also for their children. How on earth is this situation compatible with equal protection under the law? If instead of gays, marriage was denied to, say, jews or blacks, the issue would be beyond debate.

    Mark S, dude, he didn’t deserve that. Can’t we give each other the benefit of the doubt before we resort to name-calling?

  43. The problem with a great deal of judicial supremacy is that one just doesn’t know which way the pendulum will swing. As America gets more and more politically partisan about who gets to be a judge, all sides of the issue try to get judges who are interested in changing law — forward, backward, sideways, whatever — and not maintaining it. I trust to some extent that judges will respect the legislature, but I worry some days about what level that will be at.

    Goodrich was the right decision, but it was for the wrong reasons. A person of a particular bent could read it and say that the Constitution can mandate certain forms of social order.

    There are great reasons to have a binary, partnership-based concept of marriage, but I don’t think the Massachusetts Constitution requires that, as opposed to an amorphous poly-coupling based on child-rearing, or something else gender neutral with a socially desirable result. That the prior law was inconsistent, under- and over-inclusive, there is no doubt. But the Goodrich decision tells the legislature what social policy the Constitution determines.

    I’d love this, if I knew the court agreed with me. But they’ll never rule my way all the time.

  44. Garym-

    I don’t think activism is limited to the left. But good luck in making that point here. I tend to stick to common ground with the audience when making points. If bemoaning leftist judicial activism goes over well but bemoaning right-wing judicial activism doesn’t go over well, then I’ll stick to lampooning lefties to make my bigger point: That I’d rather prioritize which “activist” decisions I’ll get worked up about, and decisions that don’t hurt individual liberty just don’t get me too upset.

  45. Thoreau and Scott,
    I think we’ve finally gotten down to (one of) the basic difference between libertarians and conservatives. Libertarians are all for individual rights, that’s fine. Conservatives are for that too, but we also support institutions that we believe promote liberty and improve society. As we see it, marriage is one of those institutions. The traditional family unit (mom, dad, with/without kids) is the basic cornerstone not only for individuals, but for families. It provides an alternative means of support, separate from the govt. That’s a key point. It fosters self-reliance (or, if you will, dependency on the right people) rather than govt dependence. It provides the ideal means to deliver services that meet basic needs, again so there is less demand for govt to do it. I believe that strong marriages and families restrain govt and therefore keep us free.

    I don’t think this is controversial stuff, at least so far. Where we differ is that we believe that gay marriage would weaken that family structure and thus further empower govt. Many libertarians obviously disagree.

    About the equal protection thing. Marriage is by definition an exclusive institution – one man, one woman. As such, it “discriminates” (for lack of a better term) against any other arrangement. It’s not about gay animus or nonsense like that. We’re just as opposed to polygamy, for example, which “discriminates” against straights.

    So it’s exclusive and I don’t have a problem with that. So when I hear that traditional marriage “discriminates,” my first inclination is to say, “That’s good. It should.”

    I’ve never liked judicial supremacy because I believe it gives too much power to one branch of govt and makes it the sole authority for deciding what our constutition says. I happen to think our elected officials should have a say in that. When they overstep, the court should stop them. But they haven’t done anything with gay marriage for the court to stop. The courts are doing this all on their own.

  46. Eric-

    Ah, now we finally do get to the point. Pointing to rulings that you disagree with and calling them “judicial activism” is a time-honored tactic of liberals, conservatives, libertarians, moderates, populists, Whigs, neo-Confederates, Unitarians, feminists, secularists, gays, straights, whites, hispanics, blacks, animal rights activists, capitalists, Muslims, Christians, federalists, anti-federalists, prohibitionists, and every other group under the sun. (Apologies to any interest group not mentioned.)

    It’s our oldest national pastime. Thomas Jefferson was doing it with great gusto, and I’m sure if I looked hard enough I’d find that he learned it from Washington.

    So, it’s all about gay marriage weakening the institution of marriage. Well, I’m a big believer in marriage. I even went through the hell of a big fancy wedding just to prove to my wife that I care about marriage. (A wedding is a party that costs way too much. A marriage is everything after that.)

    So last night I asked my wife whether she’d stay with me, even if gay marriage was legalized. She said I have nothing to worry about. I trust her, otherwise I wouldn’t have married her.

    So, Eric, a question for you: Would you leave your wife if gay marriage were legalized? If you wouldn’t, then who would?

  47. Thoreau,
    I’m not talking about specific marriages here. It’s a point I’ve tried to make before. It’s about reinforcing the importance of traditional marriage to society and liberty. If gay marriage indeed becomes the law of the land, I don’t see an avalanche of divorces. But long-term, I see the institution becoming less important, less vital, and perhaps even less necessary. And it’s not just gay marriage that will do this – there are a host of other factors that have harmed marriage, and continue to.

    If that indeed happens, I think it damages individuals, and families, and society. I think govt then moves in to take over even more of our lives, and more of our freedoms will be lost.

  48. OK, so us old farts (I’m all of 26) will stay married anyway, but gay marriage will be one of many factors discouraging newbies from getting married in the future. Right.

    Mechanism? Explanation? Cause and effect relationship? Something? You can’t just say “Well, dammit, it will be a change, and it will undoubtedly be negative.”

  49. Another thought:

    So, 2 gay guys decide to devote their lives to caring for one another. Statistically, people who have somebody to fall back on in tough times are less likely to seek public assistance.

    How exactly will this empower the government?

  50. Thoreau,
    The concern is that marriage, and procreation, and raising kids, have worked best as one man, one woman, and altering that can alter society in a number of ways, maybe for the better, probably not. Much of this is the unforseen consequences factor, as well.

    The much-maligned Stan Kurtz has dealt with this by examining marriage in Scandanavia. You should read his stuff on NRO and Sullivan’s responses for a clearer picture. Kurtz says it better than I can.

    About govt. If marriage ceases to function, if it fails to perform the role of raising kids, providing basic services to individuals in the form of the family unit, then someone or something needs to fill that vacuum. I’m betting that something will be govt.

  51. OK, fair enough to not want to alter something that’s working. But will it alter straight marriage to make gay marriage available?

    It this was a matter of offering alternatives to straight couples I could see the concern. People might choose an inferior institution and cause societal havoc. Not that I’d necessarily sign off on “saving people from themselves” but I’d see the point.

    The problem is that I just don’t see this affecting straight marriages. I can assure you that I won’t be marrying any men just because the law allows it.

    The only marriages that I see this affecting are the handful of marriages involving closeted gays, and marriages involving either closeted bisexuals or else bisexuals who are open but married straight for lack of other options. Such marriages are fairly rare, and if a member of the couple was only staying because there was no legal alternative then the odds are good that it was already a pretty dysfunctional marriage with no good future.

    But I really don’t see this affecting marriages in which both people are straight.

  52. Yeah, everyone had a decent go at the Kurtz piece last week. The piece is a pretty dismal attempt to link the continued advance of out-of-wedlock births in Scandinavia to gay marriage, which is allowed there. Kurtz seems to put his critical thinking skills on hold when it comes to gay marriage.

  53. Eric, the fact that the word ‘marriage’ is defined as the union of a man and a woman is nothing but semantics. I don’t see how that provides the justification for singling out one group of American families for discrimination. And on the idea that traditional marriage reinforces liberty: exempting gays from equal protection under the law cheapens the constitition–and therefore everyone’s individual liberties–in a dramatic way. Are we going to take the constitution seriously, or are we going to pick and choose which parts to follow?

    Please tell me…how is denial of marriage rights (and responsibilities) to these families compatible with the constitution’s guarantee of equal protection under the law?

    If this country is going to ban gay marriage, the only legally appropriate way to do it is through a constitutional amendment, creating a (horrifying) exemption to the equal protection clause. i’ll contend, though, that this option, while legal, is wholly immoral, authoritarian, and would eventually be repealed anyway as public opinion evolves. it’s against the spirit of our whole society, and it damages real families. you might see it differently…that’s fine, too.

  54. swamp justice: “I wonder whether other states will recognize gay marriages from MA?”

    If I remember rightly, under the Full Faith and Credit Clause states generally have an obligation to enforce money judgments awarded in other states, and abide by other judicial decrees issued by other states (such as divorce decrees, thus one could get “renoed” in Nevada within living memory).

    But states can generally set their own rules as to what people can do in the state – they can control who can drive, who can practice law or medicine, who can engage in other businesses, who can carry a gun, who (if anyone) can buy alcohol, and so on. That’s part of the state’s sovereign power.

    So as a result, states need not honor all sorts of licenses issued by other states. In practice, there’s a good deal of “comity” – voluntary accomodation of other state’s decisions. I believe that is why states honor out-of-state driver’s licenses; they don’t have a constitutional obligation to do this, but they do, for good pragmatic reasons. Congress may also mandate that states honor certain out-of-state licenses, but I don’t think it does so for driver’s licences.

    So as a general matter, one state may not export its licensing policy, and its rules about who can marry whom, to other states unless the other states acquiesce.

  55. I just contributed $0.75 toward the downfall of civilization! While running an errand, I came across somebody selling Krispy Kreme donuts. Can’t resist that. Turns out that he’s selling them as a fundraiser for a gay pride…um, I mean, gay/lesbian/bisexual/transgender/intersex pride group. Anyway, I bought the donut. Not only did I support people working to destroy marriage, I’m sure some of my money went to the Krispy Kreme Korporation, an evil entity bent on America’s defeat in the War on Fat.

    Just imagine if it should turn out that a Krispy Kream Exekutive is gay… (shudder!)

  56. Scott,
    My argument is not inconsistent, because I don’t buy that the ban on gay marriage violates the 14th amendment. You totally missed my point, in that unelected judges should not be our supreme rulers, which is the direction we’re heading. You say the courts dropped the ball. Fine – what’s our recourse? When Congress drops the ball, its decisions are a heck of a lot easier to reverse. When the courts screw up, they don’t just make a mistake – they set a precedent, which future courts rarely overturn.

    I don’t care what the polls said in the 1950s. But your statement is a wonderful justification for dictatorship.

  57. Apparently, to eric, dictatorship is freedom, so long as there are enough dictators.

  58. To clarify further what I said before — apparently it wasn’t clear to Eric that I was expressing misgivings about the SJC’s redefining marriage — I don’t see the ruling as the striking down of a law that violates equal rights, but rather as a redefinition of a state-granted privilege according to the judges’ view of what society should be like.

    What inequalities are created by a law that permits only two people of the opposite sex to marry? The primary one is tax inequality. To fix this, it would only have been necessary to rule that there shouldn’t be a special filing status for married couples. The ruling doesn’t fix this; it simply creates a broader category for who can get this state-granted privilege. There are other legal benefits to marriage; again, the ruling doesn’t strike these down, but simply changes the group to whom they apply.

    Yes, in the present case no new violations of people’s liberties were created by the ruling. But the principle on which the SJC added was that it can replace old arbitrary rules, created by legislatures, with new arbitrary rules, created by judges, without removing the inequalities created by the rules.

    This can’t do any harm? Look at neighboring New Hampshire. Until a few years ago, public schools were paid for by local taxes. It’s financing by expropriation, yes, but at least there was a greater degree of correlation between taxpayer and beneficiary than there would have been at the state level. The NH Supreme Court ruled that the state must subsidize local schools, thus asserting its authority to order government spending. The result has been a two-tier property tax system in which tax levels jump around in different towns like mad frogs. This is the kind of result which judicial activism, and the notion that judges are infallible constitutional oracles, can lead to.

    Let’s look more carefully at all the implications of the Massachusetts ruling before cheering.

  59. Joe,
    With all due respect, your second statement makes no sense. We govern ourselves by electing those who make laws. If those who make laws are dictators, then WE are the dictators, because we ultitmately make the real decisions. So yes, I’d rather have our elected officials “rule” us, because we decide who they are, and can replace them every two, four, or six years. Gosh, what strong, powerful dictators they are!

    Judges, though, are often NOT elected and rule for life. They enjoy little public pressures, with no serious check on their power from the other two branches. They can rule however they please with little regard for consequences. We and our elected officials have few recourses to correct lousy decisions.

    Which is the greater threat to freedom, Joe?

  60. Looks like joe is sort of “fair weather democrat” who rather wants to leave the hard questions to be sorted out by nine “Philosopher Kings,” who are unelected and accountable only to God (or to whatever deity-entity-nonentity they happen to believe into), but of course must be wise (because they believe it) and whose arbitration is infallible as a matter of course (but only because it’s final).

  61. “Which is the greater threat to freedom, Joe?”

    The bible-beating assholes who would pass a law designed to discriminate against people they ignorantly believe are an “AY-bomi-NAY-tion befur tha’ laurd,” that’s who.

    Eric, just admit that you’re a anti-gay bigot and be done with it.

  62. > I suggest grabbing a beer and a tub of popcorn and kicking back to watch the heads explode.

  63. “Looks like joe is sort of “fair weather democrat” who rather wants to leave the hard questions to be sorted out by nine “Philosopher Kings,” who are unelected and accountable only to God (or to whatever deity-entity-nonentity they happen to believe into), but of course must be wise (because they believe it) and whose arbitration is infallible as a matter of course (but only because it’s final).”

    And it looks like KJ (and Eric, and most of the Right) believes that “vox populi, vox dei” and a hate-filled mob has every right to dictate how everyone should live via their legislative proxies. Fortunately our constitutions are designed to stop this sort of tyrannical nonsense with divided government, veto power, and those “seven to nine pinheads” KJ and Eric seem to hate so much.

    Funny how all this constitution and checks-and-balances stuff becomes inconvenient for conservatives when they don’t get to push people around with their theocratic laws.

  64. Mark S.,
    When you’re capable of mustering a serious argument rather than hate-filled and bigoted ranting, I’ll take you seriously.

  65. Funny how all this constitution and checks&balances stuff becomes inconvenient for liberals when they don’t get to push people around with their leftist ideas. Ever heard of Stanley Fish, for instance, who thinks the First Ammendment should be damned, if it stands in the way of “enlightment?” Katherine McKinnock and “Feminist Jurisprudence,” anyone?

  66. OK, how about this:

    Let’s say, for the sake of argument, that the Massachusettes court was being activist. I haven’t read the MA state constitution so I don’t know if that’s the case, but, since it’s axiomatic to many around here that any judge to the left of Scalia is an activist, let’s assume that for the sake of argument.

    Yes, I know, all judicial activism should be opposed. But if I were interested in working on the issue of judicial activism I’d pick my battles to conserve scarce resources. And activist rulings that happen to come down on the side of individual liberty (or at least seem that way if you set aside the issue of judicial activism) would be much lower on my list of priorities than other activist rulings.

    So why does this activist ruling get all the attention from the people here who worry so much about judicial activism?

  67. thoreau: because guys are kissing each other. and it’s yuuuuuucky!

  68. Goodridge and the recent advisory opinion are ridiculous unto themselves. Just go ye and read of them! Four unelected politically connected lawyers have decided that marriage is unconstitutional, based on no legal reasoning but on raw judicial power alone. They cite the recent SCOTUS case overturning laws against private sodomy, even though there is no relevance (thereby vindicating Scalia’s dissent in that sodomy case, predicting that it would lead to recognition of gay marriage). For true jaw-dropping judicial liberal activism read the concurring opinion in Goodridge. The concurring opinion’s author uses the ERA to strike down traditional marriage laws. Go back 30 years and I guarantee you will find learned op-ed writers at the Boston Globe and NY Times intoning how silly it is for us reactionary right-wingers to suggest that ERA might lead to gay marriage. Yet here we are, just a couple generations later, and a supreme court justice of massachusets used the ERA to establish gay marriage! Thoreau, Goodridge *WAS* an activist court! You make a good point, that sometimes conservatives like activism, so they are hypocritical (same thing with federalism; some conservatives are fair-weather federalists), but Goodridge IS judicial activism. Eric correctly wrote that it is NOT animus toward homosexuals that has led to the common law definition of marriage ‘the union of one man and one woman for life to the exclusion of all others.’ It is what it is. It is nothing at all like the anti-miscegenation statutes overturned in Loving. Marriage has ALWAYS been defined as “man and wife.” Don’t you think that if our society is going to change that definition, then it should be done in a deliberative process, involving the legislature, not by judicial fiat? If that isn’t judicial activism, thoreau, then what the hell is? And go ye and readeth of the advisory opinion, just handed down. They have it hyperlinked on findlaw.com It is totally activist. Those four robed despots are telling the Senate what it can or can’t do.

    I realize this is a libertarian web site, so I know where a lot of you are coming from. But there is more at stake than just your own personal liberty. Some have written “it doesn’t affect my liberty if two gay men decide to get married” and of course that’s true. It doesn’t affect my marriage, either. But it does have a tremendous impact upon society. Marriage is important to society. I can’t believe I have to even say that, it is so axiomatic. I guess I’ll have to be prepared to defend the statement “marriage is important to society.”

    It is apparent that if conservatives want to keep marriage one man and one woman to the exclusion of all others, then they will HAVE to enact a federal constitutional amendment. As the law stands today, most states have defense of marriage acts, and there is a federal statute too (signed into law by Clinton, by the by). But some enterprising federal judge, say in the 9th circuit, could pretty easily strike all those laws down, too, right? So we are FORCED to polarize the country, needlessly antagonize homosexuals, and pass this amendment. See why it is harmful to have judicial activism?

    Why don’t the gay rights lobbyists, with all their money from Hollywood and their favorable treatment on the universities and in the media, just sack up and push for legislative change? Maybe they could convince me to allow civil unions. I’d probably vote for one if asked to. No. They do it through the courts because there are activist judges who let them.

    That is all.

  69. Abu, I don’t need to push for legislative change, and I won’t settle for separate-but-equal civil unions. Screw that. The law is already on my side. Equality via the Constitution trumps any of the backward and discriminatory state or federal laws that you’d like to see used against me. The courts are just now recognizing this fact.

    You’re right that you’ll have to pass a constitutional amendment to prevent the inevitible. If you do get one to pass, though, it’ll only be temporary. public opinion is quickly moving to my side. You’re going to lose this battle eventually, and, thank God, there’s nothing you can do about it.

    As you say, there is more at stake here than my own personal liberty. It’s the relative disadvantage you would put my family relative to yours–the hardship that folks like you want to impose on the children of folks like me. You say you know where a lot of us are coming from…I don’t think you really do. These laws unjustly hurt people, and the courts are finally doing their duty to protect us.

  70. Hey Abu, sorry for the hot-headed post, man. It wasn’t fair, seeing how your beef is moreso with the alleged judicial activism than with gay marriage itself. *very* sorry. Please understand, though, how nauseating it is to be told to beg for equal treatment…especially for something that’s so personal. I’ll try to be less of a dick in the future.

  71. KJ, we live in a Republic, not a Democracy. That means there are checks and balances to limit the power of even the People. One of these is equal protection under the law. I do not care you many people you can scare up who don’t want the protections extended to married couples to be equally available. Our government doesn’t work that way.

  72. OK, let’s break down the issues:

    1) On judicial activism, maybe the ruling was. Fine. But, of all the rulings to get upset about, this is not the one I’d pick. I’d say the more odious acts of judicial activism are courts deciding the commerce clause allows Congress to regulate anything, rulings deciding the Bill of Rights is optional, etc. Rulings that people have to be left alone, however unwarranted they may be, just aren’t high on my list of worries.

    So let’s start with the rulings that expand the power of the state and overturn those. If, in the process, we overturn precedents for courts to engage in activism that advances individual liberty, then we’ll just have to deal with those cases when they arrive. But let’s realize that not all activism is created equal, and some activism is an urgent concern while other activism belongs lower on the list.

    2) As to redefining or preserving an institution:

    I think (hope?) we all agree that any two consenting adults (or more, in Utah 😉 should be able to assign to one another power of attorney, joint property rights, etc. etc. etc. I think (hope?) we all agree that the domain of law begins and ends with those sorts of things. The moral and spiritual aspects of marriage are for individuals, communities, churches, etc. to handle.

    So, I think (hope?) that none of us have problems with civil unions that confer the legal rights of marriage. It’s their lives, it’s their property, and the state has no business deciding to whom an adult can or can’t voluntarily share property and power of attorney. To put it in perspective, what if some day my brother and I find ourselves widowed, sick, and broke? Say we decide to pool our resources and grant one another power of attorney and whatnot? Would it be anybody else’s business?

    Now, as to whether those legal arrangements deserve the word “marriage”. Well, ultimately the moral, spiritual, and social aspects of these legal arrangements should be worked out in the private sector via individuals, families, churches, and communities. Seen from that perspective, it shouldn’t matter whether the state attaches to the legal documents a word like “marriage” or “civil union” or even a made-up nonsense word. What’s in a name? Property rights by any other name would still be none of Rick Santorum’s business.

    This is where I actually diverge from the gay activists: If the state recognizes for you the same inheritance rights, property rights, etc. that any other consenting adults can have, then that’s all you have a right to demand. It’s irrelevant whether the state puts the word “marriage” at the top of that piece of paper, because socially you can call it anything you like. (As an analogy, for various reasons my wife has yet to change her name legally, but socially we are Mr. and Mrs. [insert my real last name here], not Mr. [my name] and Mrs. [her name].)

    OK, given all this, do we all agree that the institution of marriage won’t suffer if the state lets 2 men share property and inheritance and whatnot? If so, how will marriage suffer if the state decides to call it by the word “marriage”?

  73. Nice, Joe, taking the “republic not a democracy” mantra and turning it against conservatives. I like it.

  74. Debate’s dying out. Sigh. Such as it is in the fast-moving world of internet discourse.

    Scott, no offense taken man, it didn’t seem “hot headed” to me what you wrote. I do understand homosexuals who are in a committed relationship. They feel offended that they can’t get married. But my response is this: marriage is not purely a matter of contract, in which the only qualifier is that the parties consent to enter into it. Not just anyone can get married. In my state, Missouri, there are some important limits on who gets married. And I’m talking pre-1996, when the defense of marriage law was passed in response to fears that activist judges would use the privileges and immunities clause to judicially implement gay marriage based on the Hawaii ruling that, under the Hawaii constitution it is a violation of equal protection of the laws to not issue marriage licenses to homosexual couples. Go ye and look yourself. Here is a link http://www.moga.state.mo.us/homestat.asp

    At sec. 451.020, it says marriages between parents and children, and between brothers and sisters, etc., are void. At sec. 451.030, it says that no one who is already married can get married to someone else. At sec. 451.090.1 it says that if you are under 15, you cannot get married without “unusual conditions.” The Missouri defense of marriage law is at sec. 451.022. Can you tell me why a court should by judicial fiat change the definition of marriage from “the union of one man and one woman for life to the exclusion of all others” to allow homosexuals to marry each other, but yet not change the age-old definition to allow bigamous marriages, or to allow cousins to marry? Seriously. Give it a shot. If gay marriage is required under the equal protection clause, then how is it not a violation of the equal protection clause to disallow bigamy or relation-marriage? Please don’t bother invoking scare tactics such as “inbreeding” or stereotypes of Mormons in Utah. I have been enlightened by Goodridge, and I now know, thanks to those four robed annointed ones, that all along I have been such a bigot to believe that marriage is “one man and one woman for life to the exclusion of all others.” Me, I’m lookin’ forward to taking on a 2d and 3d wife, one of whom will be a close relative.

    Scott wrote:
    “As you say, there is more at stake here than my own personal liberty. It’s the relative disadvantage you would put my family relative to yours–the hardship that folks like you want to impose on the children of folks like me. You say you know where a lot of us are coming from…I don’t think you really do. These laws unjustly hurt people, and the courts are finally doing their duty to protect us.”

    By wanting to get married to your life partner, you are not just wanting to be left alone by the state. You are wanting a special blessing by the state saying “we approve of your relationship; you are just like everyone else; this is perfectly normal.” It is not an issue of liberty. The state does nothing to stop you from living with your mate. The state does nothing to stop you from setting up your private affairs such that you two are beneficiaries of each other’s will, etc. The state, nowadays, even says you can adopt children (and whether that is wise is another topic for another day). The state does nothing to stop you from having private consensual sexual contact, made clear in the recent SCOTUS opinion. The state does nothing from owning property as tenants in common. The state does nothing to prevent you from establishing one trust. This litany I’ve just provided for you leads to my point that you are, in effect, asking for something from the state, not asking for liberty. The libertarian principles of many in this thread post are betrayed, because for their own private reasons they like the idea of gay marriage.

    Also Scott you mention your children. My natural curiosity demands to know how you have had children?

    Thoreau, the reason why Goodridge is such an egregious example of judicial activism is because it changes the age-old definition of marriage (a vitally important institution affecting society to the core) with no input from the people.

    That is all.

  75. Abu, I don’t have children…I’m not at that point in my life yet. I’m going to have them in the future, though (probably through adoption). The emotion that drove me to hastily write the previous posting came from the depressing and frustrating knowledge that my (future) kids are going to be put at a disadvantage to others’…simply because of existing, unfair marriage laws. (To satisfy the curiosity you expressed, though, of the families I know in this boat, all the kids involved have come from previous marriages).

    Legal arrangements can’t fix the problems I’m facing. Let’s say I were to die prematurely…my family would get screwed on social security survivor’s benefits. My partner could have to pay inheritance tax on my portion of our property…tenants in common doesn’t fix that. Both of these things would damage my family’s well-being. And why? For the simple fact that I’m male? Keep in mind I’ve paid into the system all this time, just like everyone else. When my survivors come to collect what’s rightfully theirs, though, they’re told by the state to drop dead. And this is all supposedly good for families? Depending on state law, many of the legal arrangements I could have set up would furthermore be ignored. For one couple’s experiences in this regard, check the last few paragraphs of this: http://windsofchange.net/archives/004291.html

    By the way, I’m not looking for a special blessing from the state. I don’t really care what others think of me or my (future) family. I really don’t. I just want the equal protection we’re entitled to. Whether that means extending to my family the same rights that straight ones get, or if it means denying to straight families what will be denied to mine, either solution works for me. I’m not looking for a handout here, or acceptance by society, just equality in the eyes of the law.

    About the bigamy/incest stuff…people aren’t born bigamists, nor are they predestined by biology to incestuous relationships. People are born gay. This is a fundamental difference that should be obvious. Denying the right of gays to marry is akin to denying the right of, say, Asians to marry. Denying the right of polygamists to marry is akin to denying the right of, say, speeders to speed.

    I agree with you that it’s a shame this thread is fading…it’s been fun! (I’ll keep debating here as long as you want, though).


  76. EMAIL: nospam@nospampreteen-sex.info
    URL: http://preteen-sex.info
    DATE: 05/20/2004 06:42:03
    Self-imposed ignorance should disgust everyone.

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