CA Supremes Say No to Gay Marriage—For Now At Least

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The California Supreme Court has stopped gay marriages in the Golden State. It promises to make a decision "within months," according to the San Francisco Chronicle. The grounds for a decision that will make clear whether San Francisco's gay marriages are legal?

The court sidestepped the issue of whether state law, which defines marriage as a union between a man and a woman, is constitutional. Instead, the court will review only the narrower question—pressed by state Attorney General Bill Lockyer and organizations opposing same-sex marriage—of whether San Francisco Mayor Gavin Newsom can ignore the state law if he considers it unconstitutional.

The stay doesn't affect the more than 4,000 weddings performed under Newsom's decree since Feb. 12. But those marriages would be nullified, if the court rules that Newsom lacked the authority to defy the law on constitutional grounds.

That depends on whether the city is covered by a 1978 state constitutional provision requiring administrative agencies to follow the law as written until an appellate court declares it unconstitutional. The city contends the constitutional restriction applies only to state agencies—a position that looks shaky after Thursday's order, according to some veteran court observers.

Whole thing here.

Reason Online regular Jonathan Rauch, who has an excellent new book called Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America out. It's a great case for gay marriage, from just about every conceivable angle (we'll be excerpting it in the June issue). His latest column on the topic is here.

Rauch argues for a state-by-state, decentralized process by which political and social units try out different approaches to gay marriage–essentially, he argues for a federalist approach to gay marriage. This, he says, will prevent gay marriage from becoming as divisive an issue as abortion in the early '70s, when state experiments where undone by a nationally imposed judicial decision.

It's an attractive argument, made by a great writer and someone who, as a gay, partnered man, is writing from the heart as well as the head. Yet it strikes me as morally, socially, and political wrong that gays and lesbians who want to marry should have to wait years to get hitched in their home states. Social consensus–and social change–take time, but the fundamental injustice that gays can't marry legally remains a black mark on America until the situation is changed in every state.

Update: Here's a story about Massachusetts lawmakers' "preliminary approval yesterday to a constitutional amendment that would ban same-sex marriage but allow civil unions."

And here's Andrew Sullivan's smart take on recent goings-on re: this topic.

NEXT: Case Against Scientifically Honest Bjorn Lomborg Dismissed

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  1. “What is harmed is the power of the California voter”

    What harm does the voter endure by waiting a few weeks for the decision to come out?

  2. joe, if the state passes a law that says I can’t park less than 10 feet from a fire hydrant, and I park 8 feet from the fire hydrant, I broke the law and I get a ticket/summons. Whether there is any harm in being 8 and not 10 feet from the hydrant – the unit is still as accessible to fire crews as it would be were I within the proscribed limits – is irrelevant. The mayor does not have the luxury of acting on his estimation of the law’s merits. His responsibility is to execute that law faithfully, and when the people have California have deemed that marriage is something to be extended to gay couples, then he can hand out licenses hand over fist.

    And I’m pretty sure the standard of “harm” you’re using does not apply to the court.

  3. What harm does the voter endure by waiting a few weeks for the decision to come out?

    Because the decision isn’t based on whether the law was constitutional; this is not the same kind of challenge as we saw in Mass. The law will continue to be in effect after the decision even if by some miracle he is exonerated (although it would presumably put Prop 22 in some wierd territory). What is at issue here is whether the mayor exceeded his authority based on state law and the constitution, which explicitly requires public officials to obey it.

  4. “What is at issue here is whether the mayor exceeded his authority based on state law and the constitution, which explicitly requires public officials to obey it.”

    That is the issue in the mayor’s trial. It is not, however, the case in the civil trial seeking to void the licenses.

    You’re really not sure of your law, rst, but you just KNOW that the anti-gay side, whatever it may be, is right.

  5. joe

    Perhaps you are being a bit one-sided– if the decision the other day was reasonable at all, then the delays are hard to understand…the mayor could not have been more candid about what he was doing.

    If a state college enrolled students in defiance of state guidelines on affirmative action, and the regular term was beginning, would you be so nonchalant?

  6. I think perhaps marriage should be seperated from government entirely and replaced with a state sanctioned civil union contract.

    Marriage would then be restored to religious and community institutions.

    Consenting adults should be recognized in whatever grouping they desire at the government level.

    Wedlock should be seperate matter.

  7. In that case, Andrew, there are specific people who could claim a specific harm – white students denied admission. Being denied admission to a college – that’s a harm. AFAIK, straight couples are not being denied marriage licenses.

    “…so nonchalant” I think you might misunderstand my point. I’m arguing a narrow question of law, something akin to “standing” to file a lawsuit. The degree of rightness or wrongness of a gay marriage policy isn’t the question here.

    Somebody, please, finish this sentence: If the order to cease issuing gay marriage licenses is issued in 3 months, instead of right now,…

  8. If the order to cease issuing gay marriage licenses is issued in 3 months, instead of right now…

    Then if the court finds that the mayor indeed acted outside the bounds of his authority and broke state law, then 3 more months’ worth of gay marriages will likely be annulled. There is no harm in preventing gay couples from getting marriage licenses when there is a standing law against it, any more than preventing someone from getting marijuana is harmful on account of the laws against it, even though the acts of purchasing and consuming marijuana are not harmful to anyone. However, there is harm in providing to citizens a fraudulent marriage license that the state of California will not legally be required to honor anyway on account of existing state law. San Francisco entities issue licenses based on its empowerment by the state of California.

    You’re really not sure of your law, rst, but you just KNOW that the anti-gay side, whatever it may be, is right.

    Right and wrong are subjective notions, save them for the slight of mind. What is at issue is the observation of a process as either consistent and valid or not. Save the “anti-gay” crap for the people who’ll bite. The alternative view – the one in which I ostensibly “know my law” – is to support the beliefs that courts indeed make law, and that an executive branch of a local government is free at any time to determine whether state laws passed by the legislature and voters are even valid or constitutional. Neither notion sounds as though it would be espoused by one who “knows their law”.

  9. “there is harm in providing to citizens a fraudulent marriage license that the state of California will not legally be required to honor anyway on account of existing state law.”

    How does this harm the gay couples?

  10. or is “sure about their law,” or whatever.

    joe Perhaps you are being a bit one-sided

    Joe, one-sided? No way.

  11. Nobody has yet answered the objection I’ve posted in several threads:

    Please tell me what exactly is wrong with the state saying “OK, listen up: We have no authority over love, honor, and cherish and whatnot. But if any two consenting adults want to share property and power of attorney, we can hook you up there. It’s none of our business whether you’re opposite sex or same sex, related or unrelated, or whatever. We’ll just recognize any contracts between two consenting adults who want to share property, power of attorney, etc. As to the religious and social significance of it, well, that’s for religion and society to handle. We’re just recognizing contracts, since that’s really the extent of our authority.”

    Who would be harmed? Would procreation and child-rearing decline? Would anybody leave his or her opposite-sex spouse? Would young couples in love decide to not marry? Would the world end?

    The only harm I see is Rick Santorum’s head exploding. But even that negative event would have some positive externalities…

  12. How does this harm the gay couples?

    The court has asked the mayor to explain how he is not acting in violation of state law. These licenses are factually void, just as a license issued to related or already married participants would be void. The state of California is under no legal obligation to honor those licenses, and state law already prevents the mayor from issuing those licenses in the first place. He has been harming his newlywed gay constituents from the first license.

    And for whatever you’re sure about, don’t be sure about my position on this issue. I have no problems with gays getting married, so long as it is advanced by a legislative process. Neither courts nor rogue executives are permitted to make law. This is not right and wrong, this is process.

  13. You’re still agruing the merits of the case, but that’s not what I’m asking. Many, many plaintiffs who win at trial don’t get injunctive relief while they wait for their court date. That is the normal course of things, with temporary injunction issued only in those rare cases when waiting for the final verdict would allow some demonstrable, irreversable harm to continue.

    Who would be hurt if gay couples continued to receive marriage licenses from SF City Hall? What harm would come to these people?

  14. joe, just in case I need to spell this out for you:

    They’re not legally married, but they think they are. Basic contract law, genius. Given the magnitude of marriage, that sounds I dunno, harmful perhaps?

  15. Oh, I might add that some have pointed out the problem of gay marriage imposing burdens on business. e.g. Businesses may be required to provide benefits to spouses.

    There is a very good free-market argument against such laws. That argument is just as valid if marriage is restricted to heterosexuals. Yes, gay marriage would add to the burden on business, but since gays are a tiny fraction of the population it would hardly be a huge burden. Now, admittedly, I shouldn’t lightly dismiss a burden imposed on somebody else. But we shouldn’t hold the more basic, innocuous rights of marriage (e.g. property, power of attorney, etc.) hostage and deny them to gays until heterosexual marriage is reformed.

    And people point out similar problems with social security. Once again, the basic problem is with social security, not with letting gays share property, power of attorney, etc.

    Finally, as to how this is done: I fully agree that courts shouldn’t act as legislators and mayors should flagrantly defy the law. But of all the unlawful acts perpetrated by the executive, and of all the activist decisions rendered by courts, gay marriage fits that rare exception: An unlawful and/or activist decision that actually advances individual liberty.

    No, I’m not suggesting “Well, ends justify the means.” What I am suggesting is that, of all the many activist decisions out there, gay marriage would be VERY low on my list of priorities. Surely there must be higher priorities. And of all the local officials out there flouting the law, surely the mayor of SF should be low on the list. Let’s root out some corrupt cops, or some city council members rigging zoning rules to benefit their buddies, or a school superintendent granting contracts to his friends, or whatever. Once we get some of those rooted out, then we can worry about a major who’s violating the law by letting consenting adults enter contracts to share property and power of attorney.

    Yes, I realize that the law is the law. But when the cops get two calls, and one is a reported homicide while the other is a report of some guy violating the building code by putting up a birdhouse in his tree without a permit, which should they respond to first?

  16. Obviously I needed to spell it out for you. They don’t actually have a marriage, just a license issued under fraudulent conditions. The power to become party to a contract is contingent on it not being in violation of state and federal law. Under the current legal conditions these contracts are null and void. However the newlywed gay couples are going to continue to believe that they do have a valid marriage and will presumably begin to re-arrange their lives under that assumption.

    Is there anything still unclear to you?

  17. No, it is perfectly clear; you believe that arranging your life around marriage without having the rights thereof is a harmful situation, harmful enough to justify action by the government. You know, I think you’re right.

    Don’t you just love the Socratic method?

  18. “There are two wholly separate issues here and the most important one is the least talked about. The first issue is whether gay marriage is a good idea or not (I think it is). The second and vastly more important issue is how we go about changing the law in this area.”

    Supporters of gay marriage fall into two groups: those like Shannon who think it’s a “good idea”, but see it as a valid political issue and are concerned about the law and order of the process, and those like Nick, myself, and probably all the couples who were turned away at City Hall yesterday afternoon after the California Supremes weighed in, who see it as an issue of basic civil rights, and are not necessarily interested in playing by the rules while this injustice is built into the rules.

    These two groups are really not talking the same language.

  19. The only issue that matters is will this have a positive or negative effect on future generations.

    Do the children of tommorow have a stake in this discussion?

  20. Yes, VM, we’re working to create a world in which hate is more feared than love.

  21. “Do the children of tommorow have a stake in this discussion?”

    What the hell does that mean? Do you have some kind of magical device that lets you talk to the children of the future? Cuz I’m not too sure all the future kiddies would agree with you about how harmful gay marriage is to the moral fabric of society, etc.

  22. VM-

    I have yet to hear anybody explain how this could have a negative effect on future generations. I’ve heard things like “Marriage is about procreation” but nothing about how it will affect procreation to let two consenting adults of the same sex share property, power of attorney, etc.

    I’ve heard things like “This is a long-standing institution that can’t be redefined without social repercussions” but I have yet to hear how people will be hurt or how my marriage to my wife (I’m male, for the record) will be affected if two guys in San Francisco get to share property, power of attorney, etc., and if they decide to use the word “marriage” for their arrangement. They can call their arrangement whatever they want, it doesn’t affect my situation.

    I have yet to hear any persuasive case that fewer people will have kids because of this. People will assert “It’s about procreation, we can’t change the institution” and other dire predictions, but nothing about a mechanism by which fewer kids will be created. Will heterosexuals be less likely to have kids because two guys in San Francisco can share all of their legal responsibilities with one another?

    I have yet to hear any explanation for how these dire things will come about. Unless perhaps you believe that there will be a mass exodus from the heterosexual camp because gays are allowed to get married.

    But I find it hard to believe that gay marriage will cause an exodus from the hetero camp: A lot of men have put a lot of effort into trying to get women to engage in lesbian acts. Most of it has been to no avail. Are we to seriously believe that offering marriage is the key to getting women to have sex with each other? Because if that’s the case, the argument could backfire on gay marriage opponents: Straight men might lobby to legalize 3-way marriages. “Honey, I finally realized why you were holding out: You want to actually marry that woman before you screw her in front of me. Well, they just legalized it…”

    And as for any exodus of men from the straight camp to the gay camp: My males friends and I generally refrain from even sitting too close to each other on the couch. And most of us aren’t all that big on weddings to begin with. There’s no way that any of us are going to look at each other and say “Hey, man, I know we’ve avoided even accidentally bumping into each other. But now the mayor of San Francisco is willing to marry us. So let’s pick out tuxedos, call the caterer, and after the ceremony have gay sex.” Sorry, ain’t gonna happen.

    Anyway, I guess my point is that there’s no real explanation out there for how gay marriage will do any of the following:
    -Dissuade heterosexuals from having kids
    -Dissuade heterosexuals from taking their own marriages seriously
    -Dissuade heterosexuals from getting married in the first place
    -Convert people to homosexuality

    Somebody please give me an explanation, something better than “You shouldn’t tinker with this”, because that sounds a lot like lefties arguing against genetically modified food.

  23. Don’t you just love the Socratic method?

    I am not familiar with the Socratic method. At any rate, the question is what action. Your belief that the contract should be extended is predicated on the belief that the definition of marriage can and should be abstracted to person-to-person, and further that the entirety of society should already be willing to do so. Possibly valid, but the only arena qualified to answer that question is the constituency. Right or wrong, it is the process.

    In the meantime, because it is readily apparent that the mayor broke state law, and does not have the authority to determine whether that law is invalid, then the licenses that he has already handed out are likely legally void, a.k.a., the harm. There is no harm in denying gay couples the licenses, because state law already forbids it. The case before the Cal. SC is not the validity of Prop 22, but whether the mayor has the legal right to ignore state law. If they have to wait 3 more months to find out they can, no harm. If they get married now and then 3 months later find out they couldn’t, oops. The only practical action is to protect 3 more months’ worth of gay couples from disappointment, so voila. Injunction.

    Again, right or wrong, it’s a process whose participants – executive, legislative, judicial, and constituency – have distinct roles. Our notions of right and wrong have lived and died by the successful and unsuccessful fulfillment of those processes. It is not objective, nor could it ever be.

  24. Thoreau

    There is an argument you include in your package I have heard others make in these threads that I assume could only slide unchallenged on a libertarian site:

    All kinds of public, mandated and customary spousal benefits are built into Social Security and similar entitlement programs, mandates imposed on private employers in many states, and long-term contracts covering many workers in the private sector

    (indeed, the existence of such benefits is one reason so many gays are interested in getting the legal status of spouse and, in SOME contexts, serve as an argument FOR granting them this…it isn’t trivial)

    and the net contribution new gay spouses would make to the burden on taxpayers and the cost of business isn’t trivial, either (particularly as it is open ended– many straights would have an incentive to “cash in”).

    The casual practice around these parts is to “hell with it…Social Security should be abolished ANYWAY! We are libertareians, right?”

    OK, but not SO fast, brother.

    A.) Well I don’t score better than 73 on that Libertarian Purity Test, and somehow I don’t believe you break a 100 either, Thoreau. How about it– are YOU a social security abolitionist? I KNOW joe isn’t.

    B.) There is a question of priority. I know all kinds of people who support Open Borders in principle, but not with any urgency so long as there is much of a welfare society for immigrants to interact with.

    (BTW, the same activist courts which “legislate” Gay Marriage are NOT going to let immigrants receive any kind of “unequal” treatment…bet on it!)

    Neither entitlement/mandate programs, nor their spousal features, are going to disappear soon, in any rational political calculus. What is urgent about gay marriage?

    C.) Abolishing the spousal benefits in all entitlements, mandates and long-term private contracts WOULD seriously effect the success rate of hetero-sexual families. Nobody who believes in the power of incentives and disincentives can rationally doubt this. How do you come by your sang-froid, Thoreau?

  25. Gays can marry in accordance with the same laws that apply to me and to every one else. There is no discrimination except the biological, which is not mutable by legislation.

  26. Andrew-

    On Social Security, I don’t feel the need for taking a difficult stand on abolition because I operate on the assumption that I just won’t be seeing a dime of it. So I avoid that issue.

    As for the magnitude of the burden imposed on business: Gays are about 2% of the population by most estimates. Gay activists sometimes claim up to 10%, but gay activists don’t get much cred around here anyway. Anyway, I don’t see the relative impact being all that big compared to the number of hetero couples already draining benefits.

    Not to minimize the burden placed on other people, but simply to observe that this is unlikely to be the straw that breaks the camel’s back. Or, if it is, then a couple more decades of population growth probably would have done the same thing.

    As to the notion that abolishing spousal entitlements would undermine hetero marriages: How did heterosexuals remain married before the government mandated all sorts of benefits? Yes, I know, it was a very different time and economy and we shouldn’t just assume “Oh, they made due without it before, it will happen again.” But if we shouldn’t assume a painless transition, neither should we assume catastrophe should these laws be abolished.

    Anyway, I see that you’re now resorting to the economic arguments. Nobody has answered my more basic questions, namely, how would the more basic (and relatively non-controversial) benefits of marriage (e.g. joint property, power of attorney, etc.) be affected if gays are allowed to marry?

  27. Federalism is the proper policy response here, I think. The more controversial matter is whether the ?full faith and credit clause? of the federal constitution will truly allow a state-by-state process to unfold. Both opponents and proponents of gay marriage argue that it does not, that a gay marriage in one state is inevitably going to be required by courts to be recognized in others contrary to the latter?s state laws. The contrary view is that states are allowed a ?public policy? exemption from the full faith and credit clause, thus allowing some states to say no.

    I’m not a constitutional attorney, but my guess is that the skeptics are correct. That would argue for a constitutional amendment clarifying that the state legislatures enjoy freedom of action on these (and possibly other) issues of public policy. If Jonathan is right, such a process will demonstrate the benefits of same-sex marriage over time, within a democratic and federalistic process, which seems to me to be superior to the provocation of a culture war that, I suspect, will not be won by gays for the foreseeable future.

  28. Walter,
    Too Right! Mixed race marriages are an abomination too! They should be forbidden by Constitutional amendment. They are opposed by a majority of Americans and “there is no discrimination except the biological, which is not mutable by legislation”.

  29. Except, Warren, that ‘race’ is not a biological concept. It has no biological definition, being entirely a social construct.
    Oddly enough, sexuality is very nearly the same — homosexual behavior has been noted in all sexually dimorphic species.
    (And please, lets not tell these loons about all those nasty species of fish which change gender!
    How entirely unnatural!)

    Shirley Knott

  30. Thoreau

    It is hard not to feel like you are skating over this a tad lightly. Perhaps you would like to supply a more considered answer? I have always respected your contributions in these forums, and the quality of the debate is the only real reason to participate here at all.

  31. >Gays can marry in accordance with the same laws
    >that apply to me and to every one else. There
    >is no discrimination except the biological,
    >which is not mutable by legislation.

    And of course discrimination on biological grounds is valid. Oh wait, it’s not. Try again.

  32. How about let’s ban all heterosexual marriages between jews and christians? Why not? That’s ‘mutable’.

    Damn, I hate str8 amerika more and more each day…guess that’s why I”m working on my permanent residency application for Canada this morning.

  33. John,

    On a very meaningful level, I agree with you (and Jon Rauch and Andrew Sullivan) that federalism is the proper policy response. I especially take seriously fears of a violent anti-gay backlash if the gay marriage is validated via a Roe v. Wade-style US Supreme Court decision. This is a fear that both Rauch and Sullivan have articulated and as a member of a protected majority, I realize I wouldn’t have to live day to day with the physical, political, and cultural dimensions of an abortion-style culture war directed against gays (not that there isn’t a lot of that already going on).

    By the same token, however, it is disturbing in the extreme that gays should have to wait for years or decades to exercise what is self-evidently (to me, anyway, and anyone who believes in individual freedom) their equal right to marriage.

    There seems to me little question that gay marriage will be accepted by Americans (and by the U.S. legal system), and sooner rather than later. I think anything that speeds up that acceptance–even false starts in places like San Francisco, New Paltz, etc.–is to the good. If the civil rights movement of the ’60s tells us anything, it’s that social change happens most quickly and effectively through a lot of different of channels, ranging from civil disobedience to mainstream legislative action to court battles to threats of violence. It is never a flawless or pretty process, but even the federalist process of experimentation usually only takes place because of more divisive forms of protest.

  34. Re: Mr Hood’s comment…

    I would definitely agree that a federalist solution would be ideal here.

    States have difference ages at which people are allowed to marry, don’t they? I seem to remember reading (some time ago, it may have changed) that a handful allow 14-yr olds to marry with their parents’ permission.

    Are these marriages recognized in states where the age of consent (much less the age at which they can marry) is higher? Could you be arrested for statutorily raping your spouse if you go to the wrong state?

    I’m just wondering if there’s any precident here…

  35. Wonder if a lawyer could get some civil damages for any gay couples having their marital bliss annulled?

    San Francisco city government might be declared to have acted rashly by over-stepped their bounds in ignoring state law, bringing suffering, expense and distress on gay people across the nation.

  36. There are two wholly separate issues here and the most important one is the least talked about. The first issue is whether gay marriage is a good idea or not (I think it is). The second and vastly more important issue is how we go about changing the law in this area.

    Everybody who believes in the rule of law and in minimal government should be terrified of a doctrine that holds that, “…every mayor or county supervisor in California is free to make his own determination of whether state statutes are constitutional.” and “…the mayor’s claim that he has freedom to act on his own constitutional conscience,”

    When the conscience of specific individuals becomes the law the rule of law is dead. Law constrains the state only because those individuals who hold the levers of power submit to the law even when they disagree with it. A government official constrained only by their own conscience is a dictator.

    Vigilantism is always a temptation, we must all resist the fascist urge to hack through the law to accomplish whatever desirable goal lays immediately before us. The destruction of the institutions and processes which are the foundations of our democracy is too high a price to pay in the long run.

  37. The state of the Massachusetts amendment is a little more complicated than the post suggests. The vote last night sent the amendment to a Third Reading. This means that the amendment can no longer be amended, and that all that remains is an up or down vote to send it to the ballot. Apparently, some legislators voted yes, to send this to the Third Reading, so as to stop any more anti-gay marriage amendments from being put forth, but now intend to vote no after the third reading, to kill the amendment.

  38. There is still, at least from what I’ve been reading, too little discussion of the impact of legalizing gay marriage on third-parties. This will open the door to a number of lawsuits and laws against private businesses in the name of “civil rights”. That doesn’t mean gay marriage shouldn’t be legal. But it means we must recognize that many, if not most, gay marriage advocates are not principled libertarians or supporters of capitalism. We must proceed with that understanding.

  39. Perhaps one of the lawyers out there can set me straight: was this a temporary injunction? In that case, what was the “immediate, irreversable harm” that the court found, and who was the alleged victim of this harm?

  40. Just because you have abstracted the concept of marriage from man and woman to person and person, the rest of society is not required to do the same unless you can demonstrate why it is necessary for them to do so. Thus far the gay marriage camp has only posited the abstraction a priori. Those on the other side are under no obligation to accept that on its own merits.

    The miscegenation parallel is silly. The argument there was not based on the gender of the participants, but on their human value regardless of their gender (and the human value of their biological children).

    Ideally gender roles will evaporate, but really, go look out your window and tell me where the Utopia’s at.

  41. was the “immediate, irreversable harm” that the court found

    That the mayor broke state law. California voters ratified Proposition 22. In case some of y’all have forgotten, there’s this thing called law that legislators and voters pass to define the legal framework that supports a democratic society. Wait, I’m sorry, tyranny-of-the-majority society.

  42. Longstanding precedent from around the country holds that a state need not recognize a marriage entered into in another state with different marriage laws if those laws are contrary to strongly held local public policy. The “public policy doctrine,” almost as old as this country’s legal system, has been applied to foreign marriages between first cousins, persons too recently divorced, persons of different races, and persons under the age of consent. The granting of a marriage license has always been treated differently than a court award, which is indeed entitled to full interstate recognition. Court judgments are entitled to full faith and credit but historically very little interstate recognition has been given to licenses.

    But this argument has an obvious weakness — it only works so far as courts are willing to recognize “longstanding precedent.”

    Lawrence v. Texas shows that the Supreme Court is willing to overturn a directly on-point Supreme Court precedent that’s under 20 years old, and at the same time strike down statutes that have been seen as constitutional for centuries. Goodridge shows that some judges are willing to overturn a many-centuries-old practice of limiting marriage to male-female couples; sure, that was state judges interpreting the state constitution, but what state judges do now, federal judges might do later. On matters of gay rights, quite a few judges — not by any means all, but quite a few — are quite willing to set aside both precedent in the sense of traditional understandings and precedent in the sense of squarely controlling Supreme Court decisions. And of course many legal scholars in the gay rights movement have been assiduously arguing that courts should use the Fourteenth Amendment to require states to recognize in-state same-sex marriages, and the Full Faith and Credit Clause to require states to recognize out-of-state same-sex marriages. Judges might well listen to them.

    Now of course some people approve of Lawrence and Goodridge, and they may approve of reversing the longstanding precedent (or they may have different interpretations of this precedent). Others might mildly support a state-by-state approach, and hope that courts stick to the precedent, but not be too upset about a contrary outcome and thus not worry too much about the possibility of that outcome. Federal courts might use the Fourteenth Amendment or the Full Faith and Credit Clause to require states to recognize same-sex marriages, but this does not mean that they surely will do so.

    But if you think that the state-by-state approach is good, and the alternative of a judicially mandated decision is really bad, then you might well worry that assurances based on “longstanding precedent” aren’t that helpful. You might also think that now is the best time to reinforce that precedent with an explicit constitutional amendment.

  43. but the fundamental injustice that gays can’t marry legally remains a black mark on America

    Seeing as how maybe two countries in the world (Denmark and…?) recognizes gay marriage, I’d hardly count this trifling brouhaha amongst our black marks, Nick.

  44. Gay activists have been telling us for years that the traditional family and institution of marriage needed to be dismantled.

    Now they tell us gay marriage will do no harm to either.

    Why should i beleive them?

  45. Eugene,

    Thanks for a great summary of the legal context of all this.

    Am I right to read your conclusion re: explicit constitutional amendment as going in either direction? That is, for opponents of gay marriage, this may be the time to push for an amendment against gay marriage. And vice versa for proponents of gay marriage?

    Another question prompted by your post: How important is precedent, longstanding or otherwise, in any given specific case? You note that the Supreme Court has recently overruled a relatively recent precedent in Lawrence. But sodomy laws were already considered absurd by a large percentage (if not a majority; I don’t know the relevant stats) of Americans when the Court upheld them in the 1980s. Thirty-five years ago,the Supremes overruled a longer-standing precedent against interracial marriages; bans on “miscegenation” were already seen as archaic by many (again, maybe most) Americans. Is it generally true that once the courts overrule an exisiting law that the new ruling, assuming even a minimal level of social consensus, quickly becomes socially accepted? Do you think that gay marriage has that minimal level of acceptance yet?

  46. Well, people say, what about Loving v. Virginia, the 1967 case in which the Supreme Court struck down bans on interracial marriage?

    Loving held that a law which considers a partner’s race in deciding whether a marriage is allowed is a form of unconstitutional race discrimination (even if both whites and nonwhites are equally covered by the law). Later Supreme Court cases held that sex classifications are similar to race classifications. Therefore, a law which considers a partner’s sex in deciding whether a marriage is allowed is a form of unconstitutional sex discrimination (even if both men and women are equally covered by the law). QED.

    Not so fast: Analogies between race discrimination and sex discrimination are sometimes helpful, but often not. This is one case where I think they aren’t.

    To begin with, let me just make some observations that should remind us that race and sex discrimination are not the same. Consider these pairs of case:

    Racially segregated restrooms — Men’s rooms and women’s rooms

    Racially segregated schools — Boys’ schools and girls’ schools

    Whites-only basketball teams — Girls-only basketball teams

    These are most certainly not the same — and not just because the items in the second category are somehow supported by an exceedingly strong government interest. Most people’s (and most judge’s) first reaction to the sex examples, I suspect, is that there’s much less of a presumptive constitutional problem there than in the race context. Sex discrimination just isn’t quite the same as race discrimination, and that’s especially so for “separate but equal” legislation or other legislation that treats men and women equally while still providing essentially similar benefits for them. (Note that government-run boys’ and girls’ schools might be unconstitutional, even if they provide equal education — the caselaw is unclear — and officially boys-only teams might be unconstitutional, too, which is why I stress the girls-only teams. But this would be because of a perception that those programs are indeed separate and unequal, not because separate but equal is inherently bad in the gender context.)

    And this flows from the point I mentioned in the first half of this post: Men and women are different. They are different in purely obviously biological ways (women get pregnant, men don’t, women are shorter than men, especially at the right tail of the bell curve), and in social ways that likely flow from this biology or are at least very deeply rooted (men and women generally want privacy from the opposite sex in certain situations, boys and girls behave differently in mixed-sex settings than in same-sex settings, we think that being the best woman basketball player is a noteworthy achievement in a way that being the best under-6-foot basketball player or the best Vietnamese-American basketball player is not). The law recognizes that there is a difference here.

    What’s more, though Loving did rest partly on the formal race-consciousness of bans on interracial marriage, it also stressed what was obvious to all the participants in the case: Bans on interracial marriage, like segregated restrooms or segregated schools, were part of an attempt to maintain white social and legal supremacy. Limitation of marriage to male-female couples is not an attempt to maintain the supremacy of any one sex. (Yes, I know that people have argued that it is, but I don’t think that’s right.) Such a limitation is, to be sure, an attempt to maintain the social and legal supremacy of heterosexuality over homosexuality — but the Supreme Court has never held that sexual orientation discrimination is generally like race discrimination, nor should it (in part for the reasons given in the first half of this post).

    Thus, I just don’t think that the Loving rationale of “if it mentions race, it’s unconstitutional race discrimination” carries over to the sex discrimination context. Had the Court already declared sex discrimination presumptively unconstitutional by 1967 (actually, it didn’t start doing so until the 1970s, and it had treated sex classifications as presumptively constitutional as late as the early 1960s), I suspect the Justices would have articulated this distinction in Loving itself, and make clear that Loving’s logic rests on the special status of race, and the nature of even “separate but equal” racial rules as attempts to impose racial supremacy, something that doesn’t apply equally to all sex classifications. As it is, I think that Loving has to be understood as limited to the context in which it was decided, which is race; and the analogy to sex should be rejected, for the reasons I mention above.

    Finally, the male-female marriage requirement is much more deeply historically rooted in American law than the ban on interracial marriage; and by 1967, only 16 states banned interracial marriage, while 49 states ban same-sex marriage, and the 50th state (Massachusetts) is shifting to allowing same-sex marriage only by judicial fiat, not judgment of its people. The Supreme Court should rightly be very cautious in overturning the nearly unanimous judgment of American lawmaking organs, past and present. Maybe sometimes it ought to do this — but not when it faces such an absence of dispositive constitutional text, and when the doctrinal case for the overturning is so tenuous.

    Conclusion: Let me say it again: I tentatively support allowing same-sex marriage. I would vote for a proposed California law implementing allowing same-sex marriage. I think it’s the fairer result, and the practically most useful one.

    But I also realize that I may well be wrong. Perhaps we shouldn’t be tampering so quickly with an important aspect of a fundamental social institution. Perhaps — and there is reason enough to think that this is a plausible claim, though not an obviously correct claim — there is something in male-female relationships that is uniquely valuable for one of the most important tasks of any society, raising the next generation of its citizens, and perhaps the law should therefore officially sanction those relationships in a way that it doesn’t sanction others. Perhaps it would be better if people are taught that children are best reared in male-female relationships and not male-male or female-female ones.

    These arguments aren’t strong enough to persuade me to oppose same-sex marriages. But they are strong enough to persuade me that same-sex marriage rights ought not be imposed on the whole country by unelected federal judges, or imposed on most states by the actions of one or two states.

  47. P.S., re stare decisis and longstanding precedence:

    Today, about 30-40% of the public seems to support same-sex marriage rights; perhaps a Federal Marriage Amendment could be passed in the face of that. But if the number rises to, say, 40-45%, then it might be too late — if courts then reverse the longstanding precedent regarding marriage licences, there’ll be nothing that the 55-60% (and many more in some states) could do.

    So I can certainly see why people who are really worried about courts mandating same-sex marriage won’t be much relieved by the mention of “longstanding precedent”.

    That shouldn’t be an argument, even for them, in favor of a really broad FMA, like the Musgrave draft, which would strip states of the power to decide the matter for themselves. But it would be an argument for them to support a narrower FMA, such as one based on the second sentence of the Hatch draft, “Nothing in this Constitution shall be construed to require that marriage or its benefits be extended to any union other than that of a man and a woman.” Such an FMA would make sure (or as sure as we can be) that courts will indeed allow the state-by-state approach.

  48. “Just because you have abstracted the concept of marriage from man and woman to person and person, the rest of society is not required to do the same unless you can demonstrate why it is necessary for them to do so. Thus far the gay marriage camp has only posited the abstraction a priori. Those on the other side are under no obligation to accept that on its own merits.”

    That’s a perfectly good argument for voting against gay marriage, rst, maybe even a reason for recalling the mayor, but that wasn’t the question. Granting a temporary injunction, pending a final ruling, has a much higher burden. The party seeking the injunction must show that he will suffer immediate, permanent harm – not “boo hiss, me no likee,” of “He broke the law! Waaaaaaaaa!” but actual harm.

  49. Michael S. Greve of the American Enterprise Institute has a relevant essay.

    Link from Steve Miller at IGF.

  50. Eugene Volokh,

    “Longstanding precedent from around the country holds that a state need not recognize a marriage entered into in another state with different marriage laws if those laws are contrary to strongly held local public policy.”

    From my readings, it appears that a state’s right to refuse to recognize a marriage created in another state applies only to legal residents of that state that traveled to another state only to get married. If legal residents of a particular state get married and then travel through or even move to other states, their marriage does not cease to exist every time they cross into a state that sets different qualifications. Were this the case, the full faith and credit provision would be effectively nullified.

    Even in cases were the legal residents of a state popped over to another state to get married, it appears that the burden is on the state of residence to nullify the marriage. States appear to have seldom done so, save at the request of one of the married individuals or their legal guardians. From my research, states have been far more likely to imprison people that married in other states than they have been to annul the marriages.

    This applies internationally as well. Polygamy is illegal in the U.S. yet a Muslim family comprised of one husband and four wives is still a recognized marriage while they reside in the U.S.

    I think you invest to little power in full faith and credit clause. The potential for a chain reaction launched by the judicial fiat of state court is very real.

  51. The party seeking the injunction must show that he will suffer immediate, permanent harm – not “boo hiss, me no likee,” of “He broke the law! Waaaaaaaaa!” but actual harm.

    This is not a civil proceeding; that guideline does not apply. This is a violation of state law under the color of authority by a government official. It’s not waaaa, me no likee, it’s, the people of California by majority enacted a law. At no point is a mayor empowered to exceed his authority by ignoring state law.

  52. and if you must have something pressing, then the immediate and permanent harm is to the letter and spirit of the law. If any local yokel can decide for himself what is and is not lawful in light of the constitution, then what is the purpose of having a government at all? It’s not like the question was yet unasked of the people of California, leaving at least some leeway for interpretation. The issue was put to and struck down by the voters. The gay marriage camp was unable to convince the constituency, and they should blame themselves for that.

  53. An important note about foregoing posts from “Eugene Volokh”: After corresponding with the real–promise!–Eugene Volokh, it’s come to my attention that the comments above signed by Eugene (a UCLA law prof) were not in fact written specifically for this message thread. Instead, they are cut-and-pastes of his and other people’s arguments that have appeared on his group blog, The Volokh Conspiracy.

    Writes Eugene:

    I’m afraid someone is indeed posing as me. That comment consists of excerpts from the post at http://volokh.com/2004_03_07_volokh_archive.html#107887325012759494

    http://volokh.com/2004_03_07_volokh_archive.html#107887325012759494

    and it also commingles a quote from Lea Brilmayer(the first paragraph) with my commentary in the other paragraphs. Finally, it omits (with no ellipses) some other material from the post. If you could indeed correct the comment to reflect all this (and that I didn’t write it), that would be excellent!

    I realize that it’s not your obligation to police the comments thread, but I just thought that you might want to prevent confusion for your readers.)

    Thanks very much,

    Eugene

    We have blocked the IP address of the faux-Eugene and apologize for any confusion or misrepresentation.

  54. Is “the letter and spirit of the law” going to break somebody’s leg? Kill somebody’s dog? Empty somebody’s bank account? Harm, rst, show me somebody being harmed. Everything you raised is an issue to be decided at the upcoming hearing. That’s not what temporary injunctions are for – they’re for preventing serious harm that could occur if the action continues, until the trial judge issues his ruling.

    Of course, the “harm” in the Bush v Gore temporary injunction was – and I’m not kidding here – that people might “cast aspersions” on George Bush, if ascended to the office despite losing the election. “Cast aspersions.” So maybe the bar isn’t as high as it appears.

  55. The harm necessitated for temporary injunctions is not limited to physical harm or financial damage against any particular citizen(s), nor must it be present at hand. It is for anyone who can show cause that there is or could be harm of any significance make their case to the judge. What is harmed is the power of the California voter; no one (except the court unfortunately) has the authority to undermine that. What you call harm, and what the law calls harm, are obviously two different entitites.

    What I’m unsure about is why the mayor wasn’t arrested.

  56. Andrew-

    You aptly noticed that I was under a time constraint when I wrote that reply.

    A detailed response to the economic aspects of gay marriage would require data. Data is something I don’t have. Instead, I’ll pose two notions:

    1) It seems unlikely that gay marriage would have a significant economic impact, given that gays are only 1% to 2% of the population by most estimates. (OK, gay rights activists claim the number is larger, but do you consider them a reliable source?)

    However, I estimate the impacts to be small. Say that right now a gay employee gets health insurance for himself but not his partner. If the benefits of marriage were extended to gays then the employer might (depending on applicable state and federal laws) also have to provide health benefits to the gay partner. The impact on the employer, unfair as it is, is no different from the impact of a hetero employee getting married.

    Indeed, if the employer impacts of gay marriage were really expected to be significant, most employers might be expected to exhibit a pro-gay bias right now (all other things being equal). I’m not aware of any significant amount of pro-gay bias among US employers.

    I will grant that employers in San Francisco are in a different position than employers elsewhere. In SF gays are obviously more than 2% of the population, so a significant fraction of the workforce could be affected. I admit that I don’t know how employers in SF feel about this.

    2) As for Social Security, I expect that the SS system will face many pressures with the baby boomer retirement. Compared to those pressures, the pressures of gay marriage will be a drop in the bucket. Large, painful changes are probably ahead of us, and gay marriage will do nothing more than slightly accelerate those changes.

    Anyway, would you care to answer any of my challenges and explain how gay marriage will affect heterosexuals and reduce the number who choose to have children? Or how it will weaken hetero marriages (outside of the economic aspects, I’m talking about the general “we shouldn’t tinker with this institution” arguments that so many give)?

    The strongest argument against gay marriage seems to be a procedural one, namely that it should be done via the legislative route rather than the judicial route. And I sympathize with that. But since judges issue so many bad decisions every year, I prefer to get angry over the majority of bad decisions that actually directly harm individual liberty, rather than the handful that attempt to advance individual liberty but do so via improper channels.

    Finally, as to priorities, why do I care about gay marriage instead of taxes? Because the issue has come to a head now, the momentum is there, and so we should do something about it. If the momentum for tax reform were there I’d be up in arms about it.

  57. Thoreau (joe?)

    A.) When men and women get married, it is because women are insistent (and do what they can to make the prospect attractive), and because men allow themselves to be persuaded (in part, because they have a residual sense that it is the “right, and charitable thing to do”).

    B.) When men and women DON’T get married…women have kids anyway. And when women have kids outside marriage, it is really bad for all of us.

    (And of course, staying married is quite as important as getting married, for the same reasons.)

    A lot of what we have done with marriage law this century has already undermined the institution. I don’t say we shouldn’t have done it, but we gotta be realistic about the consequences.

    The best case for civil unions is NOT that it would facilitate gays living together, but that it would ease situations where “no-preference/no-sex” couples (perhaps middle-aged siblings) might be trying to raise kids…or just eke out their days together.

    The PROBLEM with civil unions is that straight men would employ it to defer marriage. And that is really bad social policy…it’s stupid!

    (The problems attendant on children living with gay parents– mostly the sequelae of failed straight relationships– aren’t seriously mitigated by civil unions. And, of course, the number of cases would rise if prospectively people thought they were.)

    The social conservatives ARE right…the culture matters. I don’t have any children, and in view of my age am unlikely to have any. But the fact that a majority of children who came into this world since I was born are being raised by at least one of their own parents, and many (maybe most) by both of their parents, and much of the rest by straight couples, is a plus for me– it makes things work.

    This is what a fairly solid majority thinks, and they are right.

  58. Listen, this blog covers a lot of cool topics except this one for good reason.

    Gay sex marriages is a totally disregardable topic for anyone to consider or even wax speculative about for a negative nanosecond.

    Okay, our gay and lesbian brothers and sisters make up about 10 percent of the population right? The couples that want a societal recognition for their nookie (i.e., marriage) make up only 75% of the total gay community, now lets punch our calculators and consult a CNN poll or two, and we come up with a CONTROVERSIAL ISSUE that effects less than .08% of the whole spherical wonderdome that is THE EARTH!

    Why is this crap wasting our time? Is this country still a democracy still or are we tyrannical road kill?

  59. Andrew-

    Thank-you for getting to the heart of it. I can tackle this head-on now.

    So, you say straight men would agree to a civil union (i.e. the legal benefits of marriage) to defer the social, religious, and other aspects of marriage (i.e. a life-long committment to love, honor, and cherish, etc.).

    Well, we can’t prove or disprove that for certain without doing an experiment. But let’s look at another situation where straight men butt heads with women in a marriage-related matter: The wedding itself.

    A lot of men offer women a very reasonable deal: The man will enter into the legal aspects of marriage (i.e. get a certificate from city hall) as well as the social aspects of marriage (agree to love, honor, and cherish, and call it the m-word, etc.) in exchange for one concession–That the woman agrees to elope and do this in a small, no-nonsense ceremony without any prying in-laws and whatnot around. I certainly offered this deal. I told my wife I’d go anywhere she wanted (i.e. didn’t have to be Vegas), we could have a Catholic priest, whatever. Just no big shindig with lots of people and a reception and all that.

    I was soundly rejected. I lost outright. I got bamboozled into wearing a ridiculous penguin suit, doing an elaborate ceremony in front of a bunch of people, posing for a bunch of ridiculous photos, doing the ridiculous cake-cutting ritual, dancing while everybody watched and said “Oh, how cute!” and all the other BS of a wedding. I got to watch my wife and her sisters spend ungodly amounts of money (fortunately I only paid a small portion of it, her father was actually quite willing to pay for the nonsense). Every family gathering for the year leading up to it was non-stop talk about the wedding. On the wedding day, when I was all stressed out about having to do this ridiculous thing (I had zero qualms about the marriage, but huge qualms about the wedding, and believe me, there is a difference!) I had to listen to in-laws chide me with “No, no, you can’t see the one person who can make you feel relaxed, because it’s bad luck to be around the person who can always make you relaxed!”

    The only concessions I got were that I didn’t have to wear any flowers (the groomsmen had to, but I didn’t), I didn’t have to do a receiving line, I didn’t have to dance with my mother (I hate dancing, it was nothing personal against my mother), and I didn’t have to toss the garter (I won’t do a faux strip show with my wife in front of everybody!).

    So, if a really stubborn guy like me could lose so horribly at this game, there’s no way that women will acquiesce when a guy offers “Look, here’s the deal: I won’t make a life-long committment, I won’t participate in a ridiculous wedding ceremony, all I’ll do is enter into the legal aspects of marriage.”

    I don’t know if you’re married or not, Andrew, but I see absolutely no way that men have a chance of winning this battle. Women will continue to win the marriage battle. If they won’t accept elopement, there’s no way in hell they’ll accept civil unions without marriage. Even if we get the gov’t out of the marriage business (as I firmly believe we should), and put marriage in the private sector, women will continue to insist on supplementing the legal civil union with a private sector marriage. And they will win that battle.

    Incidentally, I want to make one thing clear: I was quite eager to be married. I just wasn’t very eager for the wedding. There’s a HUGE difference.

  60. Andrew (Bigot),

    “A.) When men and women get married, it is because women are insistent (and do what they can to make the prospect attractive), and because men allow themselves to be persuaded (in part, because they have a residual sense that it is the ‘right, and charitable thing to do’).”

    And you have what empirical evidence to back this up with? I would argue that the courtship ritual is far more complex than your silly reductionist proposal allows; and that you denigrate people and their relationships by this argument.

    “B.) When men and women DON’T get married…women have kids anyway. And when women have kids outside marriage, it is really bad for all of us.”

    That largely depends on quite a number of factors – many of which are wholly unrelated to whether men and women live together without being married; indeed, childless non-married relationships are rather common for at least some rather significant sub-sets of the population; and this is indicated by the relative lack of childbirth segments of your population and the skyrocketing need for babing making technology to allow women once considered far too old to have children. Andrew, please do think your silly arguments before you make them.

    “A lot of what we have done with marriage law this century has already undermined the institution. I don’t say we shouldn’t have done it, but we gotta be realistic about the consequences.”

    Like what? Ending miscegination laws? Liberalizing divorce? Allowing women to own property? Enforcing domestic abuse laws? Woe be to any woman (or man) who ever lived under a legal system you created.

    “The best case for civil unions is NOT that it would facilitate gays living together, but that it would ease situations where ‘no-preference/no-sex’ couples (perhaps middle-aged siblings) might be trying to raise kids…or just eke out their days together.”

    Of course you try to poison the well by attempting to make the scenario seem a dark, gloomy mess. Another fallacious remark on your part.

    “The PROBLEM with civil unions is that straight men would employ it to defer marriage. And that is really bad social policy…it’s stupid!”

    Why? Just saying that its stupid doesn’t mean that it is.

    “The social conservatives ARE right…the culture matters.”

    Yes, culture does matter; and people should have the liberty to determine what they want to do with it, without some flaming fascist like yourself trying to omipotently dictate what they may and may not do.

    “I don’t have any children, and in view of my age am unlikely to have any. But the fact that a majority of children who came into this world since I was born are being raised by at least one of their own parents, and many (maybe most) by both of their parents, and much of the rest by straight couples, is a plus for me — it makes things work.”

    How does it make things work? Indeed, you undermine your own argument by admitting that at least a minority of people are in fact raised in some way different than this. You are your own worst enemy.

    “This is what a fairly solid majority thinks…”

    So what? Argument from popularity is a logical fallacy. Or as my father told me once; just because everyone tells you that you can fly doesn’t mean that you can. Of course you’ve also not demonstrated that a “fairly solid majority” thinks this either.

  61. thoreau,

    I was quite pleased to have a large wedding; indeed, contrary to Andrew’s denigrating, insulting and reductionist thoughts on the matter of marraige, I was rather enthusiastic about being married and still am.

  62. I’m also quite enthused about being married. I just didn’t enjoy the wedding itself. I said repeatedly leading up to it that I had no qualms about the marriage, but many qualms about the wedding.

  63. Thoreau

    I did NOT contend that gay marriage would cause straight women to have fewer children.

    I contend that the decline of marriage (via ANYTHING that would cause it to decline) would leave us with about the same number of children, and with a far weaker structure for raising and civilising them.

    In other words…the best way to raise kids, is to have BOTH their biological parents live together and raise them.

    There is only so much a society can (should) DO to promote such a happy state of affairs…but we don’t have to do anything that makes it LESS likely.

  64. Anyway, I guess my point is that there’s no real explanation out there for how gay marriage will do any of the following:
    -Dissuade heterosexuals from having kids
    -Dissuade heterosexuals from taking their own marriages seriously
    -Dissuade heterosexuals from getting married in the first place
    -Convert people to homosexuality

    See this thread:
    https://www.reason.com/mt/mt-comments.cgi?entry_id=4605

  65. “Nobody has answered my more basic questions, namely, how would the more basic (and relatively non-controversial) benefits of marriage (e.g. joint property, power of attorney, etc.) be affected if gays are allowed to marry?”

    Surely these can be solved without touching marriage law. If SSM is not endorsed by the state, would gay couples break-up? Would they switch treams? 🙂

  66. “What I am suggesting is that, of all the many activist decisions out there, gay marriage would be VERY low on my list of priorities. Surely there must be higher priorities. And of all the local officials out there flouting the law, surely the mayor of SF should be low on the list.”

    And that is probably the crass calculation made by the officials, like the mayors in SF and elsewhere, who thumb their noses at the law. For some reason gay activists expect to get a pass on this sort of lawlessness. No, it is not okay to disrespect our form of government. This stuff is akin to the childish taunts of “bigot” and such in public discourse. Just like namecalling, these stunts discredit reasonable arguments in favor of SSM. The ad hominem attacks might be categorically ignored — along with the voice that resorts to them — but flagrant public acts that undermine the rule of law requires a measured response. It becomes a priority.

  67. “There are two wholly separate issues here and the most important one is the least talked about. The first issue is whether gay marriage is a good idea or not (I think it is). The second and vastly more important issue is how we go about changing the law in this area.”

    If there is a need to make changes in law, these should be finely tuned to the real problems that homosexuals face. SSM is not the right solution. I’ll borrow a thought from a good friend:

    From personal experience I’ve learned that tolerance is not enough; approval is too much to ask; but to give and to receive acceptance is the better goal to which we might approximate one neighbour at a time. On all sides.

    The key is that tolerance is the bare minimum; and that’s all that the law can deliver. But the law is also symbolic and our culture is shaped by the normative model of procreative marriage. (I agree with Andrew). Mock it for all you wish. But it is the most powerful means of channeling sexual behavior and encouraging the bonding of men and women and children. SSM is about something quite different; and to acknowledge that much is not to invalidate commitments and loves among homosexuals. It truly is not.

  68. Andrew, there are a lot of gay couples who have children. You are arguing that their parents shouldn’t get married. It would seem to me that you’d want parents to have stronger, more formal bonds keeping their families together.

  69. Chairm-

    That’s a long thread. Care to specify where in there somebody explained exactly how gay marriage will bring about apocalypse?

  70. Andrew (Bigot),

    Well, until you actually answer thoreau’s questions, he really has no “incentive” to answer yours.

    “Abolishing the spousal benefits in all entitlements, mandates and long-term private contracts WOULD seriously effect the success rate of hetero-sexual families.”

    Prove it.

    “Nobody who believes in the power of incentives and disincentives can rationally doubt this.”

    This statement is a good sign of intellectual laziness and mental rot. Indeed, all it does is beg the question.

  71. Andrew-

    OK, so gay marriage will weaken straight marriage. Or at least I assume that’s what you mean when you say that gay marriage will leave a far weaker structure for raising children.

    How will this happen?

    Will straight men decide that they really want to feel fabulous and then leave their wives for other men? Or maybe straight men will say “Ah, who cares about my promise to love, honor, and cherish? Even gays are doing it. I’m leaving her to be single.” Or maybe straight women will say “Who needs men? I can date a woman!” And then they’ll turn lesbo and leave their husbands?

    These scenarios seem improbable, especially the ones involving people changing sexual orientations. To reiterate what I said earlier, a lot of men have spent a lot of time trying to get women to have sex with each other. It rarely works. I don’t see how marriage is the key to all of this. And many straight men avoid physical contact whenever possible. I fail to see how legalizing gay marriage will turn the tide on either front.

    That leaves us with the possibility that straight people won’t turn gay but will feel that their marriages have been trivialized and feel no compunctions about backing out. Anybody who takes his marriage seriously enough to feel insulted by gay marriage seems unlikely to want to back out of marriage.

    So what, exactly, is the mechanism by which gay marriage will undermine hetero marriage? Don’t give me platitudes about “changing an institution” and whatnot, tell me how it will actually happen. Otherwise it’s nothing but hot air.

  72. So as this post inflates to quadratic proportions can’t we at least talk about topics that have to do with a greater democratic majority, like… oh, lets say… ALBINOS?

  73. Andrew, are you a Flintstone?

  74. What’s particularly humorous is that Andrew is even wrong in his claims about “major agreement”; especially since he has lumped marraige in with civil unions. A majority of Americans favor civil unions now; I am sure Andrew is soiling himself because of this.

  75. Don’t catch the reference joe.

    I would not be surprised if legislatures experimented with Domestic Partner and Civil Union arrangements in many states, if left to their own devices.

    I don’t think the laws would work particularly well, although they could be crafted to be more or less encompassing, and they wouldn’t pertain to the Federal aspects of marriage, at least. And they could always be scrapped or amended. After all the dust settled, states would still probably vary a bit, as their marriage laws do now.

    Alternate Civil Union arrangements would not satisfy the claims submitted by gay activists in the courts, nor prevent the goofy mayor from handing out fraudulent marriage licenses.

  76. “Care to specify where in there somebody explained exactly how gay marriage will bring about apocalypse?”

    Apocalypse. Heh. Near the *end* of the thread. 🙂

    There’s a series of posts in which I responded to your more recent remarks in that thread. Although it looks mine is currently the last word in that discussion, I’d expect there’s more to discuss…

    I think that civil union is a catchall and its meaning is still fuzzy. For now people are parking their support in what is perceived as a “middle way”. It is human nature, as always. Some in the supposed middle just want the issue to go away as quickly as possible; others are undecided but don’t want to appear unfair. Still, the civil union option will not be popular if it is actually marriage — except in name.

    But I think people will just use the term, civil union, for now as a sort of basket to hold the various remedies to the practical problems actually experienced by couples who aren’t married — estate planning and such. Taken together these remedies will meet the goal of validating certain relationships outside of marriage; probably stop well-short of a marriage-like endorsement of cohabitation; and marriage will remain between a man and a woman.

  77. Hi Andrew,

    i am afraid i do not understand your point that the state granting the same rights to homosexual couples who swear on the state law to fulfill the same obligations as hetereosexual couples should be not possible.

    the argument of “having children” smacks too much like “bemkommt’s ein Baby fuer den Fuerher” for me. have a baby for you-know-who. since when does the state have an active roll in determining that couples are fertile? if he or she were not fertile, should that marriage be not allowed?

    why is this such a big deal for you? and RST, since this is currently illegal, i can see that you note that it is illegal and you are against for that reason. how do you really feel? if there were a referendum, how would you vote? and why? you always are there making reductionist comments to the contrary, but where do you stand if you have to make a choice?

    Andrew,

    what is the “threat” from homosexuals? From what i understand, the highest rates of divorce, murder, domestic violence come from the South, the place where “traditional values” win (our countries have much in common, viz. FPOe’s victory in Kaernten last week – although they are for the flat tax and for the elimination of the maternalistic and paternalistic states – Andrew and RST, are you two for the elimination of both?).

    Basically: who cares? why not have this be a part of civil law, and if people want a “blessed wedding”, they can get one based on the rules of the particular church? why not that? what do others care if two individuals who love each other and pledge lifelong love, care, etc. for each other get that “rechtliche” legal/justical recognition? if the catholic church (i don’t like that one, understood 🙂 for obvious reasons) doesn’t like, why doesn’t it sod off? it shoudn’t have the power to determine such minutea over the rest of the non members. two individuals who wish to enter into this kind of contract should be able to – with all of its good and rough times.

    why not?

    with Liberal greetings,
    Karl

  78. Andrew has about as much basis and evidence for his argument as “global warming” adherents has concerning anthropogenic climate change; we should give him and his ideas equal credence with the “global warming” advocates.

  79. “Andrew has about as much basis and evidence for his argument as “global warming” adherents has concerning anthropogenic climate change; we should give him and his ideas equal credence with the “global warming” advocates.”

    There are dozens, if not hundreds, of studies demonstrating clear evidence of climate change, and of the harm that change could cause. Do you know of any studies demonstrating the charges Andrew makes?

  80. How would same-sex marriage benefit society? Any studies to support the speculations for this broad and drastic change?

  81. The post above is exactly what I told you would happen if the gays were allowed to marry.

  82. There are studies of various types pointing in every direction on this issue. But the case for gay marriage does not rely primarily on claims of societal benefit, but of civil and human rights.

  83. The ‘civil rights’ claim is highly questionable. Moreso than the consensus on the societal benefits of marriage. Not must the label but the thing itself as based on the man-woman-children model.

    Clearly the strongest argument for SSM is based on radical individualism, and a contractual adult-centric view of marriage, but is there no libertarian argument that looks beyond this narrow perspective?

    Without the benefits from marriage itself, the state’s intrusions would fill the growing gap and that eventually undermines freedom. How would it bolster marriage and benefit society to gut the current marriage model and replace it with the SSM model?

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