Geez, Maybe All This Hooha Is Undermining Marriage

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Arf arf:

In a new twist in the battle over same-sex marriage roiling the United States, a county in Oregon has banned all marriages—gay and heterosexual—until the state decides who can and who cannot wed….

"It may seem odd," Benton County Commissioner Linda Modrell told Reuters in a telephone interview, but "we need to treat everyone in our county equally."

My favorite quote in the story comes from Tim Nashif of the conservative Defense of Marriage Coalition: "Oregon not only has the only county in the nation issuing illegal [same-sex] marriage licenses, we probably have the only county in the nation refusing to issue marriage licenses at all." Now that's federalism!

NEXT: Henry Louis Gates Jr. on the State of Black Americans

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  1. OK, just to prove to everybody here that I really do care about marriage, while still affirming my stance in favor of same-sex marriage, here I go:

    It’s ridiculous to me that this county won’t let two consenting adults enter into whatever sort of contractual agreement they find most suitable. If 2 people in that county go to the courthouse and say “Hi, we’d like to sign a contract agreeing to share all of our legal and financial responsibilities with one another” the gov’t should just let them do it, period.

  2. As long as they aren’t letting men have sex with one another, or men have sex with dogs, I guess it’s OK.

  3. So *that’s* how you spell “hooha”.

    Thanks.

  4. I?d love to see San Francisco follow suit with this. Nothing says private arrangements belong in the private sector like completely pulling the plug.

    The best part is, there?s nothing any ?defense of marriage? people can do about it. I can?t think of a better way to protest the inequality.

  5. Well thoreau,

    There is a lot of that ridiculous stuff going around. I am told (and I have no reason to doubt it) that very nearly ALL the legal incidents of marriage, under contract and family law (except spousal immunity in sworn testimony) can be duplicated with perhaps a dozen (probably less) legal instruments ALREADY available in contract law for at least a generation now. If a lot of long-standing gay couples have not already acquired such instruments, why do they urgently need a marriage contract now.

    And likely most, if not all, of the states in the Union could have passed Civil Union legislation with half the political effort already expended in the Gay Marriage campaign…a move the majority of the public already supports, and BOTH Presidential candidates said they WOULDN’T oppose in the last election cycle.

    If the present activism isn’t about getting the “marriage”-label Seal of Approval for the gay life-style, it is difficult to see what it IS about, as manageable alternatives are readily available.

  6. Andrew-

    Good luck getting a judge to give you spousal immunity based not on a marrige, but on a contract.

    Good luck getting the INS to give you family reunification rights based not on a marrige, but on a contract.

    These are just two quick examples of marital rights not available under contract law.

  7. I posted this story in a write-up below; where’s my acknowledgement?!?!?! ๐Ÿ™‚

    J’accuse!

  8. And frankly snerk, those are probably two quick examples of marital rights that debateably shouldn’t exist in family law, either…for anybody.

  9. cool, one place where marriage is illegal, maybe one place where I can go and not be discriminated against for being single.

  10. …it is difficult to see what it IS about…

    As far as I can see, and for much of what I have read and seen on TV interviews, its about equality.

    When you have both Kerry and Bush saying they support civil unions but do not favor gay marriage, then gays aren’t necessarily equal. Why can’t they have the whole marriage enchilada as well?

    If the gubmint gets out of the marriage business and only recognizes civil unions between male/female and same sexes, then the equality is met, IMHO. Let the religous define marriage and let the gubmint define civil unions.

    But really Andrew, why do gay marriage opponents make such a big deal themselves? I have yet to hear a REASONable answer to the question, how is gay marriage detrimental to straight marriage. This question does ring a bell of an elite class vs a secondary class.

  11. I dunno Andrew, even if we get beyond the label of marriage, a dozen legal arrangements is hardly anywhere near the simplicity, cost and convienence of one arrangement. That’s seperate and UNequal.

    Besides, I doubt they would cover more than a quarter of the benefits of marriage (some that most people don’t even realize). What legal contract could I fill out so that my man-spouse (if I were ever to want/get one) could get my SS bennies if I die?

  12. Sorry, Jean — I ran into this story on my own before I saw your reference to it. Actually, I still haven’t seen your reference to it. Which thread is it in?

  13. Andrew said: “…those are probably two quick examples of marital rights that debateably shouldn’t exist in family law, either…for anybody.”

    But those rights do exist, and they’re not going anywhere. So why not offer them to homosexual partners too? And I’m very skeptical that a civil union would really be separate from but completely equal (in the eyes of the law) to marriage, and the hundreds of rights and benefits conferred with it. Too many opportunities for abuse on technical grounds. Why not just call it marriage? As s.a.m. asked above, why do gay marriage opponents make such a big deal?

  14. sam,

    Well…to reprise (I have been through this innumerable times):

    “marriage” is a label our culture supports because it encourages women to seek husbands to help raise the children most of them will elect to have in any case– and specifically to seek their husbands amoung the men who sire those children, whenever practicable, and to bond with those husbands BEFORE the kids are sired.

    AND to entice men to sire children on wives they have already bonded with in both the legal sense, and within the entire patina of cultural approval surrounding the institution.

    Additionally, the marriage-label (and its convenient legal expression) is a very useful device for government and private actors (eg. employers) to confer benefits on married couples well beyond the legal incidents incorporated in family law. (eg, health insurance, tax breaks).

    Government should not “get out of the business” since this is very good social policy.

    Of course, anyone could go to the Sacred Grove, and get some sort of Wiccan ceremony to solemnise their union with a same-sex partner, the family parakeet, or a conversation-bot they like to chat with on the internet…what’s stopping them? This doesn’t require a license.

    Civil Union legislation could be useful to many parties otherwise ineligible to marry each other…without making it too cumbersome for government or private parties to confer particular encouragements on straights they deem to be useful.

  15. Jesse Walker,

    “Confessions of a Libertarian Polygamist”

    It was pure sarcasm from me. ๐Ÿ™‚

  16. Of course Andrew’s arguments are based on a rather dubious notion of male behavior; shown to incorrect in at least some other contexts (e.g., contraceptives).

  17. The “hundreds of benefits” you are thinking of, probably aren’t part of Family Law…they are special benefits conferred by legislators out of a concern for opposite-sex couples, and NOT intended for same-sex partners– frankly, most of them are intended to protect women. Widows and divorcees…not widowers.

    More importantly, the state probably shouldn’t care about whether same-sex couples getting married or not…either way. But the state SHOULD have an interest in whether opposite-sex partners customarily get married– this benefits us all, if only in the social problems we avoid.

  18. Andrew,

    As others have pointed out innumerable times, none of the societal/governmental benefits of straight marriage you mention above would be eroded by recognizing gay marriage (at least that I can see). How do you see gay marriage as a threat to the benefits you’ve outlined?

  19. The Equality argument does not have the force many at first believe. Current law treats everyone equally.

    Gay men CAN marry straight women…and frequently do. Gay women mCAN marry straight men…and frequently do. There was a fad for gay men to marry gay women a while ago– it made the covers of many gay publications.

    This isn’t academic to me. I once considered marrying a lesbian– we had had a fling, and were still roomates who enjoyed living together. We were interested in having kids…together. The law would have treated us like any other opposite-sex couple.

  20. Gay men CAN marry straight women…and frequently do. Gay women mCAN marry straight men…and frequently do. There was a fad for gay men to marry gay women a while ago– it made the covers of many gay publications.

    That always struck me as the big hole in the legal argument. Gays can marry people of the opposite sex, just like straights can. Straights can’t marry people of the same sex, just like gays can’t. As a matter of public policy, I think gay marriage is a good idea, though I don’t much care whether it’s called “marriage” or not (and would rather the government got out of the business of defining marriage altogether). As a matter of constitutional law, though, I think the equal-protection argument is bogus.

  21. Current law only treats everyone equally if you deem a heterosexual marraige as the “norm.” Indeed, treating this as “equality” is at best a fiction, and more than likely meant to be an insult.

  22. jb

    You’re too smart for the house.

    Regards.

  23. Andrew: not just spousal immmunity. A fellow who once was my best friend is in a long-term, domestic reltionship with an Austrian national. They live and work in NYC. The Austrian is under constant threat of deportation, which he avoids by continually “proving” that as a real estate lawyer in Manhattan he is performing work no American is capable of undertaking.

    If the Austrian in question were a Gertrude, the solution would be simple: get married. This method of avoiding being separated by oceans from ones love interest is not available to these two gay men. This is radically unfair.

    –Mona–

  24. Mona

    Civil Union laws can be crafted any way you like, although that would be confined to the states. Immigration policy COULD extend to civil unions, and probably would.

    Spousal immunity varies from state to state, as well as other forms of immunity from testimony (doctors, clergy, lawyers). This protection can extend to civil unions.

  25. Jesse

    Much of the trouble arises from the interaction of same-sex marriage with seemingly bland anti-discrimination statutes passed in many states– which I suspect many libertarians endorsed in much the same way the LP blindly endorsed the ERA (may still, for all I know)…

    …with a blythe denial of how the American judicial culture ACTUALLY OPERATES.

  26. Andrew said: “Gay men CAN marry straight women…and frequently do. Gay women mCAN marry straight men…and frequently do.”

    Jesse Walker said: “I think the equal-protection argument is bogus.”

    This strikes me as a strange argument. Does that mean that women and men are treated unequally under the law because a woman can marry a man but a man can’t, and a man can marry a woman but a woman can’t?
    An interpretation of equal protection that would make more sense to me would involve giving equal protection to any consenting adult who wants to enter into a marriage-type relationship with another consenting adult (ignoring for now arguments about the slippery slope down to polygamy and weasel-love).

  27. Andrew and Jesse,

    What an inane argument. A Straight man can marry the person he falls in love with and wants to marry. A gay man can’t, of course, because the person he is going to fall in love with and want to marry is a man.

    It wasn’t that long ago when it was illegal in every state to marry someone of a different race. These laws were defended by the same absurd arguments we hear today against homosexual marraige. According to your logic, race restrictions should have never been challenged as an unfair, unequal enforcement of law, since all people had the right to marry someone of the opposite sex, as long as, they were of the same race. Of course, many heterosexuals wanted to marry the person they loved regardless of race, and we eventually saw the ridiculousness of these unconstitutional laws. Homosexuals just want the same right to marry the person they love.

    This is just another example of why government has no business legislating social behavior.

  28. Jesse Walker (and Andrew),

    “Gays can marry people of the opposite sex, just like straights can……As a matter of constitutional law, though, I think the equal-protection argument is bogus”

    What if, hypothetically, civil unions were created, *only* open to same-sex partners, but superior in some patently unfair ways to normal marriage. Let’s say they got fantastic tax benefits, or priority in adoptions, or their kids got priority in school placement. Anything that would give their families a leg-up over yours. You wouldn’t claim that your family was being treated unequally under the law, because you could have married a guy instead?

    I realize the likelihood of this happening is nil, but if roles were reversed, I’m sure you’d hear the same equal protection arguments from straights that you now hear from gays.

  29. Andrew,

    How do you gauge that something is worthy of governmental encouragement?

    Call it what you will, but “leaving alone” one segment of the population while handing out breaks and benefits to another is the same as punishing the former, your Orwellian language not withstanding.

  30. Scott,

    I think Civil Unions SHOULD be confined to persons otherwise ineligible for marriage…and then they might be “priveleged” in some ways (eg. easier dissolution…if you consider that a privelege).

  31. A Straight man can marry the person he falls in love with and wants to marry.

    Not if she doesn’t want to marry him, or is already married, or is his mother.

    I don’t want to make a big deal about this. As I said before, I think gay marriage (or, better, privatized marriage) is a good idea. Many of my gay friends are already married, in fact — without the blessing of the state but with the blessing of their loved ones. I’d like them to be able to get all the public benefits that straight couples have. (And the slippery slope arguments don’t really bother me, because I also think polygamy should be legal and I don’t really care if some weirdo wants to marry his sister.)

    It is unjust that gay marriage is not legal. But that doesn’t mean it’s unconstitutional.

  32. Pavel

    If you want me to use the word “discriminate” I will. The state SHOULD discriminate in favor of some form of marriage (I would rather include gays, than have NO marriage)…and that would still leave a large class of persons, gay and straight, discriminated against: everyone NOT married…including me.

    I am contending that the discrimination for married couples SHOULD be confined to the opposite sex couples (much of it, anyway– Civil Unions could supply some benefits to same-sex couples) because that is the reason we do it at all. The Equality Argument, as stated by same-sex proponents, makes the case for singles who feel ANY form of Marriage discriminates against THEM. (THAT case, I believe, has already failed in our courts.)

  33. Jessie,

    Equal protection was invoked to overturn laws that prohibited the sale of birth control to unmarried people:

    http://www.oyez.org/oyez/resource/case/630/

    please correct me if im wrong, but by your argument, this should not have been an equal protection issue either because single people could have always gotten married in order to purchase birth control. (Just like the claim that gay men can marry women to get the legal benefits of marriage). Of course same-sex marriage is an issue of equal protection.

  34. “If a few people can re-define marriage to what ever they like, can I re-define the meaning of ?blind? and ?over 65? so I can get more money back when I file my taxes?”

    The short answer is: Try it and see! ๐Ÿ™‚

    The long answer is: Words are tools to convey meaning. Their meanings change constantly. The only way to know what a word means is to see how people understand it. However it came about, the fact of the matter is that the meaning of the word marriage does now include same-sex marriage just as it includes opposite-sex marriage. If you are correct that this change was contrived by “a few people,” well then they obviously got what they wanted! If you think this means you will get what you want by contriving to redefine the word, “blind,” well…see short answer! ๐Ÿ™‚ But seriously, the proof is in the pudding. If people start using and understanding a word differently, then its meaning has changed. If not, then it hasn’t. Simple as that.

  35. The best part is, there?s nothing any “defense of marriage” people can do about it.

    Sure there is. They can sue for a flagrant violation of O.R.S. ? 106.077(1). Oregon is a shall-issue state; this applies to marriage licenses as well as CCW.

  36. zzzzzzzzzzzzzz…

  37. Julian’s parallels to anti-miscegenation laws are historically off. At least in the case of the statute challenged in Loving v. Virginia, the law divided everybody into two groups: whites and non-whites. Whites could only marry whites, but Asians were free to marry blacks, Hispanics could marry Polynesians, and so on. Thus, even if there were an ostensibly race-neutral basis for maintaining the “purity” of all races, Virginia (and, I presume, most other states that had anti-miscegenation laws on the books back tehn) was in no position to argue that it was attempting to do any such thing. And then we have the history behind the law, which was clearly aimed at keeping blacks and other minorities from integrating more fully into mainstream society. In other words, the states were doing exactly the sort of thing the 14th Amendment was intended to prevent; it’s just that the courts were a century late in finally getting around to enforce it.

    By contrast, I think gay marriage advocates would be very hard pressed to find evidence of a single legislator, who voted either for or against the 14th Amendment, who contemplated that this amendment might ever be used to benefit gays in any way, let alone to extend “equal protection” rights to gays seeking to marry other gays. I’m also 99.999% certain that if anyone had seriously believed that courts even the potential to stretch the language of the 14th Amendment that far, they would have amended its language to prevent this absurd result. Courts tacitly admit as much, by applying strict scrutiny only to laws alleged to disproportionally affect certain races or “fundamental” constitutional rights, applying intermediate scrutiny to laws that distinguish by sex, and rational basis review (i.e., little more than a rubber stamp) to everything else.

    In this context, “separate but equal” is a beet-red herring, as it’s a valid constitutional objection to racial segregation, but nothing else. “Separate but equal” does fine even at the intermediate level, so don’t bother trying to sue your way into a women’s university, let alone the women’s bathroom on a government owned building. And that’s the intermediate level, not the level of scrutiny that applies to laws alleged to discriminate against gays.

    Thus, the “constitutional” objection boils down to this: we have a law that was not passed for purposes of discriminating against anybody, but which does in fact disproportionally benefit straight, stable, monogamous couples in a way that it does not benefit anyone else. Gays and unstable and/or polyamorous couples (or trios, or whatever) are all free to mount equal protection challenges if they want. But in each case, all the government has to do is to demonstrate that it has a rational basis for determining, as an overwhelming majority of the population currently does, that straight marriages are different.

    Dispensing with the constitutional objection therefore is, or at least should be, a no-brainer. The hard part is to decide whether a clearly constitutional law that codifies traditional marriage only is a good idea.

  38. y’know, ya’ll can take this back to laws about this and regulations on that- but the only law it can come back to is God’s, the Creator of heaven and earth, men and women. He says clearly that he will bless the marriages of believers, and He absolutely forbids homosexuality!! That SHOULD be the end-all.

  39. That’s not true. I never said any such thing. I was misquoted by the liberal media 2,000 years ago, and they still haven’t corrected the error. Oy!

  40. Oddly enought, I agree with crimethink. You look at a same sex couple, with their mortgage, chocolate lab, custom kitchen and “not that again” spats, and it either looks like a marriage to you, or it doesn’t. To me, it is obviously a marriage. “It’s not a real marriage because the wife is a guy” makes as much sense as “It’s not a real marriage because the wife is a negress” – that is, no sense at all. To crimethink, that statement makes a much sense as “It’s not a real marriage because the wife is a turnip” – you know, a whole of sense.

    That is how the debate is going to be settled – more and more people are going to look at the pictures of laughing, crying, praying couples in San Francisco, and have something click in their heads. Right now, a majority of Americans think like crimethink. Forty years ago, it was near unanimous. Even ten years ago, it was 90/10 landslide, at least. Now, it’s probably 3:2 against. See a pattern? And the great thing is, all we (that is, the right, good, and open-minded side) have to do is go about our lives, keep the issue alive, and history will march on. The wrong, evil, and homophobic side has to wage a defensive battle against the inevitable.

    If an initiative were held today to ban gay marriage, it would pass with the same overwhelming numbers as California’s Prop. 182. Anyone heard from Pete Wilson lately?

  41. “Words are tools to convey meaning. Their meanings change constantly”

    Hmmm, didn’t Orwell make this point in “Animal Farm”?

    Sure, the definitions of marginally important words change by consensus occaisionally over time. Does this mean words with obvious, well understood, historic meanings can or should be judicially redefined?
    Could we as easily accept the redefinition of words like “murder”, “contract”, or “law” by judicial whim?

  42. JAG,

    You’re being pretty silly if you think only “marginally important” words change in meaning. Entire languages evolve into new ones. Sure, that takes a long time, but the details of our language are in constant flux, whether you want it to be or not. Anyway, I agree with you about the judicial aspect.

    joe,

    I’d agree with you except for the judicial meddling. We’ve banged heads before on the effect of such. FWIW, I’m not the only one who suspects that judicial decisions only hurt the civil rights movement, I had a professor in college express that view, which of course don’t make it right, I’m just saying I’m not the only one who thinks that. That the civil rights movement succeeded anyway probably says more about its own strength than any positive effect of the judiciary on it. On abortion, I’ve long thought that Roe vs. Wade helped elect Reagan, and I’ve had a very liberal in-law tell me that abortion was more legal in 1967 than now. His point was to paint a scary picture of the current political climate (liberals like to do that), but my interpretation was to thank Roe v Wade. Anyway, the view you’re expressing will likely win out in the long run, but the judiciary pushing things on folks before they’re ready will likely create a big bump in the road that needn’t be there.

  43. Xrig,

    All the government had to do in Lawrence v Texas was to demonstrate that it had a rational basis, but it failed. Same in Romer v Evans, where Kennedy said:

    “a law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense”

    The trend seems to be stricter scrutiny of laws that discriminate against gays and lesbians. In my mind, the courts should apply the strictest level of scrutiny, but go figure, I’m gay. Maybe the courts will find same-sex marriage an equal protection issue, maybe they won’t. But dispensing with the constitutional objection is not, and should not be, a no-brainer.

  44. Sorry Xrlq for misspelling your username…

  45. Pay no attention to the spirit behind the curtain!
    I am the TRUE, the ONE AND ONLY, the MOST EXCELLENT God! Bow before me, and stop screwing around, or I might get angry!

  46. Xrlg writes: “Julian’s parallels to anti-miscegenation laws are historically off. At least in the case of the statute challenged in Loving v. Virginia, the law divided everybody into two groups: whites and non-whites. Whites could only marry whites, but Asians were free to marry blacks, Hispanics could marry Polynesians, and so on. Thus, even if there were an ostensibly race-neutral basis for maintaining the “purity” of all races, Virginia (and, I presume, most other states that had anti-miscegenation laws on the books back tehn) was in no position to argue that it was attempting to do any such thing. ”

    So then, if VA had been willing to apply these other strictures, i.e., preventing Hispanics from marrying Polynesians, the statute would have been constitutionally saved? It is not unequal as long as all “races” are forbidden to marry outside of their race? Odd notion of equal protection, that.

    Julian’s analysis, to my mind, stands.

    –Mona–

  47. A silly question,

    If a few people can re-define marriage to what ever they like, can I re-define the meaning of “blind” and “over 65” so I can get more money back when I file my taxes?

    I don’t give a rats’ ass if laws are written to give same sex unions the identical rights as marriage. They can even throw in more perks for all I care. The changing of the meaning of the word is what bothers me and a lot of other people.

  48. Google gives me about 4200 hits on “hoora,” most of which either refer to Hierarchical Object Oriented Requirements Analysis, or to a locality in Bahrain, or to a word that looks like Dutch but which I’m guessing is Flemish.

    I get 42,000 hits on “hoorah,” most of which have the meaning in the title of the post we’re discussing.

    However, the canonical spelling is “hooraw,” which sits well with my Texas transplant sensibilities and with the Columbia Guide to Standard American English.

    I care more about this crucial, earthshaking issue than I do about whether marriage as an institution survives, by the way.

  49. Scott: You are right that the Roemer and Lawrence decisions played fast and loose with the rational basis test. In fact, they’re the reason why I qualified my no-brainer comment with “or at least should be.” Perhaps a clearer way to say it would be “or at least they would be, if all nine Justices actually applied the standard that all nine of them pretend to believe is the appropriate standard.” Even so, traditional marriage would almost certainly pass muster, as it doesn’t invade people’s privacy like sodomy laws do, and doesn’t appear to be aimed at “getting” anybody, as many believed to be the case with Amendment 2.

    Mona: I never said that Julian’s version of an anti-miscegenation law would have passed muster. I merely pointed it out to correct an historically inacurrate statement. Actually, the Loving court made it quite clear that laws separating people by race would not be tolerated even if they did apply to all races equally. The court made it every bit as clear, however, that this level of scrutiny applied to race, and race alone:

    The mere fact of equal application does not mean that our analysis of these statutes should follow the approach we have taken in cases involving no racial discrimination where the Equal Protection Clause has been arrayed against a statute discriminating between the kinds of advertising which may be displayed on trucks in New York City, Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949), or an exemption in Ohio’s ad valorem tax for merchandise owned by a nonresident in a storage warehouse, Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522 (1959). In these cases, involving distinctions not drawn according to race, the Court has merely asked whether there is any rational foundation for the discriminations, and has deferred to the wisdom of the state legislatures. In the case at bar, however, we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.” 388 U.S. 1, 8-9 (1967).

  50. There has been a kind of I DARE YOU game playing out in this thread.

    Do you dare to repudiate court reversals of particularly hateful and stupid actions by legislators. I thought we had gotten past that with Roe vs. Wade? Even pro-choice libertarians are apt to denounce that as the most wretched piece of legal reasoning to issue from the courts since Dredd Scott.

    Was Loving vs. Virginia wrongly decided? Probably.

  51. So Andrew’s position seems to be that existing marriage laws are not discriminatory, because gay people have the opportunity to avail themselves of the contractual benefits – it’s just harder and more complicated.

    That reminds me of voting rights in the Old South. Black people could vote, just like white people – as long as they could pass the literacy test. Of course, it was a lot harder for black people, because they were often given excerpts from graduate-level physics books and whatnot for their tests. But, according to Andrew’s logic, making it more difficult for one demographic to avail itself of legal rights does not discriminate against that group.

  52. The equal protection counterargument cited above (gay men can still marry women, so it’s equal…) always struck me as transparent sophistry; I’m a little surprised to see that anyone without an antecedent hostility to gay marriage finds it remotely compelling. The analogy isn’t perfect, but much the same could’ve been said of bans on interracial marriage: In some highly formalist sense, they left everyone with the same right to marry people of the same race. More generally, any number of discriminatory “seperate but equal” style policies could be described as “treating people equally” at some level of abstraction, or with respect to some category. This particular form of equality strikes me as a fairly transparent sham.

  53. I’m against a constitutional amendment to “protect” marriage. And I agree wholeheartedly with joe that it is discrimination when you provide an easier route to certain benefits for one group than you do for another. Ultimately, gay marriage is fine with me and most likely a good idea.

    But I shall take on Julian’s equal protection argument. His logic is impeccable, but I have a problem with the analogy (and the premise it implies) that might be described as resting on an intuitive distinction. And that is when one outlaws marriage between the races, one is very consciously preventing something. When one assumes that marriage has always been between opposite sexes and wants to maintain it that way, is one really preventing something? I don’t think so. Now I know one can argue this is a semantic distinction that is really no difference, that the result of the laws are the result of the laws no matter what. But Julian himself has argued (and I would say correctly) that the process by which one attains a particular outcome is more important than the outcome in determining what is just. And that’s why this distinction matters, and this distinion lies at the heart of why conservatives are so riled by the equal protection argument. To wit: should a marriage be frank and earnest? No, one of them should be a woman, ha-ha. This joke made sense in the past because we all assumed that a marriage couldn’t have two men. Therefore, maintaining marriage as that is just not the same as banning marriage between races, which we all assume would make sense as a marriage which is why it had to be banned by those who found it abhorrent.

    Now, society changes and institutions change and the meanings of words change. And if marriage changes to include same sex unions, fine with me, and I think someday we’ll laugh at conservatives so worried about how it would ruin society and such. But as far as it being an equal protection issue, I don’t think it quite cuts it, based on the distintion I made above.

  54. Xrlq,

    My understanding is that the court reserves it’s strictest scrutiny for “discreet and insular” groups, not necessarily races. I think your claim that this level of scrutiny applies to race, and race alone, isn’t correct. I don’t see how gays are any less discreet and insular than any particular race in this country. Sure, the court claimed it applied the rational basis test in both Romer and Lawrence whereas by all appearances they really applied something more stringent. But as a discreet and insular group, we deserve stringent scrutiny of laws that discriminate against us. Animus against gays is alive and well–for an extreme example, look at the crap just pulled in Rhea Co, TN. That was some evil shit. For less extreme examples, look at Colorado’s Amendment 2 and the Texas sodomy laws. Still evil. The problem is that the court needs to admit it’s going beyond the rational basis test when it comes to gays, and then forward the arguments as to why we deserve it.

  55. You know, I was just researching a labor law issue for my guy, who was sent a 1099 instead of the W-2 he expected. The federal and state govs both say it doesn’t matter whether the worker is called an employee, an independent contractor, a partner, a temp, or a whoosiewhatsis–it doesn’t even matter if the company and the worker sign a paper agreeing to call the worker a whoosiewhatsis–what matters, under the law, is the actual nature of the work relationship in question, and whether a contract exists. To determine this, a series of standard questions, actually called “common law” questions, are used.

    Now we come to marriages. States have been repealing “common-law” marriages. The actual facts of the case are not considered. There is a proposed amendment in the works that seeks to preempt the facts of a given case from even being interpreted as a marriage.

    What gives? The govs are talking out of both sides of their mouths here, doesn’t it seem like?

  56. It’s amazing to me how people needlessly obfuscate the issue with semantics. And I for one will not beat around the bush. People who insist on couching the debate in concepts like “equal protection” and “contractual rights” are burying themselves in safe sterile language in order to avoid their deep discomfort with the idea of companionship, bonding and love between fags.

    Like Julian said, you can slice almost anything just right so that it looks like equal protection. If you slice it another way–in this case the relevant way–it is obviously not equal. The reason it isn’t is because proponents of gay marriage aren’t just seeking contractual rights, tax breaks and other perks. They seek those things bundled together in a package of recognition for a the lasting bond of love and unity between two gay people of the same sex.

    Gay people have always had a right to enter into a romantic relationship with someone. They’ve also always had the right to enter into a socially recognized legal union with someone. But they’ve have had to right to have both with one single person as straight people have.

  57. Correction:

    But they’ve never had to right to have both with one single person as straight people have.

  58. Michigan JMR said: “If a few people can re-define marriage to what ever they like, can I re-define the meaning of ?blind? and ?over 65? so I can get more money back when I file my taxes?….The changing of the meaning of the word is what bothers me and a lot of other people. ”

    I think this is such a silly argument. Are you really under the impression that “marriage” as we know it has been an unchanging and untouchable institution? What about traditions of political marriage, other arranged marriage, underage (by today’s standards) marriage, and, yes, even gay marriage? I find it really hard to believe that a lot of people opposed to gay marriage have no other motivation than a fear of the word’s current commonly accepted meaning changing _again_.

  59. People who insist on couching the debate in concepts like “equal protection” and “contractual rights” are burying themselves in safe sterile language in order to avoid their deep discomfort with the idea of companionship, bonding and love between fags.

    Even if that’s true, it doesn’t mean the argument is invalid.

    I think the problem here is that we have a milennia-old tradition (marriage) which developed long before the idea of equality. When we try to put the two together, they don’t meld; the very basis of traditional marriage is its exclusivity and the difference between the sexes, neither of which can be reconciled with radical ideas of equality.

  60. Pavel,

    Boy, I had to back up to a previous post of yours to tell which side you were arguing! ๐Ÿ™‚

    Two points, one is that since the rule of law is how we make our decisions in this society (and a good way of doing it it is), what often may appear as obscure semantics often is what things come down to. Whether such fine-tooth analysis counts as thinking things through objectively and rationally or over-intellectualizing at the expense of common sense usually comes down to whose ox is being gored.

    Second, while I don’t know if you were addressing me specifically, if my view on equal protection is a thinly veiled rationalization for bigotry towards fags (your word), then why do I also say that gay marriage is fine with me and most likely a good thing while I scoff at the notion it would ruin our society?

    Maybe I’m just tring to analyze the issue as objectively and rationally as possible. And maybe you’re the one who’s rationalizing.

  61. I think this is such a silly argument. Are you really under the impression that “marriage” as we know it has been an unchanging and untouchable institution? What about traditions of political marriage, other arranged marriage, underage (by today’s standards) marriage, and, yes, even gay marriage? I find it really hard to believe that a lot of people opposed to gay marriage have no other motivation than a fear of the word’s current commonly accepted meaning changing _again_.

    When and where in history was there gay marriage that was accorded the same status as heterosexual marriage?

    As for the other ‘changes in the meaning’ of marriage, none of those is a particularly radical change. In our civilization at least, it has been between one man and one woman for thousands of years. The method of getting a spouse has changed, yes, but not the fact that the spouse was always of the opposite sex.

    And even in other cultures that allow polygamy, each of the several wives are considered married to the husband, not to each other. Or in the case of polyandry, each husband is married to the wife, not to each other. So it is still essentially a relationship between a man and a woman, in every culture where it has developed.

  62. To continue the argument from my second-to-last post, I think the govt is going to have to decide whether to regulate marriage sanely, or enforce equality perfectly. It can’t do both, though it can (dare we dream) do neither.

  63. I don’t think that the problems with marriage are really that hard to solve. Just treat your partner like an equal and don’t be a control freak. It’s all about respect–and compromise. And when I say compromise I mean compromise on more than just who gets the TV remote and what brand of hot dogs are for dinner!

  64. “I’m still waiting for someone to challenge progressive taxation on the grounds that it treats members of different tax brackets unequally.”

    One could say the same even of a flat tax, too, or anything else that requries high income earners to pay more than medium or low income earners, unless it is pegged to some increased benefits they get in return (e.g., higher property taxes pay for better schools, more responsive police and fire departments, etc.).

    AFAIK, no one has tried that yet, but stranger things have happened. Remember back in the late 1990s, when California passed its second “assault” weapon ban while the constitutionality of the original ban was still in doubt? The plaintiffs argued, in effect, that a ban on AR-15s that does not affect Mini-14s unfairly discriminates against gun owners who like AR-15s more than Mini-14s (or, more accurately, prefer the AR-15 by a big enough margin to be willing to fork over the extra $$). They actually won on that argument, at the appellate level, only to be reversed by the Supremes later on.

  65. Andrew: what is your basis for arguing that Loving was incorrectly decided? Ridding the state of invidious, race-based discrimination is precisely what the 14th Amendment was intended to do. Applying it in other areas (sex, sexual orientation, favorite gun brand, etc.) is a stretch. Applying it to a law serving no purpose other than to keep racial minorities out of mainstream society, is not.

    Scott:

    You are correct that the phrase “discrete and insular” minorities (note spelling of “discrete,” which has nothing to do with being discreet) comes up every now and then. It certainly applies to ethnic or religious groups that generally keep to themselves. Gays don’t come close to that. An overwhelming majority are born to straight parents, raised in predominantly straight parts of town, attend predominantly straight schools as children, speak the “straight” dialect fluently, etc. etc. Are gays a discrete group? Sure. Insular? I don’t think so.

    Your point about animus against gays is well taken, but it only goes so far. It’s one thing to strike down laws that are clearly motivated by animus against gays (e.g. what they almost did in Rhea County, TN) or which at least seem like they may have been so motivated (Amendment 2). Or you can strike down laws that weren’t aimed at “getting” any particular group, but which do have a hugely disproportional impact on one vs. another, while providing no measurable benefit to society (e.g., sodomy laws, which even dissenting Justice Thomas described as “uncommonly silly”). But preserving traditional marriage doesn’t come close to that.

    I agree with you on one point, however: if the court doesn’t go back to really applying rational basis review, it ought to admit openly that it is doing something else, and say why. Or, better still, it leave sexual preference in the “rational basis” category, but make that level of scrutiny actually mean something across the board: e.g. require a showing on a preponderance of evidence that the law was actually intended primarily to further one or more of the identified legitimate government interests, and was not to advance an improper one.

  66. “Andrew: what is your basis for arguing that Loving was incorrectly decided? Ridding the state of invidious, race-based discrimination is precisely what the 14th Amendment was intended to do. Applying it in other areas (sex, sexual orientation, favorite gun brand, etc.) is a stretch. Applying it to a law serving no purpose other than to keep racial minorities out of mainstream society, is not.”

    No. That is wrong…although it HAS been a (by now) long-standing legal fiction. Following the 13th Amendment which decreed that slaves were no longer “property”, the 14th Amendment was an attempt to define the MINIMAL rights that are assumed for ANY American citizen (which is what ex-slaves had become, now that they were no longer property).

    In terms of original intent, the Amendment was expressly designed by its sponsors to be compatible with segregationist laws (including anti-miscegenation laws) existing in most NORTHERN states before and after the Civil War.

    Loving was a piece of judicial activism, as most 14th Amendment cases have been.

  67. Xrlq,

    Society places a large burden on gays who live their lives in the open and as a consequence most are reluctant to fully come out of the closet, if at all. Because of the widespread animus against us, those who do come out often experience distancing, separation, and stigmatization. We exist in every community, but you’d hardly know it in most of them. We’re pretty damn insular–much more so than women, who are rightly entitled to stricter scrutiny of laws when it comes to equal protection. In my mind, we’re every bit as discrete and insular as any race, but then again I’m biased on this issue.

    Thanks for pointing out my misspelling of discrete. That’s kind of embarassing. Feels like walking around all day with your fly open. ๐Ÿ™‚

  68. This issue is often mistakenly framed as a matter of fairness or equality between homosexual people and heterosexual people. But sexual orientation is not a criterion in eligibility requirements for civil marriage.

    A bisexual man might marry a bisexual woman today. Or a bisexual person might marry a straight person of the opposite sex. A heterosexual person can marry a homosexual person. Variations like this can and do happen.

    But such couples, or even one member of such a marriage, could invoke the same-sex argument and demand that the marital license be more relaxed so that a loving marriage could include at least one more individual of each sex. For bisexuals, a foursome would be considered fair and equitable.

  69. Suppose that same-sex “marriage” was to become a lawful reality throughout the nation. Happy days for homosexuals who hope to elevate their relationships to the same status as heterosexual marriages. And yet that will not happen. Instead, marriage will be reduced in status to fit the narrowed definition that’s taylor-made for gay domesticity. Marriage will be equalized down to the untested status of “gay-like marriage”. As with the unintended consequences of easy divorce and unrestricted abortion, the social value of civil marriage will be increasingly eroded.

    Even the new and theoretical norm that is espoused for gay partners will be undermined and brought lower. Buddy unions could become popular among double-straight couples who would otherwise prefer to remain single. Can’t deny single people the same privileges as married people.

    So much for raising the status of same-sex unions.

  70. Entering “marriage” would begin to look more and more frivolous. Even pre-same-sex-marriages may be pressured and reshaped. Or stretched to the breaking point. The weight of complications in dissolving such arrangements will eventually lead to reforms to lighten the burden of consequences.

    Children? That’s a peripherial issue, of course. Marriages of convenience, a non-issue among open-minded people. Contraception and abortion now make procreation a so-called matter of choice; and personal choice has become the basis for same-sex “marriage”. Throw out the baby with the bathwater. But be fair about it. ๐Ÿ˜‰

  71. Andrew: I’d like to see a source for that. My understanding was that Plessy v. Ferguson (the “separate but equal” case) was itself an extreme case of judicial activism. It certainly was not uncontroversial at the time, as evidenced by Justice Harlan’s scathing dissent.

  72. We exist in every community, but you’d hardly know it in most of them.

    Precisely my point. The closest thing to an “insular” gay community you’ll find is West Hollywood, SF’s Castro district, SD’s Hillcrest or maybe Laguna Beach. Otherwise, gays just blend right in for the most part. If I were an evil bigot on a jihad to oppress as many gays in my city as possible, I wouldn’t even know who to oppress!

  73. Chairm,

    Frankly, you lost me in that mess of fundamentalist apologetics.

    Look, either marriage means nothing, in which case we (government “we”) need to stay the hell out of it and let people define it for themselves.

    Or else it means some specific thing, and every relationship that meets that definition is a marriage whether we like it or not, just like the meaning of “gravity” isn’t decided by some judicial fiat. before you start blathering that “marriage” means “one man and one woman,” you’d better tell me how any other man-woman relationships, whether (for example) teacher-student, boss-secretary, son-mother, or merchant-customer, don’t qualify.

    In fact, your job is to define marriage in such a way that your definition includes only those relationships that you consider marriages, but also doesn’t leave any relationship OUT that you consider a marriage. This is harder than you think. Try it.

  74. I’m still waiting for someone to challenge progressive taxation on the grounds that it treats members of different tax brackets unequally. Or, alternately, for someone to mandate radical redistribution of wealth on the grounds that it is no more “equal” for rich and poor to have the same economic rights with different economic resources than it is for gays and straights to have the same right to marry people of the opposite sex.

  75. Xrig

    That is my point. Almost every 14th Amendment case in modern times has employed fictictious understandings of “equal protection” (and “due process” for that matter).

    Every single state whose Senator voted for the 14th, and every state that voted to ratify it contained at least one example of laws we would consider “Jim Crow”. Segregated public schools existed in the Northern states, anti-miscegenation laws were common, and race-based denial of voting rights was normal.
    The existence of such laws played a part in debates, and the 14th was expressly understood by its sponsors NOT to apply to such practices.
    Except as a joke, not even opponents of the 14th would have assumed equal protection would have applied to women in the way it since has been (eg sufferage– later secured by a constitutional amendment).
    What the 14th WAS intended to secure, was about those rights enjoyed by adult, female American citizens of the period 1865-75. Protection of property and persons from criminal violence, access to courts, legal standing to enter contracts, bring criminal charges and legal suit, and to give sworn testimony (but NOT to serve on juries).
    These were understood to be the rights enjoyed by ALL American citizens– including women, convicted felons and non-residents of any state THROUGHOUT the Union– BEFORE the emancipation of slaves.

  76. xrlq writes: “I never said that Julian’s version of an anti-miscegenation law would have passed muster. I merely pointed it out to correct an historically inacurrate statement. Actually, the Loving court made it quite clear that laws separating people by race would not be tolerated even if they did apply to all races equally. The court made it every bit as clear, however, that this level of scrutiny applied to race, and race alone:”

    But this point simply begs the question: yes, equal protection doctrine has evolved into different levels of scrutiny for various classes, and race receives the strictest. Some argue that the class based on sexual orientation should also receive a high level of scrutiny, and I would agree with that as a matter of justice. That the courts currently do not do so is precisely the point being criticized.

    –Mona–

  77. I’m with you as to the due process clause, and with any applications of the equal protection clause that do not relate to race (directly or indirectly). As to the limited scope even as to race, you may be right about the equal protection clause itself, which could be read in a hypertechnical way, to apply only to basic “protections” like police and fire. However, I don’t think the same can be said of the privileges or immunities clause, which courts essentially nullified in the Slaughterhouse Cases.

    The strongest argument I can think of for the theory that the 14th Amendment doesn’t apply to voting is the existence of the 15th Amendment, which under modern jurisprudence is essentially redundant. I wouldn’t put too much stock in the fact that the 14th Amendment was passed by states which themselves violated the voting rights of blacks; that’s just as true of the 15th Amendment, as well. And these aren’t the only examples of states passing constitutional amendments inconsistent with their own policies. Wet states helped to enact the 18th Amendment, male-only voting states ratified the 19th, etc. Even the time-honored First Amendment was passed by some of the same individuals who turned around and pushed the Aliens and Sedition Act a few years later. That doesn’t mean that the First, Fifteenth, Eighteenth and Nineteenth Amendments don’t mean what they say.

  78. Xrlq,

    What makes an insular group has to do with relative powerlessness, not where people choose to live geographically. Why would the courts care about the manner that people distribute themselves physically if the outcome is the same in any case? A bunch of closeted gays, dispersed throughout the country, coerced into silence by a hostile society are as powerless to fight for equality as if they were all out, but living on the moon. The Americans with Disabilities Act declares that disabled people are a discrete and insular group, and this was found to be true by the supreme court as long as the disability isn’t correctable. If people with certain disabilities are considered insular, then the word insular can’t just refer to the manner that people are dispersed geographically.

    By the way, here’s what congress says about Americans with disabilities:

    “individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society”

    hmmmm….

  79. Xrig

    If you lived out of state for a couple of weeks, without bothering to establish residency in the state you were sojourning in,

    would you be entitled to vote, run for public office, serve on a jury, get a marriage license, professional or business license, or a driver’s license?

    No. Or at least not necessarily, depending on the criteria the state chose to establish.

    Could you bring a criminal complaint, make a citizen’s arrest, sue for the enforcemant of an otherwise legal contract, or for civil damages, give sworn testimony in affadavits, depositions and in courts?

    Yes. And that has been assumed to ALWAYS have been true for ALL American citizens who are legally competant adults AND citizens (it may not be the case with minors, legally incompetant adults, lawfully detained prisoners and non-citizens.

    Prior to the passage of the 14th that was NOT assumed to be the case for those Americans in servitude before the 13th Amendment freed them, nor was it clearly the case after the 13th Amendment. Nothing in the 14th Amendment was understood by those who crafted it, to extend rights to any Americans beyond those described in the circumstances above.

    (No assumptions are made about the “race” of those formerly in servitude in either the 13th or 14th.)

  80. speedwell, I really don’t know what your post is about. Can you clarify? Minus the condescending manner, please.

  81. Andrew, Scot, Xrig et al,

    How would the Court determine the validity of an individual’s self-affirmed sexual orientation? Is there a litmus test that can prove or disprove membership in a protected class that is based on behavior or socio-sexual prediliction? I ask in all sincerity since the Equal Protection argument is often raised by advocates of SSM.

  82. It is not credible to deny the importance and the influence of the procreative model in our society today. In fact, more homosexual individuals live by this model than live by the new-fangled non-procreative SSM model.

    HRC estimates that there are 10.5 million homosexual adults in America (based on their estimate of 5% of general adult population of 210 million). Only 12% live with an intimate partner of the same sex (i.e. 600,000 such households according to the Census). About 72% of these couples are childless. But about 27% of same-sex unions include children. We have homosexual parents largely because of the procreative model of previous marriages.

    In addition, a significant portion of homosexual adults directly embrace the procreative *model*. While 60% of sexually active homosexual adults have never married, another 40% (or approximately 3.4 million) have entered marriage. Even in San Francisco, the gay capital of the USA, approximately 20% of gay men have been married to women. Marriages of mixed sexual orientations account for most of the children raised by homosexual parents. More of these parents have lived and loved in marriage (3.4 million) than in same-sex union (1.2 million).

    As I said in an earlier post, a civil marriage license does not prohibit homosexual individuals.

  83. And by comparison… Of 200 million heterosexual adults in America, upwards of 60% currently are married (55 million households) or cohabitate (5 million households). According to the Census 95% of Americans will marry. (That includes homosexual individuals.) The vast majority will have children; currently about half of these coupled households already include children. The other half is comprised almost entirely of adults who will eventually marry or whose adult children have moved on. More married grandparents provide primary support and caregiving for their grandchildren than there are childless same-sex households. Doesn’t seem reasonable that marriage be taylored-down to suite the non-procreative SSM definition.

    “Sexual behavior is not only of basic biological importance, but of central social importance. Not only does it perpetuate the human species, but it is the central behavior around which families are formed and defined, a vital aspect of the psychological well-being of individuals, and a component of a variety of social problems.”

    — Tom W. Smith, National Opinion Research Center, University of Chicago.

    From an entirely secular report on sexual behavior in America.
    http://cloud9.norc.uchicago.edu/dlib/t-25.htm

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