Now Let Me Welcome Everybody to the Wild, Wild West

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California's supreme court has overturned the state ban on gay marriage.

The case involved a series of lawsuits seeking to overturn a voter-approved law that defines marriage as a union between a man and a woman.

With the ruling, California could become the second state after Massachusetts where gay and lesbian residents can marry.

Andrew Sullivan is breaking down the decision.

One key fact: the ruling takes effect in 30 days—which means thousands of couples will be able to marry long before any initiative attempts to reverse it. So the initiative question becomes: do you want to divorce thousands of already-married couples? Or do you want to keep things as they now are? That's a big advantage for the pro-equality forces.

Politically, I suppose this is bad news for the Democrats, but not nearly as much as in 2004. For one, it's not coming out of a candidate's home state. (How lucky was John Kerry to come from Massachusetts in the year of Goodridge?) For another, John McCain voted against the Federal Marriage Amendment: He can't demagogue this, and he won't. And finally, the issue's simply becoming less volcanic as the issue is normalized. The way things are going, Mitt Romney will be leading a pro-gay marriage campaign by 2016 or so.

UPDATE: DOMA author Bob Barr chimes in:

Regardless of whether one supports or opposes same sex marriage, the decision to recognize such unions or not ought to be a power each state exercises on its own, rather than imposition of a one-size-fits-all mandate by the federal government (as would be required by a Federal Marriage Amendment which has been previously proposed and considered by the Congress).  The decision today by the Supreme Court of California properly reflects this fundamental principle of federalism on which our nation was founded.

Indeed, the primary reason for which I authored the Defense of Marriage Act in 1996 was to ensure that each state remained free to determine for its citizens the basis on which marriage would be recognized within its borders, and not be forced to adopt a definition of marriage contrary to its views by another state. The decision in California is an illustration of how this principle of states' powers should work.

That's why he wrote DOMA? Hrm.

NEXT: Republicans and Tax Realities

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  1. We must stop activist judges legislating from the bench.

  2. Yes, mob rule is certainly preferable.

  3. We must stop activist judges legislating from the bench.

    i.e., “We must stop judges from rendering decisions that don’t confirm my bigotry.”

  4. P.S., Weigel:
    You’re going to get another East Coast rapper killed with that headline. So the blood is on YOUR hands.

  5. By my reading, this fruling won’t allow anyone to get married.

    California didn’t recognize gay marriages before this law took effect. Passing the law just made it double-plus-un-recognized.

    Now, gay marriage goes back to being merely unrecognized in California.

    Progress!

  6. Neil, speaking of legislating from the bench, wasn’t the Thursday night NBC lineup of Cheers and then Night Court one of the greatest ever? Now that’s “must see TV.”

  7. Get government out of marriage. There, problem solved.

  8. By my reading, this fruling won’t allow anyone to get married.

    joe, if you had managed to fully mangle that to “fruiting” you would have the funniest subconscious EVAR.

  9. I don’t oppose gay marriage, but judges that can make that law can do anything they want, and I oppose judges being able to do anything they want.

  10. Episiarch:

    Seinfeld > Cheers.

  11. I maintain that this fruling will not fresult in frecognition of anyone’s marriage. That will frequire a Goodfridge-type fruling.

  12. So, to avoid being “activists,” California’s judges should just ignore their state’s constitution, and uphold laws that violate it.

    They shouldn’t make laws, just ignore them.

    Gotcha.

  13. I oppose judges being able to do anything they want.

    You and everyone else. That, however, is not what is happening here. We’re talking about equal protection…the same basis under which anti-miscegenation laws were struck down.

    Now, everyone watch the entertainment of Neil defending anti-miscegenation laws from the predations of *activist judges*.

  14. Seinfeld > Cheers.

    WHAAA??? Maybe Seinfeld stayed consistent over its run, but early (read: Diane) Cheers was freaking great, better than Jerry & Co.

  15. Joe they’ve done some “creative” interpretation with their states Constitution.

    The plain text doesn’t say gays must be married.

  16. I don’t want judges to have too much power, so, to the extent that they can issue broad “legislation” from the bench, without check, I get a little disturbed. This isn’t as easy as opposing “judicial activism”, because I tend to favor an aggressive judiciary when it comes to civil liberties. The big problem for me is that courts too often just rubber stamp unconstitutional government expansion and actions.

    Seinfeld and Cheers were both enjoyable, though for different reasons.

  17. I enjoy a good fruling from time to time.
    Trouble is, I have to replace my sheets.

  18. “creative” interpretation

    Yes, applying the law in a nondiscriminatory way is certainly creative. I miss the days when niggers couldn’t vote, too.

  19. Marriage isn’t a “right” Jamie, its a privalege.

    FWIW it did require a constitutional amendment to give blacks the vote. It wasn’t a ruling handed down from the bench.

  20. “For another, John McCain voted against the Federal Marriage Amendment: He can’t demagogue this, and he won’t.”

    Just watch him. If he’s losing in October, he’ll smack the gays around like they had candy inside.
    The man has no more shame than any other politician and I don’t know why anyone thinks he does.

  21. I look forward to a day when we no longer have these pesky inalienable rights but instead have only revocable privileges.

  22. Marriage isn’t a “right” Jamie, its a privalege.

    Your mangling of “privilege” aside, I don’t even believe the state has any interest in recognizing “marriages” — just social contracts two or more people make with each other.
    But as long as the state (and society) deems it within its powers to recognize a union by calling it “marriage,” then it has to recognize ALL unions between consenting adults.

  23. The plain text doesn’t say gays must be married.

    The plain text doesn’t say the interractial couples must be married, either.

    The plain text of the 14th amendment doesn’t say that black people have the right to vote, either.

    Nonetheless, since we’re talking about equal protection, the protections offered by the govenrment must be provided on an equal basis, including the protections it provides to couples getting married and citizens looking to vote.

  24. So you’re for polygamy Jamie?

    What about if a brother and sister want to get married?

  25. Heres one for you Jamie:

    A bisexual male wants a husband AND a wife.

  26. Driving on the roads is a privilege, not a right, too, Neil.

    Can we ban teh gays from doing that, too?

  27. I’m pretty sure we ban the blind and retarded from driving, Joe.

  28. So, can they just eliminate State marriage and privelige now?

    Marriage is the biggest scam pulled on man.

  29. I wish Jerry Falwell were alive to see this…..NOT!

  30. Elemenope

    Now, everyone watch the entertainment of Neil defending anti-miscegenation laws from the predations of *activist judges*

    Neil

    Marriage isn’t a “right” Jamie, its a privalege.

    He bit elemonope! He bit! Now set the hook! Quick; before he spits it out!

  31. The law does not allow anybody to take more than one spouse, so it is not a violation of equal protection to ban polygamy.

    The law does allow anybody to take a single spouse, so it is discrimination to ban gay marriage.

  32. Gays can still get married anytime they want Joe, as long as its a member of the oppoosite sex.

  33. It should also be mentioned that marriage is not a privilege, but a long-recognized right. See Loving vs. Virginia.

  34. Marriage isn’t a “right” Jamie, its a privalege.

    So?

    “Privaleges” bestowed upon the people by the government are still subject to equal protection laws.

    Do rights even need equal protection laws since rights are by definition something everyone is entitled to?

  35. I’m pretty sure we ban the blind and retarded from driving, Joe.

    You don’t drive Neil? πŸ™‚

  36. Gays can still get married anytime they want Joe, as long as its a member of the oppoosite sex.

    Here, let’s try this out in some other places: black people can still vote, as long as they vote for Boss Hogg. The New York Times can still publish its editorials, as long as they all laud George Bush. White people still have the right to marry any white person they way.

    Choosing who you will marry is an inherent part of the marriage right.

    There are literally thousands of cases of judges deciding that sham marriages entered into without the actual intention to be married are not legally binding – the old immigration scam, for example.

    A sham marriage is not a marriage – that’s why they call it a sham.

  37. Again, a gay guy can get married anytime he wants, as long as he gets married to a woman.

    Marriage, BY DEFINITION is between a man and a woman.

    The liberal left is trying to change the definition of what marriage is.

  38. I’m pretty sure we ban the blind and retarded from driving

    Not in California.

  39. So you’re for polygamy Jamie?
    A bisexual male wants a husband AND a wife.

    What exactly is wrong with polygamy, assuming all the parties have consented to the arrangement?

  40. Thats why interacial marriage was made legal (its still between a man and a woman).

  41. I don’t suppose anyone has a link to the opinion, do they?

    thousands of couples will be able to marry long before any initiative attempts to reverse it.

    Will they? Without having read the ruling, I believe it struck down California Family Code Section 308.5 (the “Defense of Marriage Act” language:

    Only marriage between a man and a woman is valid or recognized in California.

    The rest of the California Family Code on marriage is riddled with references to “a man and a woman.” I don’t know if these references came in with the DOMA, or were already there. I’d bet the latter, though.

    If the California Court only struck down 308.5, then gay marriage is still not possible in California. Did the California Court invalidate the entire Family Code on marriage? Courts don’t have the power to amend statutes, only to apply them as written or to strike them down.

    I’m having a really hard time trying to figure out how the California Court could have actually legalized gay marriage in California, as doing so would seem to require legislative action.

  42. What exactly is wrong with polygamy, assuming all the parties have consented to the arrangement?

    And if they are not a bunch of fools, they will not go running to the government for papers every time the collective changes composition.

  43. Neil | May 15, 2008, 2:40pm | #
    Heres one for you…
    A bisexual male wants a husband AND a wife.

    AND another wife and maybe a couple of more husbands AND just to make things interesting they all intermarry like a mesh diagram.

    So fucking what and who cares? Who are you to tell others what they can and cannot do so long as it isn’t coercive?

    If Adam and Steve want to get married* and have the same privileges that the state grants Adam and Eve then they should be able to do so.

    *Technically the church decides who gets “married” the government’s role is to determine the contract rules around said union. In essence, the government grants special “rights” to those involved in a civil union. Either get the government out of the practice of granting “rights” or apply it equally for all who wish to obtain them, gay, straight, bi and multiple.

  44. You can keep repeating the argument, Neil. I’ve rebutted it. Simply repeating your original point is a concession that you can’t answer my rebuttal.

    The liberal left is trying to change the definition of what marriage is.

    I would say that the people trying to claim that sham marriages – marriages that cannot possibly result in the “cleaving to one flesh,” the physical-emotional-spiritual union that defines what it is to devote your life to another has their spouse – are changing the definition of marriage.

    Liberals on the other hand, are changing people’s awareness of whom the EXISTING DEFINITION of marriage can apply to.

  45. Guy Montag | May 15, 2008, 2:49pm | #
    What exactly is wrong with polygamy, assuming all the parties have consented to the arrangement?

    And if they are not a bunch of fools, they will not go running to the government for papers every time the collective changes composition.

    If the government wouldn’t stick it’s nose where it belongs this wouldn’t be a problem. Pre-nups baby, pre-nups.

  46. Good for CA. Gays should be able to marry if they want to.

    We’ve come a long way in this country.

  47. From Loving vs Virginia Federal Supreme Court decision:

    The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

    (note that they only mentioned men and not women πŸ˜‰ )
    joe says

    The law does not allow anybody to take more than one spouse, so it is not a violation of equal protection to ban polygamy.

    And the state of Virgina said that their law didn’t violate the 14th Amendment because it punished blacks and whites equally, and becasue blacks could still marry other blacks, and whites could marry other whites… πŸ˜‰

    But hey, I won’t bring up the inherent contradiction of pretending that imposing some forms of religious vies on marriage by law on a population are OK while others aren’t. I will link to it though. πŸ˜‰

  48. Pre-nups ARE running to the government to recognize your union.

    Why, exactly, libertarians want to vastly increase the amount of government-approved paperwork necessary to enter into a commonly, universally-understood partnership agreement is beyond me.

  49. What exactly is wrong with polygamy, assuming all the parties have consented to the arrangement?

    There is an argument that widespread polygamy tends to lead to a lot of violent single men forced to complete for a small number of available women, but I’m not sure there’s any evidence that applies to liberal democracies.

  50. Good for CA. Gays should be able to marry if they want to.

    Yeah. No more protecting them from making the same mistakes straights have been making all along.

  51. What about if a brother and sister want to get married?

    The state has an interest in not having a race of low-IQ inbreds.
    I can’t believe we elected one president.

  52. joe | May 15, 2008, 2:53pm | #
    Pre-nups ARE running to the government to recognize your union.

    Why, exactly, libertarians want to vastly increase the amount of government-approved paperwork necessary to enter into a commonly, universally-understood partnership agreement is beyond me.

    A notarized legal document is not “government-approved paperwork” Joe. It is a document that only comes into play in a Civil Court of law, when a party violates one or more clauses of the contract. IOW, if everybody abides by the “pre-nup” the government never has to get involved.

  53. Neil,

    Marriage, BY DEFINITION is between a man and a woman.

    Historically speaking, there is some tradition of same-sex marraige. So clearly definitions change.

  54. tarran,

    And the state of Virgina said that their law didn’t violate the 14th Amendment because it punished blacks and whites equally, and becasue blacks could still marry other blacks, and whites could marry other whites… πŸ˜‰

    The Loving ruling did not strike down Virginia’s law on the grounds that it did not provide equal protection to black people vis a vis white people. Virginia was right about that argument.

    They lost anyway, because the law discriminated against those who wished to enter into a marriage with people of a different race, compared to those who wished to enter into a marriage with people of their own race.

  55. There is an argument that widespread polygamy tends to lead to a lot of violent single men forced to complete for a small number of available women, but I’m not sure there’s any evidence that applies to liberal democracies.

    Although, now that I think of it, gay marriage could also solve that problem.

  56. Kwix,

    Drawing up that notarized document is vastly more expensive and complicated in the absense of marriage laws, and therefore more expensive.

  57. TallDave | May 15, 2008, 2:53pm | #
    There is an argument that widespread polygamy polygyny tends to lead to a lot of violent single men forced to complete for a small number of available women, but I’m not sure there’s any evidence that applies to liberal democracies.

    There, fixed it for you.
    In a free society, I suspect that polyandry would be prevalent as well.

  58. If the government wouldn’t stick it’s nose where it belongs this wouldn’t be a problem.

    Yep. Have been saying the same thing in every marriage theread I have commented on here.

  59. Pre-nups ARE running to the government to recognize your union.

    Enforceable through contract law, just like any other contract.

    Why, exactly, libertarians want to vastly increase the amount of government-approved paperwork necessary to enter into a commonly, universally-understood partnership agreement is beyond me.

    joe, Family Court didn’t vastly increase paperwork? It would function as contract law, and there would be standard contracts that would operate just like your “universally-understood partnership agreement”.

  60. Why, exactly, libertarians want to vastly increase the amount of government-approved paperwork necessary to enter into a commonly, universally-understood partnership agreement is beyond me.

    Dang, joe, you and I were holding hands until this.
    Libertarians do want an apparatus — the court system — to recognize legally binding contracts, even if it’s a BIG apparatus. Imagine how incredibly complex a business takeover is. Yet, breaches of contracts within those deals are dealt with in the courts all the time.

  61. Marriage, BY DEFINITION is between a man and a woman.

    Er, not any more. And arguably, not historically. The bible contains multiple references to polygamy — Kings Solomon and David had like a gazillion wives each.

    Libertarianism is all about individual liberty. Agree that the state not ought to be in the marriage business, but since it is these protections must apply to all.

    How quaint of you to say so, though. So, how does it feel to be suddenly irrelevant, like the Amish and all the other enemies and deniers of modernity, science, etc?

    The liberal left is trying to change the definition of what marriage is.

    LOLzer! See above.

  62. Thanks for the etymology fix.

    In a free society, I suspect that polyandry would be prevalent as well.

    Probably, though apparently polygyny is more natural to our species than polyandry. According to Jared Diamond’s book The Third Chimpanzee, there are biological indicators that humans are naturally somewhat polygynous.

  63. joe | May 15, 2008, 2:58pm | #
    Drawing up that notarized document is vastly more expensive and complicated in the absense of marriage laws, and therefore more expensive.

    I didn’t say it was cheaper Joe, I said it was better. A clearly defined legal document has many advantages, chief among them is that the rules are spelled out in advance not in the divorce court. Additionally, as todays ruling shows, your “universally-understood partnership agreement” can change meanings without either party having agreed to it. You may be fond of such fluid definitions but I am not.

  64. What exactly is wrong with polygamy, assuming all the parties have consented to the arrangement?

    That’s a good question. It is, however, a different question than “Does equal protection mean that polygamy must be allowed if the state recognized monogomous marriage?”

    Marriage laws allow you to enter into a specific type of union. When entering into a polygamous union, you are entering into a different type of union.

    For example, marriage laws include in the marriage contract a requirement of faithfulness. One partner in the marriage can be held liable for large amounts of money, and forfeit certain rights, if he engages in sexually activity with another person. Obviously, this is not so in polygamous unions.

    Ergo, wqual protection does not mean the fact that the state recognizes marital unions, as currently recognized by law, requires the state to recognize other types of unions. It only requires that the state recognize marital unions.

  65. Marriage, BY DEFINITION is between a man and a woman.

    marriage (n.) 1. the state of being married; relation between two spouses; married life; wedlock; matrimony 2.) the act of marrying; 3.) the rite or form used in marrying
    — Webster’s New World College Dictionary, Fourth Edition

    pwned by a book!

  66. What about if a brother and sister want to get married? The state has an interest in not having a race of low-IQ inbreds.

    So it would be OK if they used birth control?

    I mean, eww, icky, but is there really any libertarian argument against this? Or bestiality?

  67. Suppose a government actually gets its power from the people.

    If the government doesn’t recognize the inalienable rights of citizens to life, liberty, and the pursuit of happiness, how then are the citizens required to recognize the government?

  68. Here’s one for all of you arguing activist judges legislated from the bench. Schwarzenegger twice vetoed gay marriage bills passed by the legislature because he wanted to see how the court would rule and stated he would not support an initiative to overturn the ruling:

    “I respect the Court’s decision and as Governor, I will uphold its ruling. Also, as I have said in the past, I will not support an amendment to the constitution that would overturn this state Supreme Court ruling.”

  69. The law does allow anybody to take a single spouse, so it is discrimination to ban gay marriage.

    Well, the law does allow anybody to take a spouse of the opposite sex…

    I await a hail of tomatoes.

  70. | May 15, 2008, 3:02pm | #
    Thanks for the etymology fix.

    In a free society, I suspect that polyandry would be prevalent as well.

    Probably, though apparently polygyny is more natural to our species than polyandry. According to Jared Diamond’s book The Third Chimpanzee, there are biological indicators that humans are naturally somewhat polygynous.

    Well, serial monogamy is very prevalent in our society in both sexes, though I suspect the drive for different partners is stronger in the males. Just a hunch, no real research to back it up.

    I do wonder how much of the serial monogamy has to do with laws vs societal conventions. Even in a free society, absent environmental pressures, I don’t think that polygamy would be as widespread as some fear.

    Personally, one wife is all I can handle!

  71. So Neil, is your grasp on heterosexuality so frail that a couple of nancies getting married is a threat?

  72. I mean, eww, icky, but is there really any libertarian argument against this?

    Not in the strictest sense, no. But I’m just not seeing where this is a big problem. Then again, I don’t live in West Virginia.

  73. I’m still waiting for compulsory miscegenation laws that ban whites from marrying other whites. Hey, all the affirmative action nonsense would become moot in just a few decades. πŸ™‚

    If you accept the theory that the state can ban you from marrying someone of your own gender, I don’t see why it shouldn’t be able to ban you from marrying someone of your own race.

  74. Jamie Kelly,

    I recognize that y’all still want the courts to recognize marriage contracts. What I’m saying is, I want the process of entering into such a contract, understanding its implications, and enforcing its conditions to be less like a business takeover, and more like the straightforward process we’ve got now.

    You want to make it great deal more complicated than it is now, just to prove some ideological point. Even if I were to grant you that ideological point, what’s the pressing problem that makes it wise to screw around like this, and make people’s lives more difficult?

  75. Brother-Sister marriages are legal in Sweden, as long as they only share one parent. And all incest has been legal in France for 200 years… thanks to that arch-libertarian Napoleon.

  76. Warty,
    You are a bit late. The asshole of the thread already mentioned it. Sorry.

  77. Although, now that I think of it, gay marriage could also solve [the problem created by polygamy whereby a lot of violent single men are forced to complete for a small number of available women]

    TD, it sounds like you’re saying that the men unable to find women would enter into gay marriages. I respectfully disagree. Sure, men on ships and in prison will engage in homosexual sex, but they generally don’t seek gay sex once women are available. And there’s a big difference between closing your eyes and pretending, and wanting to marry someone.

    Suspect that polygamy would not be that common if legal and accepted. You’d also have polyandry (one woman, many men), which would offset the polygamy. Heinlein dealt with polyandry in TMIAHM, FWIW.

  78. Not in the strictest sense, no. But I’m just not seeing where this is a big problem. Then again, I don’t live in West Virginia.

    I’m reminded of the clip of Frank Zappa on Crossfire during the song-lyrics hysteria of the mid-80s. “Incest didn’t used to be such a problem, did it, Mr. Zappa! That’s come about in the last 20 years or so!”

  79. Not in the strictest sense, no. But I’m just not seeing where this is a big problem.

    Me neither. I just thought it was an interesting case of where societal convention still says this is unacceptable, but there isn’t necessarily a rationale for it anymore.

    Personally, I could care less if someone wants to fuck a goat/relative in their own house. They can even have a parade. Though, again, ew.

  80. Kwix,

    A clearly defined legal document has many advantages

    We already have a clearly-defined legal document. You are saying that eveyr couple should re-invent the wheel and jump through more hoops.

    Additionally, as todays ruling shows, your “universally-understood partnership agreement” can change meanings without either party having agreed to it. No, it doesn’t. Not a single marriage entered into by anyone anywhere has been changed a whit by today’s ruling, or even the Goodridge ruling.

    Those rulings expand who may enter into that same partnership with whom. That is all it does. The underlying partnership remains the same.

  81. A sham marriage is not a marriage – that’s why they call it a sham.

    Joe, you take that back.

    David Gest and Liza Minelli, Rock Hudson and Phyllis Gates

    Those marriages were real. Show business doesn’t lie to us.

  82. I mean, eww, icky, but is there really any libertarian argument against this? Or bestiality?

    Bestiality, would have a problem with “consent”.
    I don’t see how an animal can consent to having sex with a person.

    But as for incest…although it’s creepy…I don’t see why it needs to be outlawed. I could sorta see outlawing pro-creation — but even with the kids of incest there is no guarantee that that the kid will have birth defects, just much higher odds.

    Full Disclosure: I have a couple of smoking hot 1st cousins πŸ™‚

  83. TallDave | May 15, 2008, 3:04pm | #
    I mean, eww, icky, but is there really any libertarian argument against this? Or bestiality?

    Libertarian arguments regarding incest, no. I mean you could argue against children of the relationship but other than that no. Beastiality all hinges on whether or not you feel that animals have any rights. Unless you really are a horse whisperer and you know for damn sure that Ol’ Lightning really wants you I would consider it coerced relations(rape) but if, and only if, animals have any “natural” rights.

  84. joe —
    Well, I’d say that most couples (or groups) would want the contract to be as efficient and simple as possible, so it’s easily understood by all parties. I’d envision several different levels of contracts, from a simple (no-fault) agreement like we have now, to fairly complex pre-nups. Either way, it’s in the interest of all parties to have a clear idea of what the contract is and does, and as such would tend to err toward simplicity.

  85. Damn, ChiTom beat me to it and with more clarity. You go to hell! You go to hell and you die!

  86. Tonio,

    My guess is that we would see more polygyny than polyandry (see above), so men would be more likely to turn to homosexuality than women.

    But then again, guys thinks lesbians are hot, and that’s a strong social influence.

    I dated girl for a few years when she was 18-21, and used to joke about getting her together with a girl. Her response was always “Ewww I’m not a dike.” Now she’s 27 and tells me about the hot girls she kisses at bars (when her bf isn’t around).

  87. Warty,

    No tomatoes. Reasoned discussion.

    Well, the law does allow anybody to take a spouse of the opposite sex…

    The law does allow anybody to publish editorials written by people of the publisher’s race. Does that mean, therefore, that a newspaper may be shut down if the publisher and a columnist are of different races? No, of course not.

    Choosing the spouse you desire subject only to receiving her consent, is as integral to the marriage right as choosing what writers and ideas you publish is to the free speech right.

  88. I don’t see how an animal can consent to having sex with a person.

    Well, they don’t consent to being hamburgers, either. I would guess that when in season, they’ll enjoy anything.

  89. Damn, ChiTom beat me to it and with more clarity. You go to hell! You go to hell and you die!

    Ha! Ha! /Nelson

  90. Full Disclosure: I have a couple of smoking hot 1st cousins πŸ™‚

    Hey, you can always move to Shelbybille.

  91. But as for incest…although it’s creepy…I don’t see why it needs to be outlawed

    One of the leading arguments for laws banning incest is that most romantic relationships invovle a certain amount of psycho drama and manipulation, as do most familial realtionships and combining the familial psycho-drama and manipulation with the romantic ones is too dangerous.

  92. I would guess that when in season, they’ll enjoy anything.

    I’ll vouch for that.

  93. Then again, I don’t live in West Virginia.

    West Virginia jokes (which I don’t think are funny, FWIW) have some basis in fact. Before modern transportation people in WV were isolated due to the terrain. There often weren’t that many unrelated women available in a given valley. Plus the poverty of the mountain people meant that many people lived in small, confined spaces. Incest in situations like this is akin to situational homosexuality — if a better option is available, people will take it.

  94. So, are the Metal People now allowed to marry too? If not, then this is just another apartied disguised as freedom.

  95. Abdul, Lol!

    David Gest and Liza Minelli

    Nobody wants to see that shit. I consider myself pretty old-fashioned about marriage, and I don’t like the idea of people mocking it that way.

    I know what a marriage is. I’ve seen how it works. Two men who love each other and form a family works just like a marriage, and a man and a woman putting on a show does not.

  96. “Marriage, BY DEFINITION is between a man and a woman.”

    This should read: “Marriage BY DEFINITION OF MOST RELIGIONS AT MOST TIMES IN HISTORY is between a man and a woman.” There, fixed it for you.

    Of course, government is not a religion (Obama supporters and evangelicals aside), but is instead an inherently coercive instrument that is supposedly representative of ALL the people, not just SOME or MOST of the people. Therefore, government has no right to define anything in such a way that it inherently benefits one group of people more than another.

    Fact is, I don’t particularly care how any one individual or religion defines marriage – it is their right to do so however they want. But if the government is going to issue a definition of marriage, then it must do so in a way that does not discriminate against any group whatsoever.

  97. Abe: It all began when Jebediah Springfield first came to these
    lands with his partner, Shelbyville Manhattan.
    [flash to pilgrims approaching a hilltop]
    Jebediah: People, our search is over! On this site we shall build a new
    town where we can worship freely, govern justly, and grow vast
    fields of hemp for making rope and blankets.
    Shelb.: Yes, _and_ marry our cousins.
    Jebediah: I was — what are you talking about, Shelbyville? Why would
    we want to marry our cousins?
    Shelb.: Because they’re so attractive. I, I thought that was the
    whole point of this journey.
    Jebediah: Absolutely not!
    Shelb.: I tell you, I won’t live in a town that robs men of the right
    to marry their cousins.
    Jebediah: Well, then, we’ll form our own town. Who will come and live a
    life devoted to chastity, abstinence, and a flavorless mush I
    call rootmarm?

  98. Jamie Kelly,

    Well, I’d say that most couples (or groups) would want the contract to be as efficient and simple as possible, so it’s easily understood by all parties. That’s what we’ve got now.

    If you want “escalating levels,” you can always create additional contracts for yourselves that add or subtract conditions.

    But none of this explains why you want to make things more difficult for us plain vanilla folks.

  99. most romantic relationships invovle a certain amount of psycho drama and manipulation, as do most familial realtionships and combining the familial psycho-drama and manipulation with the romantic ones is too dangerous.

    Yeah, can you imagine having make-up sex with the person who tattled on you?

  100. I should have noted that I no longer agree with the “them fags ken marry chicks, same as me” argument.

  101. You want to make it great deal more complicated than it is now, just to prove some ideological point. Even if I were to grant you that ideological point, what’s the pressing problem that makes it wise to screw around like this, and make people’s lives more difficult?

    I don’t think anyone has said anything about making it more complex or difficult. Just the same, it’s fairly clear that the state isn’t going to get out of the way of defining what a marriage is as long as it’s in the marrying business. “We” want the state to get out of that business and just deal with marriage as a legal contract.

    It doesn’t need to be any longer than a couple paragraphs, unless there is a good bit of property involved. In those cases, you’d already have a more complex and longer pre-nup in either situation.

  102. But none of this explains why you want to make things more difficult for us plain vanilla folks.

    My point is that you can make it as plain as you’d like. So it wouldn’t make it more difficult for you.

  103. But as for incest…although it’s creepy…I don’t see why it needs to be outlawed

    Didn’t Katherine Mangu-Ward write a few pieces on this, from the perspective that the government should not be meddling in it? BTW, I think it is icky.

    On the animals thing, I think it is icky too, but I don’t believe they have rights.

  104. joe | May 15, 2008, 3:12pm | #
    We already have a clearly-defined legal document. You are saying that eveyr couple should re-invent the wheel and jump through more hoops.

    If the document is so clearly defined then why do divorce proceedings last so long, cost so much money and usually end up with one party getting less than the other?

    Additionally, as todays ruling shows, your “universally-understood partnership agreement” can change meanings without either party having agreed to it.

    No, it doesn’t. Not a single marriage entered into by anyone anywhere has been changed a whit by today’s ruling, or even the Goodridge ruling.

    Those rulings expand who may enter into that same partnership with whom. That is all it does. The underlying partnership remains the same.

    I didn’t say that today’s ruling restricted the agreement, I said it changed it without consent of people already involved. Let’s rewind the clock here to the passage of the Morrill-Anti-Bigamy Act of 1862. This law made all previously legal “plural marriages” illegal in the US and territories without consent of those already engaged in the marriage. Yet again, the “law of the land” changes the underlying basis of the union without consent of those involved.
    You can argue that today’s ruling expands the availability of marriage to a group of people, but the fact remains that it changes the definition of “marriage” at the whim of the Government.

  105. Jamie Kelly,

    The fact that I would have to go to a lawyer to get something drawn up laying out rights and responsibilities is inherently more complicated, difficult, and expensive than being able to get a marriage license.

    I spent $25 and fifteen minutes getting a marriage license, and it got me the entire body of marrital rights and obligations. What’s the problem here?

  106. West Virginia jokes (which I don’t think are funny, FWIW) have some basis in fact.

    Though not about incest, you should read this book.

  107. TD,

    But then again, guys thinks lesbians are hot, and that’s a strong social influence.

    Sigh. Those women in pr0n are most often not real lesbians.

    Straight guys think girl-on-girl action is hot, especially if they think they can join in. This is more about pandering to straight male fantasies, than real depictions of lesbianism.

  108. I spent $25 and fifteen minutes getting a marriage license, and it got me the entire body of marrital rights and obligations. What’s the problem here?

    I think you answered your own question. That would be sort of a “canned” contract they’d have down at the courthouse, or something like that.
    And you wouldn’t need a lawyer. Just a stamp from a notary, perhaps the judge himself.

  109. Sigh. Those women in pr0n are most often not real lesbians.

    Wait, first David Gest and Rock Hudson lie to me.

    Now pr0n lesbians.

    What about Rick Santorum? He wouldn’t lie. People of california will be marrying their dogs before the year is out.

  110. Sigh. Those women in pr0n are most often not real lesbians.

    And that is a tragedy, plus a rare instance that I would support federal funding to correct.

  111. Kwix,

    If the document is so clearly defined then why do divorce proceedings last so long, cost so much money and usually end up with one party getting less than the other?

    Because of disagreements of facts, which has nothing to do with whether the agreement is based on marital law or contract law.

    Disagreements about the terms of the agreement itself almost never happen – except in cases where couples have pre-nups. BTW, the “end up with one party getting less than the other” is totally irrelevant. This happens in all breach-of-contract situations.

    I didn’t say that today’s ruling restricted the agreement, I said it changed it without consent of people already involved. And you are factually incorrect. The agreements that every married couple in America entered into remain exactly, precisely what they were before this ruling. Going forward, some people may enter into similar agreements who would not have been able to do so before. This changes nothing for people who already got married, so it is not like the Bigamy Law you mention.

  112. Sigh. Those women in pr0n are most often not real lesbians.

    I was thinking more of girls kissing and doing body shots off each other in bars, and guys cheering them on.

  113. TD,

    You have lived such a sheltered life. But, it is yours to live as you like, of course.

  114. This is more about pandering to straight male fantasies, than real depictions of lesbianism.

    True, but I know a few girls who have done it for attention and ended up liking it for it’s own sake.

  115. Guy,

    Yeah, I miss college. I need to go back and get another degree.

  116. Seems the lesbian menu is similar to the engineering menu with fewer choices: hot or real, pick one.

  117. I think you answered your own question. That would be sort of a “canned” contract they’d have down at the courthouse, or something like that.
    And you wouldn’t need a lawyer. Just a stamp from a notary, perhaps the judge himself.

    Or any legal clinic. Hell, you could probably download a form online, fill it out and everybody signs. I suspect that the demand for notaries would stimulate a flood of new notaries for such a need.

    No more complicated than going down to the county seat to get a civil clerk.

  118. Sigh. Those women in pr0n are most often not real lesbians.

    Tru dat. Ever see a p0rn movie with a Martina Navratalova poster in the background?

    A Subaru wagon?

    A soundtrack featuring the Indigo Girls?

  119. joe,

    The law does allow anybody to take a single spouse, so it is discrimination to ban gay marriage.

    Just from a pure logic standpoint, the law allows anyone to take a spouse of the opposite sex, even gays. Therefore, it is not discrimination to ban gay marriage.

    This all comes down to what does the word marriage mean? Does it involve 2 people or 2 people of opposite genders?

    My personal view is that it involves 1 man, 1 woman, and 1 God and therefore is a religious ceremony that the state has no right to license.

    I like the state being uninvolved. For one thing, if that happened, two gays could “marry” and they could say to me “We are married” and I could respond “No, you arent” and we would both be happy.

  120. But none of this explains why you want to make things more difficult for us plain vanilla folks.

    Nobody here wants to make things more difficult for heterosexuals, or anyone else for that matter. The increased complexity would be an unintentional consequence of hewing closer to libertarian principles.

    In a more libertarian society where marriage was adjudicated only as a matter of contract law, there would be a booming and competitive market in fill-in-the-blank marriage contracts, much as there now is a similar market for wills, leases, etc.

  121. Well, the good thing about L-pr0n is they wear spike heels and hot outfits, instead of Rebocks, turtlenecks and mullets.

  122. Seems the lesbian menu is similar to the engineering menu with fewer choices: hot or real, pick one.

    In my experience, it’s the bis that are hot.

  123. I can download forms and whatnot, but I’m still either confirming that they’re the right forms with all of the conditions by myself, or having my lawyer take a look at them.

  124. I like the state being uninvolved. For one thing, if that happened, two gays could “marry” and they could say to me “We are married” and I could respond “No, you arent” and we would both be happy. then they sue you for a hate crime after they have the AIDS Walk pin guys from Seinfeld beat you up

    Fixed.

  125. Ooops, misread a little. Well, maybe not. If they got rid of “hate crimes” when they were getting uninvolved then I withdraw my 3:44pm post.

  126. I guess that decision makes California Cosmotopia. You guys can all move there and enjoy your own Free State project.

  127. I can download forms and whatnot, but I’m still either confirming that they’re the right forms with all of the conditions by myself, or having my lawyer take a look at them.

    Ok, fine, that’s your choice. I’ve signed legal documents without a lawyer many times, including for my mortgages. I read it for any “gotchas” and sign. No problems.

    Still, a small price to pay for solving this issue once and for all.

  128. David Gest and Liza Minelli

    Which resulted in the greatest, most horrible picture of all time.

    How can you not appreciate this, joe?

  129. One problem with the standard contract is third parties have come in and had them overturned by activist-judges who do not like TEH GAYS. There are a multitude off stories of parents of gay and lesbians challenging wills and trusts to get the money left to the partner or even prevent partners from caring for each other, hospital visitation rights, etc. This occurs even when the parents have been estranged for many years

  130. robc,

    I have already offered a number of rebuttals to Just from a pure logic standpoint, the law allows anyone to take a spouse of the opposite sex, even gays. Therefore, it is not discrimination to ban gay marriage.

    To repeat, the condition that the person be of the opposite sex discriminates against those who would take a spouse of the same sex, just as a law limiting the publication of editorials to publishers of the same race of the columnist discriminates against publishers with differently-hued writers.


  131. A soundtrack featuring the Indigo Girls?

    joe just described Hell.

  132. then they sue you for a hate crime after they have the AIDS Walk pin guys from Seinfeld beat you up

    I assume that makes them happy.

    And who knows, maybe it makes me happy too.

    Okay, ick.

  133. JW,

    I’ve bought houses, too. You want me to have to go through a process like that, instead of getting a marriage license, to “solve this problem once and for all.”

    What problem? What problem is solved by making marriage more paperwork-intensive and/or open to mistakes and misinterpretation?

  134. I know what a marriage is. I’ve seen how it works. Two men who love each other and form a family works just like a marriage, and a man and a woman putting on a show does not.

    What about shotgun marriages?

    The problem with the whole “I know what marriage is” is that you may know what it is, to you, but just because you think marriage requires love doesn’t mean that loveless marriages are inherently shams (if that’s the case)

    People get married for lots of reasons (financial incentives, taking advantage of rights bestowed upon spouses etc). What makes those marriages — ones that are based on two parties entering into the contract of marriage for reasons other than their undying love for one another – a sham?

    There is no such thing as an illegitimate or a sham marriage, unless one of the parties was deceitful to the other or didn’t consent to it.

  135. Well, the good thing about L-pr0n is they wear spike heels and hot outfits, instead of Rebocks, turtlenecks and mullets.

    Wow, Reeboks and turtlenecks and mullets? Those are some fancy dykes. In my neck of the woods, the slit-lickers shave their heads, wear combat boots and, underneath 50 pounds of arm flab, have enough hair to comfortably nest a family of dachshunds.

  136. Someone: What about if a brother and sister want to get married?

    Jamie Kelly: The state has an interest in not having a race of low-IQ inbreds.

    What if a sister and a sister want to get married? They can’t produce inbreds.

  137. In my experience, it’s the bis that are hot.

    True, but not always. A good friend of mine who is a lesbian has a smoking hot gf, who is strictly off the dude menu.

    She keeps raving to me about about the “L Word.” Not to many mullet types on there from what I understand. ‘Couse, not many actual lesbians either, but I think that’s the rub, so to speak.

  138. joe,

    If the word marriage means something like “a union between two people of opposite sex” then it is fundamentally impossible for something to take a spouse of the same sex. The definition of a word cant be descriminatory, it just means what it means. And, yes, word meanings change over time, but the concept that the word is mapped to doesnt. We just have a new word mapping.

  139. ChicagoTom,

    People in a true shotgun marriage can get an anullment lickity-split. If you have not consented freely, the marriage isn’t real.

    just because you think marriage requires love doesn’t mean that loveless marriages are inherently shams You don’t have the right to happiness; you have the right to the PURSUIT of happiness. You might not get there.

  140. something

    someone. Really, I didnt mean anything with that. Yeah, yeah, call it Freudian all you want.

  141. Nobody has addressed the apartheid of the Metal People yet.

  142. What if a sister and a sister want to get married?

    America, fuck yeah!
    Next question.

  143. What if a sister and a sister want to get married?

    If they are HOT twins can you imagine the revenue their movies would generate?

  144. I’ve bought houses, too. You want me to have to go through a process like that, instead of getting a marriage license, to “solve this problem once and for all.”

    Why do you keep assuming that it will be like a closing on a house? My point is that I’ve signed far more complex contracts without the need for a lawyer.

    What problem? What problem is solved by making marriage more paperwork-intensive and/or open to mistakes and misinterpretation?

    I thought that was pretty clear: the problem of the state saying who gets to be married and who doesn’t. I get your point, but I don’t agree with it. That said, I see the state getting out of the marrying bidness about as likely as gay marriage actually becoming legal.

    Getting the state out of the business is a neater solution, one that renders the bigots moot.

    Of course, forces looking to void contracts on the basis of violating “public policy” for the last couple decades, because they don’t like the ideas behind certain contracts, have screwed that avenue up as well.

    If you support the idea that gays should be able to marry, going the contact route is the only that is going to work. That or making it strictly a domain of churches, not that I do, but it gives everyoner a choice. You don’t like that your church is marrying gays? Too bad. There’s another church down the street that doesn’t. Have fun.

  145. There’s another point here that hasn’t been made: why marry at all?

    My best friend and his “wife” have 3 kids and have bought 2 houses together and never married. They’re cool with that.

    I understand that marriage brings certain rights that unmarried couples don’t have, but the free market has been doing a decent job of addressing that issue. Many large companies have medical coverage that extends to domestic partners of any type. Smaller companies may have that as well, they just don’t make the news.

  146. SAT time:

    A man having a choice between marrying a white woman or a black woman is to a man having a choice between marrying a woman or a man.

    FALSE

    It just isn’t the same. “Loving” does not apply. Race is basically a social construct. The law is right to make distinctions on the law based on race.

    The sexes are not a social construct. The sexes describe a real thing. It is OK for the law to make distinctions based on sex.

    Therefore, this whole thing has nothing to do with equal protection. Everyone has the same protections. Gays have always been allowed to marry. Everyone plays by the same rules. Heterosexual guys can’t marry guys. Homosexual guys can’t marry guys.

  147. David Gest and Liza Minelli…How can you not appreciate this, joe?

    Uh, Epi, in my experience it’s only gay men of the more flamboyant and effeminate sort who fixate on Minelli. Just sayin’

  148. A social construct implies you can change your position in that society. You cannot change your race or your sexual orientation. So, your argument fails.

  149. JW,

    There’s another point here that hasn’t been made: why marry at all?

    Scroll up. Several of us point that out when this topic comes up.

  150. only gay men of the more flamboyant and effeminate sort

    Is that the new way of saying “flaiming”?

  151. Everyone plays by the same rules. Heterosexual guys can’t marry guys. Homosexual guys can’t marry guys.

    Fundamentally, I’d say that not being able to marry someone you love is a categorical denial of the right to “the pursuit of happiness”.

  152. Kwix-

    So fucking what and who cares? Who are you to tell others what they can and cannot do so long as it isn’t coercive?

    Unfortunately, a “six-way” marriage means there are five spouses (spice?) that are “coercing” me for their Socialist InSecurity “survivor” benefits.

  153. Jeff: A social construct implies you can change your position in that society. You cannot change your race or your sexual orientation.

    1) That does not follow. If I create a social construct separating people into whozits and whozats, you can’t change your status as a whozat, but who cares? It is a social construct.

    Plus, no one is asking anyone to change thier “sexual orientation.”

  154. Uh, Epi, in my experience it’s only gay men of the more flamboyant and effeminate sort who fixate on Minelli. Just sayin’

    I am guessing that you totally missed the point of that post. Oh well.

  155. Sadly, this ruling has come a bit too late.

  156. five spouses (spice?)

    I didn’t think it was possible to shoot snot out of my nose onto the monitor

  157. All this talk of activist Judges is a load of crap. As Andrew Sullivan has pointed out, the California legislature twice approved gay marriage but had it vetoed by Schwarzenegger. So that disposes of the judicial “activism” hogwash.

    And why are people so upset over this? A number of other countries, including my own (Canada) has legalized gay marriage and the sky has yet to fall.

  158. Scroll up. Several of us point that out when this topic comes up.

    Yeah, I know, but they were ignoring the genius that was Frasier.

  159. My issue here isn’t gay marriage itself, but how liberals are all for democracy and the will of the people, so long as the people do exactly as they say. If they don’t, they’ll demand unelected judges overturn the will of the people rather than doing the right thing and proposing a ballot initiative to overturn the previous one.

  160. Hey, what’s up with the foreign bride ad at the top?
    WTF are they trying to say about the regulars here?
    I’m married, for fuck’s sake. Granted, I did get here out of a catalogue …

  161. Unfortunately, a “six-way” marriage means there are five spouses (spice?) that are “coercing” me for their Socialist InSecurity “survivor” benefits.

    Another Stockholm libertarian eh?

    “People who live past 70 are coercing me for Medicare. Let’s deny them their right to life”

    “Immigrants may (or may not) be draining Social Services at my expense. let’s build the Berlin Wall and deny fundamental freedom of movement”

    “Every new baby born is represents another Socialist InSecurity Account. The solution, of course, is to deny sexual liberties.”

    Stockholm Libertarians want the Revolution and nothing else. No incrementalism; no thought…just reflexive, axiomatic formulations.

  162. My issue here isn’t gay marriage itself, but how liberals are all for democracy and the will of the people, so long as the people do exactly as they say. If they don’t, they’ll demand unelected judges overturn the will of the people rather than doing the right thing and proposing a ballot initiative to overturn the previous one.

    Yo, dude, you’re not arguing with a bunch of liberals, so turn off Hannity.

    “The will of the people” can mandate a bunch of totalitarian, unconstitutional nonsense and should be thwarted whenever possible.

    “Ballot initiatives”? Do you so-called ‘conservatives’ like yourself think that fundamental human rights are subject to the whims of 50 + 1?

  163. Sadly, this ruling has come a bit too late.

    sheesh, I pay so little attention to this stuff that I didn’t realize Jodie Foster was actually gay. Thought it was all just a bit of an urban speculation.

    [facepalm]

  164. Yes, mob rule is certainly preferable.

    Yes, it is.

    At least with mob rule, laws would somewhat reflect social attitudes.

    We all know what happens when laws are in direct opposition to social attitudes; look up Prohibition.

  165. “The will of the people” can mandate a bunch of totalitarian, unconstitutional nonsense and should be thwarted whenever possible.

    “Ballot initiatives”? Do you so-called ‘conservatives’ like yourself think that fundamental human rights are subject to the whims of 50 + 1?

    Same-sex marriage is not a fundamental human right any more than polygamy is.

  166. As Andrew Sullivan has pointed out, the California legislature twice approved gay marriage but had it vetoed by Schwarzenegger.

    Sullivan conveniently forgets to mention Proposition 22.

  167. Yes, it is.

    At least with mob rule, laws would somewhat reflect social attitudes.

    Laws aren’t supposed to reflect “social attitudes”. This is a nation of Laws, not of Men…an ever-shifting standard of law that rests on The Herd’s range-of-the-moment, fickle prejudices would be bloody chaos.

  168. Same-sex marriage is not a fundamental human right any more than polygamy is.

    Says who? And who are you to dictate?

  169. There is an argument that widespread polygamy tends to lead to a lot of violent single men forced to complete for a small number of available women, but I’m not sure there’s any evidence that applies to liberal democracies.

    Under polygamy, married women would be available.

  170. Says who? And who are you to dictate?

    It was never thought of as a right at the time of the adoption of the fourteenth amendment, nor did those classical philosophers ever describe same-sex marriage as a right.

  171. Indeed, the primary reason for which I authored the Defense of Marriage Act in 1996 was to ensure that each state remained free to determine for its citizens the basis on which marriage would be recognized within its borders

    erm, well, whatever, Bob Barr. Apparently you don’t understand the words “full faith and credit” very well, do you?

    If I have to go to the courthouse and get a marriage licensce and have the ceremony overseen by a public official, how is that *not* a “public actm, record [or] judicial ruling”?

  172. Laws aren’t supposed to reflect “social attitudes”. This is a nation of Laws, not of Men…an ever-shifting standard of law that rests on The Herd’s range-of-the-moment, fickle prejudices would be bloody chaos.

    And in this nation, men decide what the law is via a legal process. Other nations rely on a pope or a panel of mullahs to make laws.

    A court ruling is not going to make the people of California accept same sex marriage any more than Prohibition made the people of California reject alcohol consumption.

  173. It was never thought of as a right at the time of the adoption of the fourteenth amendment, nor did those classical philosophers ever describe same-sex marriage as a right.

    And…? I see an appeal to authority in there (classical philosophers) and an appeal to history (these old dudes in the 1800s didn’t think of gay marriage).

    If my driver’s licensce is recognized in other states…if my child support decision is recognized in other states…why isn’t my marriage licensce recognized as such?

  174. A court ruling is not going to make the people of California accept same sex marriage any more than Prohibition made the people of California reject alcohol consumption.

    Too…damn…bad. I’m sure there were idiots like you saying “Brown v. Board of Education won’t get people to accept blacks in their schools!”

    So what? Rights are not subject to people’s fickle prejudices.

  175. And in this nation, men decide what the law is via a legal process. Other nations rely on a pope or a panel of mullahs to make laws.

    Oh, and I forgot…also, in this nation, men have instituted an independent judiciary to ensure that the legislative process does not trample those rights Government is commissioned to protect.

  176. Too…damn…bad. I’m sure there were idiots like you saying “Brown v. Board of Education won’t get people to accept blacks in their schools!”

    It took the efforts of people like Martin Luther King, Jr. to win the hearts and minds.

  177. So what? Rights are not subject to people’s fickle prejudices.

    True, but fickle prejudices determine how successful legislation can be.

    Look up Prohibition.

  178. Good for CA. Gays should be able to marry if they want to.

    I got no problem with that. My question is whether the California Court has tried to rewrite the marriage statutes in California.

    If the California Court believes that a definition of marriage as being between a man and a woman (which is how the California statutes describe it) is unconstitutional, then its only legitimate recourse is to invalidate the statute in toto. You will note that the Virginia statute in Loving v. Virginia did not pose this problem, as it did not include multiple references to marriage as being between persons of the same race.

    This, of course, would mean that no one can get married in California until a new statute was put on the books. The California Court does not have the authority to enact a new statute; only the legislature does. A political shitstorm from hell? Sure. Nobody said it would be easy.

    I’ll be very interested to read the opinion, and see what the California Court actually did. I’m sure they didn’t strike the whole statute as being fundamentally flawed, but given the way its drafted I can’t see how they could ‘amend’ it to allow gay marriage, either.

  179. Same-sex marriage is not a fundamental human right any more than polygamy is.

    you must have forgotten that government is not a rights-granting agency, defining what we can and cannot do. Governments are instituted among us to protect rights.

    It took the efforts of people like Martin Luther King, Jr. to win the hearts and minds.

    B v. BoE was decided in 1954. Mr. King was still getting his doctorate in Boston.

  180. Michael Ejercito…with regards to Prop 22. Cannot the legislature overturn bad law? Also, society has changed since prop 22 and at least in today’s California, it is questionable whether it would pass.

  181. All this talk of activist Judges is a load of crap. As Andrew Sullivan has pointed out, the California legislature twice approved gay marriage but had it vetoed by Schwarzenegger. So that disposes of the judicial “activism” hogwash.

    Err, no. The California Court is not authorized to usurp the authority of the governor and invalidate his veto. The fact that a statute was passed by the legislature but vetoed does not give the Court the authority to enact the statute.

  182. “We all know what happens when laws are in direct opposition to social attitudes; look up Prohibition.”

    Ah, yes. But you realize that only includes prohibition of alcohol. The widely supported prohibition of drugs is a roaring success.

    The fact is you often cannot count on majorities to protect the rights of minorities.

    And The idea that the founders cared for majority rule is ridiculous. The founders were largely elitist and believed in rule by the propertied, the rich, and the educated. Most men couldn’t vote until Andrew Jackson extended the franchise.

  183. We all know what happens when laws are in direct opposition to social attitudes

    Whose social attitudes? Yours? Mine? Bob’s? Jim Crow’s?

    Look up Prohibition.

    I’d rather avoid Prohibition to begin with then to have yet another failed experiment at tyranny through democracy.

    What is so hard about people just minding their own goddamned business? I’ll worry about my own social attitude. You worry about yours.

  184. “Err, no. The California Court is not authorized to usurp the authority of the governor and invalidate his veto. The fact that a statute was passed by the legislature but vetoed does not give the Court the authority to enact the statute.”

    Obviously, you’ve never heard of the principle of separation of powers. The american government is based on the principle of a legislature, an executive, and a judiciary. The idea is that none of the three can dominate the other. If the judiciary displeases the executive and legislature, they’re welcome to try and pass an amendment to the constitution. Otherwise, they have the power to review the constitutionality of laws. The judiciary is not supposed to be a rubber stamp. In this case, both the judiciary and the legislature support same sex marriage, so it only makes sense for it to go through.

  185. “Governments are instituted among us to protect rights.”

    Governments are instituted among us to infringe upon rights.

    There, I corrected your typo.

  186. Helloooooooooooo people! These Republican judges didn’t make law – they declared that California’s Constitution prohibits a statutory ban on same-sex marriage. Thus, these are not activist judges – they are conservative judges. Howdja like THEM apples?

  187. 1) What happens if that attempt to change the California Constitution gets on the ballot and goes through? Would gays take to the streets and freak out, or would they just accept it and go back to the status quo ante? Doesn’t this decision change everything regardless of whether it stays in force or not?

    2) The Defense of Marriage Act prevents American gays from marrying a foreign partner and bringing them into the country, so the court decision doesn’t introduce FULL marriage equality. I know this because I’m sitting up here in Canada carrying on a long-distance relationship with my US boyfriend. Which reallllly sucks, I have to tell you.

  188. The California Supreme Court’s Opinion is available at Hunting Sitting Ducksfor those of you strong enough to read all 170-odd pages of it.

  189. The supreme court was put in place to limit the freedom of government. The sad truth is that, no matter what the issue, the court has now resorted to limiting the freedom of the people to vote for something that was always common sense before people lost that. The California Supreme Court has now overruled the people of California for the first time in history. What precident does this set for REAL issues.

  190. Why didn’t that polygamist dude in Texas move to California.

    His wives could marry each other and he can see girl on girl action!

  191. This is just plain wrong. What did the gays ever do to anybody to deserve marriage?

  192. I don’t think bad spellers should be able to marry. Actually, I don’t think they should be able to do anything, and I’m glad the gay elites are making fun of them

  193. Michael Ejercito…with regards to Prop 22. Cannot the legislature overturn bad law?

    Yes, they can.

    Once it passes, the matter goes to the ballot.

    Also, society has changed since prop 22 and at least in today’s California, it is questionable whether it would pass.

    Same-sex marriage bans win overwhelmingly at the ballot every time.

    And there was a legislative ban on same-sex marriage in California, passed in 1977 by an overwhelmingly liberal Democratic Legislature and signed by a liberal Democratic governor.

  194. In my email making fun of bad spellers who are against gay marriage, I left out a period at the end of a sentence. I did that because if two gay men marry, there is no period. My post was poetic, not flawed by error.

  195. Go back to your shitty MySpace, Michael Ejercito…you are way in over your head.

  196. Same-sex marriage bans win overwhelmingly at the ballot every time.

    Every time? Care to put your next paycheck on that, asshole?

  197. A_R,

    erm, well, whatever, Bob Barr. Apparently you don’t understand the words “full faith and credit” very well, do you?

    I was wondering something about that and suppose you and some others here could expand on.

    If I purchase and register a vehicle without fenders or bumpers, in a State where it is legal to do so, and then drive it to a State where it is not legal to operate a vehicle without fenders or bumpers, how am I exempt from being ticketed? To avoid confusion, let’s say the offended State is one that has “junker” laws where it is illegal to have that vehicle on that state on private property either.

    To head off one side argument at-the-pass, I am aware that the offended State can not suspend or revoke the operator’s license of the offender, but his licnsing State can if they recognize the infraction from the other State.

    The point of this is that there are all sorts of things one can do in one State that are not recognized in other States and tossing about “full faith and credit” seems to cloud things to the point that, if it were valid as frequently used, there would be no need for Uniform Commercial Code and similar.

  198. Above example should read “legal do purchase and operate”

  199. Fundamentally, I’d say that not being able to marry someone you love is a categorical denial of the right to “the pursuit of happiness”.

    Ayn Randian FTW.

    That may be why Barr wrote DOMA, but it certainly isn’t how he and his buddies campaigned on it.

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