Gay/Lesbian Issues

The Culture War Over Gay Marriage is Here to Stay

California, Iowa, and Vermont are only the beginning

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The recent Iowa State Supreme Court ruling legalizing same-sex marriage, followed by the Vermont state legislature's vote to extend full marriage rights to same-sex couples and to override the Republican governor's veto of the bill, have brought the gay marriage issue back into the spotlight. These new developments have also created the sense that, despite the recent setback in California where voters narrowly approved a constitutional amendment defining marriage as a male-female union, the same-sex marriage movement has time and momentum on its side. While this may well be true, it also means that we are in for another long and bloody chapter in America's culture wars.

On one side in this war is the American tradition of equality. Once proponents of same-sex marriage were able to frame the issue as one of equal rights, they became a virtually irresistible force. The appeal to equality has a deep resonance in a country whose founding document opens with the assertion that "all men are created equal." The knowledge that this basic principle was violated for a very long time with regard to blacks, women, and other disenfranchised groups makes most Americans all the more sensitive to demands for equal treatment.

To this, one can add another strong American tradition: separation of church and state. Objections to same-sex marriage are couched mostly in terms of religious faith, and the imposition of private religious beliefs on individuals who may not share them strikes most of us today as fundamentally un-American. Also on the side of same-sex marriage supporters is the conviction that how we govern our intimate relationships is a fundamental matter of privacy and freedom. Then there are the powerful narratives of gays and lesbians denied legal protection for their relationships: men and women kept away from a dying loved one, or treated as mere roommates of a deceased partner and losing their joint property. The sight of gay and lesbian couples on the news, celebrating their legal nuptials after being together for thirty years and more, probably played a major role in the growth of pro-gay marriage sentiment.

On the other side is the equally powerful American tradition that gives faith a central role in civic life. Even aside from the traditional Judeo-Christian condemnation of same-sex sexual relations as sinful, the belief that marriage is a fulfillment of God's purpose of bringing men and women together for the task of creating future generations is central to most religious belief.

In the case of abortion, something of a compromise has been achieved by guarantees that no taxpayer money may be used to subsidize abortion services: in this way, people who oppose abortion do not have to feel they are giving it their sanction. Yet marriage, especially for traditionalists, amounts to giving a union the approval of the community—including, implicitly, their own. Indeed, many gay advocates concur: to them, the goal of marriage, rather than civil unions or domestic partnerships with most of the same legal rights, is full cultural acceptance. And, while no one suggests that churches opposed to same-sex marriages could be required to perform them, other thorny conflicts between religious liberty and gay equality have already arisen (for instance, should a Catholic adoption agency that has a contract with the state be forced to place children with gay and lesbian couples?).

There is no question that religion has often been used to promote virulent hatred and contempt toward gays. Yet traditionalist objections to same-sex marriage include not only religious scruples but concerns about the consequences of sexual liberation that are shared by many people on secular grounds—concerns about a cultural environment in which 40 percent of children are born out of wedlock and half of all marriages end in divorce. Is it bigoted to believe that it is ideal for children is to have a mother and a father, or to worry that same-sex marriage will further uncouple marriage from childbearing and thus make it far harder to answer the question, "Why wait for marriage before having children?" Traditional views that stigmatize divorce and single parenthood and emphasize complementary male/female roles in the family have been losing ground for some time (for better and worse); but, until now, they have not been equated with bigotry and thus implicitly declared beyond the pale.

Today, traditionalists complain—with some cause—that their valid concerns are being dismissed and that the other side rejects all compromise. But same-sex marriage foes are hardly free of blame for the bitterness and polarization in this debate. Not many of them have spoken out against truly hateful anti-gay rhetoric, such as comparisons of gays to pedophiles or practitioners of bestiality. For the most part, when they have advocated civil unions and other legal protections for same-sex partnerships, it has been a grudging tactical acceptance to avoid the dreaded alternative of gay marriage.

The level of acrimony is likely to rise in the coming years, as more states legalize same-sex marriage and Congress tackles the Defense of Marriage Act which exempts same-sex unions from interstate or federal recognition. This culture war is here to stay.

Cathy Young is a contributing editor at Reason magazine. This column originally appeared at RealClearPolitics.com.

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141 responses to “The Culture War Over Gay Marriage is Here to Stay

  1. I am on the gays sid ei this issue. Marrige is a religious ceremony, so it will not be talked about, as the goverment has no say in it. Now civil unions, which is a marrige under the law, should not be restricted to any religious value. so if 2 people, want to set up as a family unit they should be confered all the backwards tax benifits that a “married” (civil union) man/wife has. i say backward, because married should actually pay more taxes, and tax breaks should go to the people that can keep it in thier pants. But, let them “marry” what buisness is it mine yours or anyone elses what they do in thier own private homes.

  2. There is no question that religion has often been used to promote virulent hatred and contempt toward gays. Yet traditionalist objections to same-sex marriage include not only religious scruples but concerns about the consequences of sexual liberation that are shared by many people on secular grounds-concerns about a cultural environment in which 40 percent of children are born out of wedlock and half of all marriages end in divorce. Is it bigoted to believe that it is ideal for children is to have a mother and a father, or to worry that same-sex marriage will further uncouple marriage from childbearing and thus make it far harder to answer the question, “Why wait for marriage before having children?” Traditional views that stigmatize divorce and single parenthood and emphasize complementary male/female roles in the family have been losing ground for some time (for better and worse); but, until now, they have not been equated with bigotry and thus implicitly declared beyond the pale.

    These arguments would come close to making sense if there was nearly the same groundswell against divorce, single parenthood and recreational sex.

    They would actually have merit if there was some sort of link between loving gay couples getting married and straight couples devorcing, beyond “god doesn’t like either.”

    The real opposition to gay marriage begins and ends with “gays are icky.”

  3. ANd i will say the courts have it right. even in a democracy the majority must obide by the rights of the minority. if majority ruled, this country would not be here today. it is a rep republic. yes the majority does rule in most sitiuations. but, the majority can not infringe on others rights, no matter how small the minority or how large tha majority be.

  4. These arguments would come close to making sense if there was nearly the same groundswell against divorce, single parenthood and recreational sex.

    _______________________________________________
    all of the examples are morality based on religion. the social stigmas are lessing, because religion is lessing, finally. i have no problems with divorce, more couples should, it would save a hell of a lot of domestic violence because god doesnt want me to leave him, we made a vow. some children are better off with a single parent, if the other parent was a deadbeat. and rec sex. that is religously stigmatized as well. now, not to say that religion does not have some things right. the reason for the man/woman commited is a simple health issue. before antibiotics, one who was permiscuus ran a great risk of stds, and death. the waiting til marrige was to ensure everyone stayed healthy. actually health reasons are behind most relogious dogmas

  5. some jewish examples.
    dont eat shellfish, ever tried to transport shelfish across a dessert, yuck, they would spoil.
    dont eat pork. = trichnosis
    ok thats just 2 but i have to get back to work. feel free to add more, lol

  6. Personally, I have a problem with divorce in most cases, but I keep that to myself and I don’t have the slightest inclination to put my religiously informed morals on a very personal issue in the code of law.

  7. Tony Randall and Jack Klugman proved that gay marriage works just fine more than 35 years ago.

  8. The thing that fascinates me is how some churchgoers allow for divorce and premarital sex and other sins in the congregation but when it comes to homosexuality, they have pure hate in their actions toward gay people. Absolute hatred. I fail to see the godliness in hate.

  9. I don’t get some of the Reasonites attitudes on this.

    Jacob Sullum had an OP/ED in my local newspaper this morning about this as well.

    He is basically arguing that the court shouldn’t be overturning the will of the majority.

    Just because back in the old days “equal protection” didn’t mean protecting negroes or gays from persecution, doesn’t mean the old days were correct.

    And the courts do have a duty to interpret the constitution and strike down the will of the majority if they feel that it restricts the rights of minorities. In fact, that is the most useful aspect of the judiciary…acting as a check on majority rule when the majority tries to limit the rights of the minority.

    I welcome the judiciary conferring more protection and more rights on people…even if that isn’t the way it was historically understood. Giving more people more rights (and limiting the ability of people to curb the rights of others) is a great thing, and I hope the courts do more and more of it.

  10. Must all Cathy Young columns follow the same tired formula?

    “Here are side A’s completely valid arguments, and here are some of side B’s completely valid arguments.

    “On the other hand, here are some of side A’s demerits, which I will now compare with roughly equivalent shortcomings of side B.”

    Seriously, if Ms. Young has no ability to actually weigh the relative merits of two arguments and, consequently, no real opinions about anything, why keep running her columns? None of this is news, after all.

  11. What is it with Reason and its constant assertions that Bert and Ernie were gay? Ridiculous! I’ve heard from a very reliable source that Bert used to snort blow off of female hookers with some buddy of his named, um, Yohama or Obama or Osama or something like that. He’s not gay.

  12. The thing that fascinates me is how some churchgoers allow for divorce and premarital sex and other sins in the congregation but when it comes to homosexuality, they have pure hate in their actions toward gay people. Absolute hatred. I fail to see the godliness in hate.

    It’s ironic to me that many of these people are Christians, but prefer the fire and brimstone/”sinners in the hands of an angry god” messages of the old testament rather than the “Love others as well as you love yourself.”, “Do unto others as you would have them do unto you”, “Let him who is without sin cast the first stone.” messages of love acceptance and understanding of Christ in the New Testament.

  13. Hmmm. Bert looks like he catches to me.

  14. “The real opposition to gay marriage begins and ends with “gays are icky.””

    Is that why you oppose it so strongly?

  15. These arguments would come close to making sense if there was nearly the same groundswell against divorce, single parenthood and recreational sex.

    Back when those issues were actually in play there was a lot of public opposition from social conservatives. Within conservative evangelical and Catholic circles those issues are still decried, though there’s not a lot of political stuff that can be done about them.

  16. I’m sorry, max hats, I confused you with that world famous homophobe, queer basher Mad Max. My bad and again, my apologies.

  17. Within conservative evangelical and Catholic circles those issues are still decried, though there’s not a lot of political stuff that can be done about them.

    Aside from some bloviating about Murphy Brown and some sermons, not nearly.

    Restricting divorce by legislation would be simple. Yet restrictions on divorce have never become the political issue that bans/legalization on/of gay marriage have. Where are the multi-state election year campaigns to pass restrictions on divorce? Where is the millions from mormons? Where is talk radio? Where is NOM?

    as an asside:

    Is that why you oppose it so strongly?

    what?

  18. posted my previous before the bell – no worries, Posthensile.

  19. Republican governance rejects democracy. Period. Its all about enhancing the primacy of free markets, free minds and individualism.

  20. “He’s not gay.”

    That’s right. I’m just bi-curious.

  21. Chi Tom, I don’t mind the angry God of the old testament. But I try to keep in mind that if go through life claiming Christ is my saviour while carrying a raging hatred toward gays, it’s that nasty side of God that will be my eternity. If the law of the land says they can marry, then I am to obey that law. I have more important things to do to further God’s kingdom then to worry about who marries whom.

  22. It’s ironic to me that many of these people are Christians, but prefer the fire and brimstone/”sinners in the hands of an angry god” messages of the old testament rather than the “Love others as well as you love yourself.”, “Do unto others as you would have them do unto you”, “Let him who is without sin cast the first stone.” messages of love acceptance and understanding of Christ in the New Testament.

    The same Jesus who gave those messages of “love and understanding and acceptance” also said that lusting after a woman was equivalent to adultery and said that most people would wind up in hell no matter what. Perhaps — just perhaps! — the NT and OT are more complex than you give them credit for.

  23. Although I have often disagreed with him, Mad Max is not a homophobe. Let us be fair and balanced.

  24. “Its all about enhancing the primacy of free markets, free minds and individualism.”

    THOSE BASTARDS!

  25. ChicagoTom,

    From Calvin & Hobbes: “But Calvin is no kind and loving god! He’s one of the old gods! He demands sacrifice!”

  26. I don’t mind the angry God of the old testament.

    I seem to recall someone in the New Testament angrily busting up a public marketplace or two and hurling incendiary rhetoric at the religious powers that be who were complicit in the watering down of their faith. Must have been a flashback from the OT, I guess.

  27. “Although I have often disagreed with him, Mad Max is not a homophobe. Let us be fair and balanced.”

    Bullshit:

    Mad Max | April 15, 2009, 7:12am | #

    From the article:

    ‘If courts can reach “a new understanding of equal protection” that renders invalid heretofore constitutional laws, they also can reach a new understanding of the First Amendment, allowing restrictions on political speech in the name of fighting corruption, or the Commerce Clause, allowing the federal government to intervene in areas previously reserved to the states or the people.’

    Establishing ‘gay marriage’ is another example of using illegitimate means to reach an illegitimate end.

    Marriage has already received several serious wounds, in the form of unilateral divorce on demand (which is allowed in most states) and the equalization of marital and nonmarital relationships. The establishment of gay marriage can be compared to going around the battlefield and shooting the wounded. Marriage has already suffered numerous defeats in this country, and the same-sex farce is simply adding insult to injury.

  28. Guys, Matthew, Mark, Luke and John are bereft of any references to homosexual marriage. If Christ thought that gay marriage was profligate, he would have said so.

  29. See, to Mad Max, gay marriage is “a defeat”. An “illegitimate demand”. An “insult”. “Farce” was used later in the thread.

  30. But I try to keep in mind that if go through life claiming Christ is my saviour while carrying a raging hatred toward gays, it’s that nasty side of God that will be my eternity.

    I’m not sure such a person would even spend eternity with any side of God, especially if such hatred was willfull. However I don’t think most opponents of gay marriage fall into this category.

    If the law of the land says they can marry, then I am to obey that law.

    It’s not a question of obeying the law. The law can say what it wishes, but in my own personal dealings I don’t have to accept that gay “marriages” are truly marriages.

  31. “Guys, Matthew, Mark, Luke and John are bereft of any references to homosexual marriage. If Christ thought that gay marriage was profligate, he would have said so.”

    And would he have hung around with all of those fellas?

    You know Paul (the St. guy) wrote that it was better for men not to even marry women, and yet you’d be hard-pressed to find a denomination that advocatated not Marrying.

    The Shakers are gone,
    And those who saw the Shakers are gone.
    All that remains is some nice furnature and cabinetry.

  32. Guys, Matthew, Mark, Luke and John are bereft of any references to homosexual marriage. If Christ thought that gay marriage was profligate, he would have said so.

    It also doesn’t say anything about indiscriminate aerial bombing of population centers, but that doesn’t mean Jesus was OK with this practice.

    For the simple-minded of the H&R community: no, I am not saying that gay marriage is equivalent to population warfare.

  33. it also means that we are in for another long and bloody chapter in America’s culture wars…
    Bloody? Is that hyperbole or some kind of threat? Or do you really think same-sex marriage opponents are out for blood?

  34. You know Paul (the St. guy) wrote that it was better for men not to even marry women, and yet you’d be hard-pressed to find a denomination that advocatated not Marrying.

    The Catholic Church is still of the opinion that the celibate life is more perfect than the married one. Not exactly a hard denomination to find, either.

  35. crimethink,

    point 1,I was speaking of eternity in hell.

    point 2, same here, but I’m not gonna stand on the corner with a big sign that says “God hates fags.”

  36. “The Catholic Church is still of the opinion that the celibate life is more perfect than the married one.”

    It is possible to do both.

  37. For the simple-minded of the H&R community: no, I am not saying that gay marriage is equivalent to population warfare.

    Isn’t it kind of, though? In its own way, I mean, isn’t it kind of?

  38. The same Jesus who gave those messages of “love and understanding and acceptance” also said that lusting after a woman was equivalent to adultery and said that most people would wind up in hell no matter what. Perhaps — just perhaps! — the NT and OT are more complex than you give them credit for.

    Actually they are not that complicated. The fact that so called believers have decided to pick and choose which teachings they are gonna follow and which ones they are gonna ignore doesn’t mean that the system is complicated…just that the followers are looking for ways to game the system.

    The gay marriage issue dovetails nicely with the Catholic hypocrites protesting Obama coming to Notre Dame supposedly because he supports abortion and stem cell research , but most of those same people (especially the cardinals) having no problem when Bush, who supports the death penalty and the Iraq war, (something both Jesus, and the Pope are against) speaking an ND.

    The faith isn’t complex…the contortions of the faithful trying and reconcile that faith with their preferred outcomes/actions is complex.

    By the way, Though shall not covet….that was a commandment right? The ones Moses brought back in the OT?

  39. but in my own personal dealings I don’t have to accept that gay “marriages” are truly marriages.

    No, and you don’t have to accept a woman’s equal right to vote, *either. You can go on and on about how terrible it is. But you have no right to physically stop her from doing so.

    *For the record, I think women are awesome, and I encourage all of them to vote, as often as possible, though preferably for libertarian-leaning candidates.

  40. but in my own personal dealings I don’t have to accept that gay “marriages” are truly marriages.

    Right sure…and I don’t have to accept your marriage as legitimate either or any heterosexual marriage.

    And my racist grandfather doesn’t have to accept interracial marriages as “truly” marriages either.

    But last I checked, gays weren’t clamoring for recognition from you or any religious nut. Just from the state who thinks that “marriage” is a contract that confers certain benefits to spouses.

  41. But last I checked, gays weren’t clamoring for recognition from you or any religious nut. Just from the state who thinks that “marriage” is a contract that confers certain benefits to spouses.

    Exactamundo. But they’ll be clamoring for the right to marry goats tomorrow, gosh darn it! Just you wait and see!

  42. I find this piece a bit too simplistic. I don’t think the culture war is going to be anything like abortion. When abortion was legalized the country split and the percentages on the respective sides has remained fairly constant over the years. Not so on gay marriage. There has been a large 10% shift in the last few years in favor. Add in those willing to have civil unions and the split becomes 2 to 1 in favor. Even about 25% of people who say they are evangelicals are in favor of gay marriage. And the number of young evangelicals in favor is even higher. Opposition is directly tied to age which indicates a shrinking opposition as the elderly die off.

    I can see that intellectual backwaters, like the South, will fight much longer. But New England will give in to gay marriage in the next couple of years. California needs another referendum to do so and it will do so then. Other Pacific and Western states will fall. Iowa may just stay as it is which can push Minnesota and Wisconsin that way.

    In political terms this is relatively rapid change and far more than I expected to see in my lifetime. It is one of the good trends for increasing human rights and liberties around. The rest — not so good.

  43. Exactamundo. But they’ll be clamoring for the right to marry goats tomorrow, gosh darn it! Just you wait and see!

    No, simians are next. The left will take Europe’s push to recognize that simians have “human” rights as the stepping stone to full marriage rights within the genus first. Then comes marriage amongst all mammals. Etc.

  44. Iowa may just stay as it is which can push Minnesota and Wisconsin that way.

    I bet Minnesota is so jealous that Iowa is actually more liberal than they are on an issue. I can see the Utne Reader essay now.

  45. “Intellectual backwaters?” The entire South? How enlightened a viewpoint that is!

    Meh. I don’t give a rat’s ass about this issue. I think it has been a wasted effort, for the most part, for gays, and it deals with an institution that has far too much involvement by the state as it is. And the opposition is correct about one thing–legalize gay marriage, and there’s no way laws against polygamy and other consensual “marriage” arrangements can stand. I don’t care much about that, either (my personal morals aside in this whole discussion), but I don’t see how courts can view it any other way.

  46. I think Cathy is dead on that this will become another bloody issue in the cultural war, especially if the state courts continue to over ride the will of the people and establish a new right to gay marriage. I’m also amazed at the anti-religious sentiments expressed here.

    As a Christian, I don’t believe in gay marriage and I don’t think I would remain in a church that sanctioned same sex unions. I think of my marriage as a contract between me, my wife and God.

    As A Libertarian, I want the state to get out of the out of the business of issuing marriage licenses. Instead they can grant a civil union contract to any couple (straight, gay, friends for life) that at wishes to apply. In other words get out of the business of marriage all together.

    You want to get married – go to the institute (religious or otherwise) of your choice.

    You want the legal rights to submit a joint tax reform, hospital visitation, right of survivorship etc. go to the state and get a civil union.

    Until we get some brave state legislatures who will remove “marriage” from the powers they grant and provide universal civil union, liberals will continue to side step the established legislative processes in the US and look to the courts for the easy solution of establishing a right to gay marriage. This was the flaw of Roe vs. Wade which has proponents of each side in cultural war 30 + years later.

  47. I find this piece a bit too simplistic. I don’t think the culture war is going to be anything like abortion.

    Agreed. I think that it’s also important to note that the Roe decision corresponded with the cusp of the 4th Great Awakening, and opposition to the legalization of abortion has followed the trajectory of this religious movement, which is itself dying.

    Without the religious fervor that fueled the culture war over Roe, I don’t expect a reignition of the culture wars over gay marriage.

  48. I have little to add to PL @ 4:36.

    While

    (1) I have absolutely no problem with courts overturning the will of the majority when there are clear Constitutional grounds to do so, and

    (2) I have no problem with either abortion or gay marriage,

    (3) I do not think there are clear Constitutional grounds for courts to overturn legislation outlawing abortion and gay marriage.

  49. (3) I do not think there are clear Constitutional grounds for courts to overturn legislation outlawing abortion and gay marriage.

    Interesting. You don’t buy the Equal Protection arguments?

  50. Until we get some brave state legislatures who will remove “marriage” from the powers they grant and provide universal civil union, liberals will continue to side step the established legislative processes in the US and look to the courts for the easy solution of establishing a right to gay marriage. This was the flaw of Roe vs. Wade which has proponents of each side in cultural war 30 + years later.

    Vermont has recognized same-sex marriages as a legislative action, not a judicial one.This is not uniformly a judicial movement, and I expect we are beginning to see a shift toward legislative appproval of gay marriages, at least in New England as New Hampshire and Maine are considering the issue.

  51. kinnath,

    If the Equal Protection argument is valid for gays, why not polygamists? Or people wanting to solemnize their incest? The truth is, a lot of this is just about what some of us are willing to tolerate in society, not about true “Equal Protection.”

    I’d have been much more sympathetic if the whole debate had stayed in the realm of freedom of contract, with the rights argument sticking with not allowing government to discriminate against gay unions and marriage. I think the gay advocacy groups made a strategic mistake harping on the word, “marriage”, because that leaks out of the legal debate into the moral and religious one.

  52. If the Equal Protection argument is valid for gays, why not polygamists? Or people wanting to solemnize their incest? The truth is, a lot of this is just about what some of us are willing to tolerate in society, not about true “Equal Protection.”

    I’ve argued in these threads before that the federal equal protection clause means that any collection of consenting adults must be allowed to form a legal marriage. The alternative is to strip the concept of marriage from all the laws of all the states — which is just fine by me.

    By the way, I also argued that the Iowa ruling was pretty narrow and probably did not support the argument that Iowa must recognize poly-marriage and other forms of marriage.

  53. Catholic hypocrites protesting Obama coming to Notre Dame supposedly because he supports abortion and stem cell research , but most of those same people (especially the cardinals) having no problem when Bush, who supports the death penalty and the Iraq war, (something both Jesus, and the Pope are against) speaking an ND.

    The Catholic Church does not consider the death penalty inherently immoral. Scripture and the Tradition of the Church both say that the state has the authority to execute wrongdoers who pose a threat to the community.

    The recent papal opposition to the death penalty is based on the idea that the death penalty was necessary in some cases due to the economics of former times but is not necessary anymore. This is an economic opinion, not a teaching on faith and morals, and is thus free to be rejected by faithful Catholics.

  54. By the way, I also argued that the Iowa ruling was pretty narrow and probably did not support the argument that Iowa must recognize poly-marriage and other forms of marriage.

    To clarify, I think the Iowa ruling is restricted to couples. However, laws prohibiting marriage between closely related adults (siblings, parents/children, etc) could be impacted by the ruling.

  55. I want to concur with Cameron, a zillion comments ago. Cathy Young’s columns are a waste of space and could easily be written by a piece of software. Talk about tired writing…she just pads and rehashes old headlines and stats in the most boring way imaginable, with no fresh or interesting ideas to break up the monotony. DUMP HER.

  56. kinnath,

    Right. Personally, I’m traditional enough in outlook not to care for gay marriage or legally sanctioned polygamy. But my politics make me accept that such things should be allowed between–and among–consenting adults. Some restrictions on who and what can get married can be consistent with a libertarian viewpoint–bans on marriage between adults and children, for instance.

  57. Some restrictions on who and what can get married can be consistent with a libertarian viewpoint–bans on marriage between adults and children, for instance.

    Agreed, I always say “consenting adults”. That implies that all participants are adults, are mentally competent, are not under duress, and covers all other qualifiers that would impact “consent”.

  58. “If the Equal Protection argument is valid for gays, why not polygamists?”

    I’m still appalled that we ever let teh gays get driver’s licenses. Gay drivers are destroying my straight driving privileges.

  59. Interesting. You don’t buy the Equal Protection arguments?

    I’m just not sold yet that marriage has some meaning that supersedes the legal definition, and that the overarching meaning of marriage is a union between any two consenting adults.

    Unless that is what marriage really means, then there is no Equal Protection issue, in my mind, because a state declining to approve gay marriage isn’t really restricting marriage per se, but rather is “merely” declining to adopt an expanded definition of marriage.

    Unless marriage really means a union between two adults of any sex, states are free to allow gay marriage, but not required to.

    By contrast, back in the Jim Crow days, marriage did not really mean a union between a man and a woman of the same race. The state had to add that “of the same race”, and in so doing imposed a restriction on marriage that was discriminatory.

    Pretty squishy, I know.

  60. I think the gay advocacy groups made a strategic mistake harping on the word, “marriage”, because that leaks out of the legal debate into the moral and religious one.

    I absolutely agree; however, the gay rightsers have been adamant in opposing civil unions that are the functional equivalent of marriage, because for them, this isn’t about (legal) rights, its about having gays fully accepted by society.

  61. The Catholic Church does not consider the death penalty inherently immoral. Scripture and the Tradition of the Church both say that the state has the authority to execute wrongdoers who pose a threat to the community.

    From the United States Congress of Catholic Bishops

    At the heart of Catholic teaching on the death penalty is the belief that “Human life is sacred because from its beginning it involves the creative action of God and it remains for ever in a special relationship with the Creator, who is its sole end?” (Catechism, No. 2258).

    Regarding the death penalty, the Catechism of the Catholic Church states:

    Assuming that the guilty party’s identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.

    If, however, non-lethal means are sufficient to defend and protect people’s safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity with the dignity of the human person.

    Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm-without definitively taking away from him the possibility of redeeming himself-the cases in which the execution of the offender is an absolute necessity “are very rare, if not practically non-existent” (#2267).

    I would assert that your take on the Catholic Church’s position is not quite right. They basically take the position that death is an appropriate punishment if there is no other way to prevent this person from causing harm to others (like if there is no police or jail to lock people up or if you are defending yourself or your family from someone that is threatening to kill you or your family) it has nothing to do with “economics” but rather it has to do with the ability to prevent someone from going on to harm others. So in fact, The Catholic Church is against the death penalty for someone who has been arrested and facing trial when life in prison would spare his life and still protect others.

    The Catholic church (and the Pope) also opposed the Iraq war, and viewed that as immoral…it also considers the death of civilians and human “collateral damage” pretty bad…and is anti-war in general, yet Bush wasn’t protested against.

    You can defend it until you are blue in the face but the idiots making a stink about Obama/Notre Dame and the bigger idiots trying to defend them are hypocrites plain and simple.

  62. The Reverend Feltcher,

    That’s where I was driving at. The weirdness in the marriage debate is that marriage (in the West) has long been defined as between a man and a woman. Even back in classic times, when homosexuality was generally accepted, I don’t believe anything other than the traditional view of marriage was legally recognized, except, of course, polygamy in certain times and places.

    Now for something like driving or owning property, a person’s viewpoints or genetic predispositions (like race or gender) don’t usually matter, unless the viewpoint were “I like to drive stone drunk” or the genetic predisposition was blindness. In other words, it would be a clear Equal Protection violation to prevent gays from driving.

  63. the gay rightsers have been adamant in opposing civil unions that are the functional equivalent of marriage, because for them, this isn’t about (legal) rights, its about having gays fully accepted by society.

    It’s actually about state sanctioned stigmatizing of once class of civil union, not forcing “society” to accept anything

    I thought the “separate but equal” argument had been resolved years ago.

  64. “In other words, it would be a clear Equal Protection violation to prevent gays from driving.”

    But I don’t care. I just want to be able to enjoy a gay free ride.

    Why just yesterday I was driven down the highway when this big old sissy boy pulled up along side of me, smiled big, winked, and then blew me a kiss. Goddam sissy boys. We need to get these fatherfuckers of the road once and for all.

  65. CT,

    That’s a fair point, but I don’t think it’s really at all analogous. I mean, how would a “civil union” be treated any differently under the law from marriage? And if a state went down the path of discriminating between the two, the courts would naturally strike down any laws reflecting that discrimination.

    It was only trying to redefine the word “marriage” that made this debate a major issue in the first place.

  66. Pro,

    So let the religions have “matrimony,” which is the word that means a union sanctioned by a deity. Marriage is a civil term.

  67. Why are Bert and Ernie’s rings on the wrong fingers? It’s driving me insane. The person who designed that poster really ought to have done a horizontal flip before adding the text.

    Yes, I’m very anal-retentive in as non-gay a way as possible.

  68. Jonas,

    Because they aren’t gay and the rings were photoshopped on? It’s no wonder that Bert joined al Qaeda.

  69. I’d argue under 14th Amendment jurisprudence sexual orientation is a suspect classification. Drawing upon the Carolene Products case: (a) sexual orientation is immutable; (b) there’s a history of discrimination based on sexual orientation; (c) realistically, anyone who is anything other than straight really doesn’t have good political representation and (d) the group is discrete and insular, (which is probably the toughest prong to document) Having established sexual orientation as a suspect classification, I would move to the other side of the coin, the state rationale.

    Assume a male-male and a male-female couple both seeking marriage rights. What’s difference? Well, just sexual orientation. All other rules stay the same – no animals, no polygamy, no incest, etc. This kicks in the tests regarding compelling state interest – so what is it here? The only legitimate argument for compelling state interest is animus against the group…

  70. You know, when they passed the Equal Rights Amendment those who passed it certainly did not understand it to require something like granting women the same voting rights as men. It took decades later for that to happen, and even those folks thought the 14th Amendment would not cut it so they proposed it in another Amendment! And, they did not think that it would require striking down miscegenation laws on the books at the time either…

    But surely if “equal protection of the law” to all citizens of the United States means anything sensible it means that women should not be barred from voting because of their gender or two people can’t marry because of their race.

    This is an illustration as to why the argument “well here are the specific applications of law x the drafters of the law expected would happen from its application” is the limits of the application of that law imo not a good way to construe a law.

    Instead we should take the text of the law, deduce what its plain meaning would require in any given application, and then apply that meaning.

    If they didn’t mean that the laws of the land should apply equally to all citizens then they really should not have written that…

  71. That’s a fair point, but I don’t think it’s really at all analogous. I mean, how would a “civil union” be treated any differently under the law from marriage? And if a state went down the path of discriminating between the two, the courts would naturally strike down any laws reflecting that discrimination.

    When interracial couples were finally allowed to marry in the states that forbid it, why didn’t they get a separate label that didn’t involve have “marriage” in it, or call it “inter-marriage” or something?

    It was only trying to redefine the word “marriage” that made this debate a major issue in the first place.

    I don’t agree with that at all.

    The people who think “marriage” MUST HAVE some gender specific meaning are the ones who are causing the problem.

    Either all non-religious unions are “civil unions” or they are all “marriages”. Whatever label the state chooses for its civil unions should apply to all who enter the contract.

    What is the state’s interest in giving marriages involving a gay couple a separate name if not to stigmatize them and distinguish them from “marriage” or to send a message that they are not quite the same? If they are the same thing, then they should go by the same name. Why have a separate but equal label?

    And I don’t agree that marriage is being redefined. What is happening is that restriction on who can join is being changed, but as far as the contract goes, that isn’t changing.

    But even if it were, so what? Lot of things get redefined over time. Why is marriage special?

  72. Agreed, I always say “consenting adults”. That implies that all participants are adults, are mentally competent, are not under duress, and covers all other qualifiers that would impact “consent”.

    Ironically, neither “consenting” nor “adult” have been a part of the traditional definition of marriage. In most states, one can still be married well before the age of majority.

  73. By contrast, back in the Jim Crow days, marriage did not really mean a union between a man and a woman of the same race. The state had to add that “of the same race”, and in so doing imposed a restriction on marriage that was discriminatory.

    Pretty squishy, I know.

    It is pretty squishy. Citizenship and voting rights, for example, were defined from classical Greece onwards as the sole provenance of men. The 19th amendment was, in a sense, a radical redefinition of roles at least thousands of years old.

  74. I can somewhat understand the religious arguments. But the so called traditionalists’ arguments are hypocritical and an intellectual embarrassment.

    Yet traditionalist objections to same-sex marriage include not only religious scruples but concerns about the consequences of sexual liberation that are shared by many people on secular grounds-concerns about a cultural environment in which 40 percent of children are born out of wedlock and half of all marriages end in divorce….

    Gays are not parading to streets for open sex and one night stands. Legally – anybody can do all this already. Gays marriage activists are among the few who actually promoting more family and relationship stability. They are part and not apart of the traditionalist movement.

  75. MNG | April 16, 2009, 6:30pm | #
    You know, when they passed the Equal Rights Amendment those who passed it certainly did not understand it to require something like granting women the same voting rights as men. It took decades later for that to happen, and even those folks thought the 14th Amendment would not cut it so they proposed it in another Amendment! And, they did not think that it would require striking down miscegenation laws on the books at the time either…

    There was question whether the 14th amendment guaranteed Blacks the right to vote, too. That’s why we have the 15th Amendment. Voting rights get complicated because the states have a lot of leeway in deciding how elections are conducted.

  76. Can 2 same sex heteros get married in Vermont

  77. Actually, I think that’s what the whole thing is about, rather than legalizing “gay marriage” these places are legalizing “same-sex marriages.”

  78. So to use the strange anti-gay marriage logic one hears sometimes you could say that the Vermont legislature hasn’t given gays anything, they just gave same sex couples something…

  79. Imagine two middle-aged people going to the court house to get a marriage license.

    Both people have children from prior, failed marriages. They get married to each other and join their households together. They live happily ever after until they both die gracefully a few days apart at very old ages. Their joint assets are then distributed to their heirs.

    Why does the gender of these two people have anything to do with how the law recognizes the rights and responsibilities of each spouse in this marriage?

    Why does the gender of these two people have anything to do with how the government taxes them?

    Why does the gender of these two people have anything to do with whether or not the government can compel one spouse to testify against the other in a trial?

    Why does the government care if both spouses have penises or both have vaginas instead of there being one of each?

    Why does it matter?

  80. Why does it matter?

    Furthermore, why is there controversy about this subject on a definitely-not-overrun-with-wingnuts libertarian site?

  81. As always in these threads, seems it’s me & RC Dean vs. the world. The world frames the issue wrong, we frame it right.

    It matters because words matter and have legal consequences in contracts and other documents. It matters because marriage pre-existed both church & state. All church & state have ever done was to recognize the institution and attempt to regulate it. I oppose the regulation, which commonly has included such facets as:
    requirements of licenses
    prohibitions on incest
    restrictions on number of marriages an individual may have at the same time
    restricting consensual divorce
    imposing non-consensual divorce
    I also oppose attempts to re-define the relevant terms “spouse”, etc. in existing documents by legislation, judicial decree, or plebiscite. Marriage is, and ought to be, a question of fact, not a privilege of status. You have equal rights to your opinions, but not your facts.

    And never mind Bert & Ernie, what about Bert & Harry?

  82. The people who think “marriage” MUST HAVE some gender specific meaning are the ones who are causing the problem.

    No, the problem is caused by the people who think “marriage” and associated words CAN HAVE a meaning other than what is in the mind of the person communicating it, and that meaning is (absent evidence to the contrary) determined by custom — the spontaneous order of language. It either has one meaning or another. You don’t get to decide for English speakers what those words mean, any more than you get to decide that “dog” includes cats.

    “Marriage”, “spouse”, “husband”, “wife” are not (at least they were not until recent debate forced legislators’ hands) technical terms that were defined by statute. When theose words were written, they were understood to have their ordinary, non-technical meaning. Maybe a century from now the words will be understood to comprise same sex unions, but AFAICT the current meaning when looked at in relevant context (not some weaseling about metaphoric marriages that can take in even the gluing together of inanimate objects) means you need a man and a woman.

    We’ve gone thru mischief of this kind before when terms like “dollar/thaler”, “pound sterling”, etc. lost their objective, independent common law meaning and came to be understood as whatever the sovereign decreed. I don’t have more recent examples, which is a good thing, but I’m afraid the redefining of “marriage” will usher in a new era of sovereign rule, rather than rule of law, by redefinition.

  83. “It matters because marriage pre-existed both church & state.”

    What does that mean? Does it mean, what, that men and women had babies and hung out and went to cook-outs at the neighbors in pre-governmental pre-organized religion “society”?

    How did marriage exist before church and state.

  84. AFAIK, equal rights advocacy of any kind has never taken this tack before. Equal rights for women were not achieved by a decree that the word “male”, etc. would henceforth mean “human”. Equal rights for Negroes were not achieved by a decree that “Caucasian” would henceforth mean “person”. Equal rights for old people were not achieved by a decree that henceforth a person’s age would be capped at 50 or something like that.

  85. How did marriage exist before church and state.

    The same way such things as property and language did — by custom.

  86. The problem is that upon reflection on the meaning of some terms and concepts society decides that reason calls on us to change the meanings.

    So for example, people used to refer to a whale as a “fish” because they figured, quite sensibly, that since whales swam in the water like fish did they were similar in the crucial ways to warrant the same term being applied to both. After much scientific discovery and examination we learned that in more relevant and important ways whales were related to, and were rightly called “mammals.”

    So when we look at what has been called marriage and put it under examination we might reason that the heart of what is and was going on with that concept was an intimate relationship between consenting adults. And that heart, being gender neutral, may lead us to reason that same sex marriage is not contrary to the concept of marriage after all.

  87. Do you mean that by practice, as an empirical matter, men and women paired into couples and lived life like that before there was any government or state? You’re probably right, though they may have split into same sex couples as well as male-female couples. I think it just as likely to speculate that it was the emergence of states and organized religion that got people to start defining who and who could not couple up. The states and religions chose some possible couplings and sanctionted them, providing punishments for those who tried differently and rewards for those who went along…

  88. The problem is that upon reflection on the meaning of some terms and concepts society decides that reason calls on us to change the meanings.

    Of course. The meanings of many words change over time.

    But what’s the just way to do that? Answer: by custom, not by judicial, legislative, or democratic edict. In any court decision, it should always go back to, “What did the persons who agreed on this word in this document think it meant?” Usually that will be the dictionary definition.

  89. Given the evidence from the animal kingdom and from the social sciences it seems that a certian portion of the population wants to pair bond with the same sex. That urge must have existed in some part of the population in any “pre-government/pre-state” days, and thus those coupling must have as well. Of course, as groups began to organize in part around principles which found such couplings to be “wrong” they probably began to act to stop it from happening, but then you were seeing the first governments and religions, oriented around the coercion…

  90. Ya and Abrahamic religion and patriarchy go hand-in-hand. Patriarchy for obvious reasons doesn’t sanction the legitimacy of homosexuality.

  91. As always in these threads, seems it’s me & RC Dean vs. the world.

    You think to much of yourself.

    The world frames the issue wrong, we frame it right.

    I disagree. It matters not one fucking bit what history tells us about marriage.

    The only thing that matters is how our current constitutional republic functions — recognizing that we do have a constitutional clause that says all civil and criminal laws must apply to all people equally.

    Period.

    That’s it, nothing more.

    You have equal rights to your opinions, but not your facts.

    Back at you, dude.

    By the way, extended bold comments make you appear irrational. Doesn’t help your cause in the slightest.

  92. The whole “marriage has always been 1 man + 1 woman” argument is bullshit. Judaism traditionally allowed polygamy, outlawing it only around 1000 AD or so. Even recently, it was common among Jews in Yemen and other predominantly Muslim countries.

    The Koran, of course, allows a man 4 wives. Christianity has always taken a dimmer view, but they often winked at baptizing polygamists from African countries when they thought it would be beneficial to recruiting (e.g., tribal chieftains).

    So no, marriage has not always been one man and one woman. While the people who argue that government should get out of the marriage business are correct, the fact that that’s not going to happen soon means that homosexuals should be able to get the same bullshit tax benefits that heteros have.

  93. Kinnath, did you ever mess up the closing tag of a < b >?

  94. Robert, since you are appealing to history as a way of validating your point of view, let us be clear on what western culture has routinely viewed marriage to be:

    First women were property; chattel nothing more. Under old Irish law, a woman was worth three cows.

    Marriage was first and foremost about consolidating wealth and creating heirs. The purpose of a wife was to produce offspring and maintain the household. If a man was wealthy enough, he had mistresses for love and affection.

    Romantic love and pair bonding all that shit is modern contrivance.

    Oh, and this shit is nuts:

    We’ve gone thru mischief of this kind before when terms like “dollar/thaler”, “pound sterling”, etc. lost their objective, independent common law meaning and came to be understood as whatever the sovereign decreed. I don’t have more recent examples, which is a good thing, but I’m afraid the redefining of “marriage” will usher in a new era of sovereign rule, rather than rule of law, by redefinition.

  95. Kinnath, did you ever mess up the closing tag of a < b >?

    It wasn’t obvious from the context.

  96. Robert, since you are appealing to history as a way of validating your point of view, let us be clear on what western culture has routinely viewed marriage to be:

    I don’t appeal to the past perfect, only to the past continuing. Not “marriage was”, but “marriage has been”…and continues to be. It doesn’t matter if a word meant something for some interval in the past that has ended. It does matter if the word has continuously had a certain meaning. Marriage has.

  97. But now that I’ve read “what western culture has routinely viewed marriage to be”, I see none of that is incompatible with the current meaning of the word. Whatever motivations a couple might’ve had, however many cows a wife was worth, married was still married.

  98. What is it with Reason and its constant assertions that Bert and Ernie were gay?

    They’re not gay, they’re asexual fictitious characters, just like the teletubbies. It’s asinine the way that both sides of the gay marriage issue try to read more into it.

    -jcr

  99. “I’m afraid the redefining of “marriage” will usher in a new era of sovereign rule, rather than rule of law, by redefinition.”

    What?
    or, we try to remove as much of the sovereign rule from the issue as possible. It would seem by broadening who can marry who (i.e. basically treating marriage as a contract between two or more adult) that this would lessen sovereign rule over peoples lives.

    Or am I missing something?

  100. it also means that we are in for another long and bloody chapter in America’s culture wars.

    Bloody? Aside from the odd anal fissure here and there, that seems excessive.

  101. Let me begin by saying that I am a bisexual male who identified as gay for several years, and am also agnostic.

    First, I don’t think it’s ridiculous to make a slippery slope argument when it comes to gay marriage. If marraige is really just about love, then why should matter who, what or how many of who/what you love? If you love three women and a horse who am I to say you’re wrong?

    Second, I think it is legitimate to be concerned about the well being of children. And I think it’s probably best for children to be raised in a home with a Mother and Father, BUT considering how many children are in desperate need of parents, who cares whether they have a Mother and Father or two Mothers or two Fathers? It’s better than being raised by the government.

    Finally, I have always found it strange that people consider this an equal rights issue. Any man can marry any woman, regardless of whether either of them are gay, bi or straight. The reality is that this is a definitional issue, whether marraige is a bond between a man and a woman or simply between two people who love each other. Personally, I haven’t the faintest idea. Which is why I’m glad to see this play out in the individual states, which is why I am also a supporter of DOMA, one state should not be able to tacitly force all the others to accept gay marraige by making marraige in their state valid throughout the country.

    Anyways, I always like to let people know that it’s not just crazy religious people that are suspicious of the gay marraige issue, there are also some queer non-religious people like me skeptical of the whole thing.

  102. I hate gays and I hate marriage…so you can IMAGINE how much I hate gay marriage!

    (I love paella though…)

  103. Bloody? Aside from the odd anal fissure here and there, that seems excessive.

    LoL. True.

    there are also some queer non-religious people like me skeptical of the whole thing.

    Yeah, but you’re only half-queer. NTTAWWT. Also, your comment weirdly mirrored (what was allegedly) Cathy Young’s approach (which people complain about, but since I didn’t RTFA, I can’t comment on).

  104. Being a Californian, I was able to vote on Proposition 8 and voted no because I find it humerous to envision gay couples getting in arguements that start “Why won’t you marry me? It’s been — years.” I could help but want to share the joy of that discussion.

  105. I always thought Bert and Ernie were brothers.

  106. I have always found it strange that people consider this an equal rights issue. Any man can marry any woman, regardless of whether either of them are gay, bi or straight.

    Let me rephrase that a bit and see if it becomes clearer for you:

    Any white man can marry any white woman, regardless of whether either of them are attracted to whites, blacks or asians.

    -jcr

  107. First women were property; chattel nothing more.

    Of course at that time, so were most of the men who had ever lived.

    -jcr

  108. “The problem is that upon reflection on the meaning of some terms and concepts society decides that reason calls on us to change the meanings.”

    And just who is “society” and by what right do they make such a change? In all cases, it has been by a judiciary abandoning logic, principle, and the clear meaning of language to impose the latest progressive fad on the law.

    Equal Protection applies to sexual orientation in situtations where sexual matters are irrelevant. Marriage is an institution based on formalizing the sexual and reproductive relationships between a man and a woman, how can it be argued, in any sensible fashion, that sexual orientation is irrelevant to the institution?

  109. “Given the evidence from the animal kingdom and from the social sciences it seems that a certian portion of the population wants to pair bond with the same sex.”

    Perhaps, the problem being that “society” has no inherent interest in formalizing the relationships of such outliers, as it does ofr opposite sex ones.

  110. Marriage is an institution based on formalizing the sexual and reproductive relationships between a man and a woman

    I thought nature had already done that.

    Perhaps, the problem being that “society” has no inherent interest in formalizing the relationships of such outliers, as it does ofr opposite sex ones.

    A bit nebulous, wouldn’t you say?

  111. “Perhaps, the problem being that “society” has no inherent interest in formalizing the relationships of such outliers”

    No interest other than justice, fairness and equality.

    “In all cases, it has been by a judiciary abandoning logic, principle, and the clear meaning of language to impose the latest progressive fad on the law.”

    Well, not in Vermont recently. But even with the judiciary, as the thread here shows, it’s not all that clear that the judicial systems of various states have abandoned logic, principle and the clear meaning of the language OF THE EQUAL PROTECTION CLAUSES at issue. You’re just stating a conclusion.

    Of course, judicial bodies are part of society, they are not living on Mars for pete’s sake. People didn’t think about bringing these suits until the idea of gays started to become normalized in society.

    “Marriage is an institution based on formalizing the sexual and reproductive relationships between a man and a woman”

    Sez you. Others, looking at the same thing, think the fundamental part of it is the committment between consenting adults. Our side has some obvious logical advantages: the plus of explaining why sterile heterosexuals’ marriages are OK for one. You’re like the guy who looks at a whale and says “but they’ve ALWAYS swam in the sea like a fish, to call them something else is madness.” But others look closer and say “hmm, breathe air, live young, etc” means these ain’t fishes, they’s mammals…

  112. Some people think the idea of equal treatment under law means that those “similiarly situated” will get the same treatment.

    And so when they see two couples, both wanting to affirm a committment to each other, and they see that the only difference between couple one and couple two is that the former is same sex and the latter is not, they think they are “similiarly situated” because they think the sex or reproductive capacity of the parties is not fundamental, the committment is.

    When a judge thinks that a law or set of laws in conflict with a constitutional provision then it is not anti-democratic for them to strike down the former, since the latter were of course passed by the people as well, usually in some super-majoritarian fashion.

  113. A major foundation of western culture is a one man and one woman marriage. Yes, the divorce rate is appalling and we can see the impact of that on our society. At my age I don’t have a dog in this hunt, but if gay marriage is just fine, what is not fine. Will polygamy return as an issue. Utah had to outlaw it to gain entry into the Union and a small war was fought pitting the US against Utah prior to that because of the issue. If gay marriage is a civil rights issue, which I don’t believe, then Muslim’s historical cultural embrace of polygamy is also a civil rights issue. The cat now is almost out of the bag; so what will now not be a civil rights issue. Remember we are told all cultures are equal and if that is a true belief, then our culture must recognize the beliefs and practices of others; we must be tolerant and allow, say Sharia Law to practiced. And that folks is a slide into anarchy since few societies can exist well when they are more divided in beliefs and ideals than what they have in common.

    Just look at Africa with its colonial national boundaries that did not take into consideration the traditional tribal differences; Millions have died because of the ignorant view that government can glue together very different cultures; well maybe oppressive governments can on the surface. Looking around academia, one can conclude that even the educated revert to a form of tribalism and will not submerge their “cultural” views for the good of the great out there.

  114. It is pretty squishy. Citizenship and voting rights, for example, were defined from classical Greece onwards as the sole provenance of men. The 19th amendment was, in a sense, a radical redefinition of roles at least thousands of years old.

    But the 19th amendment was just that, an amendment, approved by a supermajority (as amendments must be). That is the Constitutionally identified method for capturing changes in the social zeitgeist.

    Courts are not, in my view, a legitimate source of de facto or de jure amendments to any law or constitution. They may interpret both, and they may strike down laws based on the constitution.

    At some point, though, interpretation and application of existing law runs out, and amendment of that law begins. By explicitly redefining marriage and amending a statute(as the CA Court did), the courts overstep their bounds. If the equal protection cases effectively redefine marriage, as I fear they do, then they also represent the courts overstepping their bounds.

  115. The culture wars are always going to be long and bloody until one side wins.

    And only one can, or the nation fragments.

  116. But the 19th amendment was just that, an amendment, approved by a supermajority (as amendments must be). That is the Constitutionally identified method for capturing changes in the social zeitgeist.

    Oh, for the love of Pete, ANY law passed through a representative process can be a method for capturing changes in the social zeitgeist. You don’t need a supermajority or a constitutional amendment.

    I would argue as well that the judiciary is an expression of the social zeitgeist. Judges frequently run for election, and when not elected directly, are appointed by elected officials. Judicial rulings percieved as too radical by too many are subject to political backlash are amendment (re: California).

    Courts are not, in my view, a legitimate source of de facto or de jure amendments to any law or constitution. They may interpret both, and they may strike down laws based on the constitution.

    My understanding is that the decisions in Massachusetts, California, and Iowa were rendered based on interpretations of the constitutions of those states, not of the federal constitution.

    At some point, though, interpretation and application of existing law runs out, and amendment of that law begins. By explicitly redefining marriage and amending a statute(as the CA Court did), the courts overstep their bounds. If the equal protection cases effectively redefine marriage, as I fear they do, then they also represent the courts overstepping their bounds.

    My position is that neither the courts nor legislatures are redefining marriage, but rather catching up with our society, which has already re-defined marriage as a love-based partnership instead of a a procreative and property-based one.

    Recommended reading: Stephanie Coontz, Marriage, A History: From Obedience to Intimacy, or How Love Conquered Marriage

    http://www.stephaniecoontz.com/books/marriage/

  117. The culture wars are always going to be long and bloody until one side wins.

    As I’ve suggested earlier, with the 4th Great Awakening in its waning years, the culture wars are unlikely to reignite significantly over this issue.

  118. Oh, for the love of Pete, ANY law passed through a representative process can be a method for capturing changes in the social zeitgeist. You don’t need a supermajority or a constitutional amendment.

    Exactly. But we are discussing states where regular legislation has not (re)defined “marriage”, but a Court arguably has done so de facto. When we need the Constitution to reflect social changes that are not clearly enumerated in the text, then we should amend the Constitution.

    I would argue as well that the judiciary is an expression of the social zeitgeist.

    That’s where we disagree, on separation of powers grounds. The function of courts is to interpret and apply the law, not to amend it, even if doing so is consistent with court’s view of what “society actually wants/needs”.

    My understanding is that the decisions in Massachusetts, California, and Iowa were rendered based on interpretations of the constitutions of those states, not of the federal constitution.

    Absolutely. Makes no difference. State courts have no power to amend their state constitutions or to amend state laws. Plus, you will note my use of small-“c” constitution to refer to all constitutions, not large-“C” Constitution, which refers to the federal Constitution.

    My position is that neither the courts nor legislatures are redefining marriage, but rather catching up with our society, which has already re-defined marriage as a love-based partnership instead of a a procreative and property-based one.

    Given the difficulty that gay marriage has had in capturing a majority at the polls, this is a hard claim to support, at this point. But even if its true, it still matters who has the power to translate perceived changes in society into the law.

  119. Civil marriage is not a right, it is a privilege. You get a license for it like you do for a drivers’ license. Society has create this privilege deciding on whether or not the institution is good for that society. It also has the right to decide what conditions must be met. The only state where same sex civil unions should be legal at this time is Vermont. “Live free or die.”

  120. That’s funny, I don’t remember having to take classes and a test to prove I learned the “rules of the home”.
    Nor do I have a state-mandated ID card that says I’m married. Maybe you’re doing it wrong?

  121. “On the other side is the equally powerful American tradition that gives faith a central role in civic life.”

    No, that is NOT “equally powerful.” Faith instead of reason should have NO role in public life. Elevate FACT over faith, INQUIRY over indoctrination, REASON over religion, SCIENCE over superstition, and THINKING over tradition. Do that FIRST.

  122. Bert and Ernie aren’t gay. They’re just good friends who happen to live together.

  123. Civil marriage is not a right, it is a privilege.

    You’re a little too late with that. Refer to Loving if you can’t figure it out on your own.

  124. I’m afraid the redefining of “marriage” will usher in a new era of sovereign rule, rather than rule of law, by redefinition.

    What? Or, we try to remove as much of the sovereign rule from the issue as possible. It would seem by broadening who can marry who (i.e. basically treating marriage as a contract between two or more adult) that this would lessen sovereign rule over peoples lives.

    Or am I missing something?

    Yes, you’re missing the example I gave above of the redefinition by decree of money terms (which had non-technical, customary meanings related to weights of silver or gold) into whatever a privileged bank said they meant.

    “Married”, “spouse”, etc. were words that existed in various languages that arose by spontaneous, voluntary order — both the custom of marriage and the custom of language, and certainly the custom of words related to marriage — before there were churches and before there were states. “Broadening who can marry who” is like broadening the meaning of any term on which people have settled a narrower meaning. If you pay for a shipment of pears, and get a delivery of apples, and a court (or other sovereign entity) decides that the word “pear” now encompasses apples, is that justice? If the sovereign can change the meaning of words, then it can alter the terms of any contract.

    It’s fine to treat a marriage as a contract between adults, but what passes between them is not the issue here. The issue is whether a third party has to treat one of them as the spouse of the other, when that was not the 3rd party’s understanding of the term at the time the issue came up.

  125. Bert and Ernie aren’t gay. They’re just good friends who happen to live together.

    Did they kick out Harry? Or did he never live with Bert?

  126. Fucking gay marriage now! They should beat those scumbags to death like my disgrace of a cousin-in-law Vito, who roasting in hell right now!

  127. Of course we’ll know for sure eventually, but I don’t buy the idea that the “culture war” over gay marriage is here to stay. It simply does not have the rational foundation for disagreement like abortion does, and public opinion on the issue is clearly moving in the direction of acceptance. In five years, it is likely a majority of Americans will back the idea.

    I also don’t like the term “culture war.” It really should be seen as cultural evolution versus religious zealots.

  128. If conservatives want to win elections, they are going to have to come to terms with the changing attitudes on gay marriage. Gay people like my self who side with them on issues like gun rights and free-market economics simply wont vote for them because of their discriminatory attitudes towards me and my family. Maybe we’re only a small percentage, but that can still turn elections.

  129. Homophobia is most common among repressed homosexuals. People secure with their own sexuality have no beef when others are turned on by something different.

  130. “It really should be seen as cultural evolution versus religious zealots.”

    Couldn’t you say that about everything? All that needs doing is identifying the religion. Seriously, look at all the democracy advocates who are little more than preachers for the church of populism.

  131. I sure as hell don’t want to live in a country where the meaning of the words in our constitutions and laws are restricted to what people thought they meant two hundred years ago. When the founders wrote “. . . all men are created equal . . .,” most of them did not intend for the word men to encompass women or males of color. And I sure don’t want to wait for the majority to decide the time is right to grant equal rights to a disfavored minority. If we had to wait for the legislatures to repeal “separate but equal,” we would still have segregated schools.

    As someone else said on another thread, the opposite of liberty is not authoritarianism but majoritarianism.

    Kudos to MNG for the equal protection analysis above. The issue of gay marriage arises from the fact that marriage confers certain legal benefits to spouses, and the state has no legitimate compelling interest in denying these benefits to same sex couples. The fact that the “Good Book” prescribes death for homosexuals is not a compelling state interest (and, let’s face it, the Good Book is the principal source of the hatred against homosexuals–if homophobia had not been enshrined in the bible, it would not be so prevalent).

  132. MNG: “I’d argue under 14th Amendment jurisprudence sexual orientation is a suspect classification. Drawing upon the Carolene Products case: (a) sexual orientation is immutable . . . .”

    This is the prong that the religious nuts can’t get past even though the slightest bit of self-reflection would inform them otherwise. To accept that sexual orientation is immutable would be contrary to what their holy book says. The Good Book can’t be wrong because, after all, it is written by (or inspired by) Almighty God.

  133. Religion poisons everything.

  134. ok, if everyone here hates religion so much, let’s take a hard-nosed look at the science and practical consequences behind gay marriage, shall we?
    Hmm, creating incentives for people to form unions based on emotional and sexual indulgence with no possibility of autonomous reproduction?
    I wonder what the eugenicists would have said about that.

    In any case, the gay marriage arguments are all emotion and no logic.

  135. Not to imply that eugenicists were smarter than gay marriage advocates…but well, ok, they kind of are. But the zealous scientific approach makes the zealously religious approach pretty benign, doesn’t it?

  136. Lisa: “the gay marriage arguments are all emotion and no logic.”

    Can you substantiate that claim by quoting an argument in this thread that is either emotional or illogical? I find MNG’s equal protection analysis above supremely logical–and persuasive.

    Lisa: “Hmm, creating incentives for people to form unions based on emotional and sexual indulgence with no possibility of autonomous reproduction? I wonder what the eugenicists would have said about that.”

    The only purpose of marriage is reproduction? That would be news to barren women and sterile men. How does eugenics have any bearing on the issue of gay marriage?

    The only post in this thread that I would regard as emotional or illogical is yours.

  137. The basic point that a few folks have hinted at is that “gay marriage” is a fundamental change in the definition. In the case of California, the people voted and decided that they did not want to change a definition that has been around for 5,000 years; and that does not mean that they are homophobic. It also does not mean that gay couples are not entitled to all the same rights achieved under marriage as it is traditionally defined. The less militant compromise is some type of domestic partner law that grants all the same rights as marriage but leaves the definition in tact. Thus both sides get what they want.

    The culture war begins when the courts get involved and subvert the will of the people, and silence the majority.

  138. Re:”In any case, the gay marriage arguments are all emotion and no logic.”

    A marriage is two things; it is a religious ceremony, and it is also a civil contract stating a relationship. The state has no standing in either, and is specifically prohibited by the constitution from interfering in the latter, or favoring one religion over another. My religion states that I should marry the person I love. By prohibiting me from doing so, the government is in violation of the constitution. Is that logical enough for you?

    Oh, I forgot. You also decry ‘creating incentives for people to form unions based on emotional and sexual indulgence with no possibility of autonomous reproduction.’

    Well aren’t you fun at parties? I hope you find your cold, mechanical existence as a self-replicating automaton exciting.

  139. “The less militant compromise is some type of domestic partner law that grants all the same rights as marriage but leaves the definition in tact.”

    The most reasonable thing would be for the state to grant domestic partner licenses to all couples regardless of gender and quit using the term marriage. The word marriage could then be left to churches and individuals to use as they see fit.

    “The culture war begins when the courts get involved and subvert the will of the people, and silence the majority.”

    The greatest threat to individual liberty is the “will of the people.” The majority should have no say where fundamental liberties are at stake.

  140. No one could even buy a rubber in most states if it were up to legislatures or majority vote. (Google Griswold v. Connecticut if you don’t believe me.)

    The American majority is dull, poorly educated, superstitious, and authoritarian.

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