The Moral and Constitutional Case for Gay Marriage


Writing in yesterday's New York Daily News, Cato Institute Chairman Robert A. Levy makes the moral and constitutional case for gay marriage:

Whenever government imposes obligations or dispenses benefits, it may not "deny to any person within its jurisdiction the equal protection of the laws." That provision is explicit in the 14th Amendment to the U.S. Constitution, applicable to the states, and implicit in the Fifth Amendment, applicable to the federal government….

To pass constitutional muster, racial discrimination had to survive "strict scrutiny" by the courts. Government had to demonstrate a compelling need for its regulations, show they would be effective and narrowly craft the rules so they didn't sweep more broadly than necessary. That same regime should apply when government discriminates based on gender preference.

No compelling reason has been proffered for sanctioning heterosexual but not homosexual marriages. Nor is a ban on gay marriage a close fit for attaining the goals cited by proponents of such bans. If the goal, for example, is to strengthen the institution of marriage, a more effective step might be to bar no-fault divorce and premarital cohabitation. If the goal is to ensure procreation, then infertile and aged couples should be precluded from marriage.

Instead, most states have implemented an irrational and unjust system that provides significant benefits to just-married heterosexuals while denying benefits to a male or female couple who have enjoyed a loving, committed, faithful and mutually reinforcing relationship over several decades. That's not the way it has to be.

Read the whole thing here.

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  1. When handing out privileges to certain groups necessarily means that other groups are being denied benefits. So I say again, stop recognizing marriage altogether.

    Phew. I needed that. It’s been too long since Reason has had a marriage sanctioning story.

    1. Of course. However, you and I know that’s never going to happen. So, at least we have to move towards what we can get, and what we should be able to get.

      1. Well in that case the more pressing injustice is the ban against polygamy IMHO

        1. in canada they can jail you for polyamory.

          1. Wow, Canada? Seriously?

              Criminal Code
              Offences Against Conjugal Rights


              293. (1) Every one who

              (a) practises or enters into or in any manner agrees or consents to practise or enter into

              (i) any form of polygamy, or

              (ii) any kind of conjugal union with more than one person at the same time,

              whether or not it is by law recognized as a binding form of marriage, or

              (b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii),

              is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

              1. I’m amazed, but not surprised. Though I did picture Canada to be more left-leaning…

                1. from back in their more reactionary days, i believe.

              2. Apparently that is not a problem in the more “enlightened” United States.

            2. (b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii),

              that’s the best part. oh maybe not. it’s so hard to pick…

              1. “Celebrates”

                I’m picturing an orgy with all involved/watching wearing party hats.

    2. There are legitimate functions of state that require them to recognize marriage (power of attorney, spousal privilege, etc.) That said, a marriage should be registered, not licensed. Any two adults should be allowed to be married in the eyes of the state.

      1. Any group of adults should be allowed to marry — in for a penny, in for a pound.

        1. …in for a pound.

          I disagree with kinnath. No fatties.

          And I disagree wholefuckingheartedly with Warren. “Spousal privilege” is the exact privilege I was talking about. Yeah, it’s convenient, but it’s also discriminatory. It’s a privilege you enjoy because you’ve engaged in a union that the State approves of. Instead of signing a registry or license, sign a contract, one that is available to any group of individuals, not just those cloaked in wedded bliss.

          1. Pound Sterling, Pound Sterling . . . ๐Ÿ˜‰

            1. Wow! A whole straw’penny?

      2. Um… “…any consenting adults s/b allowed to be married…”?

        1. “…any consenting adults s/b allowed to be married…”

          Even two straight men or women? Or must we preserve the scam of love when in many cases it’s simply a business relationship?

          1. take the time to look up “white marriage” ed.

          2. Furthermore, why must the union be sex-based? Two straight men (or women) may love each other. Why can’t they be “married” and enjoy all the benefits of traditional church- and state-sanctioned unions? Too much emphasis is being placed on the sex act, which is why it disturbs so many traditionalists and homophobes.

      3. Civil unions for all. Marriage was a religious institution before states even existed.

    3. THANK YOU! Why in the HELL is the government in the business of licensing relationships! If you want a blessing from a church, find a church who blesses your relationship. If you don’t need a blessing from a church or government, carry on.

      It’s really a simple matter of contract law…which the government should protect. As long as the folks entering into the contract are consensual adults with no fraud involved, WHY DOES THE GOVERNMENT GIVE A CRAP?!?

      After you stop licensing love, next on my list is getting rid of dog licensing. The cats tease the dog about this all of the time.

  2. Good constitutional point,problem: Neo-cons/Religious Right are the ones trying to ban gay marriage and both groups have clearly shown that the constitution doesn’t mean much to them.

    1. The Constitution doesn’t mean much to the left, either… but that’s a moot point and a way of life in th 21st century.

      That all said, government needs to get out of the marriage business. Consenting adults don’t need a permission slip from Big Nanny.

    2. Which, of course, is what separates them from the Neo-libs/progressives who show such respect and love for the Constitution.

      1. +! for the good Captain.

    3. Good constitutional point,problem: Neo-cons/Religious Right are the ones trying to ban gay marriage and both groups have clearly shown that the constitution doesn’t mean much to them.

      Considering that, in situations like this, the Constitution has been used as a cudgel to beat the majority of people who live under it over the head for the last 50 years or so, why should they still support it?

      What do you think the chances are that Madison himself would still be supporting it, considering how his work has been co-opted? I suspect “slim” and “none”.

  3. Mariage is a religious institution – it is for religion to decide what constitutes lawful mariage; government should think of it and treat it as just another civil union between adults.

    1. As long as you have to get a marriage license, as long as certain benefits are given to the married, it’s a government issue. If a sect doesn’t want to recognize a certain marriage, that’s their business.

      1. Yeah, but you shouldn’t need a license unless you need one for other civil unions. And the “married” shouldn’t receive any special benefits that aren’t available to other unions either.

    2. Yup. Civil unions for all would please 80% of people. Only the extremes would be pissed at that.

      I’ve talked to gay rights zealots and extreme religious folks and most of even those groups are fine with civil unions for all.

  4. What’s funny is that this is a massive struggle over pure semantics.

    The activist gays have categorically rejected civil unions that are legally identical to marriage. They want “marriage” because they want the social, not legal, sanction the word implies.

    I think the solution, which pleases practically nobody who is redhot on either side of the issue, is to purge the word “marriage” from our statutes and replace it with “civil union.” If you want to be in a legally recognized partnership, get a civil union from the State. If you want to be “married”, find a priest or imam or whatever who will marry you in their church or mosque or whatever.

    Problem solved, but religio-cons would reject it on the equal legal treatment front, and gay activists would reject it on the lack of State-sanctioned “marriage” front. So it’ll never happen.

    1. civil unions are not legally identical to marriage. according to the GAO there are 1,138 statutory provisions in which marital status is a factor in determining benefits, rights, and privileges. These rights and responsibilities apply only to male-female married couples, as the 1996 Defense of Marriage Act (DOMA) defines marriage as between a man and a woman and thus bars same-sex couples from receiving any federal recognition of same sex marriage or conveyance of marriage benefits to same sex couples through federal marriage law.

      1. wanted to add that the government should get out of the marriage business. let people have any consentual relationship with anyone they want to.

      2. My point, Hacha, is that civil unions should be the only partnership recognized by law. And that the gay activists would reject, and indeed have rejected, this solution because it doesn’t have the social acceptance freight carried by the magic word “marriage”.

        1. They don’t seem to understand that social acceptance is something that can’t be forced. They should take the legal acceptance for the benefits it grants and over time, as has been happening for years, more people would accept their relationship as it becomes more common and “normal.”

        2. While I agree with you that civil unions should be the only partnership recognized by law, have gay activists been presented a civil union which includes all those provisions Hacha Cha mentioned have been denied to them.

      3. civil unions are not legally identical to marriage. according to the GAO there are 1,138 statutory provisions in which marital status is a factor in determining benefits, rights, and privileges.

        Those benefits are denied to all same-sex couples, even if they are legally recognized as “married”.

        The issue is with DOMA, not with states that create institutions for same-sex couples.

      4. As the difference has fairly strong religious elements, one could make a first amendment case for only recognizing civil unions.

    2. But the thing is, as a Christian, it’s NOT semantics to me. I believe marriage is ordained by God, which is why I don’t think the government can tell me who can and can’t get married (yes, I’m one of those wacky libertarian Christians who believes that separation of church and state runs both ways). It’s certainly not a matter of semantics when the government redefines your religious beliefs. I understand that many people here feel that religion is mere superstition, but the freedom to freely practice one’s religion is in the Constitution nonetheless. The only solution is for the state to stop recognizing marriage all together. Any civil benefit currently associated with marriage can equally apply to civil unions.

      1. Libertarian Christian? How does that apply to health care and the poor?

        1. The poor are blessed in spirit, sure. Why you are asking?

          1. Public healthcare or not?

  5. The problem is defining the class for equal protection purposes, which Levy appears to gloss over. If the class is homosexuals, then the equal protection argument is an easy winner. If the class is any human being, then the argument will not work.

    If the relevant class for equal protection purposes is gay people, then yes, gay people not being able marry the spouse of their choosing seems to fairly easily fail an equal protection analysis, since straight people are permitted to marry the spouse of their choosing.

    The courts long ago held that marriage laws do not violate equal protection because any man can marry any woman and any woman can marry any man. No person is deprived of a benefit any other person has. Conservative scholars still use this definition of class a lot. Some courts probably still would define the class this way as well.

    I think for gay marriage proponents to make the equal protection argument compelling, they have to make a convincing argument why the class must be drawn as gay people and not as just anybody.

    It may be that there are better legal arguments than equal protection for extending marriage benefits to any consenting couple, regardless of gender.

    1. “The courts long ago held that marriage laws do not violate equal protection because any man can marry any woman and any woman can marry any man.”

      I’m not sure how the same logic did not apply to interracial marriage bans: black men could not marry white women but white men could not marry black women either. Any white man could marry any white woman and vice versa…

      1. Well, I think the argument would be that the fourteen amendment forbade such classifications based on race. Plus, although I am no constitutional scholar, I think Loving is more predicated on substantive due process than equal protection grounds.

        1. The Equal Protection Clause does not include the word race at all. “nor deny to any person within its jurisdiction the equal protection of the laws”

          SCOTUS found both Equal Protection and Due process violated in Loving.



            1. Dude, I’m talking about applying the logic in Loving, not the dicta…

          2. You have to define which classes are forbidden from receiving unequal protection of the law. The literal interpretation you offer above would consider a person who lives next door to a police station and a person who lives a mile away from the nearest police station to be receiving unequal protection of the law.

          3. True enough, but the Loving decision stated that “”[t]he clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States,” and then held that racial classifications are suspect and subject to strict scrutiny.

            The logic of Loving certainly applies, but it does not compel one to conclude that homosexuality should be treated as a suspect classification as race is.

            MNG, I fear you believe I am hostile to the position. I am not. I just think baldly stating that the equal protection clause argument ends the analysis is too facile and ignores some important analytical hurdles.

            1. I meant specifically the logic which rejected the argument that because the prohibition applied equally to all races it was not discriminatory. If you notice I only bring up Loving to those who claim that because both straights and gays are equally forbidden to marry same sex and equally allowed to marry opposite sex partners there is no discrimination going on.

  6. This is a battle that is already won, but the die-hards refuse to surrender.
    When main-stream Christian churches tolerate openly gay relationships among their staff, then it is only a matter of time before same sex marriage is legal everywhere.

    1. Those “mainstream” Christian churches are precisely those that are hemorrhaging adherents every year. The ones that are growing — evangelicals, Mormons, and in some areas Catholics — are staunchly against gay marriage.

  7. Levy’s constitutional argument is not persuasive. Essentially, Levy argues that sexual orientation should be subject to strict scrutiny under the equal protection clause, and that federal courts should thus mandate gay marriage. The problem here is that the equal protection clause cannot possibly subject laws affecting each and every disparate group to strict scrutiny. Virtually every law would then be suspect.

    Accordingly, the courts have generally regarded the equal protection clause as requiring strict scrutiny only be applied to race and ethnicity, consistent with the original understanding of the 14th Amendment at the time it was ratified. Nobody, to my knowledge, claims that the ratifiers would ever have intended for sexual orientation to be covered under the equal protection clause.

    If the courts start to break from this rule, they invariably just wind up enshrining their own personal philosophies. A certain classification is subject to strict scrutiny for no better reason than the fact that they want it to be. That being the case, Levy should have little to complain about when, say, leftists argue that the interstate commerce clause authorizes virtually any federal law. Their argument mirrors his.

    On the other hand, Levy has a good point that government could attempt to extricate itself, as much as possible, from marriage and leave the issue more up to private institutions. That would be a major undertaking, because marriage is intertwined in so many areas of law — but it isn’t impossible. However, the case for doing that isn’t a constitutional one.

    Likewise, his moral argument is weak because sexual morality (and morality in general) is generally based on long-standing traditions and understandings; not everyone accepts the harm principle as their moral guidepost. This is an assumption Levy makes of his audience.

    1. You make some good points. It never made sense to me why some classifications get “strict” scrutiny, some get minimal, others “intermediate,” apparently at the whim of the court. Some of us wish that any restriction on liberty would get strict scritiny–in other words, we should be able to live our lives as we wish, within the boundaries of the harm principle, and nothing should be outlawed without a damn good reason.

    2. “Accordingly, the courts have generally regarded the equal protection clause as requiring strict scrutiny only be applied to race and ethnicity, consistent with the original understanding of the 14th Amendment at the time it was ratified. ”

      Well, there’s a lot of evidence that they never expected it to apply to white people either…

      “his moral argument is weak because sexual morality (and morality in general) is generally based on long-standing traditions and understandings”

      “Nobody, to my knowledge, claims that the ratifiers would ever have intended for sexual orientation to be covered under the equal protection clause”

      They should not have wrote what they did then. We should be guided by the text not the ratifiers expectations about how it would be applied.

      I’m not sure why this matters a fig…”Because we’ve long thought this way” carries little moral weight imo

      1. Er, my last sentence should come between the that second and third quote ๐Ÿ™‚

      2. They should not have wrote what they did then. We should be guided by the text not the ratifiers expectations about how it would be applied.

        Agreed. Ferreting out intent is next to impossible, however anyone can read the text as written and figure out what that means.

        1. Which is the original understanding method is better than original intent, in getting a handle on what we should understand the words to have meant.

        2. Ferreting out intent is next to impossible

          Not true. The records of the contemporary debates over ratification are used to determine what the amendment was supposed to mean.

          1. But you often have different Congresscritters and elected reps stating different reasons and understandings in these debates and then voting the same way. What then?

            1. If that were the case, it would be more difficult. But I seriously doubt any of those who voted to pass or ratify the 14th amendment stated that they thought it would legalize gay marriage.

      3. MNG,

        What evidence is there that whites were going to be excluded from equal protection?

        Furthermore, I argued about the original *understanding* of the equal protection clause, not original *expectations.* The equal protection clause was understood as being primarily about race. It was not understood to protect any and all possible classifications, which would lead to absurdities.

        As for moral weight, tradition *should* carry weight because it’s where our moral axioms largely come from. Morality can’t be worked out on a slide rule; it comes from human experience. Now, that doesn’t mean society hasn’t gone astray, it just means that tradition does impart moral data.

        1. Do you think the ratifiers could concieve of whites being at a legal disadvantage?

          The same Congress that passed the 14th passed Reconstruction programs aimed exclusively at helping members of one race.

          1. “The same Congress that passed the 14th passed Reconstruction programs aimed exclusively at helping members of one race.”

            Epic. Historical. Fail.

            1. Look, this is not some newfangled idea I just dreamed up today. The harshest criticisms of original intent folks like Thomas and Scalia has been on their application of the 14th to reverse discrimination cases and these criticisms point to this. We had this debate on H&R a few months back and the best anyone could come up with was a historical report that some Freedman Bureau program heads handed out food to hungry white folks in their area. Many Reconstruction era programs were designed and expected to help “the Negro race” alone. None of the ratifiers of the 14th that passed these thought the 14th Amendment would have made these benefits available to all races.

    3. But what about equal protections for religion? Discrimination is not allowed based upon religion and that is far more of a choice than sexual orientation, which is a defining characteristic of human physiology. The main purpose of the equal protection clause appears to be the prevention of government discrimination primarily based upon biological features that do not violate the rights of others (thus why child molesters and the criminally insane are not able to excuse their actions via the “equal protections” argument). This is not about social mores and “sexual morality” – it is about legal discrimination based upon a physiological feature that inherently violates the rights of nobody.

      1. I think Owen C is probably sympathetic to the goal, as am I (and I should be, since I am a flaming homo). The problem is making a persuasive Constitutional argument rather than shredding the document to achieve a good political aim.

        1. I will say that I would vastly prefer to see same sex marriage won via the ballot box than via court decision.

          1. I actually would not. I think it is obscene that people get to vote on whether I be permitted to the benefits of marriage. Some things should not be up for majority decision.

            The problem is whether there is a good Constitutional argument to vindicate a gay person’s right to receive the same incidents and benefits as a straight person (and telling me I can marry a woman in a fraudulent sham marriage won’t get it done).

            I worry about this a lot because I don’t want my personal prejudice on this issue in favor of gay marriage to get in the way of my libertarian principles.

            1. What is “a fradulent sham marriage”? The only one I can think of that seems to fit your category would be one where the married don’t intend to form a single household.

            2. And I think only a vote is fair, and even more – a vote between those who are currently legally married only. Like, you want something we have and it’s up to us to decide shall we share it or not. Why the future of our current state should be decided by those who is not in it and bever plan to be? It’s like american laws being voted upon by China.

      2. Hobo Chang Ba,

        Discrimination against religious sects is really more about the free exercise clause than the equal protection clause. In any event, the ratifiers of the 14th Amendment probably weren’t thinking in broad terms of “biological features that do not violate the rights of others.” They were looking at a specific issue, namely race. I’m not a historical expert on the equal protection clause, mind you, but it’s pretty clear to me that the reach of the equal protection clause was understood to be fairly limited, and it would be a radical redefinition for the Court to simply start hand-picking classes of persons it wants to protect, or to create a framework tailored to protect those classes.

        1. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

          Where does it mention race anywhere in this section? Even if this is the intent, they should have specified if they intended it to be interpreted in a limited manner.

          1. It doesn’t mention race or classes of people at all. Why should the idea of classes of people be relevant to this discussion at all. It is about each individual having equal protection and due process, not various classes of people. It is just stupid to try to argue that its scope is limited to race matters. Of course the intention was to make sure freed slaves had equal legal rights, but that was accomplished not by talking about classes of people, but by defining citizenship and requiring that each citizen receive equal treatment under the law.

  8. Like FoE, I’m in favor of getting government out of marriage altogether. Let churches and individuals decide which marriages they’ll recognize.

    However, I disagree with the “equal protection” argument and that it would be right to pursue it.

    A court that is powerful enough to impose our policy preferences is powerful enough to impose all sorts of evils on us.

    1. The court shouldn’t impose any policy on us. They should just strike down existing marriage laws. The state courts who have ruled that their states must have gay marriage should have instead made the legislatures choose whether to get rid of legal marriage all together or allow gay marriage. That way, no one forces a particular policy on anyone. There is no constitutional reason why the state needs to recognize any marriage at all.

      1. At least until recently, “existing marriage laws” did not mention the sexes of the spouses. That’s because everyone understood marriage was between opposite sexes. It was not made that way by either government or religion — marriage predates both; it even predates humanity, as can be seen by other animals that practice it. So there was nothing to “strike down” in marriage laws.

        1. Not to nitpick, but the animal community practices polygamous, bigamous, and monogamous marriage. Very often it practices monogamous marriage with frequent or occasional adulter.

          1. Of course they do, but the point is that they do practice marriage. There’s no reason to believe those practices ceased in proto-humans as they evolved into humans.

      2. And as long as the state runs courts, it has to “recognize” marriage somehow. It doesn’t need to (and shouldn’t IMO) license or regulate marriages, but when a case gets to court that turns on the fact of whether person A is married to person B, that court is going to have to decide whether to recognize that purported marriage or not.

    2. Whenever government imposes obligations or dispenses benefits, it may not “deny to any person within its jurisdiction the equal protection of the laws.”


      according to the GAO there are 1,138 statutory provisions in which marital status is a factor in determining benefits, rights, and privileges.

      equals a 14th ammendment problem.

  9. Until heterosexuals come clean about what this is TRULY about, this fight will continue.

    This is not now and has never been about ‘protecting marriage.’ Heterosexuals, by and large, could care less about marriage. This is fairly self-evident to any human being who has witnessed how heterosexuals treat marriage. With absolutely zero respect.

    This is TRULY about heterosexuals thinking that they are better than gay people and that gay people are less than human, not deserving of the same benefits in life that heterosexuals are. It is quite ugly to watch heterosexuals carry on like this toward the very gay offspring that heterosexuals alone create.

    What kind of species treats their own offspring in such vile, degrading ways?

    Only the heterosexual.

    1. First of all, I didn’t know that heterosexuals and homosexuals were two different “species”.

      Second, it’s news to me that homosexuals can even have offspring that they can treat in ways that aren’t “vile and degrading”.

      PS- In case your comment was snarkastic in nature, I apologize that it flew over my head.

    2. That sounds pretty good, Bill. Keep it up.

      I forget what kind of logical fallacy that is, and I don’t feel like looking it up.

    3. Funny. What are you talking about? “Heterosexual” marriage?

      No where does the state ask your sexual preference on a marriage license, and they never have.

      A homosexual man has just as much right to marry a woman as any unfortunate heterosexual one.

      1. All races are equally prevented from marrying one of another race.

    4. What kind of species treats their own offspring in such vile, degrading ways?

      Only the heterosexual.

      so are we all the same or are we all different? make up your mind.

    5. I am pretty sure Bill is making a joke here. This seems to be a caricature of some of the vile anti-gay stuff you will hear but targeting “the heterosexual” rather than “the homosexual”.

      1. oh. sarcasm meter batteries can fail in extremely low temps.

        1. You’re telling me. It’s 21 degrees in Austin right now and I thought this guy was serious.

  10. The gay marriage issue is such an excellent opportunity for politicians to direct peoples’ passions towards their political goals, while obscuring the real issue, encouraging an “us vs. them” false dichotomy, and reinforcing the government’s legitimacy all in one package.

  11. As far as I see it, it should be a private contract issue, in the eyes of the law. The government should not impose or imply any provisions of that contract, only settle disputes and non-compliance. There should be no special privileges for those that enter into that contract.

  12. The idea that the government doesn’t discriminate based upon sex is absurd. Women have numerous rights in regard to divorce and child custody, for instance. Have women ever been drafted or forced to register for the draft? Sexual assault can be pursued without any evidence other than the claim of the “victim”. Let a man try that.

    Considering the glaring sexual discrimination in the country it is hilarious how the fact that some people don’t get to “marry” and increase their take at the government tit even reaches the radar screen. Guess it is all about your definition of “rights”.

    1. And, at least in California if not elsewhere, a woman can get child support from a man who not only is not the biological father of a child/ren, but has never even MET the mother getting the checks.

      1. ? Can you elaborate on this, because that seems pretty incredible…

        1. I can’t remember where I read it – I’m thinking it was Liberty magazine, can’t find it to save my life – but I’m not making it up… shit like that can’t be created out of thin air.

          Basically, the premise is:

          Woman gets pregnant, puts a name out, state issues letter to someone with same name, gets roped into paying child support even if there’s no DNA match.

          Then again, this IS California we’re talking about.

          1. If that’s true that’s pretty f*cked up…

            1. Wish I knew how to phrase a web search for it. Was a minor story about five years ago, give or take. Disgusting.

            2. Reason did a story on this several years ago. You might try their archives.

            3. I remember reading a story about it too.

            4. I can’t find the story, but I did turn up this charming thread where joe gets all “it’s for teh children!”

              1. Ha! What a loathsome turd joe was being.

              1. Science, Nutra-Sweet, and I thought I had it bad.

                Some of your links are like a Jerry Springer episode. After I read them I realize that no matter how bad life can be, it isn’t that bad.

          2. I believe these cases involve the “fathers” ignoring the notification from the state which results in default judgements against the “fathers” which are essentially impossible to vacate.

            1. I believe these cases involve the “fathers” ignoring the notification from the state which results in default judgements against the “fathers” which are essentially impossible to vacate.

              If only civilization had a reset button…

            2. One case was even worse: the guy never got the notification because the state sent it to the wrong address. He still had to go through years of litigation to get cleared.

          3. was it radley that wrote about the poor guy down in GA that was doing time for back kiddie support, and the state knew it wasn’t his kid?

            1. If memory serves it might have been PA. They did elect Santorum and Specter, so there’s really no limit to how fucked up they are.

              1. Thanks, all, and if Reason has something like this in its archives, they should dust it off and possibly do an update on this heinous practice of making innocent men pay child support for children they not only didn’t help create, but never even met the mothers of said rugrats.

                Of course, this sort of thing is the product of the more-virulent man-hating feminists and their allies, else it wouldn’t happen.

  13. To pass constitutional muster, racial discrimination had to survive “strict scrutiny” by the courts.

    No compelling reason has been proffered for sanctioning heterosexual but not homosexual marriages.

    The second part does not follow from the first. It is a non sequitur. It sounds good though, to those who aren’t paying close attention.

    For one thing, the court decision that invalidated bans on interracial marriage explicitly upheld man/woman marriages.

    Plus, it has not been demonstrated that SSM bans are discriminatory, since opposite sex marriage is not barred to them. It does not discriminate against gays anymore than it discriminates against anyone else who is single.

    1. Every man as the right to take a wife, whether he wants one or not. This is both true and utterly useless.

      Sell this crap somewhere else.

      1. This is both true and utterly useless.

        I got nuthin’.

      2. “Crap”? So since every man has a right to get a job, whether he wants one or not, if he doesn’t he should be able to steal? Basically, “rights” are dependent upon what you want? Riiiigggghhht.

        1. WTF are you talking about Gill? Get your meds mixed up this morning?

    2. it has not been demonstrated that interracial bans are discriminatory, since opposite race marriage is not barred to them

      1. Actually it has been demonstrated. The guy making out the marriage license can see if someone is black and makes his decision based on that. He can’t see, nor does he ask, nor does he care, if someone is gay.

        1. If only gay people could be made to wear something on their clothes so that they could easily be spotted.

          1. How delightfully topsy-turvy, straights telling gays what to wear.

            1. I’d say SF was being sarcastic, Tony.

                  1. Tony needs government-subsidized batteries for his irony detector.

        2. What it means to be gay is to be attracted to the same sex, so yes, no one has to ask about any sexual preference in order to prevent gay persons from having the equal right to marry as heterosexuals. I’m not sure why so many of you paleos think this is some important point in any way…

      2. But interracial marriage was banned in places by regulatory statute. Same sex marriage wasn’t positively banned (until recently in some jurisdictions in the USA & Canada when the controversy came about), it was just never understood by custom or common law as marriage. Marriage didn’t become an opposite-sex institution by regulation, but by customary understanding of the words “married”, “spouse”, etc.; it was a spontaneous order.

  14. This was so much simpler when women were rightly viewed as chattel property — it was obvious that marriage was the transfer of ownership of a female from one owner to another.

    1. Most people call that “traditional marriage.” Seems like a ton of people miss it.

  15. You know, the right-leaning libertarian refrain of “the state shouldn’t be involved in marriage at all” in response to this issue is stupidly tiresome…It’s a way for them to have their libertarian cake and keep their conservative frosting.

    Just man up to the issue at hand: IF there is going to be state recognized marriage is it a violation of the constitution and morality to deny that recognition to same sex couples?

    1. IF shit tasted like butter, could you spread it on your toast?

      1. You eat shit for breakfast?

        1. We all do, MNG, just not in the literal sense.

          We get double rations every two years on election days.

        2. Is that what I said? My point was that even IF shit tasted like butter, I wouldn’t eat it. Just like there shouldn’t be ANY state recognized marriage. It shouldn’t be a question of IF. It should be a question of whether the state sanctioning of any marriage should be allowed. And that answer would be NO. Unless, of course, you can give me a good reason why it should be OK for the government to interfere into any private contract, or grant any special privileges to anyone.

          1. “It shouldn’t be a question of IF.”

            But there is state sanctioned marriage, so too fucking bad: it is a question of IF.

            1. Maybe for you. For me, it’s get rid of it all. As long as the state grants special privileges to one group, there will always be another group that is discriminated against. The only way to end the discrimination, in this case, is to end the state sanctioning of marriage altogether.

          2. It shouldn’t be a question of IF.

            Oh? It SHOULDN’T be? Well, it is.
            And you don’t have a cogent argument.

        3. I eat shit for breakfast, lunch, and dinner! Straight from the ghost of John Manyard Keynes, bless his soul!

    2. Finally an issue I’m in full agreement with MNG.

    3. I have posted more than once that the 14th ammendment requires all states to recognize all marriage arrangements between any possible collection of consenting adults.

    4. Why is it “right-leaning” to say that the state shouldn’t be involved in marriage?

      Unless you’re using the template of “most supposed right-wingers are not in favor of less government” argument, it doesn’t fit the general libertarian stand at all.

      What would be the “left-leaning libertarian” view of marriage, btw?

      1. It’s a pretty good indicator of right-leaning when that is predictably trotted out in response to “should we allow same sex marriages.”

        1. “What would be the “left-leaning libertarian” view of marriage, btw?”

          Probably something like kinnath’s post above yours.

          1. That doesn’t mean we still couldn’t get rid of the legal hurdles and put real teeth into civil unions.

            Let the uptight straights call it “marriage”; gays should push for getting the legal protections, and get a ceremony done at a Unitarian church.

        2. Well, I’m right-leaning libertarian, and I say government should get the hell out of the marriage business.

      2. I’d say it’s doctrinaire to offer an argument that the state shouldn’t be involved in marriage. “Left-leaning libertarians” would be less prone to be doctrinaire on this issue.

    5. “Man-up” is a sexist term. And refer to me as Senator when you speak to me.

    6. You know, the right-leaning libertarian refrain of “the state shouldn’t be involved in marriage at all” in response to this issue is stupidly tiresome…It’s a way for them to have their libertarian cake and keep their conservative frosting.

      Why is it a “right-leaning” response? Why isn’t it a straight small-government response?

      The so-called right-leaning libertarian solution to this, as far as I can tell, gives precisely equal legal rights to everyone, regardless of what jiggles their handle. What’s the lefty problem with that (other, of course, than shrinking the Almighty State)?

      1. So the solution to the fact that gays have never had access to the same rights and privileges as straights is to abolish the rights and privileges altogether? Sorry, the cat’s already out of the bag, and you know perfectly well that nobody is gonna cede the rights and privileges they already enjoy for the sake of other people’s equality. This is just a fantasy absolutist’s way of being a bigot without having to admit it.

        1. Tony,I don’t think they have a problem with admitting bigotry but an issue with justifying it.

        2. More controversially, Walker has thus far been willing to entertain evidence that the Prop 8 campaign deliberately appealed to voter bias against gay people. And the Ninth Circuit has tentatively accepted that line of inquiry.

          Gays have the same right to marry one person of the opposite sex as straights do.

    7. Just man up to the issue at hand: IF there is going to be state recognized marriage is it a violation of the constitution and morality to deny that recognition to same sex couples?

      Baker v. Nelson

    8. I dunno, if the state mandates everyone go to church on Sunday, is it wrong if they don’t count Black Sabbaths as “church”?

    9. You know, the right-leaning libertarian refrain of “the state shouldn’t be involved in marriage at all” in response to this issue is stupidly tiresome…It’s a way for them to have their libertarian cake and keep their conservative frosting.

      One of the benefits of a society where the government isn’t involved in most aspects of life is that you avoid these stupid catfights over words, because everyone is free to have their own opinion and that opinion isn’t forced on anyone else. You might want to look into that.

    10. Holy Christ! You’re so wrong. If you side with the left, you’re saying that granting gays equal access to corrupt government favoritism should be seen as a victory for Libertarians. How the fuck is that!?! All that does is further the gov’t discrimination against unwed/single people.

      The correct libertarian position is that gov’t shouldn’t be involved in marriage. More specifically, gov’t shouldn’t give tax breaks and other benefits to married people and not to everybody else. It’s called equal protection under the law.

      The left doesn’t give a shit about freedom. They care about imposing their morality on the rest of us, just like conservatives. Just a different morality. It just so happens in this case that their moral imposition seems to sync a little bit with the libertarian ideal of equality under the law. But I don’t want to give them the win, because they won’t stop there, and the next issue will be one where they’re pushing something more blatantly discriminatory than marriage.

      Libertarians need to be libertarian. We shouldn’t be making concessions to either of the fascist factions, just because we think one side is a little closer to our ideal in this one particular case.

      1. Please address spousal immunity and forget about welfare-state benefits for a few moments.

      2. What I will never understand is why you can’t be a libertarian pragmatist. Why can’t you be in favor of incremental policy changes that increase freedom? As it stands you’re just a utopian who will never, ever see an increase in freedom because you reject anything that’s not a total overhaul of the system.

        Let’s start with equal rights. Maybe someday we’ll abandon the universal tradition of state-recognized marriage, but until then there are problems we can actually solve.

        1. Hey, Tony… this is the second time (in this thread) you and I are in agreement on a subject.

          This calls for a celebration. I’m hittin’ the Jagermeister soon as I get my ass home. Might even call up my FWB and have some non-state sanctioned fornication.

          I guess that’s still legal. lol.

    11. Some would pervert the concept of the state staying out of marriage to suit your example. It’s unfair to group all who believe in decoupling government from marriage to those who deny homosexuals the right.

      I 100% believe homosexual marriages should be granted and respected in all states. I am also completely behind the idea that the states should not be in the marriage business.

      The concepts aren’t mutually exclusive in any way.

  16. There is admittedly some disagreement within the Gay community over what’s more important, the word “marriage” or the benefits and responsibilities that are connected with it. As someone who prides himself as being nothing if not diplomatic, I would take simple legal equality under the law, even if the operative term is “civil unions.” If social conservatives simply wish to reserve the term “marriage” for heterosexual couples, they can have it, as long as Gay couples are treated fairly.

    Here’s an example of how the current system is not fair: According to a statement I recently received in the mail from the Social Security Administration, my married spouse would be eligible for over $1400 per month (after retirement) in the event of my death. I think anyone would agree that $1400 per month is a pretty hefty chunk of change. However, it is money that my significant other would not be eligible for, because we would not be allowed to get married. I would like to provide for the financial well-being of my spouse, just as I’m sure any heterosexual would, but in essence I’m throwing away money on a fund that my partner cannot take advantage to in the event of my death.

    At the root of this discrepancy is the Defense of Marriage Act (DOMA) which was signed, to his eternal shame, by Bill Clinton. Because of DOMA, even Gay couples who are legally married in Iowa or Massachusetts are unrecognized by the federal government, and any such couple becomes magically “UN-married” once they move to another state. So frankly, even married Gay couples in Iowa and Massachusetts continue to be second-class citizens in the eyes of Washington. This is why the issue of marriage equality cannot be decided on a state-by-state basis.

    At the very least, the federal government should allow Gay spouses to file joint tax returns and to designate one another for survivorship benefits under Social Security. If a “civil union” would allow us to do this, I’m all for it. If not, then nothing but full marriage equality will suffice.

  17. What’s the benefit? The extra 3 or 4 grand in federal tax married couples pay?

    1. Actually, according to a report given to the Office of the General Counsel of the U.S. General Accounting Office, there are 1,138 benefits the United States government provides to legally married couples, including:

      Assumption of Spouse’s Pension
      Bereavement Leave
      Insurance Breaks
      Medical Decisions on Behalf of Partner
      Sick Leave to Care for Partner
      Social Security Survivor Benefits
      Sick Leave to Care for Partner
      Tax Breaks
      Veteran’s Discounts
      Visitation of Partner in Hospital or Prison

      And that’s just at the federal level.

      But the more important question is, are THESE BENEFITS the reason any couple, Gay or Straight, wishes to get married? My answer would be NO. The reason couples choose to marry is to make a solemn declaration before friends and family members that they wish to make a commitment to one another’s happiness, health, and well-being, to the exclusion of all others. Those friends and family members will subsequently act as a force of encouragement for that couple to hold fast to their vows. THAT’S what makes marriage a good thing, for both Gay and Straight couples.

      1. …and that’s why 40% of marriages end in divorce, you incurable romantic.

      2. Tax Breaks? You must be kidding. For single earner couples maybe, but tax penalty is brutal for two earner couples, especially with children.

      3. They can make that solemn declaration with their friends & families without any legal recognition at all. So what’s the big deal?

        1. Are you saying being able to visit a spouse at the hospital on their deathbed is not a big deal? And obviously the other benefits mentioned are not the reason for wanting equal rights. No need to be intentionally dense.

          1. And there’s no use for you to switch from Chuck’s bait. I’m responding to the issue he raised, not what you did. They’re not the same thing at all.

  18. I think government recognition of marriage has the benefit of lowering certain information costs. When you get married you assume what would have to be a shitload of different contractual obligations which otherwise would have to be all negotiated. Since people are going to couple up state recognition of that is a good idea in my opinion. And I also think it’s more than ok for the state to promote marriage as it has all kinds of benefits for society (married people are less likely to be poor, to raise children to become productive members of society, etc.)

    1. Why should grown, competent adults need a permission slip to get married?

      Get the legal mumbo-jumbo out of the way via broader civil-unions legislation, and move along to more important things.

      1. That doesn’t address the equal protection question unless both gay and straight unions have the same recognition. Seperate but equal=uncool

        1. That’s what I’m saying, MNG – make ’em all equal.

        2. DEAR MNG:

          I absolutely agree, Gay and Straight couples must be accorded the exact same legal benefits, protections, and responsibilities at all levels of government. The biggest obstacle to this is the so-called Defense of Marriage Act (DOMA), which is transparently unconstitutional under the 14th Amendment and the “Full Faith & Credit” clause. Gay couple in Iowa are allowed to be legally MARRIED … but they those marriages are still unrecognized by the federal government for the purposes of taxation and Social Security.

          As for the notion of “Separate but Equal,” this phrase harkens back to the days of racial segregation when, as everyone knows, “Separate but Equal” was anything BUT, since the public facilities that Blacks were forced to use were invariably substandard. I don’t think it’s necessarily fair to compare this to “civil unions” for Gay couples, since the legal benefits, protections, and responsibilities CAN be exactly the same, if only under a different name.

          But once again, DOMA stands in the way of this.

        3. Separate but equal restroom facilities for blacks & whites are in your words “uncool” but there is no problem with separate but equal facilities for men and women. Different treatment based on gender is not the same as different treatment based on race. “Equal protection” is not the trump card you think it is.

          1. There’s a chain of fitness centers called Curves, and they only allow women. Not that I want to join, but if I did, I’d be pissed that they wouldn’t accept my money for their workout-facility services.

            1. You have a right to be pissed but you would have no right to make Curves accommodate you.

              1. But can men open male-only workout facilities and NOT be called sexists in the process?

    2. Why the attachment to the magic word, MNG? What’s the objection to doing a global search and replace of “marriage” with “civil union” in all statutes?

      1. It’s not an attachment to the word marriage, it’s an attachment to equal application and protection of the laws. I’d be equally fine with giving straights and gays only civil unions as I would be giving them both marriage.

        1. It’s not an attachment to the word marriage, it’s an attachment to equal application and protection of the laws.

          They can have equal rights in a separate institution.

          1. Seperate but equal, now where have I heard that before?

            1. “Seperate but equal, now where have I heard that before?

              The Second Morrill Act.

              Provided, That no money shall be paid out under this act to any State or Territory for the support and maintenance of a college where a distinction of race or color is made in the admission of students, but the establishment and maintenance of such colleges separately for white and colored students shall be held to be a compliance with the provisions of this act if the funds received in such State or Territory be equitably divided as hereinafter set forth.

              Also, public schools offer gender-segregated facilities and programs.

              Our society, and the federal judiciary, are much more tolerant of separate but equal on the basis of gender than on the basis of race. Thus, public universities may offer gender-segregated sports but not race-segregated sports.

      2. The global search and replace is what I’ve been pretty much in favor of, but you’d at least also need to add a statement that those who are married are also civilly unified, and that those who are divorced are civilly disunified.

    3. Ahhh, social engineering. That’s always a good argument.

      Face it, marriage is antiquated.

      1. The libertine’s hoary assertion for at least the past 200 years.

        1. Bullshit.

  19. I have a right to be married! I’m gonna sue someone.

  20. My general ideas are as follows.

    The state ought to get out of dispensing any special favors or benefits concerning marriage as we know it today. Marriage should be a private (or if the parties to it want, a sectarian) matter involving the individuals and whatever community they voluntary wish to involve.

    The state ought to have institutions that recognize the legitimacy of relationships (including between members of the same sex) involving minor children and should recognize the economic and societal imperatives and obligations connnected with raising a family.

    With the availability of wills, trusts, head-of-household Federal Income Tax filing status etc. we have the core structure in place today that would be needed to move away from a marriage-centric model to a family-centric model.

  21. Here’s a devil’s advocate argument for everybody:

    PREMISE: A progressive income tax violates the equal protection clause because it taxes the wealthy at higher rates than the non-wealthy.

    OBJECTION: The progressive income tax still passes strict scrutiny because collecting taxes at higher rates from wealthy persons is necessary to generate government income.

    RESPONSE: It isn’t absolutely necessary to tax the wealthy more. A flat tax could still generate substantial income without discriminating against the wealthy.

    OBJECTION: The progressive income tax does treat people equally because it only taxes various levels of income.

    RESPONSE: This is like saying that marriage laws treat gays equally because gays are still free to marry members of the opposite sex. The only way for the wealthy to avoid the higher rates is to not be wealthy. It plainly discriminates against them.

    OBJECTION: The 16th Amendment authorized a progressive income tax.

    RESPONSE: It didn’t do so expressly. This is like restricting the equal protection clause to race and ethnicity; it reads something into the text that wasn’t made explicit, even though it was widely understood that way at the time of ratification.

    I could go on. My point is that if the Supreme Court ruled that the progressive income tax violated equal protection, I’d be elated on a policy level but very upset about the means by which the policy was achieved. It’s cheating, and those who support these tactics know deep down that it’s cheating.

  22. OK, OK, I confess!

    It’s me behind the marriage lobbying!

  23. Helpful hint: Loving v. Virginia used opposite-sex only marriage in its argument against anti-miscegenation laws. It’s true! If you took opposite-sex only marriage out of it you would actually make their case against anti-miscegenation laws weaker. Look it up!

    In conclusion: Please stop throwing Loving at me in defense of SSM. You are either a class “A” moron or you think I am.

    1. It’s the logic involved, not the dicta or even the holding, that makes it relevant. Just like paleos claim prohibitions on same sex marriage are’nt discriminatory because anyone is equally free to marry someone of the opposite sex VA claimed their interracial marriage ban was not discriminatory because all races were equally prohibited marriage to someone of another race.

      So in this instance I think you’re the class A moron ๐Ÿ˜‰

      1. Just like paleos claim prohibitions on same sex marriage are’nt discriminatory because anyone is equally free to marry someone of the opposite sex VA claimed their interracial marriage ban was not discriminatory because all races were equally prohibited marriage to someone of another race.

        But… they aren’t “just like” at all. Loving takes as one of its assumptions that they aren’t “just like” otherwise they couldn’t have used one to disprove the other.

        If you take SSM to be “just like” interracial marriage, the Loving decision gets weaker. Who’s to say it doesn’t fall apart entirely without that part of the argument?

        You are simultaneously undermining and using to your own advantage the exact same premise. Without any sense of irony. Fascinating.

        1. It is his modus operandi.

        2. “But… they aren’t “just like” at all”

          I’m afraid you’ll have to explain that further. They seem just like each other to me in that they both entail the idea that they are not discriminatory because they apply equally to all concerned parties.

  24. I have no objection to same-sex couples receiving equal rights in a separate institution.

    1. Separate but equal? How could that ever be unfair?

      1. Separate but equal? How could that ever be unfair?

        Our society, as well as the federal judiciary, is much more tolerant of separate but equal on the basis of gender than on the basis of race.

        1. But this isn’t about gender, it’s about sexuality.

          1. Sexuality and gender are inseparable.

            1. Gays and lesbians constitute two different genders, but one class in terms of heterosexual vs. homosexual. Even if we grant that some separate-but-equal treatment is tolerated for the different sexes, that doesn’t mean it should be for the different sexualities.

              1. Why should sexuality be a suspect class?

                Why should the U.S. Supreme Court interpret sexuality as a suspect class, especially since such a thing would not have been understood at the time of the ratification of the Fourteenth Amendment?

                1. Because we should apply the actual language to reality rather than try and figure out what was going on inside the authors’ heads?

                  1. Because we should apply the actual language to reality rather than try and figure out what was going on inside the authors’ heads?

                    I refer you to Minor v. Happersett , in which an argument to the Supreme Court that the Fourteenth Amendment forbids states from denying suffrage on the basis of sex failed .

                    A constitutional amendment was needed to forbid states from denying suffrage on the basis of sex.

                    And yet, you claim that the Fourteenth is sufficient to forbid states from denying marriage on the basis of sex.

                    Or are you going to argue that Minor was decided “wrongly”.

          2. The nonrecogntion of same sex marriage is not based on sexuality but gender. It is simply that a marriage between two people of the same gender is an absurdity based on marriage’s purpose of regulating reproductive relationships.

  25. I’m always amazed there’s a need to make the case for the obvious.

    I think we should just ban the word marriage. we seem to be good at banning things as of late.

  26. No compelling reason has been proffered for sanctioning heterosexual but not homosexual marriages.

    Only if you ignore the “raising the next generation of society” argument. And if you do ignore that, you would also have to admit no compelling reason has been profferred for santioning benefits to people who couple over people who remain single either.

    1. How does letting gay people marry affect the raising of the next generation? The straights will still marry and have kids. Letting more people in does not prevent those already in from continuing as usual.

  27. The Cato guys are good on so many issues, but on this issue they’re quite lame.

    First, please note the customary bait-and-switch: Portraying a Libertarian utopia where the government doesn’t provide any legal penalties or privileges based on intimate relationships, and leaves the definition of marriage to private institutions, then promptly admitting that such a utopia isn’t in the cards and proposing instead some ideas about a different regime of government regulation of intimate relations. The reader is supposed to feel so warm and fuzzy at the idea of deregulating marriage that he’ll forget the author is advocating something else entirely.

    Then there’s the assumption (for which evidence is neither asked nor given) that race discrimination is the same as discrimination based on sexual orientation. Levy doesn’t even attempt to prove this assertion, even though it’s central to his whole argument.

    Then Levy throws out alternative methods of protecting marriage – abolishing no-fault divorce and cracking down on fornication. Does this mean that Levy will soon be joining the movement to abolish no-fault? That he will be putting forward ideas for enforcing the anti-fornication statutes already on the books in many states? I doubt it.

    Then the bottom line of his argument:

    ‘Government benefits triggered by marriage could just as easily be triggered by other objective criteria, leaving the definition of marriage in the hands of private institutions.

    ‘For instance, the Senate Homeland Security and Governmental Affairs Committee recently voted to extend employee benefits to same-sex partners of federal employees. The qualifying criterion, which could also apply to heterosexual couples, is an affidavit identifying the domestic partner and certifying that the partnership is intended to be exclusive and permanent, within a common residence, with shared responsibilities.’

    So there it is – drop the word ‘marriage’ and let same-sex couples into the institution.

    So if two (or more?) people make afidavits that they’re domestic partners who intend a permanent relationship, they get the benefits which the law has formerly reserved for married couples? What if they’re not really lovers, but roommates or Army buddies posing as lovers in order to get government benefits? What’s to stop the possibility of fraud? Do we set up a Police for the Suppression of Vice to check up on alleged domestic partners to make sure they’re really lovers?

    1. There’s no reason you should have to be having sex to get the legal nuts and bolts of marriage. I would think religious conservatives could get on board with that, so that the State granting special privileges to the relationship between Ted and Steve would not thereby be sanctioning homosexual sex.

      1. Marriage has always been a sexual arrangement, lack of sex has been legitimate grounds for divorce, no sex has been grounds for annulment. The notion that divorcing marriage from sex is any kind of solution betrays a lack of understanding of what marriage is as an institution.

        1. I’m not talking about divorcing marriage itself from sex (nice play on words though). I’m talking about divorcing power of attorney, spousal immunity, shared health benefits, etc from sex. The legal nuts and bolts currently associated with marriage have not necessarily been associated with sex historically.

          1. If they’ve been associated with marriage then they’ve been associated with a presumed sexual (and rbiological reproductive)relationship between the couple.

    2. “Then there’s the assumption (for which evidence is neither asked nor given) that race discrimination is the same as discrimination based on sexual orientation.”

      Is that true? Levy pretty clearly says that in both cases there is no compelling reason for the differential treatment. That’s the heart of it for most people, there’s no good reason why the race or the gender of the people seeking marriage should matter.

      1. Levy asserts this without much reason given. Simply preaching that there is no compelling reason is unconvincing to anyone who is not already in the choir.

        But this kind of intellectually dishonest assuming your conclusion is par for the course fir the gay marraige advocates.

    3. “What’s to stop the possibility of fraud?”

      What’s to stop the possibility of fraud for opposite sex marriage? You’ve heard of people marrying to keep someone in the country, right?

    4. There has never been a legal requirement of married couples that they be lovers of each other, or of anyone. It helps if they’re friends, of course, becaues they’re supposed to live together, but what’s love got to do with it?

  28. But, but…their cocks touch!

  29. Spousal priviledge has been with us a very long time. Unless someone wants to argue that spousal priviledge should disappear, then the state is going to need a definition of who is or is not someone’s spouse. Once that definition is in place, it cannot violate the 14th amendment which requires equal protection under the law.

    The problem is the world is full of lazy people. Once the state defines who is or is not someone’s spouse, everyone is going to use that definition in a wide variety of applications. This includes agents of the state as well as the the population as a whole.

    My preference is to see the welfare state get dismantled, the income tax system eliminated or reduced to a trivial flat tax, and the legal definition of “spouse” restricted to basic things like establishing spousal privilege, automatic power of attorney, inheritance rights, etc. But that’s a fantasy.

    So people need to come to terms with the fact that the federal DOMA and all state-level limitations on “marriage” are in violation of the 14th. They will all fall eventually; the only question is how many more generations before they do.

  30. So at the time the 14th Amendment was ratified – in 1868 – and for about a century thereafter (if not more), nobody noticed that the traditional man/woman definition of marriage had been *abolished* by that amendment?

    1. The man the wrote “all men are created equal” held slaves for the next five decades until his death.

      The man that revolutionized modern physics went to his grave believing “god does not play dice with the universe”.

      I don’t give a rat’s ass what people thought they ratified when the 14th passed.

      No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

      These words are pretty damn straightfoward. I don’t need to the author to explain them to me. I can read them myself.

      Spousal immunity is a “protection” under the law. It is not subject to the gender of my spouse.

      1. That strikes me as begging the question by assuming that the definition of ‘spouse’ is totally up for grabs.

        To me, saying that the sex (or “gender) of spouses is irrelevant is like saying, ‘maternity leave is a right, and I don’t care about the sex of the mother!’

        But I suppose that even if you can’t have babies, at least you have the *right* to have babies.

        1. Isn’t it strange that nobody flagged the fact that the 14th Amendment changed the marriage laws of every single state? Never mind the ‘authors,’ what about the states who ratified, and the supporters and opponents of the amendment, and the jurists who commented on it, etc.

          If you find yourself saying – ‘nobody understood the law for 100 years until we came across the true meaning! is, to say the least, implausible.

          1. It took 100 years or so for the courts to get around to striking down state laws against interracial marriage. I’m sure that the 14th would have failed miserably if people saw that coming.

            1. So we’re back to ‘gay is the new black!’

              The Constitution is incompatible with miscegenation laws because of the 15th Amendment, which guarantees a racially-neutral franchise. By 1967, when the US Supremes invalidated the miscegenation laws, only 15 states had such laws on the books, and most of these states had been flagrantly violating the 15th Amendment through massive disenfranchisement of their substantial black populations. It was the federal government’s failure to enforce the 15th Amendment which led them to pick up the slack by using the 14th. But that wasn’t the 14th Amendment’s proper use – state governments (elected on a race-neutral franchise per the 15th Amendment) were supposed to regulate marriage (with exceptions not pertinent here).

              Outside the Jim Crow zone where the 15th Amendment was being trampled, virtually all of the states had repealed their miscegenation laws by 1967, without help from the US Supreme Court. Only one state (California) had used purely judicial means to get rid of its miscegenation law – elsewhere, the state legislatures repealed the laws.

              It was the segregationists, not the civil-rights movement, who posited a moral equivalence between interracial marriage and such things as sodomy, adultery and and fornication. The gay-liberation movement is basically saying that the segregationists were right, and that there’s no difference between sodomy and fornication, on the one hand, and a marriage between partners of opposite races, on the other hand.

              1. So we’re back to ‘gay is the new black!’

                I didn’t say that.

                1. It’s meant as something of a parodic summary of the misbegotten miscegenation analogy.

              2. Sorry, 17 states, mostly Jim Crow places with histories of massively and unconstitutionally disenfranchising the black population.

                1. Jim Crow has been dead for decades, yet some idiots continue to exhume the corpse.

          2. It was about the same amount of time before people realized that the 14th could apply to unequal protection of the law for white people under reverse discrimination policies…

            1. Evidence that white people as such are *not* a protected class. At least, not if you go by original intent.

              But the U.S. Supreme Court does *not* go by original intent! They go by the sacredness of stare decisis, and that means protecting discrete and insular minorities.

              We all know how insular white people can be – clinging to their guns and religion and their Wonderbread and country music. And they’re certainly discrete – a solid bloc of opressive racists who can’t wait to bring back slavery!

              So, if you go by original intent, racial preferences against whites are OK and whites have to rely on the political process to protect themselves.

              But if you rely, like a good liberal, on Supreme Court doctrine of discrete and insular minorities, then white people are entitled to protection as a protected class.

        2. Yup it’s all down to the magic definition of spouse. Traditionally, a spouse must be the opposite gender. But the state needs to show a compelling society impact for requiring spouses to be opposite gender.

          Most arguments against same gender marriage devolve into discussions of “tradition” or raising kids neither of which has any real bearing on spousal immunity.

          I can see no rational argument that a man should be allowed to refuse to testify against a wife, but not a husband.

          1. Fair enough, but I would hope that libertarians such as the Cato people would reject this sort of argument.

            Forcing a husband to testify against a wife, or vice-versa, would certainly be a violation of a long-recognized privacy right, and it would expand the power of the state. If the gay-liberation argument leads to such results, maybe it’s time to reconsider the gay-lib position.

            1. Wait, sorry, I hastily misread the last sentence – you want to *expand* the spousal exemption by expanding the definition of spouse – which, again, begs the question.

              1. The question I said in the beginning is “who defines spouse”. And I also contended, the state must define spouse for its own purposes and that definition cannot violate the 14th.

                DOMA is a modern ennactment and it clearly violates the 14th.

                And when DOMA falls, like the equivalent in Iowa did last year, it will effectively invalidate the colloquial definition of spouse that predates the 14th by several thousand years.

                1. I don’t acknowledge that that state has any business rewriting the definition of spouse for its own purposes.

                  The institution of marriage, in my view, precedes the state. It is not a creation of the state. While the state has the right (I would call it a responsibility) to *protect* marriage, I most certainly do not concede it the right to redefine marriage according to political fashions.

                  The no-fault divorce laws are an extreme example of the state arbitrarily redefining marriage.

                  Come to think of it, the miscegenation laws are an example of the same phenomenon.

                  And so are the same-sex marriage laws.

                  1. Either a legislator or a judge is going to decide who gets spousal immunity.

                    Once that happens, marriage is defined — for legal purposes.

                    The state should have no involvement in “protecting” marriage. That’s what started this problem to start with.

                    The state should only care about who gets immunity from testifying against a spouse; who is in control when a person is incapacitated and the spouse asserts priviledges; who inherits when a person dies.

                    All this shit about what is marriage, who can get married, and so forth is the result is the state fucking around in people’s private lives in order to “foster” marriage.

              2. Max
                Could you be begging the question? Why should the gender matter?

                1. ‘The state should have no involvement in “protecting” marriage. . . . The state should only care about who gets immunity from testifying against a spouse’

                  The state should have no role in protecting motherhood. The state should only care about who gets maternity leave.


                  The use of the term ‘spouse’ begs the question.

        3. Max, the definition of “spouse” is not totally up for grabs, but it is at least partially up for grabs, as demonstrated by the fact that there are now same sex spouses. There already is same sex marriage, so arguing about the dangers of changing the definition of spouse is irrelevant. That ship has already sailed. Gay marriage exists. It is not going away. The definition of spouse has already changed. Get over it.

        4. Max
          Why would the genders be relevant?

      2. The man the wrote “all men are created equal” held slaves for the next five decades until his death.

        The Declaration of Independence was not, and is not, a legally binding document.

        1. And that goes double for “promote the general welfare”.

          1. Mike it a triple!

            1. I’ll have a scotch smothered in boibon!

  31. Bigamy is having one wife too many. Monogamy is the same.

  32. Marriage is not a right; it is an infringement on individual rights! The debate is over.

    I wonder what percentage of homosexual men bask in this gift from the state: “I’d love to marry you, Cecile,” says Barney, “but it’s against the law! We just gonna have to just keep on fingercockin’ fer now!However, I gotta a feelin’ after that Obama fixes the economy, health care, global warming, and gets us some of them green jobs, he’s a gonna fix us up with some of them marriage rights!”

  33. If religious conservatives want to cut down on the frequency of homosexual sex, they should support homosexual marriage. Heck, they should require it.

    1. They should also stop having so much of it.

  34. One thing I don’t get is how gay marriage proponents can oppose legalizing incest and polygamy. Such laws prevent people from marrying the person they want to marry, if that person happens to be a close relative or an already-married person.

    And you can’t use the “they’re free to marry anyone else” argument cause you’ve already deprecated that in your quest for judicially enforced gay marriage.

    1. One thing I don’t get is how gay marriage proponents can oppose legalizing incest and polygamy.

      Same as wanting to ban abortion except in cases of rape and incest.

      I keep telling people that the ick-factor is not a legal doctrine.

      1. Or, better yet, how can you support a “woman’s right to choose” without supporting prostitution?

      2. Well, the rape exception is defensible on the grounds that, with pregnancy due to consensual sex, one can say that the mother already chose to accept pregnancy by having sex (the same argument used to force the father to support the child he sired whether he wants it or not).

        With a pregnancy resulting from rape, that argument is no longer valid.

    2. I suspect that, depending on the person, it’s partly the ick factor and partly tactical – ‘the rubes will never accept same-sex marriage if they realize that the same arguments could justify incest! So let’s just say that the traditional-marriage supporters are paranoid for comparing incestuous relationships to same-sex relationships.’

      1. Only paranoid fundamentalists think there’s any comparison between incest and gay relationships!

      2. I think one can distinguish by saying that incest disrupts things we want: intact families. I’m not sure if that can be said about same sex marriage.

        1. Indeed, I have no problem with retaining the idea that marriage is valued by society and the state because it supports families (i.e., helps raise kids). People just need to realize that lots of gay couples have children too.

        2. How in the world would (consensual) incest disrupt families? The family that lays together, stays together. ๐Ÿ˜‰

          In any case, this is exactly what I’m talking about: once we move to a type of relationship you don’t already support for other reasons, you throw Equal Protection to the four winds in favor of some nebulous concern about families.

          1. There are two separate questions. 1) Why do the people have a stake in encouraging marriage by granting benefits to married couples? and 2) Should gays be included in this scheme?

            The main reason for the first is the benefits that come from a stable two-parent household in the raising of children (not procreation, mind you–it’s not about producing more citizens, but supporting children).

            Granted, straight marriage has long been abused. That just means the institution has become more liberalized (for them).

            The second question is where equal protection comes into play. There’s no difference in the quality of gay parents vs. straight parents, so there’s no reason the protections shouldn’t be extended, and since hetero marriage is liberalized to the point of meaning little more than two people committed to each other, there’s also no reason not to adopt the same attitude for gay marriages.

            Incest doesn’t promote the welfare of children. I dunno if it should be illegal, but I don’t think the state should sanction it with benefits.

            1. Incest doesn’t promote the welfare of children.

              How so? Since you yourself said the concern is not with the production of children but with their upbringing, you can’t base your argument on the genetic ill effects on incest-conceived children. You need to show that children who are raised by parents who are related are going to have lower welfare than those raised by same-sex parents.

              1. Worked for us!

              2. You can probably show that incest is inherently disruptive of families but the same is not true of same sex marriage.

                1. I’m not so sure, MNG. A kid could go their whole life without finding out that his or her parents were brother and sister. Not gonna be the case with kids raised in same sex marriage homes.

                  And no, you can’t use taunting and social ostracism resulting from other kids as an argument, because that’s going to happen with kids in same-sex marriage households also.

    3. I think incest and polygamy ought to be legal, so long as they are consensual.

  35. All people currently have the same marriage rights. You are allowed to marry one person (of legal age) of the opposite sex. The state asks no questions and makes no assumptions about a person’s particular perversions or fetishes. Calling “gay marriage” an equal rights issue is hagwash. It’s really just an attempt to mandate a state to put a stamp of approval on immoral behavior. Do whatever you want with whatever consenting adult in your private time, but neither the people nor the state should not be forced to sanction it.

    1. Does a man have the right to marry another man who has been surgically altered to be a woman?

      Does and man have the right to marry a women who has been surgically altered to be a man?

      Is opposite sex defined by the external appearance of the body or by DNA?

      1. Surgical alterations or any other voluntary mutilation do not make a person a member of the opposite sex. The state and society should not be forced to recognize mutilations as a change in someone’s gender.

    2. All people currently have the same marriage rights. You are allowed to marry one person (of legal age) of the opposite race.

      For the person who was flumoxed at how proponents of same-sex marriage could invoke the interracial marriage bans involved in Loving take note, I only had to change one word!

      1. So you’re all for a man and a women (altered to look like a man) getting married under the current legal system?

        1. Wrong place ๐Ÿ™

        2. Pretty much.

        3. Dude looks like a dude who looks like a lady!

  36. You are allowed to marry any consenting one person (of legal age) of the opposite sex.

    Now you comply with the 14th.

    1. Homosexuals are not viewed as any different under the law than heterosexuals. An unmarried homosexual man can marry any consenting single woman he wants, just as a straight man can. Those aiming legalize homosexual marriage are trying to frame traditional marriage laws as discriminatory, but in reality are trying to set up laws that discriminate against traditional morality.

      1. Homosexuals are not viewed as any different under the law than heterosexuals.

        Only if you frame the issue in a useless and tortured way. In reality, heterosexuals can marry for pretty much any reason they want, whereas homosexuals can’t marry for any reason they could possibly have to do so.

        1. Which would be a good reason to get government out of the business of selling permission slips to consenting, competent adults.

          Wouldn’t you agree?

          1. Government isn’t selling permission slips. You can shack up with anyone or any number of people you want. Government provides benefits to people who choose to marry. Are you trying to argue that government should stop interfering with our right to government handouts?

            1. Marriage license = permission slip, Tony.

              1. BTW, there is no “right to government handouts”, but that’s an argument you will never concede.

              2. So you think people should be able to have access to government-provided marriage benefits without a license? I mean you can call yourself married without a license if you want. You can also call yourself Rebecca, queen of Alpha Centauri and nobody but maybe the men in white coats will give a shit. You seem to want official recognition, minus the official recognition.

                1. Read my post below @9:52, Tony.

        2. What’s useless and tortured about it? Straight people can’t marry people of the same sex either. I’m all for people being free to shack up and make private contracts with whomever they want, but to intrinsically alter and change the definition of marriage to accomodate and legitimatize immoral behavior as an equally legitimate “lifestyle choice” seems pretty useless and tortured to me.

          1. yeah man. jesus hates fags!

            1. No, not at all. My point is that people who engage in homosexual behavior are entitled to the same rights as everyone else. And they have a right to do whatever they want in their private lives. But the gay marriage lobby is asking for an additional privilege that is wholly unnecessary. Asking for the state to grant special status and put its official stamp of approval on immoral behavior is an infringement on a just society. I don’t care if you want to have sex or create a Neonazi website or smoke pot or cheat on your wife or pay for a prostitute. I do care if the government spends its time and resources to help you do it.

              1. How is what I do in the privacy of my bedroom in any way immoral? It doesn’t hurt anyone. The privacy of my bedroom isn’t even subject to the rules of Miss Manners, what does morality have to do with it? Unless of course you mean the arbitrary preferences of a bearded sky fairy, in which case, see the first amendment and keep your stupid ghost stories out of my private life.

                There is no extra privilege gays are seeking, just the same ones everyone else has access to.

                1. You do have access to the same privileges. You can marry a woman, as can I. I cannot marry a man and neither can you. Nothing is stopping you from your right to marry a woman, other than your personal preference. And you have every right NOT to marry a woman, if you don’t want to. In fact, I would probably advise against it, because it doesn’t sound like you are attracted to women.

                  That is my entire point. And I have no intention of haunting your bedroom with bearded sky fairies, just keep it in your bedroom and stop claiming that it’s every bit as legitimate as biologically ordered, natural, and healthy relationships. There is nothing arbitrary about traditional sexual morality, what is arbitrary is the gay marriage lobby springing from nowhere in the last 10 years and trying to cram their agenda down everyone’s throats.

                  1. You’re just scientifically wrong about homosexuality being somehow illegitimate. Has always existed and does across thousands of species. The only thing artificial in this situation are religious busybodies oppressing people’s natural urges because they don’t conform to their norm.

                    My right to marry a woman is as valid as my right to claw my eyes out. It means nothing, because I cannot be attracted to a woman.

                    1. My right to marry a woman is as valid as my right to claw my eyes out. It means nothing, because I cannot be attracted to a woman.

                      The U.S. Constitution does not give youi the right to redefine marriage.

                      A man named George Reynolds learned this lesson the hard way in 1879.

                    2. Because something happens biologically or in nature does not mean it is right. Lots of humans have been cannibals, but that doesn’t make it right. Our laws are based on the presumption of objective morals. The gay lobby is working hard to deconstruct traditional morality. You and the gay marriage movement have decided that your libidos and lack of self-control are enough to redefine morals for the rest of us. Not buying it. Get it out of the public square and out of our faces, thank you.

                    3. You’re obviously a right-wing religious nut, so any response is pointless since nothing will trump your devotion to idiotic fairy tales, but anyway here goes.

                      Actually, cannibalism doesn’t seem to be something inherent to the human species. It has been exaggerated in depictions of primitive peoples, and generally seems to be only really an occurrence in cases of extreme starvation.

                      I have no more or less a right to be in the public square as you do. Just because you’re a squeamish little bitch about homosexuality doesn’t mean I don’t deserve equal rights.

                    4. Wow, awesome use of name-calling. Apparently when incapable of coming up with a logical counterargument, people on your side like to use terms like “nut” or “bitch.” I did not say you don’t belong in the public square, but I did say to get “it” (your illogical and immoral agenda) out of the public square, especially when you can’t justify them.

                      It does not appear that you are motivated by logic or by morality, but by your own dislike of traditional morality and by your own whims and libido. Frankly, what you want is to change society only so that it will put its rubber stamp on your own immoral behavior, not to be granted the same rights as everyone else–which you ALREADY have, by the way, “useless” (for you) and “tortured” (for no one) as it may be.

                      Your argument is in no way framed by the 14th amendment, simply by your personal whims and the personal whims of others who want to shape societies on their own selfish worldviews.

          2. “Straight people can’t marry people of the same sex either.”

            And under VA’s pre-Loving laws white people could’nt marry black people either.

            1. Those laws – thankfully – are now a thing of the past. Best to leave them in their graves.

  37. If the goal is to ensure procreation, then infertile and aged couples should be precluded from marriage.

    A silly argument. No law guarantees an optimum outcome 100% of the time.

    It is generally agreed that stop signs at intersections reduce accidents. It is also likely true some stop signs have stopped no accidents, and some of them are probably situated such that they’ve actually caused accidents.

    That is not an argument for abolishing stop signs, and even less of an argument for placing them in the middle of corn-fields, where they will certainly stop no accidents at all.

    The measure of a law isn’t whether it produces a desirable result 100% of the time, but whether they produce a desirable result more often than not. And I hardly see that laws that don’t produce a desirable result 100% a justification for creating laws that produce the desired result 0% of the time.

  38. Also, why should married people get special privileges that single people don’t? For instance, Social Security. A spouse can receive the benefits from a deceased spouse. A single person cannot name a beneficiary. (I know, pretending like SS will have any money in the future…) Others above have mentioned spousal privilege in court.

    Many of these sorts of privileges were put in place during a time when women were more dependents, rather than partners in their marriages. Women are more empowered than ever before.

    Singles have gotten the shaft when it comes to privileges and benefits from government and at their workplaces. Government should not pick winners and losers–not in business and not in our personal lives. The marketplace of ideas and values can take care of this just fine.

    1. I don’t disagree with you necessarily, as a person who wouldn’t choose to marry even if I could (I do cohabitate with my boyfriend though), but it’s just not realistic to think we’ll abolish marriage benefits, and at any rate it would be kind of douchey to do so just on the cusp of official recognition of gay couples.

      1. If the civil-union template had every morsel afforded to straight, married people, the need for the marriage license/permission slip would just be a symbolic piece of paper… and a redundant piece of paper at that.

        1. You’re not making any sense. You have to have some sort of license if you have benefits associated with the partnership. Otherwise how do you tell the difference from married couples and nonmarried ones in an official way? You’d need a license for civil unions too. I’m not sure what your point is. You want government to get out of marriage, I presume? Fine, don’t seek out government benefits then and call yourself married.

          1. Way to miss the point, Tony. Here I am, on your side, and you still nitpick.

            Doing away with marriage certificates, while granting all the goodies to straight or married (or polygamous) couples, would take care of the whole thing.

            Or, even better… do away with all the tax breaks, for any married or otherwise hitched couple, and have either a flat tax or a consumption tax. Less paperwork, and the state still gets funds.

            1. If it helps, I’ll clarify a bit more:

              The reason I use the term “permission slip” re: marriage licenses* is that it gives a governmental authority the power to decide who gets permission to marry.

              Using the caveats of not allowing non-consenting people, children (who, by definition, are incapable of giving consent), or grown adults incapable of making decisions for themselves (e.g., my father, who is in early Alzheimer’s phase and is, therefore, incapable of making any decisions), everyone else is subject to this arbitrary process of paying money for a piece of paper saying “Okay, I got it, now we have permission to get married!” – which is a revolting notion, but I digress.

              Straight and/or straight uptight religious people could still go through the process of getting that slip of paper, but gays and straight couples who don’t want to get married (both groups should have the same footing, btw) could just go to a non-denominational church (or contact a local pagan for a handfasting ritual, for instance), call it a union/marriage/domestic partnership, and take the wind out of the sails of the anti-gay marriage argument.

              Oh, and if you ever want to do a pagan ritual, I know about a dozen or more pagans. I can get you such the deal!

              1. * A license to perform heart surgery might be a necessary evil, but marriage isn’t heart surgery.

              2. But “permission to marry” only in the eyes of the state. As you indicate, anyone can find a church or a trained monkey to perform a service and call it marriage. But if you want the benefits you have to get the paper. If you don’t want government involved then don’t get the paper, or the benefits. However it is arranged, though, gays should have the right to do whatever straights can do.

                1. Like I’ve said more than once, if gays had all the legal goodies WITHOUT the stupid piece of paper, things would be better for gays in general.

                  If domestic partnership arrangements had all the legal teeth of a quote conventional marriage unquote, what’s the difference?

                  1. And there’s still no such thing as a right to government handouts.

            2. One would think gays would want LESS government intrusion into their lives…

              1. ‘Tis quite the conundrum, Mister Question Mark.

          2. You don’t need a gov’t license to be blind, but you get income tax deductions for it. Blindness is a question of fact. Adults living together is a matter of fact too.

            Questions of fact can, of course, be litigated.

            Licensing is a separate matter from…anything, really. If the city clerk sells a dog license that someone uses on a cat, that doesn’t make the cat a dog.

            1. Pet licence: Another useless piece of paper.

    2. I hear you, AFL… I’ve never been married, my kid is past SS survivor benefits age, so all that money I would get by whatever retirement age we have twenty years from now or so, if I die before that… all that money goes into the pockets of strangers.

      Wasn’t that nice of me?

  39. That is not an argument for abolishing stop signs, and even less of an argument for placing them in the middle of corn-fields, where they will certainly stop no accidents at all.

    Well, maybe we’d better put some in anyway. It’s for the children!

  40. Why do posts about gay rights get the most comments on Reason?

    1. Because the answers aren’t obvious the way they are with most issues.

      1. Yeah they pretty much are. Being gay shouldn’t be a factor in the eyes of the state.

        1. Being gay or lesbian has no more to do with gov’e policy on same marriage than, say, being black has to do with laws regarding marketing of menthol cigarets. You could point out that marriage is much less attractive to gays than to straights or lesbians, and thus conclude that the very existence of any kind of marriage discriminates against gays in favor of straights and lesbians. Just because the application of certain legal principles impacts persons of varying descriptions differently doesn’t mean the laws should be changed so as to impact them equally.

  41. In the US, vis-a-vis marriage, we have equal protection: any male may marry a female, and any female may marry a male. There is no discrimination. Moreover, no female may marry a female, and no male may marry a male. Again, no discrimination. Equal protection for all. Let’s end the sophistical arguments about why homosexuals should be able to marry each other based on some BS constitutional argument. We all know that marriage is an unnatural state for a male — polygamy may be more natural. LOL “Marriage” should be a religious ceremony, but since the State taxes marriage by issuing a marriage license for a fee, then the State gets to call marriage whatever it wishes depending on the wishes of the people. There is no right to heterosexual or homosexual or monogamous or polygynous marriage. And definitely no US Constitutional right. Marriage in the West seems to be a dying institution and eventually a majority of voters won’t care about people wanting to get a piece of paper that says they live together and have sex together and so homosexual marriage will happen and homosexuals will suffer the consequences of having to divide assets in divorce, pay alimony to the lower earning “spouse,” pay higher federal taxes as “married couples”, etc.

  42. In Virginia, vis-a-vis marriage, we have equal protection: any white male may marry a white female, and any black male may marry a black female. There is no discrimination. Moreover, no white male may marry a black female, and no black male may marry a white female male. Again, no discrimination. Equal protection for all.

  43. I’ve already written about the wrongheadedness of gay-marriage activism and of its morally inconsequential and ideologically indefensible hollowness. I’ve even suggested that a much larger battle could be won — the removal of government from the characterization and enforcement of marriage — if only those who are so near-sighted and temporal in their understanding of government would step back from the visceral lure of gay marriage and entertain the appeal of a less intrusive government.

    That liberal America leans on government to give what it is not entitled to give is reprehensible on its face, just as it is insupportable for social conservatives to demand that government take away or normalize what it is not entitled to take away or normalize. This doesn’t stop the ridiculous “hope for dreams” contingent from using emotion rather than reason to steer them through history.

    Thomas Paine, in the opening paragraph of his Common Sense, writes that “a long habit of not thinking a thing wrong, gives it a superficial appearance of being right, and raises at first a formidable outcry in defence of custom.”

    Because government’s long-standing meddling in marriage, which is wrong, is not contested ideologically by mainstream Americans, the consensus is that government’s proclamations and involvement in such is right.

    Liberal activists enshrine this rightness not by contesting the wrongness, but by fighting to be included in the wrongness. Spectacularly, they require the government to honor the 14th Amendment by excusing the government’s assumption of an authority that is not granted to it in the first place, except in the quiescence of those who have elected to be government’s subjects rather than its authors! In other words, the government has never had any authority to involve itself in marriage, but because it is involved in marriage, all the queer left wants is redress rooted very deeply in affairs that are none of government’s business. This position commands no respect. In fact, it should invite derision.

    Demanding that government envelope queers in the gravity well of its untenable position on social contracts is mind boggling (you can pontificate all you want about the “sanctitity” of marriage, but then you invite only the scorn of individuals who see through the toxicity of religion’s influence on the instruments of government). I often have to cogitate on this inconsistency in liberal social politics just to prevent myself from being wooed by its venial charms.

    Rightness (to pursue Paine’s point) grants a cause the privilege of throwing the burden of proving its wrongness on those who are in the protesting minority. The minority, in the case of gay marriage, is the Left. Excellent arguments exist for the government’s involvement in the eradication of inequal rights between blacks and whites at a time when the majority of Americans felt that segregation was just fine. I accept that an injustice of the majority can deprive a group of native and incontestable rights, and that the judicial system, in concert with evolving legislature eventually remedies its widespread application.

    But what is native and incontestable about marriage? Marriage is of importance only for the following reasons:

    * It affords legal protections to those who are legally permitted to practice it.
    * It confounds ordinary social contracts with religio-political artifice.

    I addressed legal protections when I talked about the wrongness of government meddling in marriage contracts. Queers simply want the wrongness applied to them as well. We (queers) used to just fight for equality based on basics. Marriage is not basic. It is the contract two emotional, sometimes irrational people enjoy to celebrate their union. That ceremony, even among the non-religious, is often studded with spiritual importance and court frippery, all of which prove some sort of “traditionalist” case for institutional sanctity and empty-headed protections.

    Two people can and often do enjoy fully loving, legally protected lives together without any conformance to government specifications. Social contracts are at the heart of civil society and, as such, deserve revolutionary defense against the political pathogens that lead to such a ridiculous waste of time and energy as gay marriage and all its electoral ephemera.

    If the fight is about equal protection under the law, then gay rights’ nemeses (or a Court that finds decisively against them) will have to be convinced, which they have proven staunchly that they won’t be.

    If the fight involves secularizing traditional marriage so that, counter-intuitively, marriage includes unions that are anathema to religious traditionalists, then queers who care about this are guilty of shoving their norms onto a group that already has its immutable own. That fight will be long and ugly.

  44. So explain how you can have “the removal of government from the characterization and enforcement of marriage” when someone sues a hospital for visitation rights, claiming to be the spouse of a patient? What’s the court supposed to do, refuse all such cases in favor of having the hospital security guards fight it out with the purported family visitor?

    1. This is such a non-issue. There are no such thing as visitation rights, first of all. A private hospital has the right to admit or not admit anyone it wants to onto its property. Hospitals generally allow relatives to visit, because there’s just no reason for them not to. Your hypothetical situation seems extraordinarily far-fetched, but if it did occur, the spouse would have no argument against the property rights of the hospital.

      1. I wasn’t the 1st here to write of the hosp. visit’n issue, and I know of at least one real case wherein therest of the family kept out a same sex partner of the patient against his will.

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