Family Issues

How I Learned to Stop Worrying and Embrace the Equal Protection Argument for Gay Marriage

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Yesterday a federal judge in Massachusetts ruled in two related cases that the federal policy of denying marriage-related benefits to same-sex couples violates the 10th Amendment and the right to equal protection guaranteed by the Fifth Amendment's Due Process Clause. Although that first conclusion has drawn more attention, since it employs what is usually seen as a "conservative" principle for "progressive" ends, the equal protection argument (which is also the basis for the challenge to California's gay marriage ban) is the crux of both decisions.

In one case (PDF), "seven same-sex couples married in Massachusetts and three survivors of same-sex spouses, also married in Massachusetts," challenged the rules for federal employee health coverage, Social Security benefits, and joint filing of tax returns. The plaintiffs argued that in treating gay and heterosexual couples differently, as required by the Defense of Marriage Act, these rules violate the principle of equal protection, which requires (as the Supreme Court has put it) that "all persons similarly situated should be treated alike" by the government. U.S. District Judge Joseph Tauro agreed, finding that the policy of denying homosexual couples the benefits that heterosexual couples receive flunks even the highly deferential "rational basis" test. Since I've never found the arguments against recognizing gay marriage persuasive, I'm inclined to agree, although Tauro is breaking with precedent by defining rational as "rational."

In arguing that the Defense of Marriage Act should be upheld, the Obama administration distanced itself from the lame justifications cited in the text of the law and offered an even lamer one: It said DOMA is necessary to freeze the "status quo" while the issue of gay marriage is debated. Still, opponents of gay marriage clearly think they have good reasons for denying health coverage, survivor benefits, and burial plots to the spouses of gay people, and they would argue that homosexual and heterosexual couples are not "similarly situated."

But you know what? Screw them. I am tired of defending the constitutional principles that social conservatives use to restrict liberty, because they so rarely return the favor by supporting those same principles when the effect is to expand liberty. When a supposedly principled originalist like Antonin Scalia can endorse a ridiculously broad reading of the Commerce Clause because the case happens to involve pot, why should I stick my neck out by arguing that the people who wrote and ratified the Fifth and 14th amendments never imagined they were guaranteeing equal treatment for homosexual couples? Of course they didn't, because the very notion of gay marriage would have been incomprehensible to them. But the 14th amendment says no state may "deny to any person within its jurisdiction the equal protection of the laws," and the Supreme Court has long read the Fifth Amendment's Due Process Clause as imposing a similar restriction on the federal government. Treating all married couples equally, without regard to their sexual preference, seems to me (and Ted Olson!) like a straightforward application of this principle to a new situation, one that the authors of these provisions could not have foreseen, just as they did not foresee television (which is nevertheless protected by the First Amendment) or wiretaps (which are nevertheless governed by the Fourth Amendment).

Is this a constitutional rationalization for my pre-existing policy preferences? Yes, but I think it's a pretty good one. I would much prefer that the government get out of the business of certifying marriage altogether. But as long as more than 1,000 provisions of federal law hinge on marital status, the government will have to decide which couples qualify, and basic fairness demands that sexual preference play no role in that determination. What legitimate government interest can possibly justify preventing the longtime spouse of a veteran from being buried alongside him, simply because both of them are men? This sort of thing really is shameful.

Because Judge Tauro found that DOMA's rules regarding federal benefits fail the "rational basis" test, he ruled in a second case that requiring states to uphold these rules as a condition of federal funding is unconstitutional as well. He also concluded that requiring Massachusetts to discriminate against gay couples in administering Medicaid and running two state-owned military cemeteries, contrary to its own marriage law, intrudes on "a quintessential area of state concern" and thereby violates the 10th Amendment, which says "the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

Jack Balkin, the left-liberal Yale law professor who argues that Congress can regulate anything that affects interstate commerce in any way, is not thrilled by the 10th Amendment argument, which he worries would "take down a wide swath of programs—you can't even list the number of programs that would be affected." And the problem is? Likewise, although social conservatives like to talk about limits on federal power when it serves their goals, I suspect these fair-weather federalists will not be happy about Tauro's respect for the 10th Amendment.

NEXT: McDonald's to Happy Meal Haters: Drop Dead!

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  1. Dr. Strangelove?

    1. That’s how my love goes.

      1. Into strangers?

        Dee Reynolds: Why would you want to have sex with someone you can’t see?

        Dennis Reynolds: Well, Dee. I think the real question is, why wouldn’t you want to have sex with someone you can’t see?

    2. Yes. I LoLd.

  2. “take down a wide swath of programs?you can’t even list the number of programs that would be affected.”

    Lord, let’s hope so.

    1. No, no, no–it’s more important that the homos not be able to marry than to help reduce the scope of government.

      I guarantee you that blocking gay marriage will take precedence over any constitutional principles for the vast, vast majority of conservatives. Homos obsess them more than just about anything else.

      1. Homos obsess them more than just about anything else.

        And one must on occasion wonder why that is so…. hmmm…

        1. Fabulous-ness? Attempting to understand why Glee is still on? Lady Gaga?

          1. Wait a second. Would banning gay marriage mean no more Lady Gaga?

            1. If it takes out Glee, I might have to ditch my principles and support such a ban.

              1. We can only endure so many assaults on our aesthetic sensibilities, after all.

                1. There’s bad, then there’s horrible, then there’s appalling, then there’s an affront to humanity, and then there’s Glee.

                  1. I’ve often thought it would be useful to poll rape survivors about which is worse: Glee or their rape experience.

                    Of course, most would say the rape, but I bet a non-zero percentage would probably say Glee.

                  2. Do I have to turn in my libertarian decoder ring? Cause I actually like Glee.

                    1. But I almost had it figured out.

                    2. Drink your Ovaltine.

                    3. kinnath, you’re twice the man any of these jerks are. Glee is super fun, and I hope your good taste lands you cuddling on the couch watching with the hottie of your choice.

                    4. I like Project Runway (or did when Christian was busy being “fierce”). Does that make me twice the man too?

                      (or does that just mean the Epi and ProL will never again dignify anything I say with a response?)

                    5. Yes! I actually know more than one straight dude who genuinely enjoys Project Runway. You’ve come a long way, baby.

                    6. Sudden who?

                    7. I never said I liked Glee.

                      Although I am quite the fan of deep dish pizza having been raised in Schaumberg

                    8. Sudden who?

                      HAHAHAHAHA! Sudden’s been “auffed”!

                    9. There’s no shame in Project Runway. Tim Gunn’s commentary is entertaining even to straight men.

                    10. Thanks, but my wife of 34 years would insist that I cuddle with her.

          2. Here is how to determine how much I (and other girls like me) will enjoy a particular entertainment offering: how gay is it? Because the gayer, the better.

            When they almost had Sam and Eric make out on True Blood, I died. Alan Ball, thank you for having such good taste in men.

            1. +1

              Though I bet you can get lots of gay guys to say that the scene where Eric was naked with Suki is even hotter. Because it was Eric.

              And Pam had the lesbian scene in the last episode with the Estonian dancer.

      2. But there are dudes out there fucking each other in the ass! This is more important that constitutional government. The constitution is not a death pact, you know.

        1. A rare but literal LOL for me, thanks, and tip o’ the hat.

  3. I support the 10th Amendment argument (as any libertarian should) and would rule in favor of the same-sex couples on that basis and that basis alone.

    I do find a hole in the equal protection rationale. It may seem trivial, but it is not in my view. A heterosexual male is equally barred by law from marrying a member of the same sex (or in the instant case, having his marriage recognized by the federal gov’t under DOMA). I recognize that this may seem superficially a ridiculous argument (although there are presumably a number of circumstances where a heterosexual man would find it to his benefit to wed another unwed man [and such benefits could be so compelling as to even provide the man offering his hand in legal marriage an incentive to auction himself off]). However, it doesn’t deny a homosexual the right to wed while accepting the heterosexual’s right to wed. It denies everyone the right to wed a member of the same sex (unconstitutionally IMO per the 10th Amendment should the people of the individual state deem that all persons have the right to wed memebers of the same sex).

    1. Here is my non-lawyerly, and probably not fully thought out, analysis.
      Marriage is defined by states, so anyone married (same sex or not) in, say Mass., is in exactly the same legal situation as anyone else married in Mass. The DOMA creates an unequal situation under federal law for people who are in exactly the same legal situation. States decide who is or is not married, so federal law treating some married people differently from others violates equal protection. The only way to get around this would be to have the fed refuse to recognize any marriages from states which allow gay marriage.

      1. In order to get to the equal protection argument, you must first accept the “defined by the states” premise which rests upon the 10th. The entire point of DOMA and the language of DOMA is to define marraige as strictly between a man and a woman, thereby rejecting the 10th Amendment and the State’s Powers argument (I refuse to use the term state’s rights as rights belong only to individuals). Therefore, it is not two people similarly situated if the feds aren’t first obligated to honor the State of Massachussetts granting of a marriage license. Once the Feds are forced to recognize the marriage as a marriage per Mass’s issuance of a marriage license and the 10th Amendment, then any effort to deny the corrallary bennies to same sex marriages would become subject to an equal protection argument, but that must first require that the status of a same sex marriage be recognized as a marriage in order for that argument to hold.

        This all rests on the 10th, as it should, and we should put the full weight of our arguments on the 10th in the instant case (although, we should argue the 1st Amendment Freedom of Association and incorporation to the states via the 14th to argue the unconstitutionality of state laws narrowly defining marriage and functionally outlawing homosexual marriage as well as incestual ones and polygamy).

        1. The federal government does not give out marriage licenses. So even without the 10th, the simple facts on the ground are that the states do marriage. If the federal government decides they should be granting the marriage licenses, then they can decide who is married. The point I am trying to make is that you are married just the same whether you are gay married or regular married. So the federal law defining marriage creates an arbitrary distinction and an unequal situation.

      2. The only way to get around this would be to have the fed refuse to recognize any marriages from states which allow gay marriage.

        Or for states to not recognize any marriage from another state. Maybe they should have to remarry in each state in which they “practice” marriage. If you want to be a hairdresser, attorney, or interior decorator, you must apply for a license or some other such recognition by that new state.

        I don’t support this option at all. I can’t think of any good reason why homosexuals shouldn’t have the same right to be as miserable to death do them part as heteros. I’m just suggesting that that would probably still preserve the 10th argument and still provide homophobic states the power to continue to discriminate locally.

    2. I recognize that this may seem superficially a ridiculous argument…It denies everyone the right to wed a member of the same sex

      Why, yes, it is a ridiculous argument, and not just superficially so. It’s total disingenuous bullshit of the sort I’d expect from John or RC on this topic.

      1. Its nonetheless technically true and law is a field built upon technicalities. As i’ve said, I can outline a number of ways to overturn state and federal laws restricting marriage, i’ll stick with the ones that are technically sound instead of ones that aren’t.

        Fucking hell, I’ve never been so attacked by people whom I would rule in favor of simply because the rationale is different. I have a strong suspicion that anything short of an “equal protection” basis will fail to appease the gay rights crusaders because they have the deep need to feel vindicated as “equals” (as though the legal system and state recognition offers some sort of grand vindication anyways).

        1. *by attacked, I don’t mean personally. Everyone I’ve spoken with on the issue has been respectful of me and I think generally realizes I’m a good person with a sympathetic position and a generally good ration basis, but so often they get outright offended at my parsing words on the equal protection issue.

          1. If you can’t stand the heat…

            1. Oh, I can stand it. It doesn’t really bother me, and to be honest, its a quirk that I fully understand and appreciate too. After so many years of being marginalized, I can sympathize with the desire to have the gay marriage vindicated on the grounds of “equality.” That said, I don’t find the equal protection argument valid and I find a number of other arguments to be far more compelling. And simply because I agree with the ultimate decision doesn’t mean I’m going to bend the rationale I use to fit the predetermined means of reaching it.

        2. Fucking hell, I’ve never been so attacked by people whom I would rule in favor of simply because the rationale is different. I have a strong suspicion that anything short of an “equal protection” basis will fail to appease the gay rights crusaders because they have the deep need to feel vindicated as “equals” (as though the legal system and state recognition offers some sort of grand vindication anyways).

          I have always felt the Tenth Amendment argument against DOMA to be more compelling, although I am not completely sold on it. After all, defining marriage is not an enumerated power.

        3. Professional gay rights lobbyists in DC clearly want legal instruments that can be used to forcibly remake all private institutions and associations so that gay people (and transsexuals, transvestites, etc.) are coercively included and no one can ever discriminate against them, especially if they ever step on a government owned sidewalk or try to obtain a driver’s license.

          The recent case, which really should have been covered in the libertarian press, of the gay lawyer who decided to sue E-Harmony (and got them to settle) because they only provide matching for heterosexuals. Somehow E-Harmony’s existing, and providing matching only for heterosexuals is bad, even though gays can use Match.com or J-Date or BlackPlanet, and ONLY gays get much use out of Manhunt.net, SilverDaddies.com, Men4SexNow.com ad infinitum.

          The logic of the gay rights lobby is that in the future if a pregnant woman wanted to give her baby up for adoption only to a heterosexual couple (or even a heterosexual single), no agency should be allowed to help her with that goal, and perhaps it should be coercively taken from her and randomly assigned to prospective parents on a government-controlled waiting list.

      2. It’s not ridiculous, for at least the reason that marriage is not about sexuality, but about family and lineage. You don’t get married to have sex, you don’t have sex to get married.

        1. It’s not ridiculous, for at least the reason that marriage is not about sexuality, but about family and lineage. You don’t get married to have sex, you don’t have sex to get married.

          From Murphy v. Ramsey :

          For certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the coordinate states of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guarantee of that reverent morality which is the source of all beneficent progress in social and political improvement. And to this end, no means are more directly and immediately suitable than those provided by this act, which endeavors to withdraw all political influence from those who are practically hostile to its attainment.

    3. I dunno. I’m probably missing some critical step because I’m not lawyer, but ethically, this seems the same as claiming that as long as the state supports the right of everyone to participate in Catholic Mass equally, there’s no issue under the first amendment. I mean, just because you’re Mormon or whatever, you’re still equally protected to go to Mass, just like gay dudes are equally protected to marry the woman of their choice.

      1. I mean, just because you’re Mormon or whatever, you’re still equally protected to go to Mass, just like gay dudes are equally protected to marry the woman of their choice.

        Look up the history of anti-bigamy laws.

      2. You[‘re going to have to flesh this one out more. Has any state contemplated barring people from attending mass? Or of barring people from attending ceremonies of other people’s religions?

    4. “A heterosexual male is equally barred by law from marrying a member of the same sex (or in the instant case, having his marriage recognized by the federal gov’t under DOMA).” A very similar argument was already considered, and rejected, by the Supreme Court in Loving v. Virginia

  4. No. No special benefits for any married persons. When you give special exception to a group based on an activity that you approve, you are by definition denying it to another.

    DON’T JUMP THROUGH THEIR WEDDING RING SHAPED HOOPS, PEOPLE!

    1. Indeed. Strike up another count of discrimination against single people.

    2. +1. Exactly. I do the same work, why not he same benefits.

  5. It would appear that toppling DOMA and taking “down a wide swath of programs” is the perfect solution for libertarians. Which is why it be overturned.

    1. The fact that it pisses off conservatives and lefty-liberal Yale law professors is a ringing endorsement of the decision.

  6. So is a graduated income tax unconstitutional? I mean if you are paying 15% and I’m paying 20%, thats definitely not equal.

    1. but it would be equal IF you were making the same amount.

    2. You’re only paying 20% on every dollar about the 15% rate, so technically no. We pay the same on similarly earned dollars.

      1. about above.

        I failed.

      2. This seems exactly eqivalent to the “Ya, but the gay guy can marry any woman he wants” argument to me.

        1. And to the extent you are right that technicalities like this are exactly that and therefore seem trivial, such technicalities are true when stated that the “gay man can marry any woman he wants.”

          I rest my arguments in favor of striking down marriage restrictions on Freedom of Association, perhaps the most underutilized and underappreciated right in the BoR.

  7. I love the 10th Amendment argument here. Not sure why he used it, though, since he didn’t need to given his ruling under Equal Protection. Sadly, that will probably mean the 10th Amendment precedent will be swept under the rug as dicta.

    In this context, Equal Protection is a better argument than it is in the context of arguing that there is a free-standing right to gay marriage.

    Here, it is being deployed to say that the feds may not discriminate among people who are legally married under the state law.

    In the “right to marriage” cases, it is an argument that every state law that specifies marriage as between a man and a woman is unconstitutional, and, importantly, have been unconstitutional since the 14th Amendment was passed.

    The meaning of the words “marriage”, “man”, “woman”, and “equal protection” haven’t changed. Ergo, if those laws are unconstitutional now, they have always been unconstitutional. I find it somewhat hard to believe that the passage of the 14th Amendment invalidated state marriage laws wholesale.

    1. I also find it compelling and perhaps (highly unlikely) that states will no longer be in the marriage business.

      Since you are the keeper of the Iron Law, I see one applying here:

      Forseeable consequences are not unintended

      Meaning here, since states should recognize gay marriages, can the state now compel religious institutions to perform marriage ceremonies? I have a major problem with this, as an established religion should be able to refuse to either perform or recognize a marriage it deems illegitimate or contrary to a given doctrine. That separation of church and state business, as well as the freedom of association, goes both ways, and I see suits here where gay couples can now force a church, temple or even mosque to host a ceremony, and possibly even perform one with the state all too willing to comply as a hostile enforcer. Some churches will perform and recognize them and others won’t; either way is fine with me. What I object to is a noisy minority seeking to rewrite a religious doctrine in the name of political correctness.

      Yet another reason for government to get out of the marriage business.

      1. Which is why (assuming that the state will remain in the marraige business, which I think is a more than fair assumption), the arguments against laws restricting marriage should be confined to 1st Amendment Freedom of Association and 14th Amendment incorporation to the states.

        What better way to keep the peace and let it be known that the Catholics can still tell gays to piss off when it comes to hosting their marriages than by using the same freedom of association (and corrallary disassociation) argument that forced the state to recognize their marriage to begin with.

        1. let it be known that the Catholics can still tell gays to piss off when it comes to hosting their marriages

          Apparently, homosexual unions are only frowned upon by the Catholic Church in public.

      2. Discrimination laws and such are not applied to religious organizations when the discrimination is intimately related to their faith. That’s why the Catholic Church doesn’t get hauled into court for sex discrimination because it only ordains men as priests.

        So I don’t see any way, short of a complete sea change of jurisprudence with respect to freedom of religion, that the scenario you foresee could happen.

        1. Except that Catholic Charities as an adoption agency has already been run out of Massachusetts for refusing adoptions to homosexuals. The people behind the homosexual marriage do not tolerate any dissent from their morality.

          1. The logic of the gay rights movement (not of gay people or gay liberation or gay pride, but of the professional class of gay lobbyists) is that the State should be available to coercively eradicate or remake every private institution and association so that gays are equally represented. Especially if they dare to step on a “public” sidewalk or apply for a driver’s license.

            If a pregnant woman wishes to give her baby up for adoption only to a heterosexual couple (or single) the gay lobby apparatchiks will want to outlaw any agency that might help her, and ideally coercively remove her baby from her and place it through a government controlled waiting list of randomized prospective parents.

            This is clear from the recent E-Harmony case, where a gay lawyer in NJ sued to force E-Harmony to provide matching services to gays. Even though gays can freely use Match-dot-com, J-Date, BlackPlanet etc, and ONLY gays get much use from Manhunt-dot-net, Silverdaddies-dot-com, Men4SexNow-dot.com and an infinite number of other such websites.

      3. “”can the state now compel religious institutions to perform marriage ceremonies?””

        No, they can not. But a Justice of the Peace may run into problems.

          1. Your link does bring up an interesting point

            “”It is really astonishing and disappointing to see this come up in 2009,” said American Civil Liberties Union of Louisiana attorney Katie Schwartzmann. She said the Supreme Court ruled in 1967 “that the government cannot tell people who they can and cannot marry.”

            What 1967 ruling is she referring?

            1. Loving v Virginia, the 1967 SCOTUS decision which invalidated Virginia’s anti-miscegenation law which forbade blacks to marry whites.

              1. Damn you, BP.

                1. Ha ha, too slow, Tonio…

        1. As government employees they cannot discriminate. Nobody has a right to be a JoP, Magistrate, or Commissioner of Marriage.

      4. What I object to is a noisy minority seeking to rewrite a religious doctrine in the name of political correctness.

        Uh, who exactly is doing this, and where? Linky, please.

        No, I don’t think the state could compel a religious organization to perform a marriage for any particular couple, or even to perform marriages at all. This is a total red herring, and a favored scare tactic of the religious right.

        Had thought better of you than that you would buy in to this sort of hysteria.

        There are many gay churches, gay denominations, and gay-friendly traditionally-heterosexual churches and denominations, for those that seek religious ceremonies.

        1. I don’t buy into the hysteria, Tonio.

          Please see my response to your 3:49 post to Tulpa. It should clarify my thoughts on this, as my intention was neither snark nor arguing in bad faith. The churches and denominations that recognize and serve the spiritual needs, including marriage, appears to meet the needs of the believer segment of the gay population.

        2. So suing E-Harmony and forcing them to match gays is a scare tactic? An isolated incident? The gay lobby won’t endlessly apply State power to every kindergarten and adoption agency until no one anywhere is allowed to have a deviant opinion about homosexuality unless they whisper it to themselves in the privacy of their own broom closet only?

          I don’t believe you’ve met the DC class of political homos. Who actually often are the people running major party campaigns (e.g. Donna Brazile, Hillary Rosen, Steven Elmendorf). And though they are all pragmatic sell-outs whose socialism waxes and wanes depending on which Clinton or Obama is in office, many others of this class are always in favor of State power and will always come up with a justification for any new form of censorship or regimentation.

          1. eHarmony is not a church. This discussion was about gay marriage, not public accommodation of gays by businesses.

      5. Yet another reason for government to get out of the marriage business.

        But what about atheists like me who don’t want a church wedding?

        I agree that from a pure libertarian POV that marriage should consist only of a contract between two (or more) individuals, but the reality is that since the institution of marriage is so much a part of human culture and society that the government needs to be involved if only as a registrar of contracts.

        1. I agree with you completely on this Tonio, and everything else (except the extension of the marriage right on equal protection grounds).

  8. There are no good rationalizations. Especially not when they’re super-rationalizations to hide other rationalizations.

    And that whole “But…Scalia!” deal is a superfluously obscurantist “But…Bush!” It’s all too much.

    Has Weigel shown us nothing? Being a fake libertarian is grueling, joyless, stupid work, and it’s bad for your mental health.

    Come out, ye, yo.

  9. In the “right to marriage” cases, it is an argument that every state law that specifies marriage as between a man and a woman is unconstitutional, and, importantly, have been unconstitutional since the 14th Amendment was passed.

    This seems so blatantly obvious to me that I cannot begin to understand arguments that say the 14th doesn’t apply.

    1. It only seems blatantly obvious to me based on the 1st Amendment’s Freedom of Association and the 14th’s incorporation to the states.

      See my initial argument above: A heterosexual male is equally forbidden from marrying another male and a homosexual male is equally permitted to marry a female, therefore there is an equal protection and application of the laws. This should be a freedom of association issue incorporated to the states.

      1. See my argument below regarding spousal privilege. The government must define who is married. I can see no rational argument for the purpose of spousal privilege that two men versuy two women versus a man & a woman in a committed long term relationship are not similarly situated regarding testimony at trial.

        1. . . . . that two men versus two women versus a man & a woman all in committed long term relationships . . .

          1. The issue is that the same fundamental equal application applies: the heterosexual man cannot marry another man and invoke spousal privilege if asked to testify in a trial of that man. Yes, I recognize that this seems absurd and it really is, but it is nonetheless an equal application of the law.

            1. Bullshit

              1. Of course most heterosexuals (barring Greek gold-diggers who want to marry Californian bisexual multi-millionaires for a green card and a settlement to start their own website) don’t want to marry a homosexual of the opposite sex.

                So for homosexuals to have a real and substantial equal right to marry an opposite sex partner the government would have to conscript and pay the heterosexual partner.

                Personally I may be in favor of outlawing gay marriage if I get a free maid and cook out of the deal.

        2. That would be solved by civil unions granting the legal nuts and bolts of marriage without conferring that specific title to the arrangement.

          But the extreme gay activists are not going to be satisfied with that — they want the word “marriage”.

          1. Another seperate but unequal doctrine.

            1. Not that I think Brown v Board was a good decision, but why are civil unions which confer all the legal rights that marriage as traditionally done unequal to marriage from the standpoint of the law?

              1. See the California decision that RC hates.

                1. Which decision?

                  1. The last one that invalidated Civil Unions as seperate but unequal (good) then essentially rewrote the marriage laws to allow same-sex marriage (bad). The decision that prompted the last couple of ballot propositions.

              2. If you’re familiar with the history of Brown I can answer that. One of the things that really won Brown, in my opinion, was Claude’s research showing that there was a signficant, palpable difference in effect caused in part by the separate but equal instiutions of the time.

                In a similar way, there’s some quite interesting research, well, to name one example, by some Emory Univsersity professors who have shown that state same-sex marriage bans have a negative effect on gay and lesbian men and women, a difference they can quantify in the form of changed HIV rates.

                This comment is far too small to defend the research in breadth, I recommend you read it in depth before making the usual surface criticisms.

                http://userwww.service.emory.e…..nd_HIV.pdf

                If you accept Brown, which said “part of the reason separate-but-equal doesn’t work is that we can show unequal and harmful effects of stigma”, then it’s possible you’ll also find research like Francis and Mialon’s to be compelling as well.

                I’d add that it has proven very, very difficult to create domestic partnerships or civil unions that are equivalent to marriage. The UK hasn’t managed it (same-sex couples can’t have religious readings at their ceremonies by law, same-sex spouses of peers aren’t allowed courtesy titles), California hasn’t managed it (
                http://en.wikipedia.org/wiki/D…..m_marriage) — and these are venues in which the conventional wisdom is that they are indentical.

                The practical difficulty, and cost, of creating and maintaining separate institutions seems a good enough reason to require one.

                1. Broad sociological effects should have no place in discussions of individual rights. I don’t accept the Brown decision as appropriately reasoned (and there were other ways to reach the same ultimately right judgement based on appropriate constitutional interpretation). Ergo, I don’t care whose feelings are hurt, I only care about fundamental rights, namely association and contract.

                  1. Broad sociological effects should have no place in discussions of individual rights. I don’t accept the Brown decision as appropriately reasoned (and there were other ways to reach the same ultimately right judgement based on appropriate constitutional interpretation). Ergo, I don’t care whose feelings are hurt, I only care about fundamental rights, namely association and contract.

                    How do you think people come to accept and institute fundamental rights? They need to be convinced over time what should be established as a right, and the effects on society are going to weigh highly in that determination.

                    1. How do you think people come to accept and institute fundamental rights? They need to be convinced over time what should be established as a right, and the effects on society are going to weigh highly in that determination.

                      Even so, it does not become a fundamental right until the Constitution is amended.

                2. I’d add that it has proven very, very difficult to create domestic partnerships or civil unions that are equivalent to marriage. The UK hasn’t managed it (same-sex couples can’t have religious readings at their ceremonies by law, same-sex spouses of peers aren’t allowed courtesy titles), California hasn’t managed it (
                  http://en.wikipedia.org/wiki/D…..m_marriage) — and these are venues in which the conventional wisdom is that they are indentical.

                  Section 297.5 of the California Family Code:

                  (a) Registered domestic partners shall have the same rights,
                  protections, and benefits, and shall be subject to the same
                  responsibilities, obligations, and duties under law, whether they
                  derive from statutes, administrative regulations, court rules,
                  government policies, common law, or any other provisions or sources
                  of law, as are granted to and imposed upon spouses.
                  (b) Former registered domestic partners shall have the same
                  rights, protections, and benefits, and shall be subject to the same
                  responsibilities, obligations, and duties under law, whether they
                  derive from statutes, administrative regulations, court rules,
                  government policies, common law, or any other provisions or sources
                  of law, as are granted to and imposed upon former spouses.
                  (c) A surviving registered domestic partner, following the death
                  of the other partner, shall have the same rights, protections, and
                  benefits, and shall be subject to the same responsibilities,
                  obligations, and duties under law, whether they derive from statutes,
                  administrative regulations, court rules, government policies, common
                  law, or any other provisions or sources of law, as are granted to
                  and imposed upon a widow or a widower.
                  (d) The rights and obligations of registered domestic partners
                  with respect to a child of either of them shall be the same as those
                  of spouses. The rights and obligations of former or surviving
                  registered domestic partners with respect to a child of either of
                  them shall be the same as those of former or surviving spouses.
                  (e) To the extent that provisions of California law adopt, refer
                  to, or rely upon, provisions of federal law in a way that otherwise
                  would cause registered domestic partners to be treated differently
                  than spouses, registered domestic partners shall be treated by
                  California law as if federal law recognized a domestic partnership in
                  the same manner as California law.
                  (f) Registered domestic partners shall have the same rights
                  regarding nondiscrimination as those provided to spouses.
                  (g) No public agency in this state may discriminate against any
                  person or couple on the ground that the person is a registered
                  domestic partner rather than a spouse or that the couple are
                  registered domestic partners rather than spouses, except that nothing
                  in this section applies to modify eligibility for long-term care
                  plans pursuant to Chapter 15 (commencing with Section 21660) of Part
                  3 of Division 5 of Title 2 of the Government Code.
                  (h) This act does not preclude any state or local agency from
                  exercising its regulatory authority to implement statutes providing
                  rights to, or imposing responsibilities upon, domestic partners.
                  (i) This section does not amend or modify any provision of the
                  California Constitution or any provision of any statute that was
                  adopted by initiative.
                  (j) Where necessary to implement the rights of registered domestic
                  partners under this act, gender-specific terms referring to spouses
                  shall be construed to include domestic partners.
                  (k) (1) For purposes of the statutes, administrative regulations,
                  court rules, government policies, common law, and any other provision
                  or source of law governing the rights, protections, and benefits,
                  and the responsibilities, obligations, and duties of registered
                  domestic partners in this state, as effectuated by this section, with
                  respect to community property, mutual responsibility for debts to
                  third parties, the right in particular circumstances of either
                  partner to seek financial support from the other following the
                  dissolution of the partnership, and other rights and duties as
                  between the partners concerning ownership of property, any reference
                  to the date of a marriage shall be deemed to refer to the date of
                  registration of a domestic partnership with the state.
                  (2) Notwithstanding paragraph (1), for domestic partnerships
                  registered with the state before January 1, 2005, an agreement
                  between the domestic partners that the partners intend to be governed
                  by the requirements set forth in Sections 1600 to 1620, inclusive,
                  and which complies with those sections, except for the agreement’s
                  effective date, shall be enforceable as provided by Sections 1600 to
                  1620, inclusive, if that agreement was fully executed and in force as
                  of June 30, 2005.

          2. That would be solved by civil unions granting the legal nuts and bolts of marriage without conferring that specific title to the arrangement.

            And I’d be perfectly happy with that as long as the state only recognized/offered civil unions for all couples both gay and straight. Which would do nothing to preclude religious organizations from also performing marriages for whoever they wished, with the understanding that the religious ceremonies had no relation whatsoever to the civil union.

            How do you feel about that, Tulpa?

            1. I myself find this an excellent resolution to the quandry I proposed upthread.

              For the record, I am not aware of any GLBT group that is suing any religious organization for the refusal to perform a ceremony.

              Though Tonio, to be fair, even though you as an atheist are not concerned with the religious title of “marriage”, many in the GLBT community are. There is a lot of hurt feelings regarding religious orders and shunning of the homosexual persuasion, namely Catholics and Baptists, and the current doctrine of regarding homosexuality as “sin”, and I would be willing to bet that some couples who want religious ceremonies do so as an of rebellion or “spite” to redefine the term “marriage” in the religious and cultural sense. I do think the term “marriage” applies to a religious ceremonies only, but I think “civil union” nomenclature should be used for any state recognized contractually binding union. If you want to call yourselves a “married” couple, fine.

              Ultimately, as more and more homosexual civil unions are recognized, the term will “marriage” will receive more social acceptance.

              1. Catholics refused to marry on the basis of sin, and not homosexuality itself. In theory, a gay man, or woman could marry the opposite gender. Whereas, a divorced Catholic could not remarry in the church without jumping through annulment hoops. Yet a divorced person, married civilly, or in a non- Catholic service, could remarry in a Catholic wedding. For this reason alone, a GLBT lawsuit would be fruitless.

              2. Actually one can find gay people, among others, constantly discussing removing not only government subsidies or vouchers to religious schools and adoption services, but also removing their tax exemptions or the deductibility of donations to them.

                And no one ever gets agitated about doing this because the churches recommend altruism, or do or do not believe in transubstantiation, or do not or don’t celebrate specific holidays.

            2. Actually I would find that acceptable.

              In fact, I think all of these problems could be solved by making civil unions available, and completely disjoint from the presumption of sexual relationships. If a brother and sister want to get the legal nuts and bolts currently associated with marriage, they should be able to do it.

              For religious conservatives, this has the advantage that it doesn’t provide state sanction for homosexual relationships, since the state is not recognizing any sexual relationship.

              I have a feeling gay rights activists will not accept such a proposal, because they want the word.

        3. No, the governement must not define who is or is not married. Marriage is a religious institution. If the government defines who is or is not married, then it establishes those religions that comply with its defenition as regocnized religions and disestablishes those that do not. As the governemnt is forbidden by the First Amendment from establishing one or more religions, it cannot define who is and is not married. The typical government/mafia argument of “we are providing you with protection (whether you like it or not) therefore you will conduct your affairs as we see fit” applies to all government action, and as such should not be considered sufficietn to override the explicit restrictions described in the Constitution and Bill of Rights. If the government wishes to grant benefits to those who are married, they may do so, but they must leave it to religious authorities to determine who is and is not married. And, in the doctrines of protestant christianity, atheism, and other religions, each individual is a religious authority.

          1. Hear Hear!

            1. George, you do realize that this also extends to religions that let homos get married, don’t you?

          2. To the extent that a marriage is a form of contract and that one of government’s only powers is to recognize and enforce legitimate contracts, it mdoes have a role to play in the recognition of these contracts.

            Whether the gov’t should be treating married vs. unmarried in different ways is an entirely different question and a topic that I feel is reasonably debateable by both sides.

          3. “No, the governement must not define who is or is not married. Marriage is a religious institution.”

            So, athiests can’t be legally married?

            I’m for this so long as *nobody* can be legally married, but oppose it strongly otherwise. To the extent that the government has power (and we’d all presumably like to limit that), it’s important that that power be constrained by equal protection.

            1. So, athiests can’t be legally married?

              Yes, they can.

              Just because they do not believe in God does not mean God does not believe in them .

          4. No, the governement must not define who is or is not married. Marriage is a religious institution.

            No way! Marriage predates both gov’t and religion, and both of those institutions did no more than to recognize the extant institution of marriage.

            And is this a gov’t with no courts? If gov’t is not to determine who is married, what happens when somebody contests a case in court on the subject of whether someone is someone else’s spouse?

  10. I would much prefer that the government get out of the business of certifying marriage altogether.

    Well, I would much prefer the government kept out of the plundering business, since that is what this is about – homosexual couples wanting to have the same tax exemptions and access to Federal plunder as heterosexual couples. Having access to this plunder has absolutely NOTHING to do with equal protection under the law, but for some reason, judges and people think that receiving free money and being equal under the law is the same thing.

    1. If a gay couple (they tend to be more affluent and thus pay more taxes on average than straights) has paid much, much more in SS payroll taxes than either will ever get back, is it plunder to want your surviving spouse to get at least some of the money that was stolen from you before you died?

      1. Re: Pablo,

        If a gay couple (they tend to be more affluent and thus pay more taxes on average than straights) has paid much, much more in SS payroll taxes than either will ever get back, is it plunder to want your surviving spouse to get at least some of the money that was stolen from you before you died?

        SS is a Ponzi scheme, so the money you, the putative couple and I placed in is GONE. Second, whatever the intentions of the couple, the fact is that none of these issues would appear if it not were for the FedGov’s plundering of our productive efforts.

        1. I agree with both statements. So the plundering should end completely. But we all know it will not, so gays should not have more stolen from them than straights.

          1. Well let me edit that. The plundering will not stop voluntarily. Sooner or later the house of cards will collapse, which makes our debate moot.

    2. Spousal Privilege — hundreds of years of common law precedent that you cannot be forced to testify against your spouse. Until such time as spousal privilege is overturned, all levels of government must have a set of rules for determining who is or is not the spouse of a defendent.

      The rest is just window dressing.

      1. Holy Crap man. Excellent point.

        1. As much as we want the government to get out of the marriage business, the government must be able to declare who is or is not married regarding spousal privilege which must be applied equaly based upon the 14th.

      2. There is also hundreds of years of common law precedent of marriage being restricted to one man and one woman, so permitting gay marriage is going to involve just as much contradiction to centuries-old precedent as dumping spousal privelege.

        1. The 14th doesn’t overturn centuries of respect for spousal privilege, but it does overturn centuries of repect for laws that discrimiate between various classes of people. That was its purpose.

          1. You’re assuming that spousal privilege is sacrosanct and anything that causes it to be implemented in a discriminatory fashion must be unconstitutional. But why must that be the case? Can’t spousal privilege itself be an equal protection violation?

            1. No I am saying the IF the state provides a privilege to one class of people, the 14th requires the state to provide it to all classes of people in similar situations. That is the heart of the 14th right?

              So it is legal and constitutional to strip the spousal privilege from all classes of people at the same time. But you cannot give it to some, but not others.

              Two people that join into a single household, live together for years, raise a family, acquire common property, and so forth are in fact similarly situated. The sex of the two people cannot be relevant to granting spousal privilege under the 14th.

              If you argue that the couple must somehow register with the state (such as filling a completed marriage license) to be granted spousal privilege, so be it. But at that point, the state cannot descrimiate between who is and is not allowed to register (file that marriage license).

              The problem is that marriage license is then used by a sundry of other agencies to administrate other benefits and privileges.

              1. No I am saying the IF the state provides a privilege to one class of people, the 14th requires the state to provide it to all classes of people in similar situations.

                Sure, but then you can argue all day about which situations are similar. Why isn’t the situation of an unmarried person similar to that of a married person? Why isn’t the situation of 2 persons tied by marriage similar to that of 2 persons tied by living in the same bldg. or sharing a wireless Internet cx?

                If you argue that the couple must somehow register with the state (such as filling a completed marriage license) to be granted spousal privilege, so be it. But at that point, the state cannot descrimiate between who is and is not allowed to register (file that marriage license).

                But just because gov’t issues a license for something, does that make the something a fact? If you get a dog license for a cat, does that make the cat legally a dog?

                problem is that marriage license is then used by a sundry of other agencies to administrate other benefits and privileges.

                Not just agencies, but businesses and associations.

            2. Spousal privilege can be considered sacrosanct as arising from the 5th Amendment. If you are testifying against a spouse whose economic livelihood is directly intertwined with your own, being compelled to testify against that spouse is a violation of your 5th Amendment rights.

              1. Great. Define “spouse”.

                1. Kinnath, I agree with your definition of spouse 110%, I just have a different means of getting there. If we were sitting on the court and you wrote the majority opinion, I’d vote with you on the judgement and just clarify my points of disagreement in rationale in my concurrance.

                  1. OK

                    I just get tired of the circular reasoning that pops up here. Two men can’t marry, so they can’t be spouses, so the 14th doesn’t apply, so laws that say two men can’t marry are valid.

                    1. Well, does the dictionary definition of “spouse” carry any weight when used in a legal doc.? Circular reasoning isn’t a problem when it comes to the meaning of words — in fact, it should be circular, and so the dictionary is.

              2. If you are testifying against a spouse whose economic livelihood is directly intertwined with your own, being compelled to testify against that spouse is a violation of your 5th Amendment rights.

                Um, no. That’s so tendentious an interpretation I don’t even know where to start. Two economically interdependent people are not therefore the same person legally.

          2. The 14th doesn’t overturn centuries of respect for spousal privilege, but it does overturn centuries of repect for laws that discrimiate between various classes of people. That was its purpose.

            As it was pointed out in Loving v. Virginia ,

            The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.

            Also, see Minor v. Happersett , Rostker v. Goldberg , and Michael M. v. Superior Court .

        2. And before that, thousands of years of polygamy in Jewish and Islamic societies. Somehow you people conveniently forget that old-testament israelites were polygamous. King David had several wives, for instance.

          1. As did Mohammed

            1. Yes, but Christians, particularly those of Tulpa’s stripe, don’t have the same reverence for Mohammed that they have for old testament hebrews.

              You’ll notice that Tulpa hasn’t responded to my 3:49 or 3:54 posts.

              1. LOL, you’re freaking out because I haven’t responded within 20 minutes. some of us have lives, dude.

                Oh, and I’m not a Christian either. Don’t jump to conclusions.

                1. And you didn’t respond to the actual substance of my comment.

                  So, still holding on to the worldview that “marriage” is and has always been monogamous?

          2. The few remaining Jews in Yemen are polygamous.

          3. They didn’t have spousal privilege back then, either. My point wrt kinnath was that if you’re willing to cast aside the definition of marriage, you can’t turn around and treat such a fringe aspect of common law as spousal privilege as some sort of irrevocable custom.

    3. If the laws says give people free money and one class of people is arbitrarily denied that free money, that is a matter of equality under the law. The laws are bad, but they should still be applied equally to everyone.

      1. Re: Zeb,

        If the laws says give people free money and one class of people is arbitrarily denied that free money, that is a matter of equality under the law.

        No, it’s a matter of violation of property rights – people are NOT entitled to free money, no matter if their marriages are straight or queer.

  11. Jack Balkin, the left-liberal Yale law professor[…]

    And speaking of redundancies . . .

  12. And the next thing will be robosexual marriage . . . and then the fit will hit the sham . . .

    1. Robosexuality is an affront to the Space Pope!

  13. I always wondered why there has been no 1st amendment challenge to gay marriage bans. Couldn’t two homos say my religion says a man marries a man and any law that restricts that violates my religious freedom?

    1. Google “Mormons and polygamy”.

      1. Just because past Courts have refused to recognize that the government’s actions are in violation of the Constitution does not mean that future Courts will not rectify that error.

        1. Just because past Courts have refused to recognize that the government’s actions are in violation of the Constitution does not mean that future Courts will not rectify that error.

          Is that what you really want? For courts to reinterpret the Constitution?

          Read the dissent in McDonald v. Chicago to find out examples of Supreme Court justices reinterpreting the Constitution.

    2. The first amendment argument should rest on Freedom of Association, among the most basic of rights and therefore included in the all important 1st Amendment. The 14th’s incorporation to the states alongside the 1st’s freedom of association should be sufficient to strike down every law that restricts marriage among consenting adults regardless of the number of parties to the marriage, the sex of the partners, or the familial relationships. (I am just as personally disgusted at incest as the next person, but I feel freedom entails permitting even those things which repulse me).

      1. So, you’re comfortable saying that every state law that specifies or assumes marriage between a man and a woman has been unconstitutional since the 1860s?

        Interesting (and difficult) jurisprudential question: Would that mean that all marriages under those unconstitutional laws are void? Since those marriage laws are unconstitutional, what basis is there for recognizing any marriages that they purport to create?

        1. Iowa’s laws did not clearly specify that marriage is between a man and a woman until we passed a state version of DOMA. The state DOMA was passed due to fears that some same-sex couple might successfully sue to get a marriage license.

          The State Supreme Court voided that law based upon the state equal protection clause which predates the 14th. So I assume the adoption of the 14th didn’t invalidate Iowa’s law.

          1. State laws are a mish-mash on this issue – some specify “man” and “woman”, some don’t.

            Even so, why wouldn’t every marriage since the passage of the state DOMA be invalidated?

            1. Engineers shouldn’t argue with laywers on topics like this, but here it goes anyway. The net effect of the state DOMA was to prohibit the issuing of marriage licenses to same-sex couples. Why would this make marriage licenses issued to different-sex couples be invalid?

              1. I’ll put it in engineer terms, I speak geek.

                If equal protection requires that allow(SSM) = allow(DSM),

                and if DOMA requires that allow(SSM) = FALSE

                then both equations can be solved consistently only with:

                allow(DSM) = FALSE.

            2. Because his argument is that, based on “freedom of association” (I would argue freedom of religion instead), the government is forbidden from refusing to recognize that any people who claim to be married are married. By this line of reasoning, the government is allowed, in fact, is compelled, to recognize all claimed marriages, so any previous marriage recognizing they did would still be OK.

            3. “””Even so, why wouldn’t every marriage since the passage of the state DOMA be invalidated?””

              Valid question, but wouldn’t the old marriage laws be in force in the absence of DOMA?

            4. Even so, why wouldn’t every marriage since the passage of the state DOMA be invalidated?

              I don’t know, RC. You’re the attorney. I invite you to answer your own question.

        2. The refusal of the right to free association to some does not invalidate the just permission to rights of free association to others, so I don’t see how its a problem. Saying that any two (or more) consenting adults may marry does not invalidate previous marriages that conformed with that intepretation. For the same reason that when interracial marriage bans were overturned, same race marriages were not invalidated by law since there was nothing about those marriages that was in violation of laws before or after the decision.

      2. Rick Santorum warned us about guys like you!

      3. Freedom of Association, among the most basic of rights and therefore included in the all important 1st Amendment.

        Wait, are you talking about the US Constitution? There’s no freedom of association in the 1st. You’re probably thinking of the right to peaceably assemble, which is an entirely different thing.

        1. True. I’m basing that on the right to peaceably assemble, and the precedent of NAACP v Alabama which interpreted that as granting a right to free association.

          1. And as mentioned below, that wouldn’t even be needed were Lochner’s right to contract still binding precedent.

          2. I’m not familiar with that decision, but it seems like a major stretch. Of course, that wouldn’t be uncommon for the Warren Court’s race-related jurisprudence.

            1. If you feel that the right to free association is a stretch based on peaceable assembly (and I can see the point for that), perhaps you’d prefer to reinstate Lochner and the “right to contract”? Lochner should be re-instated as binding precedent IMO anyways.

  14. “all persons similarly situated should be treated alike”

    Each person who files for equal protection under your logic can be married to a member of the opposite sex. There is nothing requiring that you be heterosexual to receive a marriage license. The law refers to two people of different sex licensed to be married. Marriage in the Government’s eyes is not about “love” it’s about promoting a family unit. Marriage licenses provide inherent privledges.

    Similarly Situtated is properly licensed to be Married.

    IMO Get rid of the Marriage license. It shouldn’t be a function of Government anyway.

    1. Agreed. Further, nothing is a function of government other than war and plunder.

      1. “”Agreed. Further, nothing is a function of government other than war and plunder.””

        Well, government is good at plundering it’s own citizens.

  15. I don’t understand this argument that conservatives, in opposing gay civil unions, are opposing “expanding liberty.” How is making a private company (i.e. health insurance providers) pay for something (i.e. coverage of a same-sex partner) by force of law “expanding liberty”? How is making a private company (i.e. Catholic Charities) adopt children out to gay couples “expanding liberty?” How is forcing people to endorse relationships they don’t want to endorse (via law) “expanding liberty”? What actual “liberties” do homosexual couples lack? What they are seeking is not liberties or rights, but, in fact, legal PRIVILEGES ? legal privileges indeed enjoyed by heterosexual COUPLES and not by homosexual COUPLES (and thus arguably discriminatory; but they discriminate against single people and ugly people who can’t find a spouse too) ? but not individual liberties of any kind. Not rights. So it’s not really a “liberty” issue. It’s a moral and/or civil question of whether gay unions should be treated as being on par with heterosexual marriages, of being, ultimately, the same thing. And I don’t see why the people via the duly elected representatives of their state legislatures shouldn’t be permitted to define who receives the legal privileges of marriage (whether that be only two heterosexuals, or three heterosexuals, or two homosexuals – or whatever the people via their representatives decide). There are no individual liberties violated in this regard. What right is being violated if gay civil unions are not enacted? The right to a slip of paper? The right to health care coverage? The right to adopt a child? The right to file jointly? These are NOT rights.

    1. Hear Hear!

    2. Marriage is not derived from the state; hence a state law which prohibits gays from wedding is, wihtout more, a violation of the right of gays to marry.

      1. The state laws in question do not prohibit gays from having a marriage ceremony and claiming socially to be married. They just prohibit that purported relationship from affecting their benefits from the state.

        1. Legal rights aren’t really benefits. Yes, there are welfare claims in play, but the majority of legal issues around a marriage contract consists of the mutual rights of the coupled.

        2. Exactly… so you agree that it’s unconstitutional for gays to be denied the same access to those benefits as straights?

          1. I’d rather the benefits, aka entitlements, didn’t exist in the first place. However, there are a number of legal issues (next of kin, property inheritance, spousal privilege, etc.) that cannot, despite what some people claim, be adequately resolved through contract. It is much harder, for instance, to disinherit a widow than it is to void an inheritance to someone not related by blood if a blood relative objects.

            1. This is a key point that can’t be emphasized enough. State recognition of marriage will remain because marriages involve and resolve a number of issues.

  16. In response to RC Dean’s argument that this could mean all marriages since the 14th amendment are void, there is a strong legal presumption against retroactive applications of decisions because it would disrupt things upon which we have long depended. For example, voiding all marriages back to 19th century would invalidate the majority of inheritances.

    1. there is a strong legal presumption against retroactive applications of decisions because it would disrupt things upon which we have long depended.

      I know. I actually wrote a law review article on this very issue, which I think has all kinds of interesting philosophical implications.

      Still, every decision that announces a new rule (such as the invalidation of a statute) applies that rule retroactively (that is, to actions occurring before the rule was announced) in at least one case (the one where the rule is announced).

      The new rule is typically applied retroactively to all cases that have not yet been finally decided (again, retroactive application means applied to events occurring before the new rule).

      It gets complicated. The problem arises because the decision that a statute is unconstitutional is a finding, really, that the statute was never constitutional and thus was void ab initio. Otherwise, you are saying that the court isn’t applying existing law (the Constitution) to strike down a law, you are saying that the court is essentially acting as a legislature by repealing a law as of a certain date.

  17. Unless I just missed it, I haven’t seen any mention of the full faith and credit problem. Having your state recognize your gay marriage isn’t worth a whole lot when you move to, say, Virginia, which is for lovers, but only heterosexual ones. It officially is against the public policy of Virginia and the state will not recognize gay marriages.

    1. Next stop on the tour bus.

      1. Which thereby indicates that the pro-homosexual marriage crowd is not at all interested in the 10th amandment/states rights aspects of this judge’s ruling. Somehow, I don’t think Sullum is going to get his shorts in a wad when the gay activists throw out that principle, like he does with conservatives.

    2. Somebody more industrious than me needs to reference the post about the woman who got her driver’s license yanked after some dimbulb realized she was married to another woman.

  18. I thought that Libertarians opposed the government handing out marriage permission slips. Sullum seems to be arguing that, since it is a matter of fairness, we must favor increased coverage (apply it to everyone), since we can’t end it.

    Why doesn’t this argument apply to SS or medicare? Even though Libertarians oppose socialized medicine, why not favor expanding it to cover every person, for fairness, until that wonderful day when it ends for everyone?

    1. The distinction: so-called “positive” rights (read: entitlements) vs. negative rights, i.e. freedom from arbitrary or unequal application of laws (read: essential liberties).

      Moreover, as you can see from my arguments above, I don’t buy the equal protection schtick. I base my entire case for rights of same sex marriage, polygamy, and incest on freedom of association.

      A compelling case could also be made citing Lochner’s Due Process “right to contract” as precedent were it not overturned by West Coast Hotel v. Parrish.

    2. Government doesn’t hand out permission slips. You are free to enter into any arrangement with any number of people and call it anything you want. The question at hand is whether the rights recognized by government as afforded to married couples extend to everyone or just to straight people, which I think violates equal protection.

      1. A marriage license IS a permission slip, Tony.

        You gays should focus your fight on domestic-partnership reforms, and give up on the symbolism of marriage.

        That would benefit straight non-married couples, as well. You okay with that?

    3. Oh, yes, by all means, let’s exclude blacks from income taxation, Jews from Medicare, and women from the prohibition on delivering first class mail. Would any of those really be steps forward just because we would like to see those burdens lifted generally?

      1. Not only would they be steps forward, but the interest groups involved might have a chance of putting together coalitions to make such advances happen.

  19. “”I base my entire case for rights of same sex marriage, polygamy, and incest on freedom of association.””

    The absence of marriage is not the absence of association. You can live with a partner for decades without marrying and you don’t have to marry your friends just for association. Denying any marriage is not the denying association.

    To deny assocation we created the restraining order.

    But I fully support same sex marriages on the grounds that it’s not up to me to give a shit about who people want to marry.

    1. Denying hospital visitation to couples unfairly prevented from marrying is denying freedom of association.

      1. Why does the “couple” have to be involved?

        Denying hospital visitation to anybody is denying freedom of association.

        1. Last time I checked, hospitals were private entities and therefore capable of allowing or disallowing visitors as they so choose.

          The more important questions for gay couples would be the ability to make decisions, hear the medical information first hand (generally only family members can be in a doctor’s appointment), etc, etc…

  20. Thank you for this piece. I too tire of libertarians hiding behind visions of libertopia in order to justify their anti-gay marriage stance. What’s the point of a political philosophy if it tolerates things like unequal protection because we haven’t achieved the paradise in which government is out of the business of marriage? It’s not, and it won’t be for the foreseeable future. So this is a wonderful opportunity for libertarians to show some backbone and break from their allies on the right in the service of an actual increase in liberty?incremental and based in political reality though it may be.

    It would seem pretty clear-cut. The Obama government will do its job half-assedly defending the law on the books, the gay marriage proponents will present their unassailable equal protection/state’s rights case, and we can all go home happy that liberty and equality have increased. Oh no wait. Your friends the theocrats on the Supreme Court will find some lame reason to oppose equal rights that aligns with their religious bigotry, and it will unnecessarily be a nail-biter with the potential of setting back equal rights for a long, long time.

    1. Tony, I have repeatedly posted support for same-sex marriage based on the 14th and on general libertarian principles.

      And I am still tired of your bullshit. Just shut the fuck up.

      1. Well I’m not talking to you kinnath. I don’t see any plausible libertarian argument against gay marriage, especially when you guys are willing to entertain all sorts of fanciful changes to society in other realms.

        1. Uh, Tony, “not talking to” means not responding, period, as Tulpa has done with my inconvenient questions. Posting an “I’m not talking to you” comment is whiny, passive-aggressive bullshit.

          I spend an inordinate amount of my time trying to explain to people here, and in society at large, that not all gay men are whiny little bitches like you.

          1. What I mean–and I’m not clear about this enough–is that I’m talking to the slim majority of people here who are nothing but right-wing fucktards who think calling themselves libertarian is a way of being so-phisticated. kinnath’s cool with me on this issue. And fuck I agree with the article in the libertarian magazine (this is happening more often lately).

            1. Let me be very clear, Tony: even if you weren’t talking to or about me I still find you offensive.

              1. ZING!

              2. Fine. I find torture, phony wars, and theocracy offensive. So as long as you don’t support the evil people who do these things out of a misguided sense of pragmatism, or because you think high taxes are worse evils, then I have no problem with you.

    2. Re: Tony,

      Thank you for this piece. I too tire of libertarians hiding behind visions of libertopia in order to justify their anti-gay marriage stance.

      You get tired of self-generated fantasies?

      What’s the point of a political philosophy if it tolerates things like unequal protection because we haven’t achieved the paradise in which government is out of the business of marriage?

      Being able to participate in plunder and “equality under the law” are not the same thing, Tony. People are not entitled to free stuff taken from somebody by bayonet point, regardless of what contractual agreements they made (marriage is a contractual agreement.)

      1. Blahblahblah stupid anarcho-capitalist bullshit I know. Essentially your argument is that, while gays are being denied equal rights, that’s not the real problem. The real problem is straights doing all this plundering and they must be stopped. Yeah good luck with that. (Wait that doesn’t even make any sense–aren’t marriage benefits about paying fewer taxes? Why are you for more taxes?) But what about spousal privileges that aren’t about money? Isn’t there an equal protection claim there?

        1. Re: Tony,

          Essentially your argument is that, while gays are being denied equal rights, that’s not the real problem.

          No, that’s not the argument, but nice way you spun that. Equal opportunity to participate in plunder is NOT the same as “equal rights”, no matter how much you want to twist the concept of “rights.”

          The real problem is straights doing all this plundering and they must be stopped. Yeah good luck with that.

          At least you accept there’s plundering.

          (Wait that doesn’t even make any sense–aren’t marriage benefits about paying fewer taxes? Why are you for more taxes?)

          Shouldn’t the issue be that no one is made to pay ANY taxes so that nobody would have to worry about which group pays more or less?

          But what about spousal privileges that aren’t about money? Isn’t there an equal protection claim there?

          Spousal privileges are that: privileges. Not rights.

          Again, the problem is that people are looking at this issue exactly backwards: as a case of equal opportunity to participate in the government’s largesse, instead of an issue of voluntary contracts between willing participants.

          1. OM are you seriously trying to argue how other people should look at this issue? You offer nothing but utopian anarchic bullshit that has no relevance to anything.

            1. And you DON’T peddle utopian bullshit, Tony?

              If you say “no, I don’t”… why are you a Democrat, then?

      2. Being able to participate in plunder and “equality under the law” are not the same thing, Tony. People are not entitled to free stuff taken from somebody by bayonet point, regardless of what contractual agreements they made (marriage is a contractual agreement.)

        If my partner of 11 years are allowed to get married exactly what free stuff will we be getting? Last year we paid over $10,000 for SS. If I were to die and she were entitled to my benefits, should wouldn’t even get half of what I paid into it. The few thousand we would be able to save on our taxes if were able to file jointly is money we already paid into the system, so we would essentially be getting our money back. So again, what free sh*t am I getting? The only way a gay couple is getting free stuff out of it is if they’re on welfare. And in that case welfare should be your issue and not gay marriage.

      3. Old Mexican: You seem to equate all the federal rights and obligations of married persons with plunder. You might want to look at those 1000+ provisions of federal law and think more carefully. Yes, some provide access to entitlements, such as Social Security, but others provide avenues to reduce the burdens of plunder, such as taxation. Still others are simply about how the government itself operates, such as benefits to federal employees. And others don’t fit neatly into any of those categories, like the spousal privilege testimony in criminal prosecution. Waving your hand over all 1000+ of these provisions and dismissing them as mere opportunities for plunder fails to do the serious thinking about the real world effects of all these laws on individuals and their families.

    3. STFU, Tony. I’m gay, and a big supporter of gay marriage. Also tired of your bullshit.

      1. I’m kinda curious Tonio, when you discuss politics with fellow gays, do you ever feel slightly marginalized based on your libertarian leanings? I wonder because my experience has been that gay advocacy organizations tend to lean left (although I have a few friends that are notable exceptions to that). I just wonder if you ever feel less respected when certain issues of economic or other social policy come up? I wouldn’t think so because gays are a generally accepting group and understand what its like to be ostrasized, but it was a wonder of mine since libertarians are so often considered/mis-labeled as aligned with the right.

        1. I frequently feel hugely marginalized within gay circles because of my political beliefs. The term “self-loathing” is the insult of choice for gays that don’t tow the lion.

          But since my sense of self-worth is internal, rather than external, I don’t let it bother me none.

          1. Interesting. I guess its one of those things that I was unsure of since I could see it go either way. Although, I wonder if libertarian-leaning pols were to manage to make serious progress on advancing SSM, I wonder if the paradigm would shift at all.

        2. My brother and his husband tend to lean towards the closest wall depending upon how many bottles of wine have been opened.

        3. Gays tend to be liberal, for understandable reason, but don’t neglect the entire segment of our population who aren’t and who we accept and who are known as Republicans. Half of the Republicans in DC are gay. I used to live with one. We tolerate more than you think.

    4. I too tire of libertarians hiding behind visions of libertopia in order to justify their anti-gay marriage stance.

      Name them.

      1. Everyone saying “I’m against gay marriage because I’m against marriage.” It’s just stupid.

        1. Everyone saying “I’m against gay marriage because I’m against marriage.” It’s just stupid.

          It is not so stupid.

          If people believe that no one should be able to legally use marijuana, then it follows that they believe that homosexuals should not use marijuana.

          At least it is not hypocritical, unlike supporters of gun bans. After all, people who oppose same-sex “marriage” also oppose an exemption for people who enforce laws against same-sex “marriage”.

        2. Tony, how in the fuck can you say “being against marriage = being against GAY marriage = bigotry”, which is what your apparent theory smells like?

          Domestic partnership reform, dude. Fuck the piece of paper bullshit. That is ALL a marriage license is… a piece of paper.

    5. In terms of equal protection, Tony, your choices are:

      1. agitate for more benefits for gay marrieds
      2. agitate for less benefits for straight marrieds

      Is it the case that you seem inclined to regard the first as the proper strategy purely for reasons of expediency? Or does it go further than that?

      I (and I suspect, a majority of the regular posters here) am only anti-gay marriage inasmuch as I am against marriage as an official legal institution. It is not the unequal treatment of gays that I am, as you say, tolerating, but rather the special treatment of others.

      You can continue to indulge in your signature brand of self-delusional victimhood, choosing to cast that position as anti-gay, or you can be honest and accept it as advertised.

      1. Okay… but you should be able to make an argument that applies to the context of the real world, in which government recognition of marriage will never be abolished. Straight people aren’t going to give up marriage benefits, and nobody is ever going to propose let alone pass a bill to do so.

        1. Should I support a thing which I detest, simply because the thing of which I approve may not be realized in my lifetime?

          Set back a hundred years, I could be making the same argument to you regarding your orientation; that you should conform to the current standard, simply because the one you hold yourself happens to be misunderstood or out of fashion.

          Well, I do not choose to live that way, and I realize that the effort I expend will not likely amount to much. But, if I can wake up a few people to the dogmas they unwittingly adhere to, that will be enough for me. That is my response to the ‘real argument’ you ask for — that my aunt, brother, or friend may become aware of some things which they otherwise may not have questioned, much less understood.

    6. So this is a wonderful opportunity for libertarians to show some backbone and break from their allies on the right in the service of an actual increase in liberty

      The way you “show some backbone” — as if showing it did any good (It basically indicates a lack of flesh, the analogy extends OK) — is to decide according to your own analysis, and not pay att’n who your allies will be.

      I see attempts to legally redefine such terms as “spouse”, whether by judicial decree, administrative edict, legislation, or plebiscite, as part of a long ongoing process of usurping custom and law as a spontaneous order. It’s the same process by which the power to define units of currency (such as dollar/thaler, pound sterling) away from their accepted meaning of weights of precious metal to whatever a privileged bank decrees. You think you’re advancing liberty, and even some libertarians thought so about the effort to redefine (or de-define) money, but you’re wrong.

      That’s not to say I favor the US DOMA, because it seems to be a usurpation in its own right.

      BTW, I’m one of the few analyst-activists who interprets this issue properly. Almost everybody else on both sides is not looking deeply enough.

  21. Gubment benefits aren’t about the religious institution of marriage. They’re about the social contract whereby one person stays home (or works a lesser job) and takes primary responsibility for raising the children. The other focusses on earning cash to support the family.

    Those are the reasons for spousal benefits.

    Childless trophy brides get a free pass in this system. Lucky for them.

    Now, if a particular state has a large number of stay at home gay parents, then I can see why they’d want to change the eligibility requirements for their benefits. Isn’t that kinda the point of having the states administer medicare and medicaid? So that they can make those kinds of adjustments?

    But forgive me if I don’t see this as any more than a typical social-engineering experiment just like eleventy thousand examples in the tax code.

    Decouple health care/insurance from employment and none of this matters.

    1. This is the “rational basis” aspect. There are no such stay-at-home requirements for any straight couple. Furthermore, there are no requirements for married straight couples to have children or even be fertile. Equal rights. That’s all it’s about.

      1. But traditionally, infertility has been a cause for annullment of a marriage.

  22. So can I finally marry my dog? It was my understanding that is where the slippery slope ended.

  23. Tulpa, don’t know if you’re reading upthread, but I posted a response to your civil union question at 3:49, and a response to your “one man one woman” at 3:54. Wanted to call your attention to those and give you a chance to respond. Hoping that you actually want to engage in a back and forth dialogue about this, instead of just throwing out fundie talking points.

    Your move.

  24. But I fully support same sex marriages on the grounds that it’s not up to me to give a shit about who people want to marry.

    Ding. As long as it’s all consenting adults, y’all figure it out amongst yourselves and go file some paperwork.

  25. I think proponents of the gay agenda loose a lot of friends by some of their tactics. For example, they say religious insitutiosn are free to do what they want, but then there was that catholic church thing with the kids.

    Or, they put books like prince and prince into schools.

    There are a lot of people like me that really don’t care what other people do in their bedrooms, but don’t appreciate having the gay agenda forced down everyone (especially kids) throats.

    1. What does pedophilia (more prevalent among straights!) have to do with anything?

      So every book in the library has to be heteronormative? Not a single book that mentions the existence of gay people?

      We have to deal with, as you put it, being orally sodomized with heterosexual culture every second of every day. Forgive me if your squeamishness is not a good enough excuse not to have equal rights, and if you’ve ever kissed a significant other of the opposite sex in public, then you’re a hypocrite. Or do you honestly believe it should be acceptable for you to do that but not gay people?

      1. I didn’t say anything about gay people kissing in public. Although, nice of you to take my comment about what people do behind closed doors to far, lol.

        Anyway, we are not talking about books in libaries, we are talking about public school indoncrination here. Which yes I do have a problem with. I don’t want my kids subject to the culture wars at school.

        I’ll put it another way, I’m perfectly ok with drugs being legal, but I don’t think they should be teaching school kids about drugs. I feel the same thing about homosexality. I’m fine with it, don’t want it taught in schools (or forced on others).

        I think there was another issue a while back, a photographer that didn’t want to take pictures of a gay wedding, got in trouble for discrimation.

        1. You don’t think kids should be taught about drugs? What do you mean?

          A certain proportion of those kids will be (are) gay. What harm does it do anyone to tell them the truth and not pretend that society is 100% heterosexual (thus implying to the gay minority that they’re not welcome in it)?

          1. Ditto Tony.
            The “I guess I’m ok with homos as long as my kids don’t know about it” thing is an understandable result of adult squeamishness, but it just makes the gay kids lonely and suicidal.

            Go look at the kid fiction in the school library – it’s full of crushes, uncomfortable proto-romance and hetero parents.

            Having a gay male character fantasize about *getting noticed* (swoon, he smiled at me from across the room!) by another male character is not the end of the world.

            If the kid comes home w/ questions, parents are free to explain that all gays are abominations or that yeah, not everyone is attracted to the opposite sex, no big deal.

        2. I’m fine with it, don’t want it taught in schools (or forced on others).

          Look out, teh gays r reddy to rape u!!!!

    2. I think proponents of the gay agenda loose a lot of friends by some of their tactics. For example, they say religious insitutiosn are free to do what they want, but then there was that catholic church thing with the kids.

      And then there was that lawsuit against eHarmony.

  26. For some reason, my browser won’t let post this in the nested comments above on retroactive application of a decision overturning DOMA.

    So many issues and arguments, so few pixels.

    First, a lot may depend on what the state DOMA was. Most likely, it was a stand-alone statute (rather than an amendment of a pre-existing statute). The court could strike the stand-alone statute without affecting the pre-existing statute (or any marriages).

    If a state were to amend its marriage statute, to take out “persons” and insert “a man and a woman”, then I don’t see how a court can legitimately undo the amendment. Rather, it would have to strike the statute in its entirety. The California Supreme Court, I should point out, arrogated to itself the power to amend the marriage statute to its liking, a clear abuse of judicial power.

    So, if the marriage statute refers to “two persons”, and DOMA comes along and tacks on “by persons, we mean a man and a woman”, DOMA can be struck without invalidating any marriages. If DOMA amended the marriage statute by deleting “two persons” and substituting “a man and a woman”, then I don’t think the only legitimate recourse for the court is to rule that the statute is unconstitutional, and has been since amended. How that ruling doesn’t necessarily entail the invalidation of every marriage since amendment, I can’t say.

    But, rest assured, the courts would never apply their ruling that strictly. And a good thing, too.

  27. Thanks, Jacob. It is tiresome to see self-proclaimed conservatives wave the flag of small government and limited federal powers right up until the moment they want a different result that those two principles will yield. I look forward to the Tea Parties giving their vocal support to both of these decisions since, as their mantra goes, “I don’t see nothing in the Constitution that says the federal government can do that.” Somehow, I doubt we’ll hear much positive from them about this.

    1. But you know what? Screw them. I am tired of defending the constitutional principles that social conservatives use to restrict liberty, because they so rarely return the favor by supporting those same principles when the effect is to expand liberty.

      The Tea Party activists are a mix of people whose primary concern is the budget deficit.

      Some of them may support same-sex “marriage”.

  28. although Tauro is breaking with precedent by defining rational as “rational.”

    Sweet turn of phrase.

  29. When a supposedly principled originalist like Antonin Scalia can endorse a ridiculously broad reading of the Commerce Clause because the case happens to involve pot, why should I stick my neck out by arguing that the people who wrote and ratified the Fifth and 14th amendments never imagined they were guaranteeing equal treatment for homosexual couples?

    Read the dissent in McDonald v. Chicago .

    That is what happens when one uses a results-oriented jurisprudence to justify one’s policy preferences.

    The decision should have been 9-0 in striking down the ban on handguns.

    The thing with judges sticking with original public understanding is that the constitutional protections we already have . We may have needed the 19th Amendment to moot Minor v. Happersett , and we will need an Equal Rights Amendment to moot Baker v. Nelson, Rostker v. Goldberg , and Michael M. v. Superior Court , but this means that judges will not find some bullshot excuse to overturn McDonald .

    ut the 14th amendment says no state may “deny to any person within its jurisdiction the equal protection of the laws,” and the Supreme Court has long read the Fifth Amendment’s Due Process Clause as imposing a similar restriction on the federal government. Treating all married couples equally, without regard to their sexual preference, seems to me (and Ted Olson!) like a straightforward application of this principle to a new situation, one that the authors of these provisions could not have foreseen, just as they did not foresee television (which is nevertheless protected by the First Amendment) or wiretaps (which are nevertheless governed by the Fourth Amendment).

    No, a straightforward application of the 14th Amendment on this issue means that if states choose to adopt same-sex “marriage”, it must be made available equally. Thus, while states are not obligated to offer same-sex “marriage”, if they choose to do so, they can not for example, limit same-sex “marriage” to a group like white people, Christians, or Scientologists.

    (I surmise that a law allowing men, but not women, from participating in same-sex “marriage” would violate the Fourteenth Amendment

  30. But you know what? Screw them. I am tired of defending the constitutional principles that social conservatives use to restrict liberty, because they so rarely return the favor by supporting those same principles when the effect is to expand liberty.

    So Jacob Sullum wants to define his principles based upon what social conservatives do?

    Would he oppose same-sex “marriage” if at least one of their supporters that use the equal protection argument claim that this argument does not apply to preventing the government from jailing bigamists?

  31. The social utility of marriage in regulating the rights and duties of married men and women with regard to each and their progeny has been obvious. So obvious that it has not been explicitly stated in most laws governing marriage as a civil institution. The judge here used the lack of explicit language (and the Obama administration’s refusal to defend Congress’s reasoning for passing DOMA) as an excuse for ignoring the unique abilities of heterosexual relationships and why society has an interest in promoting their stability. That the judge or anyone else finds his arguments compelling shows just how far down into sophomoric logical absurdity we have fallen.

    If any relationship at all can be defined as a “marriage”, then marriage as a concept means nothing. It has no social purpose as an institution, and no rational basis for government to have laws regulating it at all.

    That is the only conclusion that can come from the homosexual marriage activists brute forcing their cause’s way to legality through the courts rather than through the legislature.

  32. “Likewise, although social conservatives like to talk about limits on federal power when it serves their goals, I suspect these fair-weather federalists will not be happy about Tauro’s respect for the 10th Amendment.”

    I suspect that the 10th amendment will mean nothing to the homosexual marriage activists when they use the courts to try and force a state like Florida to recognize a Massachusetts same-sex marriage as having any standing in the former state. I also suspect that Sullum won’t throw a hissy fit about it either.

    1. Well, the Full Faith and Credit clause requires states to recognize each other’s legal documents, so I think that’s a much stronger argument for overturning DOMA. The constitution’s authors certainly never could have foreseen a state redefining marriage in this way and trying to force every other state to accept that redefinition via FF&C.

      (Prebuttal: interracial marriage is different. Unlike gay marriage, it was expressly made illegal in some places precisely because it was seen as a possibility.)

  33. Citing “equal protection” as support for granting same-sex couples is not a slam dunk at all.

    Why? Because it trys to sweep under the rug any historical (and prehistorical — re evolutionary psychology) – based arguments about just what marriage *is*.

    One may as well insist that driver’s licenses be given to the blind in the name of ‘equal rights’.

    Or, as one wit somewhere put it — everyone *does* already have an equal right to marry a person of the opposite sex (which is where the more fundamental argument about the meaning/purpose of ‘marriage’ lies).

    1. So, athiests can’t be legally married?

      This does not mean the issue of same-sex “marriage” would be immune from equal protection.

      Think about it. Driver’s licenses were not imagined at the time the 14th Amendment was ratified. But once the state came up with driver’s licenses, the Fourteenth Amendment places restrictions on how they issue driver’s licenses. They can not discriminate absent a constitutionally justified reason, depending on the classification discrimination.

      While the 14th Amendment would not require states to issue same-sex “marriage” licenses any more than it requires them to issue driver’s licenses, once states choose to do so, the 14th Amendment’s due process and equal protection clauses place limits on how states may issue same-sex “marriage” licenses. It is clear they can not offer same-sex “marriage” licenses to white people, while categorically denying them to black people. (In fact, I surmise that the 14th would forbid states from offering same-sex “marriage” licenses to men while categorically denying them to women.)

  34. oops, above should have read
    “granting same-sex couples civil marriage licenses”

  35. That’s nice Jacob but you are taken so what good does it do anyone.

  36. So how come all this, and no discussion of the bill before Patterson to change NY to conform to what all the other states have done, i.e. adopt no-fault divorce?

    1. So how come all this, and no discussion of the bill before Patterson to change NY to conform to what all the other states have done, i.e. adopt no-fault divorce?

      Was there no discussion, or just no mainstream media coverage of the discussion?

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