Civil Liberties

Did Vaughn Walker Transform the Right to Marry?


U.S. District Judge Vaughn Walker's decision overturning Proposition 8, California's gay marriage ban, rests on two constitutional arguments—a due process claim and an equal protection claim—that raise essentially the same question: Do homosexual marriages differ from heterosexual marriages in a way that should matter to the government? Defenders and opponents of Proposition 8 agreed that the freedom to marry is a "fundamental right" protected by the 14th Amendment's Due Process Clause (more plausibly, it's protected by the Privileges or Immunities Clause, but that's an argument for another day). "The question presented here," Walker writes, "is whether plaintiffs seek to exercise the fundamental right to marry; or, because they are couples of the same sex, whether they seek recognition of a new right." Likewise, the equal protection claim hinges on the question of whether gay and straight couples are "similarly situated" and whether there is a "rational basis" for treating them differently. Examining the evidence presented during the trial, Walker concludes that the two kinds of couples are identical with respect to any legitimate state interest:

During cross-examination, [David] Blankenhorn [an expert witness who testified in defense of Prop. 8] was shown a report produced by his Institute in 2000 explaining the six dimensions of marriage: (1) legal contract; (2) financial partnership; (3) sacred promise; (4) sexual union; (5) personal bond; and (6) family-making bond. Blankenhorn agreed that same-sex marriages and opposite-sex marriages would be identical across these six dimensions….Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted….Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions….Same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law.

Walker also argues that the right to marry was not transformed when courts overturned anti-miscegenation laws or when the law began to treat men and women as equal partners. Likewise, he says, the right to marry is not transformed by allowing gay couples to exercise it:

The movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed. The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage.

Prop. 8's defenders obviously disagree about what lies at the core of marriage. But they did a poor job of explaining why the government should enforce their view. To the extent that the state has good reasons for distinguishing between married and single people, Walker is right that they apply to gay couples as much as they apply to straight couples.

NEXT: A Webb of Lies

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  1. A: No, he legislated from the bench.

    1. “legislating from the bench” is just a code word for the judge ruled in a way you don’t like.

      It’s the court’s JOB to overturn laws. By definition.

      1. So the courts overturn all laws?

        1. I agree with nmg. The phrase ‘activist judge’ is only used by the people who oppose the decision of the judge. Otherise, they’re considered ‘fair’ and ‘brave’.

          Also, remember….the U.S. is not a democracy. The majority does not have the right to dictate the personal and civil rights of the minority.

          Democracy is more often than not three wolves and a lamb deciding what’s for dinner. That’s why we have the supreme court.

          1. Correction: that’s why we have a legal system that allows for the overturning of laws that are unconstitutional but the majority may support.

            The Supreme Court isn’t always the best venue for that.

          2. Believe it or not, that’s not what I’m talking about. I’m pro-SSM. I’m anti-rule-by-judges.

            And that’s what we have here.

            1. Really? How are you losing anything in this decision?

              1. Really? How are you losing anything in this decision?

                If judges can reinterpret the Constitution to broaden liberty or strike down discrimination, they can do the same to restrict liberty or uphold discrimination.

            2. I tend to agree. I think gays should have the right to marry and there is no rational reason to oppose it. I’m just not sure that courts striking down laws against gay marriage is the best way to achieve equality. If too many people vehemently oppose a court decision they can just ignore it because a court has no army to enforce its decision. And that would set a terrible precedent.

              1. In the time of desegregation and Loving, anti-black sentiment was higher than anti-gay sentiment is now. Those advancements set such awful precedents… We should definitely have given in to the demands of the bigots just in case they decided to start shooting.

          3. I think your attempt to be witty by saying “us is not a democracy” fails miserably. Everybody knows US is not a direct democracy. We know its a representative democracy. Don’t try to redefine what democracy means for your arguments.

            1. No, it’s a constitutional republic but thanks for playing.

  2. Should government even be involved in marriage?

    1. “Should government even be involved in marriage?”


    2. Should it be involved in inheritance [aka property rights] or ensuring children are supported by their biological parents?

      ‘Marriage’ has *always* been related to those things.

      1. Should it be involved in inheritance [aka property rights] or ensuring children are supported by their biological parents?

        Sure. But how does prohibiting marriage between same-sex couples hinder this? And, by the way, there are lots of bioparents that shouldn’t be within five miles of their offspring. Stable adoptive families are an excellent alternative.

        OTOH if government really wants to promote stable family marriages and insure that children are supported it could change a bunch of welfare rules that effectively prohibit single mothers from establishing relationships. Among other things.

      2. ‘Marriage’ has *always* been related to those things.

        Sure. Your point?

      3. How is inheritance a property right?

  3. I must say that polygamists should be cheered somewhat by this ruling, as should advocates of cousin couples. In reality, though, the ick factor is greater for those, so no real change will happen.

    1. “Also, in a rare Double-Whammy decision, the court finds polygamy constitutional.”

      “I can’t wait to tell my husband.”

      1. BOOO!!!

        1. “I request a Satanic funeral…”

      2. Polygamy is a lifestyle, not a sexual orientation. Polygamists can marry one spouse……gays could not.

    2. I wonder what kinds of mixed fealing the people in the FLDS church must have. On the one hand they most certainly oppose homosexuality, on the other hand this ruling could enable them to legally get married to more than one person at some point.

      1. The irony is that the FLDS are more freedom-loving than even gay marriage advocates. They would much prefer the govt stay out of people’s marriage decisions. Most gay marriage advocates have done everything they can to make it clear they do not condone polygamy.

        1. Then they need to narrow their arguments for SSM. The ones they are using now blow a hole in the law that will easily let polygamy stroll through. This is why SSM needs to be done by legislatures, not courts.

          1. So what if polygamy “strolls through”? There is no libertarian objection to polygamy.

            1. But Epi, polygamy is “WRONG”, don’t you know?

              1. “I lost my real hand plantin’ the flag when we took back Halley’s Comet! Yet it was worth it, so much do I love that flag. [The bench sobs] I love it even more than I love my seven wives — that’s right, I’m a polygamist. [The court boos] Yet I would gladly eat a flag myself, had I not used my intestine as a rope to hoist a flag made of my own skin, if it would protect the freedoms of the proud people who salute that flag. [The court cheers] Freedom such as polygamy. [The court boos] I rest my case.”

                1. Best Zoidberg-centric episode ever.

            2. I think there is.

              1. “I think there is.”

                OK, so what is it? From a political standpoint marriage is a form of contract. I do not see any libertarian reason to object to a contract between two consenting adults as long as that contract does not violate another contract.

                1. OK, so what is it? From a political standpoint marriage is a form of contract. I do not see any libertarian reason to object to a contract between two consenting adults as long as that contract does not violate another contract.

                  I’m okay with two, as you say. But universalizing more than two creates an enormous externality (trying not to sound like Chony here) of millions of unattached males and the attendant social pathologies. This has been the bane of polygamist societies since the dawn of history.

                  This is a freedom too far, one that would have even more dire consequences for other liberties.

                  1. Man, you are one serious authoritarian. “A freedom too far”?

                    1. Go take your “authoritarian” shit and stuff it up your ass, Epi. PIRS and I are trying to have a rational discussion.

                    2. Did I hit a nerve? For a guy who decries “tyrannical” judges, you’re pretty willing to decide what freedoms are “too far”.

                    3. Even you have limits, Epi, admit it. Furthermore, I’m commenting on what I think the law ought to be, and am not bound by it as this judge theoretically was. He’s supposed to follow the law, not subvert it, and subvert it he did, hence the “tyrannical” label.

                      And I don’t think it quite follows that I’m a “tyrant” because I think SSM ought to be debated and enacted through the political process, and not at the decree of a single judge.

                  2. “But universalizing more than two creates an enormous externality (trying not to sound like Chony here) of millions of unattached males and the attendant social pathologies. This has been the bane of polygamist societies since the dawn of history.”

                    For most of history where there has been this you have also had tyranny of one form or another which prevents other formal social groups from forming to compensate. For example, in the United States where you have large FLDS groups you have miniature fiefdams where property rights are limited, contact with the outside world is restricted and boys are forcibly kicked out of the community [google “lost boys” for more info on this]. In a truly libertarian society you could have not only polygamy but also polygamy (one woman, many guys) and group mariages that resemble something out of a Heinlein novel and also they type of arangement that once existed in traditional Inuet community. Not everyone wants to live in the same way. Freedom would alow compensating paterns.

                    1. I think you mean polygyny and polyandry. It’s nice to think that polyandrous relationships would arise to compensate, but I don’t see those forming in any significant number to offset the polygynous relationships that form. Hence we’d see the “lost boys” syndrome of the FLDS writ large on society. Nothing good can possibly come of that.

                    2. “I think you mean polygyny and polyandry.”

                      Sorry, you are correct, it is late and my mental dictionary is falling asleap.

                      “Hence we’d see the “lost boys” syndrome of the FLDS writ large on society.”

                      The lost boys syndrome exists because these communities are nowhere near being free societies. This is where I differ with some people who advocate secession as a path to liberty. These are miniature tyrannies. Secession into small governments can lead to that sort of tyranny. In these communities you have what amounts to a “Papacy” with a really bad pope who owns most of the land.

                    3. And who’s to say that the future polygamous would be any more free than the FLDS? Are you going to storm in and make these communities free?

                    4. “And who’s to say that the future polygamous would be any more free than the FLDS? Are you going to storm in and make these communities free?”

                      I think you misunderstand my point. In a free society you would be able to choose what you actually WANT and WHO you actually love, not what the community overloard demands of you. You should be able to marry the person or people you love, not who your local tyrant demands you marry.

                    5. That’s a lovely sentiment, but as I asked, are you going to storm in and liberate these benighted folks? What if all polygamous groups – thousands of them – lived this way?

                    6. “That’s a lovely sentiment, but as I asked, are you going to storm in and liberate these benighted folks? What if all polygamous groups – thousands of them – lived this way?”

                      If you mean by bombing them or killing some of the very people I claim to want to help – no. Education and information are the ways to end this. Mothers do not usually want their own children to be cast away in this way. Fathers don’t either. It is only people in positions of political power who do. If they are shown a viable alternative they will take it.

                    7. So why does the FLDS still exist? And you’re going to invade their private property??

                    8. Yes. If another person’s property rights are being infringed, then and only then is force justified.

                    9. I don’t see either group as large enough to create the level of dysfunction you suggest. Just because polygamy becomes legal doesn’t mean most women will accept it.

                  3. But universalizing more than two creates an enormous externality (trying not to sound like Chony here) of millions of unattached males and the attendant social pathologies.

                    Nothing that couldn’t be solved with a little polyandry.

                  4. We’re just talking about legalizing the practice, not promoting it. It’s unlikely to become mainstream enough to create all these imagined problems you’re cooking up.

                    1. We’re not talking about whether FLDS-style polygamy should be legal. Obviously, the FLDS is pretty fucked up in many ways that libertarians do not approve of.

                  5. But who’s to say a woman couldn’t have several husbands?

                    I think things would balance out.

                  6. I see where you’re coming from but two points: 1. You’re assuming that millions of men are going to be able to convince millions of women that having multiple wives is okay. 2. We can’t have the government running around making shit up because “there may be some bad consequences sometime in the future”.

      2. alabama, arkansas and arizona all allow first-cousin marriage i believe (second cousin marriages are legal in all states)

        i really can’t imagine a persuasive libertarian argument against polygamy, esp. in relation to ones religious beliefs. a relationship between a 40 year old and a fifteen year old obvs. has completely inappropriate power-dynamic issues & that’s where i differ with the FLDS, but do i care about the difference between someone who’s seeing three different people and someone whose married to three?

        1. “40 year old and a fifteen year old obvs”

          To clarify for the audience at home, this is actually legal in several states and is an entirely separate issue from the question of outlawing polygamy

        2. Polygamy is a real dilemma because in the simpler view based on pure principle it is a no brainer to allow it between consenting adults.

          However, virtually *everywhere* it has been prevalent it results in women oppressed and being treated as commodities, with a concomittant rise in violence and chaos – and often war – due to unattached males.

          This is one of those areas where I am no longer a straight-up libertarian — there are a lot of edge cases where people at the margin exercising their freedom to the fullest extent possible really doesn’t harm anything else, but if enough people do it the spillover effects start to scale badly. The usual comeback is just an unsupported assertion that “well that’s just not gonna happen”, which IMO is inadequate.

          1. However, virtually *everywhere* it has been prevalent it results in women oppressed and being treated as commodities, with a concomitant rise in violence and chaos – and often war – due to unattached males.

            But in a gender-neutral society like the U.S. all those extra males can share a wife. She won’t be oppressed.

            1. Men don’t share women well.

              1. Women don’t generally share men well either. I really don’t see a large increase in polygamy happening if it were legal. Most people seem to want just one life-partner type person in their lives and I don’t think that is attributable to marriage laws.

          2. it seems to me to be however that probably most of the societies that you refer to as having large numbers of unattached males, and the attendant problems, are as such because of sex-selective abortion or infanticide, and not polygamy. i’m not sure that cultures that value males in that particular way are much like the u.s.

      3. I’d be interested to know how many FLDS members would opt for multiple legal marriages rather than multiple “spiritual marriages.”

    3. Justice Scalia, in one of the big gay rights cases, takes the bull by the horns and says “why shouldn’t moral opprobrium, by itself, supply a rational basis?”

      For example, if this decision stands, shouldn’t fat and ugly people have the right to stroll down the street naked? What “rational basis” underlies the prohibition other than the aforementioned “ick factor” and societal disapproval of immodest people?

  4. I request a Satanic funeral.

  5. Government recognition of marriage isn’t a right, it’s an entitlement.

    1. This is what I keep thinking when I see the coverage of this. I don’t see how there could be a constitutional problem with eliminating government recognition of marriage entirely.

      1. There shouldn’t be a problem. But that doesn’t mean it’s going to happen anytime soon either.

  6. as an aside, shouldn’t the people who argue that marriages principle purpose is procreation be ALL ABOUT polygamy?

  7. “Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.”

    That kind of conclusion is properly one made in the legislative process, and that process concluded differently than what Walker ruled. There is every reason to believe that Walker usurped the lawmaking power in his ruling.

    Furthermore, if the total logic of this ruling is left to stand what happened to Catholic Charities as an adoption agency in Massachusetts will neccessariy be applied to the entire country. Walker ruled that there is no reason to think that opposite sex couples provide a more optimal enviromnet. Not only will an adoption agency not be able exclude homosexual couples from adopting their charges, they will not even be able to prefer a heterosexual couple to a homosexual one. The ability to make moral choices with regards to the children in their care will be taken away.

    1. What you’re arguing against is government oversight/intervention in the policies of private adoption agency policies which, as you can probably guess, all libertarians will agree with too!

      1. I hope so, but I doubt that the social left libertarians will much care.

        The point is, that Walker’s reasoning will have far reaching implications beyond forcing California to codify same-sex marraige if it is allowed to atnd.

        1. All libertarians are “social left” (what ever that means) and all would be against government involvement in a private adoption agency. Just because those on the actual “left” who don’t actually believe in individual freedom would intervene isn’t a good reason for why homosexual marriages should be treated any different than heterosexual marriages.

          1. The reasoning Walker uses would mandate such intervention in private decisions. The extent to which libertarians applaud Walker’s ruling is the extent that they accept such intervention. The issue is what Walker did and that it was an unjust usurpation of proper authority that will have negative consequences.

          2. When this actually came up in Massachusetts, the support for Catholic Charities ability to make placement decisions without government interefernce was…underwhelming.

    2. The judge’s statement was completely wrong. Marriage is probably millions of years old, predating modern humans, let alone “gender” (should be “sex”) roles!

      1. If “marriage” predates modern humans, then “gay marriage” was certainly a part of that.

        So gay marriage is as old as time. Yay, gay!

        Thanks, Robert. I hadn’t ever thought of it that way.

    3. Why should an agency be making a moral judgment about one of its clients?

      1. Because they are charged with providing the best home possible for the children in their care.

        How is a moral judgment not involved in that decision? Especially if the agency has a religious affiliation?

        1. Actually, they’re there to facilitate placement on behalf of the parent or party in loco parentis. If anybody’s moral judgment needs to be applied, it’s that of the baby’s guardian, not the agency.

          And I’m not seeing how the agency’s predetermined judgments against particular family arrangements is conducive to finding the best possible home for the child.

      2. OT: I predict Friday Funnies will return tomorrow.

      3. Irrelevant. Why shouldn’t a private agency be allowed to make moral judgments about its clients if it chooses to?


    and kiss my ass

    1. rctl – your link does not work.

      Nice to see that you have so much to offer this blog.

      Thanks for stopping and sharing.

      1. STFU, I don’t have any interest in this blog chalk full of children, who never emotionally matured after kindergarten. Here is a clue: I had to Google Peter North and none of the posts in the past months are mine.

        1. See how easy it is to spoof?

  9. Government should most certainly not be involved in marriage (barring dissolution of marriage contracts). However, the state certainly is involved and will continue to be for a long time. Until the day that states end these practices of majoritarian tyranny, state-sanctioned marriage should be applied equally to all adults. As a decentralist, I feel somewhat ambivalent about this court ruling, but the question should be asked: what gives the state the authority (or its citizens) to deny the right of contract to homosexuals (or anyone else)?? I would argue that the proposition itself is unconstitutional within the state of California, based on the right of contract.

    Even if this ruling is a blow to federalism and decentralism, it is at least a decision that favors the rights of the individual over majoritarian tyranny. How often can we say that of similar rulings?

    1. You make a good policy argument, but a poor legal argument. In any liberal democracy, there will be rights that I feel should be enshrined that simply have not been. That’s not a valid reason to support judicial overreach.

    2. I would argue that the proposition itself is unconstitutional within the state of California, based on the right of contract.
      A number of problems with your arguements.

      1) It’s not just a contract between teo individuals, it is also a contract with third parties, insurance companies, the government etc.. etc.. etc. Even with the admendment gays would be free to enter into contracts dictating property rights, pensions etc. It would only be the ancilary third party contracts that wouldn’t be created.

      2) It’s dificult to make a case that a constitutional admendment is unconstitutional?

      1. A marriage contract is a contract between two individuals. All of the other situations you describe have nothing to do with the decision to enter into a marriage. Does a person’s employer or insurance company have a say when two people decide to divorce? You are describing subsequent contracts. The insurance companies and employers should (though do not currently) have complete freedom to enter into said contracts or refrain when they do not wish to do so – and thrive/fail by their decisions.

  10. There is another aspect of this decision that would have impact well beyond gay marriage.

    For the equal protection argument, Walker applied the “rational basis” test, which means the law is upheld if the government can articulate any rational basis whatsoever to support it. Under this deferential standard some of the most inane and ill-advised laws ever known to humanity survived challenge. (In law school the called this, “rational basis, you lose.”) The government is rarely called upon to actually prove that the law is rational.

    But here, Walker actually required the law’s proponants to produce evidence of a rational basis for the law. If this approach sets a precedent, the door is open for attacking all kinds of idiotic laws. (Imagine Obama having to produce evidence that Obamacare is rational).

    Unfortunately, I fear that this approach was used because he was dealing with a referendum rather than the act of a legislature.

    1. Got your “rational basis” right here.

    2. Number 2,

      There’s a reason why rational basis review is so deferential. It’s because the courts aren’t supposed to be deciding decisions that involve policy judgments and where reasonable minds disagree. What Walker essentially did was defame anybody who believes in maintaining long-standing cultural morals and traditions by calling their viewpoints “irrational.” To add to the insult, he was actually dealing with the parameters of a social institution that is itself constructed upon traditional morals and traditions.

      This was a stupid decision, and I haven’t heard any arguments here that amount to anything more than conclusory statements.

      1. OC,

        What you say is an accurate statement of current law, and the reason why the equal protection aspect of the decision is vulnerable on appeal. On a deeper level, it reveals the weakness in relying on equal protection to do the work of the privileges and immunities clause.

        Still, it will be interesting to see whether the Ninth Circuit will place its support for gay marriage ahead of its usual pro-government, pro-regulation leanings.

  11. I too found this a stunner: “[T]he exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.”

    I believe Walker is making a scientific judgment here. The argument seems to be that experience has shown human males can perform human female chores and vice versa.

    Is that true? You may join me in saying “Wake me up when men get pregnant,” and in fact I’d say there’s very little evidence for this view in the way men and women respectively dress, divide labor, mate, raise children, deal with each other, deal with society, and either pursue or allow themselves to be pursued by happiness.

    Am I missing something? Boyz & Grrrlz are diff’rent.

    We should fear the many broad claims Walker is making here.

    For the broader the claims ye make, the more dire will be the smacking down thereof. When SCOTUS hath smitten this ruling, as verily it shall smite, lo, many rights numbered therein shall become as gall unto an host of generations.

    Sorry to partypoop. It’s just that experience has shown when you go to the SCOTUS and say “Surely you’re not going to say the government can just take your house/not allow you any say in your medication choices/force you to engage in business with a private entity,” the SCOTUS will usually say, “So say at least five of us.”

    Walker’s ruling takes in a vast range of arguments, down the level of, “All the world over, so easy to see, people everywhere just wanna be free.” I’m just saying don’t be surprised if this case ends with “People everywhere do not wanna be free” enshrined in Common Law.

    1. Boom. The voice of reason. As Dale Carpenter’s excellent analysis mentioned, this ruling is supremely broad and invites smack-down.

      Just as the antics of Gavin Newsom and the same-sex couples that stampeded into courtrooms demanding they impose SSM by decree actually set back the cause of SSM by years, so will this decision prove to be a pyrrhic victory.

      I’m revolted by the number of “libertarians” willing to use dictatorial means to resolve political issues.

      1. I’m appalled that so many “libertarians” don’t seem to mind the US government ignoring its own constitution. If the government is going to recognize some marriages, then under the 14th amendment, it has to recognize them all.

        1. So when that 52 guy year-old wants to marry your 7 year-old daughter, that’s cool?

          1. You just keep going back to this disingenuous well.

            1. If government gets out of the marriage business, then why is this not an acceptable scenario? Are you against 52 year-old guys banging 7 year-olds? What kind of authoritarian are you?

            2. It’s because it’s the only argument he can come up with, even when it’s complete and utter bullshit. There really is no real rational argument against allowing same-sex marriage to exist. None. Zero.

              Also….just to be clear, I actually have no problem if a person wants to marry more than one person…or even an animal, for that matter. The State has no role in the personal and spiritual institution of marriage and ideally should get out of it completely.

              But until then, it is nothing but the government’s own hypocrisy to not recognize same-sex marriage. Until the day that the government gets out of the marriage business, the burden is on THEM, not me.

              1. There really is no real rational argument against allowing same-sex marriage to exist. None. Zero.

                I agree completely, but the arguments being made by this judge (and many here) are far, far broader than that and, at the core, open the door to that 52 year-old and his lovely child bride. THAT’s my point.

                This is the reason the proper place for this discussion is in a legislature, not a courtroom.

                1. A legislature still seems like an odd place to have a discussion about the state of a relationship between two people. Seems more appropriate to have that discussion across a kitchen table, or in a church meeting room, or someplace like that.

                2. My apologies, then. I mistook your actual point, which is that this was a flawed argument in support of Same Sex Marriage even though you yourself have no problem with same-sex marriage itself.


                  1. Friends?

                    Of course. I never meant to be rancorous. I think we want the same thing here, it’s just the method we disagree on.

                3. How will this ruling change the legal distinction between children and adults??

                4. It seems to me that a lot of the handwaving about ‘equal protection’ as a no brainer slam dunk is weaker than it appears, because it tries to utterly bypass the question of just what marriage *is*.

                  One may as well insist blind people must be granted driver’s licenses in the name of equality.

                  As to other automatic claims that the state should have nothing to do with marriage, those are superficial too. In every culture marriage has always been intricately bound up in matters of paternity, child support, and inheritance, matters which every state or tribe in history has *always* taken an interest in.

              2. If a word can mean anything, then it means nothing.

                Adonisus believes that there is no rational reason to oppose same-sex marrige because the word “marriage” is a nullity to him. He wallows in ignorance and calls it wisdom.

                1. Personally, I think the externalities of SSM are so small as to be virtually non-existent, hence I favor removal of prohibitions on it. I don’t see the same de minimis situation arising from 52 year-olds marrying a passel of 7 year-olds.

                  1. Jeffersonian,
                    The state already recognizes the coupling of a 52yo and a 7yo; its recognized to be illegal.
                    Right now, SSMs have no legal recognition (good or bad) despite the fact that thousands of them exist.
                    Do you think it is wise to legally ignore that these relationships exist?
                    During legal proceedings for an estate of a deceased partner, do you think it is equal protection for a judge to view a 20 year relationship as nothing more than roommates?
                    SSMs already exist; they are recognized by families, churches, employers. I think it is silly to leave the government pretending like they don’t exist, and I honestly do not see what “will of the majority” has to do with recognizing a pre-existing condition.

                2. I wonder if citing a dictionary definition might have served as a “rational argument,” seeing as such a definition distills history and usage over a fairly long period of time. If the answer is, “no, dictionary definitions are inherently arbitrary,” then I wonder how we are to interpret laws and contracts at all.

                  If a dictionary definition WOULD suffice, but the Prop. 8 proponents didn’t provide one, then they should be fired.

    2. It’s interesting to try to count the votes at SCOTUS at the moment. I came into this debate, as a lawyer, assuming that the present Court, which is widely condemned as ultra-conservative, would never embrace gay rights a la Brown v. Board. But if you read the cases, you find that Kennedy is quite pro-gay rights. So the count gives you Kennedy, Ginsberg, Sotomayor and Breyer in favor. Kagan? She apparently said categorically that she sees no federal constitutional right to gay marriage. Surprising that she’d say so in advance.

      She may not get to address the question, though, because she waded into this mess as Solicitor General, at least on the Massachusetts suit attacking DOMA. So she may have to recuse herself.

      If it’s a 4/4 split, the lower court decision stands.

      So if the 9th Circuit affirms, and SCOTUS splits, gay marriage is the law of the 9th Circuit. Is it the law of the land? Perhaps another lawyer can help me out on that one.

  12. Tim’s right on the gender roles thing, unfortunately. This contention by the judge is not scientifically based. Men and women are biologically and psychologically different, and there’s a mountain of evidence behind that.

    1. Again, clap, clap.

      I understand that there are a great many people who support gay marriage and believe that society’s refusal to recognize these unions is wrong. However, arguing that gender is irrelevant and that morality is an insufficient basis for law is simply beyond the pale. These contentions cannot be applied universally without absurd results and are, furthermore, demonstrably false.

      1. Gender is irrelevant insofar as any two heterosexual people can marry for pretty much any reason they want. There aren’t legally defined gender roles. Women are no longer chattel property sold from father to husband, for example. Now given the current state of marriage for heterosexuals in our society, how do you defend denying those rights wholesale to homosexual couples?

        Morality IS an insufficient basis for law–it has to have a secular purpose.

        1. Morality IS an insufficient basis for law–it has to have a secular purpose.

          You’ve confused “morality” with “theology” which are not equivalent. Laws ARE founded in morality, in what OUGHT be, not what is. Science cannot determine law, for it only determines what IS. Science doesn’t explain why murder is wrong, nor theft, nor rape, etc.

          Morality is the basis of law, but all moral propositions are not logically defensible.

    2. Those biological differences don’t make it scientifically impossible for a man to wash dishes, clean the floor or do laundry or for a woman to drive a race car, work as a CEO or be a senator. Hell, for the past year and a half my wife has been the breadwinner and I have been Mr. Mom because I was laid off. SOCIETY has changed, that has nothing to do with biology and/or psychology.

      1. MMD,

        Fair enough, society has changed. However, when society changes, shouldn’t that be reflected via the democratic process, and not through rational basis scrutiny? Holding to traditional understandings might not be the approach you’d prefer, but it’s not irrational.

        1. Neither is having the courts make the changes society won’t make on its own for decades. Ask black people.

          1. That’s not a fair comparison. There are constitutional amendments in place that were specifically intended and understood to deal with race. Even this opinion recognizes that.

            1. Well, yes. Ther was the 15th amendment, and less directly the 24th, but both of those dealt with voting. What did they have to do with cases like Brown v. and Loving v.?

      2. All that has been around for a long, long time and pretending it hasn’t been is either ignorant or a lie. There are many examples of women running things since the days before Mohammed and plenty of examples of men doing what bigots like you call “women’s chores”, even in general entertainment media if you will not accept actual examples.

      3. You’ve undergone gender reassignment surgery?

        You are not being ‘Mr’ Mom. You’re being Dad. Dad, believe it or not, can be in the home. You are not now, and can never be, a mom.

        Stop demeaning yourself. And it IS demeaning–ever see a movie called Mrs. DAD? No. Women hit the workforce as stunning successes, men hit home as bumbling retards who have to ape femininity to succeed.

  13. The most interesting aspect to me of the decision was this line from the remedy section.

    California officials have chosen not to defend Proposition 8 in these proceedings.

    Or in Brown’s words

    In striking down Proposition 8, Judge Walker came to the same conclusion I did when I declined to defend it

    It is interesting that there is no one who is required to defend the California Consitution in court. And that the Attorney General can pick and choose which portions of the constitution they feel are valid.

    1. Well it is indefensible. What were they going to say that wasn’t laughable?

  14. There was a time where the majority of people in a Southern State would oppose inter-racial marriage, even to the point of having laws against it.

    In that context, a judge would be considered “activist” if he overturned the law.

    1. Do we know that this is true? During Reconstruction it looked as if racial walls were collapsing. Unfortunately, Reconstruction itself collapsed(or was, more accurately, stopped) before that process could work.

      Once Reconstruction was ended, it looks like the Jim Crow era was imposed on the people of the South by Democrats of the same ilk as those who had fought to keep slavery.

      I said, just yesterday, that I suspect that a vote on these matters might have revealed something much different from what actually happened

      1. So the white South had a brief period of racial enlightenment before degenerating into the racist swamp of morons it is today? And don’t give me crap, I live here.

        1. I liked the south. By and large people were a lot friendlier there. Also they really no how to party.

          Are there some racists there, sure. But probably no more than in CA to be honest.

  15. What is this crap about shifting gender roles changing written law? If gender roles change again does it invalidate all these marriages? Very flimsy. You want to update written law on the basis of cultural shifts, do that. Don’t re-write the law, accompanied by a bunch of pretentious nonsense that effectively boils down to “because I said so”.

  16. “….to promote naturally procreative sexual relationships and to channel them into stable, enduring unions for the sake of producing and raising the next generation.”?”

    So how about the State testing every prospective couple for fertility? If they can’t procreate, no marriage liscence?

    Take a specific case. A family with ten children, nine are straight, and one is gay. One of the ten plus that person’s spouse gets killed in an auto accident. The remaining eight straight couples have too many kids to support already, so the gay sibling and his partner agree to adopt and raise the children of the deceased sibling.

    So how does the gay sibling’s right to marry interfere with the other nine people’s being able to procreate and bring in the next generation?

    The thing is, the Proposition passed by a very narrow majority, so it is not like the Judge is really opposing the entire populace.

  17. The government shouldn’t be involved in recognizing ANY marriages.

    Note that I didn’t say the government should therefore allow or recognize ALL marriages.

    Big difference, but if you are predisposed to wanting the government involved in everything to begin with, you’re going to think the latter scenario is optimal because you think that ultimately everything is the government’s business, no?

    1. The state should not be involved itself in who (apart from children) makes decisions about marriage contracts. The state “recognizes” contracts when it enforces them. Why should a marriage contract be any different from other contracts?

    2. You are omitting the correct option, WTB. If the state is going to recognize marriages, it has to recognize all marriages. And, whether people like it or not, gay marriage already exists.

  18. Wow, that actually makes pretty good sense to me dude. Wow.


  19. Call everything a civil union and be done with it!!!! If you view marriage as private and/or religious, it can be exclusionary. SEPARATION of CHURCH and STATE!

    Jebediah wants to have a “special relationship” with five women. So he convinces each that this will help her get into the Eternal Kingdom. Please tell why should the state intervene in this “relationship”.

    1. +1,000

    2. I agree with commenters here who argue that the government should not be involved in defining and recognizing marriage.

      However, we libertarians can’t just sit back and refuse to get involved in messy real-world politics, where that ain’t going to happen.

      Not accusing you of anything, but it is clear that “government shouldn’t be involved in marriage” is sometimes used as a disingenuous position by conservatives or conservative-leaning libertarians who are very much opposed to allowing gay marriage.

  20. SSM did not get voter approval in California–arguably one of the most liberal states. It has also failed to get approval from voters in several other very liberal states. This surprised me.

    We can argue margins but however close they are, they are not 50%. And some of those margins point to ideological rifts many would rather leave undiscussed(black interest in the election is likely what pushed Prop 8 over the top).

    In the end, we find that the populations of some liberal states are not ready for SSM

    And I think, if they are not ready, how can activists think that the issue should be forced?

    I think a day is coming when ‘marriage’ will have shapes we can’t even concieve of now, when gay couples and pluralities will be able to have children of their own(no egg/sperm donor for the gay couple, and splicing to combine the pluiralities’ DNA into a single embryo), and I think we will flourish because of it.

    But I don’t think that humanity has gotten to that place yet.

    Right now, the force that activists are using to ram this through is backfiring–liberal states are rejecting something they should be accepting wholeheartedly.

    That should be taken as a warning.

    1. See that’s the problem with asking the entire population to vote on minority rights.

      If South Africa can legalize gay marriage I don’t see why the U.S. can’t. It’s quite possible that our constitution demands it.

      1. “It’s quite possible that our constitution demands it.”


        1. Look if a state passes a new law that confers a new benefit the likes of which the authors of the constitution and its amendments would never have conceived, but the benefit only went to white people, it would still be a violation of equal protection.

          I’m fucking sick of conservatives braying about their love for America and freedom and then standing in the way of our being a model for freedom every step of the way. What’s their response to the Manhattan mosque controversy? That we should follow Saudi Arabia’s lead on religious tolerance. Is our constitution special or not?

    2. I assume from what you wrote you aren’t a Californian, and aren’t intimately familiar with the state.

      It’s not simply a liberal state. It has a mix of some of the country’s most liberal areas (e.g. Berkeley) with some of its most conservative areas (e.g. Orange County).

  21. What if I argued that SSM’s aren’t equally protected because even though my lesbian friends are married according to Connecticut, the great state of Texas refuses to recognize that marriage? While at the same time the state has no problem recognizing a straight marriage done in Vegas at 3 in the morning.

  22. “Defenders and opponents of Proposition 8 agreed that the freedom to marry is a ‘fundamental right’ protected by the 14th Amendment’s Due Process Clause (more plausibly, it’s protected by the Privileges or Immunities Clause, but that’s an argument for another day).”

    YES!!! This is the first time I have seen anyone mention that these rights should be protected under the Privileges or Immunities Clause. While I understand the limitations of the P or I Clause in the US Constitution (due to the horrible Slaughterhouse Rulings), I have never understood why the appeal was not made to the P & I Clause in the CA Constitution in an effort to defend these rights.

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