Supreme Court

California's Gay Marriage Ban Lands on the Supreme Court's Desk

|

As Lyle Denniston reports at SCOTUSblog, supporters of California's Prop. 8, the ballot measure that banned same-sex marriage, have now asked the U.S. Supreme Court to overturn the lower court ruling that struck the law down:

The document raised a single question: whether the Constitution's guarantee in the Fourteenth Amendment of legal equality prohibited California from "defining marriage as the union of a man and a woman."  A three-judge panel of the Ninth Circuit Court split 2-1 in early February in striking down the proposition, finding that it was motivated by hostility to gays and lesbians.  The filing of the petition by "Proposition 8? backers was the latest in a round of new appeals to the Justices on same-sex marriage issues.  The other new cases involve the constitutionality of the 1996 federal law, the Defense of Marriage Act, that permits federal benefits only for marriages of a man and a woman.  Those cases, though, do not raise the issue of whether there is a constitutional right for homosexuals to marry, as does the California case.

Assuming the Court takes this case, rather than the Defense of Marriage Act challenge, does that mean it will find gay marriage to be constitutional? There's a good chance it will, and Justice Anthony Kennedy is likely to cast the deciding vote. As I explained in an earlier column on the Prop. 8 case,

when it comes to gay rights, Kennedy leans libertarian. In Lawrence v. Texas, for instance, Kennedy declared that "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." Similarly, in his 1996 majority opinion in Romer v. Evans, Kennedy struck down a Colorado constitutional amendment forbidding state officials from taking any action designed to protect gays and lesbians from discrimination. As he wrote, "the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint." Together, these decisions suggest Kennedy will once again join the Court's liberal bloc.

NEXT: Europeans Flee Europe

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Uphold it and call it a tax on not being heterosexual. Penaltax is half for bisexuals.

  2. *facepalm*

    What is the libertarian position on federalism and the sovereignty of the States to make their own political decisions again?

    I support gay marriage. I do not support a top-down cramming of that “right” onto all 50 states by federal fiat.

    1. The libertarian position is that tyranny is bad, regardless of which level of government it comes from. Federalism and the decentralization of power is a tool, not the goal.

      1. ^This^

      2. If you call everything you disagree with “tyranny”, after a while people will ignore you even when you correctly apply the term.

        Denial of a pat on the head from the state is not tyranny.

      3. Federalism and the decentralization of power is a tool, not the goal.

        A tool you are apparently willing to break just to get a small win.

        Do you know the definition of a Pyrrhic victory?

        Please articulate to me one difference between the kinds of arguments presented in favor of gay marriage and the kinds of arguments presented in favor of polygamy.

        And yes, I get that as libertarians, we don’t care about polygamy either, but that does not mean that it, like gay marriage, should be forced on the people of a State by top-down judicial fiat.

        1. William Roper: So, now you give the Devil the benefit of law!

          Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

          William Roper: Yes, I’d cut down every law in England to do that!

          Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

        2. Can you explain how exactly gay marriage and polygamy are “being forced on the people”?

          1. I mean if you don’t want a gay marriage don’t get one. Jesus.

            1. Maybe Randian is like a bulemic for gay marriage, if you give him the chance to do it, he’ll go on a gay marriage binge.

          2. Marriage is left to the states via the Tenth Amendment.

            Answer this, guys: would you make me dictator tomorrow if I pretty-please sugar on top promised to make gay marriage legal throughout the land?

            If not, why not?

            1. How about you answer my question first.

              1. Simple. The people of State X don’t want gay marriage, and the Feds are forcing them to recognize it.

                1. But no one is asking people to recognize gay marriage, it’s the government that’s recognizing it. Nothing is being forced on anyone.

                  1. Do you advocate eliminating the States then? You don’t seem to be able to differentiate.

                    1. Yes I do, but that has nothing to do with what I said.

                    2. Yes, it does. You either believe that in certain spheres State X has the right to self-governance, or you do not. You do not. that is a foolish belief.

                      So, answer my question: if I promised to implement gay marriage, would you make me dictator of the United States? If not, why not?

                    3. If it’s just about recognition, then the anti-marriage crowd has even less of a leg to stand on.

                      If I get married in Vegas to a showgirl but Texas won’t let us get divorced, I’m not getting equal protection under the law.

                    4. I don’t believe any government has the “right” to limit freedoms or to discriminate against its citizens. That’s not a foolish belief.

                      The answer to your question is no, because I don’t believe in dictators. When did you stop beating your wife?

                    5. The answer to your question is no, because I don’t believe in dictators.

                      Why not? If it is because you do not want to have all of that power concentrated in one place, then you are getting closer to the answer.

                    6. Since you can’t take a hint, the choice between state and federal government is a false dilemma. I’m against all government.

                    7. Can I assume that you also feel that Heller and McDonald don’t go far enough to protect gun rights? That the decisions don’t protect our rights enough from state level tyranny? Because if you do, you need a nice tall glass of shut the fuck up.

    2. I shouldn’t think there is a consistent libertarian position on whether arbitrary borders drawn in the North American continent should define what people’s rights are. I got lectured to this morning about how rights were things that were immutable.

      Marriage has been recognized as a basic right by our courts. States have traditionally been the jurisdictions charged with defining the particulars, but it seems clear that the 14th amendment requires equal treatment of gay couples.

      1. Point Tony.

      2. I say if gays want to get married, let them have at it. Then they can suffer at the hand of the same fucked up family courts that the rest of us do. The only problem is that if it’s an all male union, which man does the court decide to fuck over? When you don’t have a woman, I think it will be more difficult to decide who to favor.

        That isn’t a gay bash, it’s my honest opinion. The state has no business in marriage at all, including creating special treatment for married couples, gay or straight.

        1. Re: Hyperion,

          When you don’t have a woman, I think it will be more difficult [for family courts] to decide who to favor.

          Wouldn’t that same conundrum be applicable for marriages between two women?

          Maybe the courts will decide against whoever wears the pants in the relationship.

          1. Yeah, that is something to consider. I suspect that the courts, in most cases, would make a supreme effort to make the dissolution as painless as possible, in order to not offend either fem. It would get really interesting in cases were there is child custody and support involved. I have this feeling it would actually turn a lot of former lesbian feminazis into raging lesbian Libertarians… lesbian libertarians… now there is something we can all contemplate… So yeah, gay marriage, pronto!

        2. I think I actually agree with this. I see why gays want equal rights, but I do not see why they, or straights, want to get married. Marriage is unnatural.

          1. Marriage is unnatural.

            You said it, brother. See below.

          2. Given that marriage in some form is a universal human cultural artifact, calling it “unnatural” seems spectacularly wrong.

            1. Of course I would be referring to marriage as it is practiced today. Pair-bonding does seem a natural thing. But long-term monogamy not so much.

              1. Lobg term monogamt seems to be a requirement for the trust required for a pair bond to raise children. Raising a family is a long term deal by defintion.

                1. That’s news to single parents (mostly mothers) everywhere.

                  1. Would you bet against the proposition that most of those single parents conceived their children either in a marriage or in a relationship they believed might lead to marriage? I wouldn’t.

                    1. Then you have a much more charitable view of human nature than I, Xeno.

                    2. I’m not so sure. I’d certainly bet that nearly all of them were deluding themselves at the time.

                  2. Who, until recently, would likely have died along with their children unless they successfully married again.

        3. That isn’t a gay bash, it’s my honest opinion. The state has no business in marriage at all, including creating special treatment for married couples, gay or straight.

          Why did you even need to say that, Hyperion? Whenever I reel back in horror at the heightened scream by gays to be able to be counted, licensed and stamped by the state, it’s not to bash gays, but to make a plea for their protection.

          I count a fair number of gay people in my circle of friends/family and larger circle of acquaintences. Many (most) of them are successful high-earning professionals. Wait until they get the hellfire of “community property” unleashed upon them.

          1. I guess I said it to let Tony, who I was replying to, know that I am not bashing gays with the comment. I agree with you that I shouldn’t have to say that. My wife’s best friend is gay, and a great guy. I don’t have a problem with gays, at all. I have a problem with nanny statist fucktards who like to divide people up to keep them powerless.

            And yes, when you look to the state for too many favors, for your group, you are asking to get fucked over in the end.

            1. My wife’s best friend is gay, and a great guy

              Is that what she tells you when she gets tanked and spends the night there? haha, jk.

        4. The only problem is that if it’s an all male union, which man does the court decide to fuck over?

          The top, obviously.

      3. “Marriage has been recognized as a basic right by our courts. States have traditionally been the jurisdictions charged with defining the particulars, but it seems clear that the 14th amendment requires equal treatment of gay couples.”

        I suspect this will be the only thing we will ever agree on.

        BTW, you just said ‘recognized the right’, not ‘granted the right’. I am glad to see you are finally on board with natural rights bub.

        1. BTW, you just said ‘recognized the right’, not ‘granted the right’. I am glad to see you are finally on board with natural rights bub.

          Nah, it was courts recognizing, not God, and that is tantamount to granting.

          1. Being an atheist I dont buy into the ‘God gave…’ argument either. I still recognize immutable rights. I recognize noses too. I disagree with the religious on where they come from, but we agree that all men are endowed with them.

            1. It’s all versions of God, who is just a version of Santa Claus.

      4. of course, there is a consistent position – let the states decide. As best I can tell, NY and WA have put the issue before their legislatures. That is far more acceptable than a voter referendum. Let those elected vote their or their constituents’ beliefs and face the consequences or gain the rewards at the next election.

        The true libertarian position would be that govt gets out of marriage all together and consenting adults make their own decisions. Anyone disagree with that? However, this position is not likely to become the way things are.

        1. Referenda are usually a bad way to do policy in any case. But minority rights particularly with respect to marriage equality have seldom been won in the legislative process, but instead in the courts.

          Scalia would probably say that since the Constitution doesn’t address gay marriage, it should be left up to democratic choice. But it would be no Roe in inventing constitutional rights, requiring only equal treatment under the law, a recognized codified right.

          1. But minority rights particularly with respect to marriage equality have seldom been won in the legislative process, but instead in the courts.

            And therefore Tony doesn’t care how he wins the Culture War, he just cares that he win it.

            1. As long as the process is legitimate, you’re damn right.

          2. both WA and NY voted FOR gay marriage; every referendum has been against it. Lawmakers always face re-election but referenda are one-and-done.

            I wonder if SCOTUS will even decide to take the case.

        2. How can gov’t get out of marriage altogether as long as gov’t operates courts and courts decide cases where whether someone is married to someone else is at issue?

      5. It may be a specious argument, but gays are treated equally under the law: they are permitted to marry any woman they wish.

        I am not saying that to be funny, by the way.

        Regardless, if you want your state to recognize gay marriage, petition your state to do so. Don’t use the one-size-fits-all Federal Hammer to force the issue onto the States. You create resentment and permanent court battles that way (see Roe for a good example).

        1. It may be a specious argument

          So why articulate it? Being able to marry only those you have no interest in marrying, in contrast to straights who have no such restriction, is not being treated equally under the law.

          one-size-fits-all Federal Hammer

          All minority rights have been achieved by the courts instead of legislatures. That’s the reason they’re codified in the constitution, to be protected from legislatures. And that route has been pretty successful. Yes it was a bit of a fudge in Roe, but while privacy isn’t in there, equal protection certainly is.

          Besides, we’re better off with Roe than with religious fundies running the place and inspecting women’s insides, so score a win for the courts method for effectiveness.

          1. Right, so in other words, you like the courts when you get the results you like, and you don’t like them when you don’t.

            Is it hard living in a completely whimsical world such as yours? Where you have no idea what you think from one moment to the next?

            1. you like the courts when you get the results you like, and you don’t like them when you don’t.

              Uh yeah, just as I presume you do. I don’t say their opinions I don’t like are illegitimate, but I can question their judgment.

              Is it hard living in a completely whimsical world such as yours? Where you have no idea what you think from one moment to the next?

              Not so much hard as interesting and fulfilling.

          2. So why articulate it? Being able to marry only those you have no interest in marrying, in contrast to straights who have no such restriction

            Au contraire. Show me a happily married man.

            1. Present.

              1. Yeah right. Your wife’s watching you type over your shoulder, isn’t she?

                1. She told me what to say.

                  What, that’s not happy to y’all?

                  (In all seriousness, if you aren’t happy in your marriage, you’re doing something wrong.)

          3. in contrast to straights who have no such restriction

            except for your sister or someone who is already married.

            1. No one’s advocating treating gays differently in those regards.

      6. but it seems clear that the 14th amendment requires equal treatment of gay couples.

        All I can hope is that the subsequent generation’s constituency feels the same way you do… that is if rights are fungible things subject to the whims of the 50.1%.

        1. Which would be the opposite of making a 14th amendment argument. Equal protection is and should be protected from simple majorities. I’ve never said anything different.

      7. “…it seems clear that the 14th amendment requires equal treatment of gay couples.”

        It is not at all clear that homosexual couples are equivalent to heterosexual couples. Your argument depends entirely on a false premise.

        It is not that homosexual marriage is banned, it is that calling a relationship between two people of the same sex a “marriage” is an oxymoron, a category error. It cannot be banned because it cannot be, in the first place.

        1. The dictionary disagrees.

          It’s like you’re trying to change the definition of marriage or something…

          1. Argumentum ad dictionariam?

            1. In reply to an argumentum ad falsum defenitio.

          2. Merriam-Webster bowed to political correctness by including a second definition. It is defintion #1 that is actual.

            1. So you’re saying we should adhere to your definition of words, not the dictionary definition? Good luck with creating your own language.

              1. I am saying that dictionary defintion you gave is a politically correct mash-up that does not make any sense if the author actually believes what he wrote. If the author did believe it there would be no distinction between defintions 1 and 2.

                1. Of course it makes sense. There is a traditional form of marriage, and a non-traditional form of marriage.

                  1. Yes, definition 1 is marriage, and definition 2 is bullshit to placate political activists.

                    1. I’m sure you truly believe that in your hateful little heart.

              2. Full stop. A dictionary definition has no more claim to correctness than anyone else’s definition. Words mean what people think they mean.

                This isn’t France where there’s an authority in charge of the language. Marriage has never been commonly understood to have the meaning you’re proposing.

                1. Marriage has never been commonly understood to have the meaning you’re proposing.

                  The majority of people in this country currently understand it to have exactly that meaning.

                  And I never said that dictionaries are “authorities.” Dictionaries track common usage of a word.

          3. All that dictionary says is that sometimes something like a “traditional marriage” is called a marriage. That’s about as clear a statement as you can get that they’re not the same thing. It’d be like saying that because there’s “soy milk”, that if someone asks for milk, you could give them that and it’d be authentic.

            1. “Same-sex marriage” is not the same thing as “traditional marriage.” Congratulations, you can read. That doesn’t mean same-sex is different from marriage.

      8. Hey so Tony does pay attention to things people here write, at least when he agrees with those things.

      9. Marriage has been recognized as a basic right by our courts. States have traditionally been the jurisdictions charged with defining the particulars, but it seems clear that the 14th amendment requires equal treatment of gay couples.

        Would it have been clear to the framers of the 14th Amendment?

        1. It doesn’t matter. It’s what they wrote, and it didn’t specify any exclusions.

          1. Then why stop at gay couples? Under such a broad interpretation of the 14th Amendment, states would not be able to define any particulars of marriage at all, because it will discriminate against those who disagree with the particulars.

    3. Didn’t federalism die when the state legislatures lost their representation in the United States Senate?

      1. Practically. But nobody seems to give a fuck — at least not in sufficient numbers.

    4. I do not support a top-down cramming of that “right” onto all 50 states by federal fiat.

      So you would be cool with a state banning interracial marriage?

      1. Race-based classifications are what the 13-15th Amendments are designed to address.

        1. 13 abolishes slavery
          15 deals with voting

          that leaves 14. 14 makes no mention of race. It says:

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

          If you believe that the 14th amendment gives interracial couples rights (without the scare quotes) then those same rights apply to same-sex couples.

          1. In considering the 14th Amendment, you have to consider the purpose for which it was put into place, especially within the context of the 13th and 15th because they were all passed at the same time.

            If you believe that the 14th amendment gives interracial couples rights (without the scare quotes) then those same rights apply to same-sex couples.

            Fine. Then they apply to polygamous partnerships too.

            If you’re not willing to concede that there is *some* limitation on what the 14th Amendment can dictate, then there is no point in having the conversation. My state makes me go to law school to take the bar exam; there are seven states that don’t. Are my rights being violated? Shouldn’t I have the right to pursue any career I wish without having to go to school?

            The answer is of course “yes”, but that right is not protected by the 14th Amendment.

            1. In considering the 14th Amendment, you have to consider the purpose for which it was put into place, especially within the context of the 13th and 15th because they were all passed at the same time.

              So if I understand your argument, if tomorrow the 14th ammendment were repealed and replaced with a 27th ammendment containing the exact same words, this could change the constitutionality of various laws even though the Constitution contains the exact same words as before?

              1. There’s already a 27th amendment.

                1. Ack, I always forget that one. Of course, you completely avoided the point of the question.

                  1. I don’t care about the point. I just want to flaunt my expertise.

                    1. Well there was only 26 when I went to school!

          2. No, it does not.

            Anyone may marry, but marriage requires pairing with a person of the opposite sex.

            Before you go there, a difference in race is not equivalent to a difference in gender. Humans are not an androgynous species.

            1. but marriage requires pairing with a person of the opposite sex.

              Wrong.

              1. And your proof is?

                1. The dictionary. Funny that you bring up proof when you have stated a definition without any proof.

                  1. Your dictionary is politically correct gibberish.

                    You have no argument beyond arrogant assertion.

                    1. Again, you haven’t stated a shred of evidence to support your assertion. I have. The only arrogant assertion is yours.

                    2. The dictionary isn’t proof. Merriam-Webster doesn’t run the fucking language.

                    3. Merriam-Webster tracks the fucking usage of words you fucking idiot.

                2. Actually, you made the claim (“marriage requires pairing with a person of the opposite sex”). So where is your proof?

      2. Not cool with it, but it’s not unconstitutional. Loving was just another results-based decision that I’m happy with the results of but not comfortable with the reasoning.

        As Roberts put it, it’s not the responsibility of the courts to repeal stupid laws.

  3. I hear Chicago is not letting Californians open any restaurants in the city.

    1. Mabye dirty Asians are next on the list.

  4. “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”

    If this case were about laws restricting any of those things, that would be a relevant quote. It’s not; it’s about whether the states will be forced to call an unprecedented kind of legal arrangement “marriage”.

    1. It’s denying that legal arrangement from being allowed in the first place. And it isn’t unprecedented, it is exactly the same legal arrangement.

      1. If gay marriage isn’t unprecedented, why did states have to ban it in the early 2000s?

      2. Yeah, I’m all about gay marriage, but to suggest that gay marriage is “unprecedented” is pushing things that look like envelopes.

        It’s pretty unprecedented.

        1. He said:

          an unprecedented kind of legal arrangement

          The legal arrangement is not unprecedented, it is exactly the same.

          1. Again, then why did the states have to ban it in the early 2000s?

            1. I don’t see how that is relevant. The legal arrangement is the same, the genders entering into the arrangement is what is unprecedented.

              1. That makes it an unprecedented arrangement. When you’ve never out two items together in a certain way, that is without precedent.

            2. To prevent courts from inventing a right to same-sex “marriage”.

  5. No one has ever said gay marriage is “unconstitutional”. That is a total misnomer. States are free to recognize gay marriage as they wish. The issue is whether gay marriage is “required by the Constitution” and states no longer have control over the definition of marriage.

    1. No the issue is equality under the law not whether gay marriage is required by the constitution.

      1. Equal protection applies to individuals, not couples.

        1. That’s stupid even by your standards. Couples are comprised of individuals. Of course, you know that, but are being deliberately obtuse.

        2. Here we go again with the disingenuous asshole routine…cut it the fuck out, Tulpa.

          1. It’s really amazing how my disingenuousness is so virulent that it’s impossible to, you know, make an argument against it.

    2. This. Also, some employers give the same benefit to same sex couples. My employer does that. So outside of that and tax breaks, what else is the benefit of a legal union? Should the state force religous organizations to recognize gay marriage? That is where I draw the line. And I am not religous, I just defend the right of other people to be, and to not be forced to recognize beliefs that offend them.
      Should the state force Muslims to allow me to walk into a mosque naked and eat some pork fritters?

      1. two benefits of legal unions that come to mind immediately:
        –custody of children
        –medical decisions

        Basically, the legal union is a contract with the protections typically contained. As to states forcing churches, I would say ‘no’ to the question of force. There will be several that perform gay weddings voluntarily.

        1. Agree on the religious front. This is largely about legal protections. I just can’t imagine not being able to take care of my husband in an emergency (and 50 years ago because we are different races I wouldn’t have been able to) or to take care of parts of our joint estate or our son.

        2. wareagle, I just posted above on that topic. If neither in the couple is a man, or both are men, who does the court decide to screw out of custody of the children and most of their income?

          1. this may plow new ground – since the court is an agent of the state and the state generally lives to screw people out of as much of their money as possible, both parties in this lawsuit will lose.

      2. So to a brief sampling of the 1,138 provisions granted on a federal level to heterosexual marriages (civil unions do not get these protections either):

        – FMLA (yes employers can individually grant but here are no federal guarantees)
        – Ability to make decisions in a medical emergency or to be considered next of kin for burial (look up the heartbreaking story of Shane Crone for a lot more on that one)
        – Social Security benefits (surviving spouse, surviving parent, surviving child)
        – 179 items in the US Tax Code relating to married couples
        – Retirement plans in the case of death are impacted because they cannot be withdrawn by anyone but a spouse
        – Military and veterans benefits
        – Right to equitably distribute property in the case of divorce (because there is no such thing)
        – Right to inherit property
        – Cobra benefits (unless allowed specifically again by an employer – which I’ll note the Fed gov’t doesn’t extend benefits)
        – Immigration protections
        – Plus dozens of other complications when children are involved. If a parent in a married couple or even legally divorced couple dies, children are protected.

        However, even if civil unions are nationally recognized and granted the exact same protections, it is still separate but equal- haven’t we yet learned that is still not really equal?

        1. I think the biggest objection is semantics. A lot of folks who support the concept of civil unions cannot bring themselves to call it a marriage, and I think civil unions DO address things like medical decisions, succession rights, etc.

          1. All the protections I mentioned are FEDERAL protections. Civil unions are only recognized by a limited number of states and the protections granted vary by state. So what happens if I get a civil union in IL that has one set of rules and then my job relocates me to say Montana. You guessed it now I have nothing.

            1. The same thing happens with a same-sex “marriage”.

          2. I also don’t honestly believe that it is semantics. This may be true of a few wavering in the middle, but I think most of the major detractors of same-sex marriage believe it to be a religious issue not a legal / discrimination. They find homosexuality to be a sin and that gays are all going to burn in hell. At least that has been my personal experience when debating this topic.

            1. We can end this debate quickly by not granting special rights to anyone. Everyone gets exactly the same rights, as an individual. When you start dividing people up into races, sexes, etc., etc., then you have created a clusterfuck of unsolvable problems, which of course, only more government can solve. Only they don’t ever solve the problems, they just keep creating more problems, that they can’t solve.

            2. I get the religious folks; I just think some simply cannot bring themselves to use the term ‘marriage’ for anything but one man/one woman.

              Traditionally, we have regarded it as something between two people of opposite sex who are unrelated. When one of those provisions falls, someone’s going to challenge the other two. I am past worrying about how consenting grown-ups live their lives, but others love to meddle.

              The point of your post on civil unions came up during the GOP debates, where some folks supported such unions but the question of jurisdiction was raised. It’s a valid issue.

              1. Well, technically, you are right. Religion invented marriage. It is a religious thing, it is supposed to be a holy union. I don’t think gays are too concerned, or at least not most of them, with that definition. They are worried about getting equal rights under state or federal law, to a heterosexual couple. And so, I go back to my point again, if we stop granting special rights to groups of people, and stop dividing people, period, then we go back to rights for individuals. Problem solved.

                1. “Religion invented marriage.”

                  Uh – what?

                  Marriage licenses are granted by the individual state, as is the power to officially witness and report the event. I’ve told this story a number of times but… I was best man in a PA wedding where an old family friend, Father Tom from NY, was asked to officiate over the ceremony. In the end, though, it took too long for him to get the credentials to become a Justice of the Peace in PA. So we had the ceremony in the yard with Father Tom then went into the dining room with another fam friend – who was a JoP in PA – officially witnessed the signing of the contract. Yes, it is only then that any couple is married.

                  See, the fact that Fr. Tom was a man of the cloth in NY was not sufficient to give him standing to marry anyone in PA. It turns out that, in order for a member of the clergy to perform a wedding, they must first be granted that power by the state in which they work. Ordination does not grant that power – it’s not even a requirement – but, rather, each clergy member wishing to perform marriages must first become a JoP or equivalent in their state. Simply, without the state’s approval, religion has no power to grant licenses for marriage in any state.

                  Simply put: marriage, as it is practiced today, has nothing to do with religion. It has to do with a variation on contract law.

                2. Religion did not…NOT…NOT invent marriage. I don’t know where that idea came from. Marriage is prehistoric, predating religion, gov’t, and from best evidence, the human species.

            3. That’s because marriage has also been a social and religious construct. The benefits granted by the State are only one leg of the three-legged-stool that is the institution of marriage.

              The state should step out and declare that they are no longer concerned with marriage. Every union should be a civil union…

              1. the day the state gives up power may well be the day the sun rises in the west. It should do nothing than file the paperwork just like any other contract, but you know that “should” does not translate into “will.”

              2. The state using “civil union” language for all couples would indeed solve the problem. But it would seem simpler just changing “man and woman” to “two consenting adults” in statutes than combing them for the word “marriage.” Perhaps not, but people want to go around calling themselves married and not civilly unioned. Though that would be fun in a socialist-bureaucratic jargon kind of way.

                1. “two consenting adults”

                  Better.

              3. There should be no unions at all.

                1. without unions, there are no enforcement provisions for things like child custody, medical decisions involving a partner, inheritance, property dissolution, etc.

                  That piece of paper becomes damn important when life takes a bad turn.

              4. And if the state declares they’re not longer concerned with marriage, what happens the next time someone has a case in court that hinges on the question of whether they’re married? Throw the case out and let them feud?

        2. it is still separate but equal- haven’t we yet learned that is still not really equal?

          No, we haven’t. Vapid rhetoric notwithstanding, Plessy was right as far as what the Constitution requires.

          1. How so?

            1. The problem wasn’t that they were separate; it was that things were never equal.

      3. Religious organizations will remain free to associate with whomever they choose, not to mention get tax breaks to encourage their rampant proliferation (to paraphrase Gore Vidal).

        I think the standard for requirements for employers should mirror those regarding racial discrimination.

        But don’t worry, the state will continue encouraging the existence of sects of believers in magic and regressive social values.

        1. try making the “being black = being gay” argument to black folks. You will get far.

          1. Which black folks are you referring to? I know lots of liberal black folks.

            Okay I’ve heard the argument. But the only difference is the form discrimination has taken. Blacks were systematically oppressed for decades after they weren’t slaves any more. Gays were not allowed to acknowledge their own existence without fear of death or ostracism. You can decide which is worse. Gays are still a minority who deserve equal protection.

          2. I won’t dispute that being able to “pass” as straight gave gays an advantage, and thus much more integration into the mainstream economy. I maintain gays’ relative success above and beyond mainstream acceptance is due to fabulousness, though.

  6. What’s “libertarian” about Romer v. Evans? It reinstated some local laws in Colorado which told private business who they could hire or serve as customers.

    1. A point that’s totally lost now that TheLibertarianismIsSettled.

  7. If same-sex marriage is legalized, and a fundamentalist Christian who has a wedding photography business refuses to take a job for a gay wedding ceremony specifically because he doesn’t agree with same-sex marriage, can he be prosecuted?

    1. As I stated in my comment above, this is where I draw the line. But I am sure there are plenty of progessives that would support this kind of thing.

    2. Of course he can.

    3. That case is a perfect example of ‘me but not thee’ attitude.

      If you allow freedom of association in one case, you shouldnt prosecute somone for attempting to exercise it in the other.

    4. I don’t see how the photog could be prosecuted. There is no right to demand the labor of another. If it’s a community with a large gay population, this stance could be self-defeating but I hear folks are still allowed their principles.

    5. I am pretty sure a photographer could deny business to anyone for pretty much any reason as photography services aren’t regulated. However, a rental property owner could not deny rental based on legal marital status. Very different things.

      1. Reason coverage of a photog in this situation:

        https://reason.com/blog/2012/06…..tes-you-to

        1. Very interesting. I certainly think that the courts got that one wrong classifying photography as a “public accommodation”. I also think the photographer was dumb for admitting that was the reason and not just giving some lame polite I’m busy that day excuse and even more lame for the couple to go after him. I am all for fighting for rights, but not everyone is going to like you and sometimes it is just best to let things go.

          1. All businesses with customers are public services. Didn’t you know that?

    6. I don’t agree with that. I do think freedom of association extends to bigoted motives for association.

      1. No you don’t. If you believed that, then you wouldn’t force private businesses to serve customers they don’t want to serve.

        1. You’re right, I do think there are those limits on freedom of association. That’s an is not an ought, libertarians. On careful inspection I do think innovating those specific exceptions to freedom of association was a good move. It helped solve systematic social injustices. Now if only bigoted southerners would stop drooling for systematic injustice we could have a more pure freedom of association.

          1. If people would only do what Tony wants them to do, he would support them having freedom.

            1. Sometimes intelligent civilizations can come to answers to social questions. That’s what individual freedom is actually about; not to align with the commandments of nature, but to pragmatically facilitate the best possible society. Systematic racial discrimination harmed people individually. If only one guy was doing it, it wouldn’t be a problem. If your entire community is doing it, you’re the one testing the limits of a freedom. Don’t want to push those boundaries, don’t be ignorant bigoted assholes.

              1. Too much freedom is bad for your health, we get it Tony. We’ve all heard that bullshit before.

                1. Focusing on pointless freedoms can preclude access to important freedoms. The freedom to discriminate competes with the freedom not to be discriminated against. May the best freedom win.

                  1. If we had the freedom to not be discriminated against, I would be able to get that job at NASA that I’m not qualified for. Or is it only freedom from discrimination you don’t approve of?

                    1. Yes I mean discrimination based on certain specific innate traits. The limit on freedom of association should be limited.

                    2. Why do you get to decide what the limits should be? I say that stupid people shouldn’t be discriminated against. It’s not their fault they’re stupid. Also, ugly people.

                    3. Take your case to court; nobody’s stopping you.

                    4. Bravo Tony, way to avoid the argument. Thank you for your arbitrary positions and arbitrary rules.

                    5. It’s not arbitrary. You can discriminate in the workplace based on ability, but not for unrelated elements of one’s identity.

                    6. And if I think that someone’s appearance or race or gender or sexual orientation has something to do with their qualifications, then I guess I’ve just committed a thoughtcrime. If Tony disagrees with your hiring policies and what you do or don’t do with your business, you go to jail!

                      Yes it’s completely arbitrary because it’s your opinion against the opinion of a bigot over what they get to do with their own property. Your position is a bunch of garbled bullshit.

          2. “…Now if only bigoted southerners…”

            Your bigotry toward southerners is ironic Tony. Just when I think there is a slight chance that you arent completely despicable, you dash my hopes. I have been all over this country, and racism is no different in the south than anywhere else.

            I know I know, you have to stick with that tired old narrative that we are all Bull Connors.

            1. I’m a Southerner myself and find, well, a couple things worth celebrating about Southern culture. I’m all about hospitality.

              But I’m referring to the traditional center of antiminority bigotry in this country, the section that started a war over the issue.

              1. Ah the Civil War of 2003. I remember it well.

      2. so you agree that the Congressional Black and Hispanic Cauci are inherently bigoted? And ‘For Women Only’ chain of gyms? Or does bigotry only apply when it’s a group of white conservatives?

      3. Oh, very important caveat: provided you are not a business employing people or providing services to the general public.

        1. you are not a business employing people

          In other words, any business. People should be able to discriminate against anyone for any reason. They should also be free to face the consequences of those discriminations. But not at the hands of the state.

        2. that’s not a caveat; it’s a contradiction of your previous argument.

          1. I’m trying to decide if I can stand by my initial assertion. For people behaving privately, certainly. But limiting free association specifically to exclude anti-minority discrimination in business was so practically necessary that it seemed a good tradeoff. That freedom gains a permanent minority underclass, a problem that has not been solved even with those requirements in place. The South better shape up or they might find some zealous liberals in charge telling them their kids’s posses must resemble the Burger King Kid’s Club or else a fine.

            1. It’s always a good tradeoff when it’s someone else being coerced.

              1. I’m being coerced the same way, it just doesn’t upset me because I’m not an ignorant bigot.

                1. If you don’t want to do the forbidden act, you’re not being coerced.

            2. The south better shape up? What the fuck are you talking about? You are either deliberately trying to provoke me or you have no inkling what you are talking about. I suspect the latter.

              1. You’re absolutely right to be offended by my generalization. It would be more granular to say that rural America has committed the offenses against decent society, being generally behind in social progress for easily discernible reasons, the South being merely more dominated by such light population density. The only reason slaves were on plantations instead of northern factories was because northern population densities were more amenable to progressive social policy. But go to upstate New York and you’ll find similar attitudes as in the South. Your grievance about my stereotype is justified. Congratulations, you’re practically a liberal.

                1. I am speechless. I am saving this.

                  Oh, and ‘you’re practically a liberal.’ ; you have no idea, just probably not in the sense you mean.

                2. The North didn’t have slaves because slaves are generally inefficient for industrial labor. Open up a history book once in a while.

        3. Oh, very important caveat: provided you are not a business employing people or providing services to the general public.

          That “caveat” invalidates nearly the entire position you stated previously. I guess you’re (grudgingly) allowing people to disapprove of gays in their innermost souls without fear of prosecution, so we should be thankful for that at least.

        4. So gay-only clubs/organizations (gay men’s choruses etc) can no longer be. Nor women-only gyms.

          1. No, Tony makes exceptions for those. Because consistency is for lesser men.

  8. Individual rights apply to…individuals, not couples. The states may arbitrarily decide which groups of people it decides to recognize. The only thing the states cannot do is impinge upon basic liberty like the liberty to cohabit with whomever you want or have adult sexual relations with whomever you want. It shouldn’t have to make gay marriage legal if the people don’t want it that way. No one loses any rights when it decides not too, they just don’t get the pony they want.

    1. I am stunned that this issue has created so much confusion.

      If I want to choose to enter into a contract to combine property with another person, which is what a marriage is, then why am I preventred from entering into that contract with certain people based on gender?

      It most certainly is restricting my ability to enter into a contract with the person of my choosing. It is denying me my right. It is a no-brainer.

      1. you would think, but there is a certain crowd that treats marriage as something far more than a contract, despite the shambles heteros have made of it. I don’t care who marries whom, so long as no one’s rights are violated and no tax money is involved. The latter should apply to marriage as we know it; you do it because you want to, not to gain state bennies.

      2. Nobody is stopping you from such a contract.

        However a marriage license is not a contract between two people, its a contract between two people and the state and the state can change that contract at anytime. It has done so many times. So if you want a contract between two people the last thing you want to do is get a state marriage license.

      3. “If I want to choose to enter into a contract to combine property with another person, which is what a marriage is,…”

        Which is not all what marriage is. It is also a codifying of the rights and responsibilities of a reproductive pair, which is why the gender combination matters.

        The confusion you attribute to others is your willful delusion.

        1. so Mickey, if a couple is unable to reproduce or chooses not to, is their marriage invalid?

          1. Fertility is a private matter. Gender is not.

            1. mickey’s basing his argument on a reproductive pair, implying that kids are an expected outcome.

              1. As far as the state knows (and is appropriate to enquire), any opposite sex couple is capable of reproduction.

                1. Two men are capable of reproduction even if they are gay and married. Hell, being in a gay marriage almost certainly raises the chances of a gay couple having children.

                  1. Two men are not capable of reproducing with each other, no matter what their circumstances.

                    How biology works is apparently another of your willful delusions.

                    1. You didn’t say reproduction with one another, nor did I. There are many same-sex married couples who have genetic children, and likely would not have had children if they could not have married each other.

                    2. Yes, I did say “reproduction with one another”. That’s what “reproductive pair” means.

                      That there are homosexuals with genetic children, but they not the genetic children of the homosexual couple.

                      Given that the other parent of their child is of the opposite gender, what possible reason is it an argument that since a homosexual can reproduce heterosexually that same sex relationships must be legally recognized. What does one have to do with the other?

                    3. You’re the one that introduced reproduction as an essential part of marriage in the first place!

                      Did you get the National Language Institute to recognize your new dialect yet?

                    4. “You’re the one that introduced reproduction as an essential part of marriage in the first place!”

                      Yes, with each other. I still await for your remarkable explanation of how being able to have children with other people justifies why you should be able to marry someone you cannot have children with.

                    5. So you think I agree with you that reproduction is essential to marriage just because I responded to your statement about reproductive pairs? I don’t see how that makes sense.

                      Besides, plenty of heterosexuals get married without the intention or ability to reproduce. Are those marriages void?

                    6. Did you seriously just make an argument ad reproduction? I guess all those straight couples that can’t or choose not to reproduce aren’t legitimately married.

                      Fuck off SoCon.

                    7. Designate, I think “Mickey Rat” is about 12 years old and hasn’t learned about people who can’t have babies.

                    8. There’s definitely someone here arguing like a petulant 12 year old. It’s not Mickey.

                      Arguing that illegitimate children conceived with people other than your spouse constitute marital reproduction is about as bad-faith as it gets.

                    9. I view children who were only conceived because of the ability of two people to get married as the products of marriage. Of course, this whole issue is a non-sequitur in the first place since reproduction is not essential to even traditional marriage.

                    10. D-Nate, That’s cheeky considering you ignored my comment on that point at 8:17 just below this.

          2. The point of laws preventing felons and the mentally ill from purchasing firearms is to keep people who are more likely to use a firearm violently from having one.

            Does that mean that if someone who’s not in one of those categories buys a gun while wanting to kill someone, the purchase was illegal?

          3. Why should perhaps cannot and may not be treated the same as categorically cannot?

            It should not, that kind of platonically perfect standard is not required in the real world.

          4. Traditionally infertility was ground to invalidate a marriage.

        2. What about second marriages between a man and a woman who are alredy parent but don’t want to have more children?

          I guess it’s just a civil union at that point – no?

      4. Marriage is not a contract in the usual sense.

        If you want to combine property with a person of the same gender, that’s perfectly legal under current law. It’s called a partnership.

        1. I have been married and divorced. I am on my second and last marriage. I know what a fucking marriage contract is. It is a combination of property.

          I can make babies all day long with any woman who consents without getting married. I can sleep around, form and dissolve friendships and sexual affairs all I want without a marriage contract.

          A marriage is a joining of property, plain and simple.

          1. How many other contracts are invalid if you do not have sex with the other party?

            It is more than a mere joining of property and I refuse to believe you are too ignorant to know that.

            1. How many other contracts are invalid if you do not have sex with the other party?

              A porn star contract?

              Jus’ sayin’

              1. I don’t think a porn star is usually having sex with the person they signed the contract with, but I suppose it happens occasionally.

                1. A lot of the net.porn producers are also “performers”. Which means they’re ridiculously rich and get teenage tail whenever they want it.

                  Makes me want to puke.

          2. “I can make babies all day long with any woman who consents without getting married.”

            Then you would be a deeply irresponsible man, perhaps to the point of sociopathy, leaving your children fatherless. That you and your partners would choose to forego marriage does not alter that marriage us designed to regulate heterosexual relationships. That includes merging of property but that is not the whole story.

            1. So why then shouldn’t it be illegal for couples who cannot have children to get married? How dare they use marriage in a way other than how it was “designed.”

              1. Because I am arguing against the notion that there is equivalency between homosexual and heyerosexual couples that mandates equal treatment, not trying to justify further tightening of the definition of marriage.

                1. Actually you argued both:

                  It is not that homosexual marriage is banned, it is that calling a relationship between two people of the same sex a “marriage” is an oxymoron, a category error. It cannot be banned because it cannot be, in the first place.

                  That has nothing to do with the differences between homosexual and heterosexual couples, it’s all about a limited (and false) definition of marriage.

          3. You’re not addressing my point. If all it is is a joining of property, then gays can already do that with their partners.

  9. Mr. Root:

    “Assuming the Court takes this case, rather than the Defense of Marriage Act challenge, does that mean it will find gay marriage to be constitutional?”

    Sorry to be a nitpicker, but that’s framed incorrectly, and it’s a pet peeve.

    SCOTUS might rule on whether bans on gay marriage are constitutional. But they aren’t going to “find gay marriage to be constitutional.” There’s no way such a question could be presented unless there were a constitutional amendment addressing gay marriage.

    1. WOW! I need to switch allegiance over to Popehat. Have Ken and Patrick released their Top 10 Best Films lists?

    2. That’s not a nit; it’s a log-sized misstatement.

      Gay marriage is plainly constitutional. Whether bans on the same are is the question presented.

      More cleanly, though, isn’t the question presented whether California violated the equal rights of gays by repealing gay marriage? My understanding is that states that have never had gay marriage would not be forced to if this decision goes the way gay marriage advocates want it to go, as the act that triggered the suit was the “taking away” of rights that gays previously had.

      1. The cert petition cited cases where “[f]or legal purposes
        . . . the two situations [ repealing a privilege and refusing to create it in the first place] are identical.” See Petition for Writ of Certiorari, Hollingsworth v. Perry, at 34, citing Bowen v. Gilliard, 483 U.S. 587, 604 (1987) See also id. citing See, e.g., Ysursa
        v. Pocatello Educ. Ass’n
        , 555 U.S. 353, 356, 360 n.2
        (2009); Central State Univ. v. American Ass’n of Univ.
        Professors
        , 526 U.S. 124, 127 (1999); Lyng v. Automobile
        Workers
        , 485 U.S. 360, 371 (1988); Bowen, 483
        U.S. at 598-601; Fritz, 449 U.S. at 176-77; City of New
        Orleans v. Dukes
        , 427 U.S. 297, 303-05 (1976)

  10. California’s Gay Marriage Ban Lands on the Supreme Court’s Desk

    “Gay marriages are thereby forbidden! Only gloomy marriages will be permited, so no soup for you!”

    [Justice] Kennedy declared that “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”

    “Uh, certainly not, of course, freedom to not buy health insurance – let’s be clear about that!”

    1. Kennedy voted against the affordable care act.

      1. Yeah, that was Justice Roberts. Sorry, all gringos look alike to me.

    2. Yeah Kennedy kind of voted to strike the entire thing.

  11. So is a reason editor doing a piece on the huge anti-boycott of Chick-fil-A today?

    I ate a chicken sandwich washed down with a peach milkshake. It tasted very good, like free markets and freedom good.Costs more than a Bahn Mi though. That’s for Friday because Vietnamese delis and bakeries all close on Thursday for some reason.

    1. I haven’t tried Chick-fil-a yet, but I am going to, just to piss off as many PC assholes as I can.

    2. I saw pictures from various outlets; lines out the ass. I don’t know if anyone did a head count to see if the motivation was gay marriage or free speech. I disagree with the CEO’s stance but it remains legal for people to have differing opinions. At least for now.

      1. 45 photos of insanely long lines for Chick-fil-A Appreciation Day

        http://washingtonexaminer.com/…..le/2503792

      2. I interpret that first amendment thing as giving us the right to disagree. Without that, we have nothing. I have to tell you, if there was a restaurant that wanted to serve only gays, it wouldn’t offend me one bit. If there was a restaurant that served only blacks, that wouldn’t offend me either. I wouldn’t spend one moment of my life even thinking about either of those violations of my rights.

      3. Can’t wait to see those protests covered on the news. /sarcasm

        1. which is ironic since, by definition, they ARE news.

      4. If someone was at a KKK rally, wearing a robe and hood, and said “oh, I’m not in favor of racism at all, I just want to stand up for free speech”, would you actually believe them?

    3. The one nice thing is that the next time some socialist brings up the lame “we all need to do our share because we’re all together in this as a community” crap, I’ll be able to come back with “oh yeah? and were we all in this together when my neighbors were all lining up outside Chick-Fil-A for the chance to publicly demonstrate how much they hate me?”

  12. If rights are individual rather than collective, then does that mean there’s no such thing as states’ rights?

    1. Re: Tony,

      If rights are individual rather than collective,

      It ain’t an “if” thingy, Squeaky.

      then does that mean there’s no such thing as states’ rights?

      Or government rights, or societal rights, or social contracts, or anything of the sort. Only individuals populate the Earth.

      1. You do both know what is meant by the phrase “states rights”, yes? Mickey outlined it for you below. I agree with the notion that states do not have “rights”, but they do have powers and sovereignty.

        1. but they do have powers and sovereignty.

          Only through coercion.

    2. Depends on which kind of right you’re talking about. Civil rights are all individual rights. Contractual rights can be held by any entity.

      “State’s rights” are analogous to contractual rights.

  13. State’s rights refer to aspects of state sovereignity the federal government is not allowed to interfere with under the Constitution. They are not philosophically what states are entitled to by their mere existance, which is what individual rights are.

    Cute, how you pretend you don’t know the context of what words mean.

    1. No, “state’s right” is collectivist construction to try an gloss over the fact that the speaker is asserting the right of one group of individuls to force their will on another group by pretending the former is somehow represents the will of the whole of a particular society.

  14. Mickey Rat, don’t you ever get tired of your pedantic, shallow argument against gay marriage? Are you truly unaware of not only how badly structured it is, but also how it is completely unconvincing?

    1. Projecting much, heller?

      1. Heller’s argument is apparently that you suck. Which is pretty well structured in the same sense a lump of shit is well-structured.

        1. Tulpa apparently couldn’t read or willfully ignored every other post I wrote in this thread.

  15. It should be noted that Chief Justice Roberts did pro bono work for the respondents in Romer.

  16. Someone on Facebook tried to argue that this wasn’t about what Chik-Fil-A recently said, or about free speech, or just boycotting them, but about the money that was donated to “anti-gay organizations” like Fellowship of Christian Athletes and The Family Foundation. I wish I could say that I was aghast one would make the argument that spending money equals stomping on rights, but in this post-Citizens United world, that argument is par for the course.

  17. Well, I think the idea of “Same-sex marriage” is preposterous nonsense. Marriage, by definition, is a heterosexual union, just like apple pie, by definition, contains apples. One can offer another a piece of “apple pie” that’s made with peaches rather than apples, but by definition, he is not serving up apple pie.

    That said, I don’t care if a couple (or more!) of the same gender find a pastor and perform a ceremony and tell everyone that they’re married. What I object to is the attempt to use government violence to compel me to agree that they are really married, when definitionally they’re not.

    1. What was the definition of marriage 50 years ago? How about 100 years ago? Definitions change.

      To your second point: I object to others using government violence to deny people the ability to get divorced (a much more American tradition) because you don’t want to even recognize it when they were married in another state.

      1. The definition of marriage 50, 100, 1000 years ago is the same as it is today. It is a heterosexual union.

        Saying something preposterous and then claiming that it’s not preposterous because “the definitions have changed”, is preposterous.

    2. What a bunch of bullcrap.

      1. I agree, “same-sex marriage” is a big pile of steaming bullcrap. However, I do not care if you consume great quantities of it, just so long as you do not seek to compel me to do so.

    3. What government violence?

      1. Says the guy who thinks it appropriate to send in the gov’t goons to compel a restaurant owner to serve people with whom he would rather not do business.

  18. Tulpa Doom| 8.2.12 @ 11:01AM

    Full stop. A dictionary definition has no more claim to correctness than anyone else’s definition. Words mean what people think they mean.

    But not how most people think they mean, only Tulpa and other SoCons.

Please to post comments

Comments are closed.