Gay Marriage

The Constitutional Perils of Recognizing Gay Unions

The Obama administration's puzzling argument against Proposition 8

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When President Obama endorsed gay marriage last year, he said the issue should be left to the states. Last week he said it shouldn't.

To be more precise, a Supreme Court brief filed by the Obama administration last Thursday argues that California's ban on gay marriage denies homosexuals the "equal protection of the laws" guaranteed by the 14th Amendment. Although the brief focuses on Proposition 8, the 2008 ballot initiative that overturned a California Supreme Court decision requiring the state to recognize gay marriages, its logic suggests that a policy Obama himself rejected less than a year ago is constitutionally mandatory.

For many years Obama said he supported equal rights for gay couples, except for the right to call their relationship a "marriage." That is exactly the policy he now says is unconstitutional.

Proposition 8 amended California's constitution to declare that "only marriage between a man and a woman is valid or recognized." But the initiative's backers assured voters that "Proposition 8 doesn't take away any rights or benefits of gay or lesbian domestic partnerships."  And under California law, as the Obama administration's brief notes, "domestic partnerships carry all the substantive rights and obligations of marriage."

The administration argues, rather counterintuitively, that California's decision to treat gay and straight couples the same but for the word marriage makes its policy more vulnerable to constitutional challenge than a policy that does not recognize same-sex unions at all. Why? Because the only point of withholding the label is to mark gay marriages as inferior, a goal motivated by "impermissible prejudice," which is not a constitutionally valid reason for treating people differently under the law.

The administration could have argued, as the trial judge and the U.S. Court of Appeals for the 9th Circuit did, that the justification for Proposition 8 is so slight that it fails even the highly deferential "rational basis" test that is used in most equal protection cases. But the Justice Department had already taken the position, in a separate case involving the federal Defense of Marriage Act (DOMA), that discrimination based on sexual orientation should receive the same sort of "heightened scrutiny" that the Supreme Court has said is appropriate for discrimination based on sex or "illegitimacy" (i.e., birth outside of marriage).

To withstand heightened scrutiny, a legal distinction must substantially further an important government interest. The Justice Department, which announced two years ago that it would no longer defend DOMA and is now actively opposing it before the Supreme Court, concluded that the statute's ban on federal recognition of state-approved marriages between people of the same sex fails that test, since it affects marriage policy only "at the margin."

Likewise, says Solicitor General Donald Verrilli, Proposition 8 does not substantially advance any legitimate interest, since its impact is almost entirely symbolic. His brief strongly implies that the same argument invalidates the laws of seven other states (Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island) that give same-sex couples "rights substantially similar to those available to married couples, yet still restrict marriage to opposite-sex couples."

Nine states and the District of Columbia recognize gay marriage. So what about the remaining 33? It is pretty clear from Verrilli's discussion of the arguments for banning gay marriage that the administration does not think those states' laws could survive heightened scrutiny either.

But if the Supreme Court, which is scheduled to hear this case on March 26, adopts the administration's reasoning, the decision could discourage states from moving toward recognition of gay marriage, because doing so would make their laws less substantive and therefore less likely to be upheld. That would be a bizarre result, since it is hard to understand how giving gay couples none of the rights and privileges associated with marriage is less offensive to the principle of equal treatment under the law than giving them all those rights and privileges while calling their relationship something else.   

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  1. Government should not be in the marriage biz at all. Marriage is too important an institution to be trusted to government hands. And it is also to sacred an institution to be sullied by government.

    1. I want to agree with this sentiment but the reality is that marriage in America is entirely a government construct.

      An obsolete institution originally created to enforce social norms, encourage family formation and child rearing as the building blocks of society. It is a series of government driven obligations and benefits, easily entered and difficult to exit.

      Separating marriage from child rearing, which effectively happened decades ago, removes any rationale for the government-sanctioned institution altogether and it’s survival is only due to social inertia.

      As such, the drive for same-sex marriage is a mix of special interest politics with a group seeking government privilege on no rational basis and a pathetic attempt to have government validate their lifestyle.

      Active opponents are equally pathetic, seeing government-marriage as a totem for by gone social structures that they imagine made life superior in some way.

      1. There are two, sometimes three aspects to marriage. There is the deeply personal and emotional realm. It is a symbolic ceremony celebrating love and engaging themselves in a new commitment to one another.

        Then, for many, but not all, there is the religious or spiritual realm. For these people a marriage is not a marriage at all if it is not recognized by their deity of choice or in their religious institution of choice. It should be pointed out that the Roman Catholic Church will not recognize a marriage between divorced people (unless the previous marriage was annulled under special circumstances) even though every secular authority in the United States will.

        Last, and in my opinion least, is pure legal aspect. What the government considers a marriage may or may not vibe with either of the two above. But government has a monopoly on the legal use of violence and can enforce its will on others.

        1. And nothing says “lifetime commitment of love and dedication” like “monopoly on the legal use of violence”.

          Seriously, why again would you need to appeal to the monopoly on violence vis-a-vis your romantic/personal choices?

          The best argument against civil marriage is to ask yourself if you’d invent it if it didn’t exit.

          1. The best argument against civil marriage is to ask yourself if you’d invent it if it didn’t exist.

            If you are irreligious but raised in a culture where being married appears to mean something, and you’re not already an anarchist, you would likely want to invent it.

            1. You could make a case for civil marriage as a type of partnership agreement that the government recognizes for limited reasons.

              But marriage today, is so much more than that.

      2. An obsolete institution originally created to enforce social norms, encourage family formation and child rearing as the building blocks of society.

        gonna have to differ with you. Marriage, or something like it, has existed long before the establishment of govt. Whether it was pagans or other small groups, the joining of a man and woman is not exactly new.

        In fact, govt does have a role since at its root marriage is a contract, and govt’s role is to protect the rights of those covered by a contract. Where this differs from most contracts is that govt also establishes who the participants can be, and it should not have that power.

        1. gonna have to differ with you. Marriage, or something like it, has existed long before the establishment of govt. Whether it was pagans or other small groups, the joining of a man and woman is not exactly new.

          Pair bonding and child rearing are obviously as old as humanity itself. And will continue with or without government sanctioned marriage.

          The institution of marriage, in America, is all about the legal construct which has vary specific rules as exists to promote specific goals.

          Why do people need a ‘marriage license’ to pair bond at all?

          1. Why do people need a ‘marriage license’ to pair bond at all?

            Because other people have one and they are envious and insecure.

          2. For me the answer is to get health insurance from work for my wife. If the tax exemption for health insurance wasn’t limited only to spouses and dependent children (or I guess 26 year old “children” now), I’d have never sought a license for my relationship.

        2. The contract is also different in nature from other contracts. For instance, communication between spouses is privileged.

    2. my neighbor’s mother-in-law makes $80/hour on the computer. She has been fired from work for seven months but last month her pay check was $13880 just working on the computer for a few hours. Here’s the site to read more… http://www.huffingtonpost.com/…..13925.html

  2. …California’s decision to treat gay and straight couples the same but for the word marriage makes its policy more vulnerable to constitutional challenge than a policy that does not recognize same-sex unions at all. Why?

    Because many same-sex marraige recognition advocates (and various flavors of statists) are in it not so much for the legal and financial benefits of marriage recognition but instead see licensing as an indicator of societal acceptance. If you don’t actually call it marriage, then there’s no cultural win. It’s a ludicrous notion and it’s not the way to change hearts.

    And everyone knows that “it should be left up to the states” is thrown out there by candidates during a campaign as a wink to their base they agree on the topic in question but don’t want it to directly impact their electability with the broader voting bloc.

    1. “Because many same-sex marraige recognition advocates (and various flavors of statists) are in it not so much for the legal and financial benefits of marriage recognition but instead see licensing as an indicator of societal acceptance. If you don’t actually call it marriage, then there’s no cultural win. It’s a ludicrous notion and it’s not the way to change hearts.”

      This

  3. Because many same-sex marraige recognition advocates (and various flavors of statists) are in it not so much for the legal and financial benefits of marriage recognition but instead see licensing as an indicator of societal acceptance.

    People here frequently say this about “societal acceptance” but I think it misses something: most people don’t think there is any other way to be married. John has said a few times that you can just call yourself married and you’re married, boom, that’s it, but at this point only religious people and anarchists believe that in any meaningful way. For everyone else, marriage only exists as a function of the state. I really believe it has less to do with “societal acceptance” as in positive feelings toward married gays and more to do with “I want to call this person my husband/wife and have no other means to do so.”

    1. It’s hard for me to believe that the people pushing this issue don’t grasp that they can have all the rights they claim to want without stamping the relationship as a “marriage.”

      They know perfectly well they could get inheritance, insurance, and whatever other package of rights they want in a civil union without going to the mat over what to call it. I really do believe it has to do with forcing people to label the union a “marriage.”

      1. I’m not saying they don’t want to call themselves “married.” They do. They really, really want to call themselves married, say “I’m married,” say, “my wife did this” or “my husband did that” or “we’re a family,” and they don’t think there’s any other way to do that other than via the state.

        I think there are also some people who are interested in what other people call them (and those are the ones who sue photographers and bakeries and shit), but it’s primarily about themselves.

        I believe you are married, IIRC. Why? Did you get legally married only for inheritance and immigration benefits? Most people do not.

        1. I believe you are married, IIRC. Why? Did you get legally married only for inheritance and immigration benefits? Most people do not.

          I got married as a gesture of commitment and, I suppose, for the symbolism that the whole thing represents. I didn’t do it so I could be called “married.” I’d have been perfectly fine with a civil union, though the wife would have wanted something a bit more ritualistic, like a church ceremony and probably the label of “marriage” as defined by a church.

          …they don’t think there’s any other way to do that other than via the state.

          That’s simply a matter of education, and those pushing for gay marriage could do the educating if they were interested in rights more than approval (for lack of a better word this early in the morning).

          1. Well, it’s “simply a matter of education” in the same way turning everyone into an anarchist is, isn’t it? Or at least a minarchist libertarian.

            If you had had a civil union, would you still call her your wife? How would you feel if other people said she wasn’t really your wife?

            I’m saying this as someone who has spent a lifetime wanting to get married and at this point knows it’s largely meaningless but still torture myself regularly that I am not “married” or a “wife” as if a state license actually makes other people’s relationships more valid than my own–and I’m a fucking anarchist, so I don’t actually think a state license means anything!

            1. Well, it’s “simply a matter of education” in the same way turning everyone into an anarchist is, isn’t it?

              Not at all. I’m not talking about educating as to what might or might not be the proper role of government. I’m talking about educating people that they can get the rights they want without redefining words.

              If you had had a civil union, would you still call her your wife? How would you feel if other people said she wasn’t really your wife?

              Yeah, I would call her my wife. I wouldn’t give a fetid dingo’s kidney about what other people say.

              I’m saying this as someone who has spent a lifetime wanting to get married and at this point knows it’s largely meaningless…

              Obviously, I don’t know you but maybe that’s because marriage was really the only means “validating” that your relationship was more permanent, or whatever, than others’. If a civil union had been the way to do that with, perhaps, a layer of church approval for people who like that kind of thing, then maybe marriages and licenses and whatnot wouldn’t have the emotional meaning that they do.

              1. Obviously, I don’t know you but maybe that’s because marriage was really the only means “validating” that your relationship was more permanent, or whatever, than others’.

                This is part of what is nonsense though. Most married people are not religiously opposed to divorce, so these relationships aren’t really more permanent than unmarried ones. I’ve been with my boyfriend much, much longer than the amount of time it has taken many people I know to meet their spouse, marry them, have kids, and get divorced. But there is still some part of me that feels like “not a real person” or “not a real adult” or “not in a REALLY REAL relationship” because it doesn’t have a magical stamp that I don’t actually believe in. That’s the kind of nonsensical territory we are in here with any talk about “societal acceptance.” Of course it doesn’t make sense.

                If a civil union had been the way to do that with, perhaps, a layer of church approval for people who like that kind of thing, then maybe marriages and licenses and whatnot wouldn’t have the emotional meaning that they do.

                Right. But that’s not how things actually are.

                1. Right. But that’s not how things actually are.

                  But widespread gay marriage isn’t how things actually are, either. If we’re going to change things from how they actually are to some new way, we should probably do it without redefining words.

                  But there is still some part of me that feels like “not a real person” or “not a real adult” or “not in a REALLY REAL relationship” because it doesn’t have a magical stamp that I don’t actually believe in.

                  I’d argue that you do believe in it, you just wish you didn’t. No one here is Spock — though I might have been accused of being so more than anyone here — and sometimes we believe in things that piss us off.

                  1. But I don’t have mental access to the things that actually make it meaningful: state or religious legitimacy.

                    The only thing left is…social acceptance.

                2. What we really need is a word besides boyfriend/girlfriend for unmarried adults in long term relationships. It always sounds very silly to me when people in their 30s or older refer to the person they have been living with for years as a “boyfriend”.

                  I’d propose “bitch” as a good unisex term, but I don’t think too many people would go along with that.

                  1. What we really need is a word besides boyfriend/girlfriend for unmarried adults in long term relationships. It always sounds very silly to me when people in their 30s or older refer to the person they have been living with for years as a “boyfriend”.

                    This is a major issue for me. My boyfriend disagrees that it sounds silly. But ultimately a large part of why I don’t like it is that I feel like when I say “my boyfriend” or when I’m called “my girlfriend” that people make incorrect assumptions about the relationship. I.e., social acceptance. I would like a better word, but a word doesn’t actually change my relationship, so it’s really only vanity and concern for what others think.

            2. I have never understood womens’ fixation on marriage.

              1. I have never understood womens’ fixation on marriage.

                I don’t think it makes a lot of sense, and I’m assuming somewhere around 50% of homosexuals have a similar fixation.

              2. I have never understood women

                You could have stopped right here.

                (This is why there are no female libertarians….)

                1. It’s very true. If my appearance, personality, and lack of money didn’t already scare women away, I think my bafflement and unwillingness to indulge their wackier bullshit would probably torpedo most relationships.

            3. I’m saying this as someone who has spent a lifetime wanting to get married and at this point knows it’s largely meaningless but still torture myself regularly that I am not “married” or a “wife”

              This is why many men get married.

              1. This is why many men get married.

                Well just remember when you do that that you are rewarding irrational and disincentivizing rational behavior among women 😉

                1. Well just remember when you do that that you are rewarding irrational and disincentivizing rational behavior among women 😉

                  I lived with my wife for four years before we got married, our daughter was three when we got married, I was well aware going in that my wife was highly irrational. But, such is love.

                2. Try this, Nicole. Think of marriage like you would any other thing that exists (I’ll use guns in this example). People believe that the mere fact that guns exist is all that is required for them to have the right to own one. People believe that the mere fact that marriage exists is all that is required for them to have the right to do it.

                  1. People believe that the mere fact that marriage exists is all that is required for them to have the right to do it.

                    Right. I mean, I’m not arguing in any way against extending marriage licensing to homosexual couples. It’s just a really weird thing–for someone like me, “marriage exists” in the same way that “transsubstantiation exists,” i.e., I know other people believe it is real but none of the framework that is based on works for me. Most homosexuals, though, like most people, are statists, and therefore they do have access to the framework and thus want access to marriage itself.

              2. You mean they torture themselves for not being a wife?

        2. …and they don’t think there’s any other way to do that other than via the state.

          The fact that people are so hopelessly and helplessly dependent on the government for their self worth and well being is really just sad. It used to be the biggest hurdle about choosing a lifelong partner was taking them home to meet your parents. Having society collectively smack you on the ass and say “atta boy” didn’t factor so heavily.

      2. There are numerous laws that use the terms “married” or “marriage”. They may believe, rightly or wrongly, that they will be denied certain privileges because of this.

        1. That’s a fair point, but pretty easily addressed.

      3. It’s hard for me to believe that the people pushing this issue don’t grasp that they can have all the rights they claim to want without stamping the relationship as a “marriage.”

        They’re either making an intellectually dishonest argument by insisting that changing the definition of the word is about legal protections, or they’re just fucking stupid.

        1. I believe most of the talk about rights being denied is similar to utilitarian arguments for libertarianism. “X social program doesn’t work, so stop stealing my money to run it.” But you think it’s stealing even if it works; you’re trying to get what you want by using an argument you think will appeal more broadly.

          But sarc, if you are legally married, why? Did you do it for legal benefits or because you and your wife wanted to be able to say “we’re married”? I know this sounds like snark, but it’s not. It’s not clear to me why any nonreligious person would get married other than for the same vague idea of “societal acceptance” as being “married” (unless you all are really doing it for the legal benefits, which are certainly disputed).

          1. But sarc, if you are legally married, why?

            To make her happy.

            My point is that I wish the SSM folks would be honest and say it’s about social acceptance. Because that’s what it is really about. Why can’t they be honest?

            1. I think “social acceptance” is an iffy phrase. When I hear people say that on this subject, I think “social acceptance of the idea of a homosexual sexual relationship,” not “social acceptance of this relationship as equally valid and committed as that other relationship that you call a different word.” If you mean the latter, I completely agree.

              To make her happy.

              As I suggest above, the real problem is that we’re all highly irrational 😉

              1. Why is that irrational? A happy wife is a happy life.

                1. Not what you did, that she wanted you to.

            2. Nah, it’s about getting health insurance from work.

      4. I really do believe it has to do with forcing people to label the union a “marriage.”

        Yep.

        And legal activists are salivating at the opportunity to sue people into submission.

        The push, whether people realize it or not, makes equality a higher value than freedom of association.

        It was this realization that turned me from actively supporting ssm to passively opposing it.

        1. It was this realization that turned me from actively supporting ssm to passively opposing it.

          Same here.

        2. “I really do believe it has to do with forcing people to label the union a “marriage.””

          You can say the same about regular marriage.

          “The push, whether people realize it or not, makes equality a higher value than freedom of association.”

          Sadly, this is true. But I don’t see that as a reason not to support it on equal protection grounds.

          1. You can say the same about regular marriage.

            Show me the people who need to be forced through threat of lawsuits that the union of a man and woman is a marriage. I’m pretty sure that everyone accepts this to be the case. So yeah, you could say the same about regular marriage, but you’d have be full of shit or a moron to do so.

            1. Show me the people who need to be forced through threat of lawsuits that the union of a man and woman is a marriage.

              Um, employers that don’t want to offer benefits to any domestic partners? It’s implicitly the same thing. The federal government threatens them with force for not recognizing one relationship as different from another based only on state licensure. After all, not every union of a man and woman is a marriage, especially not in the eyes of the state.

              I know you, sarc, have an issue with definitions wrt “marriage” being only between a man and a woman. But there’s no reason to get legally married other than forcing other people to agree that you are, in fact, married.

              1. My issue is with the intellectually dishonest arguments made by the SSM crowd. They can’t be honest because if they did they’d be forced to admit that it’s all about their feelings. Their feelings are hurt. It’s not fair. But, but, but they want to be married, and it’s not a real marriage unless it has the blessing of the men who can legally dole out violence. Do you know how that makes them feel? It’s terrible! It’s! Not! Fair!

                1. Well, that’s exactly what I’m saying. But I think most heterosexual couples who get legally married feel the same way, it’s just that they can do it in more states.

    2. Marriage itself is about social acceptance. ‘*We* are gathered here to witness…’, ‘if anyone has any reason why these two should not be joined…’, public vows… why this isn’t understood is beyond me. In my exposure to gay marriage advocacy, social acceptance is the only consistent goal.

      While I’ve heard stories of homosexuals perjuring themselves to file taxes jointly, at a higher tax rate, I’d bet my marriage license, that if you offered a married couples paltry sums of money (or tax breaks) to rescind their marriages, the majority would. The problem is obvious, if marriage is only about love (or some other inherent good), social acceptance wouldn’t be an issue. Many men and women would remain ‘married’ if all marriage were outright banned tomorrow.

      1. “if marriage is only about love (or some other inherent good), social acceptance wouldn’t be an issue.”

        Exactly. The only consistency with liberals is the stated intentions are always for a fairy tale happy ending. If you question it, well you’re obviously the evil witch in the fairy tale.

        I don’t think marriage has ever been primarily about love, therefore I’m homophobic.

        1. and that isn’t to say that love doesn’t help once you are married, but love isn’t what drives people to get married.

          1. but love isn’t what drives people to get married.

            My wife would be surprised to hear that.

            1. And mine.

            2. I certainly was.

            3. Until she stopped to think about it for 2s. Few and far between are the married women who found love and then decided to get married. Most are dead set on marriage well before they find a partner and fall in love, many even before they really understand love.

              Additionally, many couples are in a committed relationship well before marrying. The progression is, at least partially, motivated by convenience and economics.

              http://www.theonion.com/articl…..ife,11198/

  4. The administration argues, rather counterintuitively, that California’s decision to treat gay and straight couples the same but for the word marriage makes its policy more vulnerable to constitutional challenge than a policy that does not recognize same-sex unions at all.

    It’s not especially counterintuitive if you’re marginally familiar with due process/equal protection issues that routinely come up in the administrative agency context. Beyond the basic requirements of the Administrative Procedure Act (“APA”), a private party generally has no other due process/equal protection rights in an administrative agency proceeding so long as the agency sticks to the requirements of the APA. However, if an agency (through regulations, published hearing rules, etc.) imposes additional restrictions on itself, then it can create a due process/equal protection violation (depending on the exact circumstances) if it fails to follow those procedures. For example, the APA does not require an hearing officer in a quasi-judicial proceeding to issue draft written findings and allow thirty days for comments or objections by the parties. However, if an agency implements a regulation that states “the hearing officer shall issue draft written findings and allow thirty days for comments or objections by the parties

    1. [CONTINUED] However, if an agency implements a regulation that states “the hearing officer shall issue draft written findings and allow thirty days for comments or objections by the parties,” and then a hearing officer issues draft written findings but, after only ten days without comments or objections, issues what purports to be a final order, then there’s been a due process violation and a party will likely be able to get the final order vacated. In other words, agencies literally set themselves up to be at risk of committing due process/equal protection violations by implementing regulations and other official procedures. That seems to be similar to what the Obama administration is claiming here in the context of the California proposition.

  5. Sometimes you jsut have to throw your hands in the air, liek you jsut dont even care.

    http://www.EliteProxy.da.bz

    1. Thank you for your bold, insightful, and path-breaking words. You have created a new standard by which all future comments will be judged!

      Thanks ananbot!

      1. Did you mean Anonbot, or Onanbot?

        1. Fair point. Ananbot. But Onanbot would make a great name for a certain kind of adult toy.

  6. The Obama administration’s puzzling argument against Proposition 8

    Obama just hates democracy.

  7. Nothing is more libertarian than initiating government force against someone who disagrees about the definition of a word.

    1. Wait, what is government forcing you to do exactly?

      1. Provide spousal benefits to a person my employee has chosen to have sex with exclusively, and accommodate customers I may wish to turn away for personal or religious reasons, just for a couple obvious examples.

        1. I don’t think anyone should be forced to provide benefits at all. But for a lot of employers, the reason they don’t offer benefits to unmarried couples, same sex or not, is that there is no federal tax exemption for it.

          That’s why I’m legally married.

  8. “If you call a dog’s tail a leg, how many legs does a dog have?”

    1. Is it male or female? Because I hear they want to change the definition of leg to include penis as well as tail.

      1. It’s a transgendered cis male.

      2. Well with someone like me I could understand the confusion. [ahem]

    2. Is the dog male or female?

    3. Four normal legs and one floppy ass-leg.

      1. That is a very bigoted statement. Why do you hate tails? Huh? Why do you hate them so much that you don’t want them to be elevated to the status of leg? Why must you ridicule them as being “floppy ass?” You are such a mean spirited person. So hateful. Why? What did tails ever do to you?

        1. It’s not “floppy-ass,” as in very floppy, but “ass-leg,” as in leg growing out of the ass.

          1. Oh, sure. You’re still associating it with “ass,” you bigot. Why shouldn’t tails be afforded the same rights as legs? Huh? As we all know, the only way to give tails the same rights as legs is to redefine the term “leg” to mean “leg or tail.” Stinking tailophobe.

            1. Tailophobe? You’re still calling them tails? Now who’s a bigot?

            2. Why shouldn’t tails be afforded the same rights as legs?

              They are, duh!

              As we all know, the only way to give tails the same rights as legs is to redefine the term “leg” to mean “leg or tail.”

              Dogs have 1 ass-leg, 2 hip-legs, and 2 shoulder-legs. What’s the problem?

              1. Dogs have 1 ass-leg, 2 hip-legs, and 2 shoulder-legs. What’s the problem?

                Now that is downright bigoted. They should all be equal. They can’t be equal if you’re putting qualifiers in there. They’re simply legs. Equality. Why do you hate equality?

                1. So why does the Leg Census ask about each leg’s joint of origin?

                2. Do they all say “leg”? Why yes, yes they do. For someone supposedly against unequal treatment of legs you sure claim they’re unequal a lot. I wonder why that is?

                3. Personally, I don’t hate equality (heh, indifferent). I hate government mandated equality. History is replete with very bad things happening when states start trying too hard to make sure everyone is treated as equal.

                  I don’t think gay marriage would lead to doom and gloom, I’m just irritated that it’s yet another opportunity for the government to tell people what to do and how to think rather than butting out (and/or finding something better to do).

          2. Gives a whole new meaning to “ass-man”.

    4. Tails do not function as legs very well. But people of the same gender can function quite adequately as spouses (and if you want to talk about children, imagine one spouse is infertile or sterile).

      Yes, in a way it is redefining a word. But it is a word that has been redefined before, many times. And the change is minute. There is no real difference (at least not one that should be legally relevant) between a same sex couple and opposite sex one which cannot produce issue without outside assistance.

      1. And the change is minute.

        Turning the phrase “husband and wife” into hate speech is minute?

        1. Aren’t you the straw man police?

          1. It happened in Switzerland. Why can’t it happen here?

            1. But widespread inequality under the law is already happening here. A real problem trumps a made up bullshit potential future one. Check your sources.

              1. Complain to someone who cares, bitch.

      2. So, according to this definition the normal homosexual marriage is equivalent to an exceptional heterosexual marriage where the couple is infertile (a trait not easily determined at the time of marriage). Equating homosexual marriage to other diminished (no matter how slight) marriage kinda invalidates the premise of equality.

        No method of birth control is 100% effective. Virtually all sexually active heterosexuals run the (usually immeasurably small) risk of bearing children exclusively homosexual individuals run no such risk. Bearing children is overwhelmingly detrimental to the couple/individual but a boon to society. This isn’t always the case and suggests society might be better suited ignoring sex and paying more attention to reproduction.

  9. OT: I can’t figure out how to send this link straight to reason, but DRONES:
    http://washingtonexaminer.com/article/2523319

    1. Mail to hitandrun@reason.com; but this was covered yesterday.

  10. Well, we can fight amongst ourselves and argue about this, but really – this is supposed to be a HAPPY occasion.

    Hugo Chavez is still dead.

    Ya, bitchez.

    So let’s not bicker and argue over who killed who, or who’s supposed to be married to who, or any of that.

      1. Apparently dictatorial powers did not include iron fist rule over Cancer.

  11. Sounds like Obama is perfectly consistent here. The constitution means whatever he wants it to mean. All hail the Living Constitution!

  12. Something that nobody in this thread has addressed are the (not exactly legalistic) consequences of marriage for various other issues. One thing that gay couples complain about is that they are not allowed in hospitals to visit very ill partners because they are not ‘related’.
    Of course, this could be fixed one hospital at a time, assuming the hospital was willing to figure out a way how. And I assume the hospital has the rule in order to protect itself against inappropriate visits (or lawsuits or something–most bs rules like this are anti-lawsuit talismans).
    But still, especially during the worst of the AIDS epidemic there were lots of stories of partners not being permitted to be with a dying patient. Having the word ‘marriage’ would do an end run around this. Not sure what the ‘libertarian’ solution to this is, either, if there is one.

    1. One thing that gay couples complain about is that they are not allowed in hospitals to visit very ill partners because they are not ‘related’.

      From what I’ve gathered from talking with people who work in hospitals, while yes the hospital could technically deny unmarried partners visitation rights, in practice it never happens.

      1. I’m sure this family will be pleased to know that, or this couple in NV for that matter. The NV one happened after Obama ordered hospitals receiving federal funds to allow partners.

        1. “When asked if she was aware of Nevada’s domestic partnership law, she [public relations representative at Spring Valley Hospital] accused the reporter of bias and hung up the telephone.”

    2. This is b.s. It’s heterosexism (the ‘belief’ that heterosexuality is the norm, which given the 90-95% of the population that doesn’t identify as gay seems reasonable) being construed as homophobia or discrimination. Hospitals actively study, monitor and regulate the behavior and it still occurs. Marriage licenses only exacerbate the problem rather than dispelling it (heteros get a free pass while homosexuals need to show their license, not separate but still not equal).

      There are few studies comparing ‘discrimination’ rates between hetero and homo. Mostly just anecdotes about homosexuals who win civil suits where malice or situational/circumstancial issues are less relevant if not moot.

  13. California refusing to recognize same-sex marriage could have repercussions for their citizens. States are required by the U.S. constitution to recognize the legal actions of other states. Such acts include marriages, wills and contracts.

    By stating that marriages performed in another state are not valid in California, California is in violation of the constitution. It would be within the rights of other states to enact reciprocal recognition of Californian marriages, or the lack thereof.

    Just imagine the outrage if someone from California gets denied access to their spouse because they aren’t really married.

  14. “Mawwiage… Mawwiage is what bwings togethaw, today. That bwessed event, that dweam within a dweam.”

  15. Obama’s politically motivated “evolution” on this subject is of course irrelevant to the question of equal rights.

    The Court should make the broadest possible ruling invalidating any law that denies equal marriage rights to gay people. Thus the Roberts court will have its legacy, a painfully obvious equal rights question will be settled, and we can move on with our lives, with not one Christian heterosexual’s life being affected in the slightest way. Few things in life are so win-win.

    1. Except it begs the question about why a man, a woman, and a nanny/nurse/au pair, male or female can’t be married for hospital, immigration, and childcare purposes.

      Love and sex are the two most meaningless criteria by which a society could define a marriage. It should either define them by more relevant criteria (e.g. sustained cohabitation) or not define it at all.

  16. “with not one Christian heterosexual’s life being affected in the slightest way”

    Unless of course they want to be bakers, wedding photographers, to make their own employee-benefit policies, etc.

    1. Pobrecitos.

      1. So you admit their lives will be affected, you simply don’t care?

        1. Well, we have to do a utilitarian calculation: so, let’s assume that gay people have less well-being if they can’t get married.

          Do Christians have better well-being and happiness if they can force this upon gay people? Let’s assume they do.

          Well, there’s a lot more Christians than gay people. How many utils of happiness do we give the Christians, vs the gay people?

          About 4% of the population is gay. about 75% of the population is Christian.

          Let’s assume that all the gays are either non-Christian, or gain utility from allowing gay marriage, despite their Christianity. And let’s assume that they gain an equal utility if their ideology prevails in policy.

          Let X be the reward that Christians get for banning marriage. Let Y be the reward that LBGT’s get from being able to marry. This implies that they gain equal utility if X*.75 = Y*.04. This implies that, if the ratio of X/Y is more than approximately .04/.75 = .05, then gays gain more well being than Christians, so legalizing gay marriage is good. This implies that gays need to gain 20 times more well being than Christians in order to justify legalizing gay marriage. Otherwise, human-well being is reduced.

          Utilitarian is fun. I can see why it’s so popular.

          1. Let C be the bakers who are imposed legal damages for failing to bake wedding cakes for same-sex couples.

            Let P be the wedding photographers who are imposed legal damages for failing to photograph same-sex marriage ceremonies.

            Let T be the T-shirt makers who are threatened with legal sanctions for failing to make T-shirts for same-sex couples.

            Let B be the private businesses who are coerced into changing their employee-benefit policies for the benefit of same-sex couples.

            etc.

            1. Hey: my model is a better model of human well being maximization than yours is. Because I like mine, and I say so.

              Bow to the sheer, objective rationality and logic of it all.

              1. I’m a bit confused as to your point. Maybe it’s me.

    2. Suppose there were exceptions such that businesses which are places of public accommodation (such as cake-bakers or honeymoon/ reception hotels) could refuse service to same sex couples in good faith on religious principles and not be subject to anti-discrimination.

      And, by acting consistent with their conscience, they therefore only gain or lose respectability in their community as a business, and suffer no legal sanction.

      In time, I think this “good faith” discrimination would prove to be a poor business decision for these bakers and candlestick makers, but perhaps they really are that devoted to their regular clientele that they would risk alienating new clientele who object to their policies.

      Anyway, would that satisfy your concern?

      It’s hard to tell if anti-discrimination laws are really what’s bugging you, or whether you’re just fundamentally opposed to same-sex marriage and you’re picking at it at the margins.

  17. This is one more ‘problem’ created by the State. If not for government then pair bonding between gay people would just be a societal issue, gossip talk, simple prejudices. Society is much more liberal and adaptable to change than government. Government has always stood in the way of civil liberties – just like with race, few understand this most basic truism. It relates specially to gay people, but they see government as a way to civil liberties when the government institutions are the barrier.

    Forget society, that is easy and self-correcting. I think we should bring the conversation to Government and Civil Liberties. The start is what role should government have in pair bonding contracts? Marriage grants certain special rights: In a Criminal Trial the State has provided for spousal privilege. Without a Will, a State designated spouse has property rights. The State has special tax excemptions. The State has special spousal entitlements. UCMJ has special punishments for cheating on a spouse. And the list of State interference and blundering in what I see as a private contract go on and on.

    1. The start is what role should government have in pair bonding contracts?

      seems the state’s role would be in enforcing provisions of the contract and providing redress to an aggrieved party. It becomes like joint ownership of a business or real property.

      1. Yea, something along those lines; then what is the contract and should the contract be memorialized or filed of record and do all states have to recognize the contract? Alan Wright made a good suggestion below that clears away some of the Red Team/Blue Team clutter.

  18. If we want to go with the traditional version of marriage from Christianity, doesn’t that need to allow for multiple wives and concubines? Polygamy and sex outside of marriage is an older tradition than modern marriage, so if traditionalists want to go there, how do they explain their strictly new testament only version, other than shoving their idea of religion down everyone’s throat?

    Of course the state should be out of the marriage business. Until it is, however, letting anyone get married who wants to is a better alternative than what they’re doing now. How many years, and how much money, do we have to waste trying to keep gay people from marrying each other? How much effort will we waste just arguing about whether or not to treat gay people differently? Such a waste.

    1. “How many years, and how much money, do we have to waste trying to keep gay people from marrying each other?”

      What if Obama issues an amnesty to all same-sex couples, thus emptying the prisons? Would that work?

      1. The idea of non-violent offenders of victimless crimes flooding the streets doesn’t really bother me. Even if they love each other and try to get married. Call me crazy.

        1. My point is that there aren’t same-sex couples in prison for having gay marriages, because it’s not a crime for them to purport to marry each other.

          1. My point is that there aren’t same-sex couples in prison for having gay marriages, because it’s not a crime for them to purport to marry each other.

            Oh, now I get it: since no one’s in jail, no one’s wasting any time, and no one’s rights are violated, and this whole debate is a model of efficient resource allocation.

            Gotcha.

            that’s a rather unlibertarian definition of liberty: avoiding jail. Pretty much a basic minimum for a civilized society.

            1. In what sense are gay people prevented from marrying each other?

              I thought the debate was over giving equal status to same-sex relationships, so that (for example), bakers can be forced against their will to bake wedding cakes for same-sex oouples.

              1. Not to beat a dead horse, but you cite a problem with non-discrimination ordinances for why you reject SSM. Were gay marriages placed on the same level as straight marriages providers of wedding services would be free to decline services as they saw fit. Conflating the two is bad argumentation on your part.

                1. Wait, so bakers *aren’t* being required to bake wedding cakes for SSM couples? Wedding photographers *aren’t* being required to do photo shoots for SSM couples? Owners of wedding pavillions *aren’t* being required to open to SSM ceremonies?

                  Or what is your point?

                  1. They are, in some states and some cases, because of anti-discrimination laws, which should not exist anyway for reasons completely unrelated to SSM. You should be arguing against those anti-discrimination laws regardless of SSM if you care about the freedom of service providers. It really has nothing to do with SSM as such.

                  2. Or what is your point?

                    Clearly you plan to ignore my point because it doesn’t suit your argument style. SSM does not inherently impinge on the freedom of butchers, bakers and candlestick makers, but non-discrimination ordinances do, but you know that already, no?

                    1. If you establish SSM, at that moment discrimination against same-sex couples will be sex discrimination. Can you imagine a scenario in which it wouldn’t be?

                    2. Yeah, anywhere SSM isn’t paired with a non-discrimination ordinance, even better if it’s paired with a conscience clause (as it has been in some places).

                    3. Yes, a scenario that involves eliminating all anti-discrimination laws, because that’s the right thing to do.

                    4. because that’s the right thing to do.

                      So you do not believe in freedom of association. Gotcha.

                    5. How on earth does advocating for the elimination of anti-discrimination laws come off as being against freedom of association?

  19. As I understand it, the argument here is that if a state establishes a system for gay civil unions which are separate but equal in all but name, that nominal difference between civil unions and marriage would fail a heightened scrutiny test, if not a rational basis test.

    Thus, California’s Prop 8 and other civil union statutes might not pass constitutional muster for equal protection purposes, whereas the status quo opposite sex marriage standard would, by default, because they already do.

    So, states have a disincentive to change from an opposite-sex only marriage system to a nominally different same-sex civil union system… because that distinction is eroding.

    Okay, that seems like a reasonable argument, but the fear of eroding constitutional distinctions is not what animates activists against gay marriages and civil unions. For them, it’s a prototypical reactionary fear of eroding tradition, decency, Christianity, family, etc. I don’t see Verrilli’s argument or your conclusion about its trajectory motivating activists much either way.

    Then again, what do I know. I think think the state should recognize only the notion of the “civil union” and let the term “marriage” be used only for lay or religious purposes, not for legal ones. Thus, all anyone can get is a civil union, but they can call it whatever they like.

    1. Seems like the State only recognizing ‘Civil Unions’ for whatever sexual preference along with whateveer bundle legal contracts that entails is a good step in the right direction. It still has the State too involved, but is a step in the right direction. Leave ‘marriage’ as a social construct for whomever wants it.

      1. Yes, mine is similar to minarchist position. Without a more exhaustive examination I’d like the marriage contract to be protected to the extent it currently is. I.e., joint property/ marital assets; shared child custody; reasonable expectation of privacy re the testimonial privilege; etc.

        Obviously, people disagree about the specifics family law and dissolution.

        Here, the change would be just nominal. The state would cease to issue marriage licenses. It would only issue “civil union” licenses or some such other title.

        1. Makes more sense than the media arguments, which are purely emotion driven. Nobody ever seems to make principled arguments, it’s all about how they FEEL about gays. I could careless about who people fuck or pair with, so just find the path to liberty where government neither encourages nor discourages any individual behavior.

  20. Marriage in one form or another has existed as long as homo-sapiens, and perhaps longer. But the marriage practiced in North and South America, Europe, and North Africa is not based solely on pair-bonding, but is directly descended from the institution used by landed royalty during Classical and Medieval times in order to legitimize off-spring and cement certain contracts, such as peace treaties and the joining of powerful families. Obviously, it was important for the Church to have control over this in order to protect the power of the Church.
    Modern marriage still retains some of these traditions, but has abandoned others (for instance, very few people still use the word “bastard” to mean what it used to mean). A free and modern people should have no use for this institution. Let the government enforce civil unions as contract law between consenting adults, and leave marriage in the eyes of God to the devotee’s church. But since this is as likely to happen as all the other Libertopian goals, then SSM is probably the best course for liberty.
    IOW: Let the gays marry so that they can be as miserable as everyone else!

    1. I agree in general with your sentiments, but I’m always skeptical of this claim and its variants:

      *Marriage in one form or another has existed as long as homo-sapiens, and perhaps longer.*

      Let’s say there’s good archeological proof of various forms of marriage and monogamy and/or pair bonding some 20,000 years into history.

      But the homo sapiens species reaches much further back than that. The pair bond is a useful strategy for the survival of an individual in a species, and promotes ready procreation for its genes and the species at large. So, I think it’s safe to say that many forms of family structure (monogamous/ monoamorous; polyamorous/ polygamous; etc) can be extrapolated further and further into human prehistory.

      So, those ancient and more primal humans may not have lived in small villages or cities, but they did family structures more complex and fluid than a “man-woman dyad.” Such an exclusive male-female group may not have been sustainable in ancient times.

      So, the complication arises when proponents of traditional marriage make unsupportable archaeological or sociological claims that male-female marriage is the sole human tradition which stretches to time immemorial. This is a fraught topic and certainly not one I’m well-versed in. Suffice to say, I think the traditionalists are likely to run roughshod over archeological proof for their political purposes, such as they do with regard to evolution.

      1. Well, if it bothers you that much, just take the first sentence out of my post. The result is the same: a free people should not have their government involved in a religious ceremony.

        But as to the specifics of your objections, I believe that is some phylogenetic evidence to support a relatively monogamous pre-historical, even pre homo-sapiens , population. This evidence is of course open to interpretation, and is not “hard” archaeology. But assuming that humans are subject to the same basic evolutionary pressures as other primates, then testical and penis size, sperm counts, and decline in sexual dimorphism beginning at least with early H

        1. But assuming that humans are subject to the same basic evolutionary pressures as other primates, then testical and penis size, sperm counts, and decline in sexual dimorphism beginning at least with early Homo all point to early and near universal adoption of monogamy, and the exceptions are almost always involve polygamy, with cases of polyandry extremely rare.

          1. Oh, one last point: women are expensive. This is not a new development, when resources are scarce (always), then only the few rich men will have multiple wives. The majority of the population would still be monogamous for economic reason at least.

            1. This is why you join your wife in the lifestyle, the economics of one, enjoyment of many.

              1. Which may work for you, but in my experience, most men and women are not cut out for the swinger lifestyle. And, judging from the evidence I cited above, most of our species has not engaged in that type of behavior. Although to be honest, the same evidence does suggest a statistically relative percentage of unfaithfullness

                1. Many more than you would know are suited to the lifestyle, although even in a world of abundant birth control methods (despite Sandra Flukes assertion otherwise) we personally think it’s most enjoyable after child bearing years. Agree it’s not for everyone, which is kind of the point when you’re talking about pair bonding, sex, and the State. If the State removed itself from the Marriage Control Business you’d probably see many more organic social constructs emerge. I’m not a hippy or Hillary Clinton socio-government believer in it taking a village to rear a child – I think a pair is best for raising a child. Nor do we believe in the longevity of polyamory. But the State has put an evil liberty binding net over Society. I think the State is limiting a great measure of free association that may otherwise occur in society, there is a ‘black market’ of unsanctioned relationships that are restricted by government a place in the social marketplace.

  21. The way I see it, we should take “marriage” out of the government’s hands entirely. Religious fanatics are too attached to that word and the “sacred blah blah blah” that it should be stricken from the language of the laws. Make Civil Unions the standards to which any couple, gay or straight will be united under law. That way, the right wingers can keep their precious “sanctity of marriage” while at the same time taking religious language out of the books (always a crowd-pleaser with the libertarian crowd)and creating true equality (ditto).

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