Antonin Scalia

A Constitutional Case for Gay Marriage

The Equal Protection Clause demands equal treatment for same-sex couples.

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When liberals and conservatives argue they often talk past each other, deploying arguments that seem like winning ones to them but that the other side views as irrelevant or unimportant. So the Cato Institute has done a great service by filing a brief in Virginia's gay marriage case that makes a conservative argument for the liberal position.

Bostic v. Rainey tests the constitutionality of Virginia's amendment banning same-sex marriage. Cato is a libertarian think tank that infuriates and delights liberals and conservatives in roughly equal measure—by arguing for huge cuts in both entitlement spending and defense spending, by opposing both gun control and the war on drugs.

Many liberals contend the Constitution is a living, evolving document whose meaning changes with the changing times. Many conservatives consider this convenient sophistry by those who want to reach a certain conclusion and don't care how they get there.

Cato's brief in the Virginia case was written by Ilya Shapiro, with Elizabeth Wydra of the Constitutional Accountability Center. Filed this past Friday, it takes a conservative approach. It stresses the actual text and original intent of the Constitution, with special emphasis on the 14th Amendment.

That amendment, adopted after the Civil War, stipulates that states shall not deny "to any person . . . the equal protection of the laws." This, says Cato, effected a profound change in the nature of the Constitution, "from one that sanctioned inequality to one that prohibited it."

Notably, the equal-protection clause is not limited to "any black person" or "any straight person" but to any person, period. As one of its drafters, Rep. John Bingham, said, it insists that "all persons, whether citizens or strangers . . . have equal protection in every State in this Union in the rights of life and liberty and property."

The brief goes on to argue that "the original meaning of the equal protection clause confirms" that it "applies broadly to all persons." When he introduced the amendment in the Senate, Jacob Howard—so closely associated with the amendment it sometimes was called the "Howard Amendment"— stressed that it "abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another."

Cato's brief cites contemporary press accounts describing the amendment as invalidating "legislation hostile to any class." As the Congressional Globe put it, the amendment took away "from the states the power to make class legislation and to create inequality." Furthermore, the Supreme Court noted in 1880 that it "makes no attempt to enumerate the rights it [is] designed to protect. It speaks in general terms, and those are as comprehensive as possible."

Marriage, Cato argues, is "a basic civil right of all persons"—one the Supreme Court described in Loving v. Virginia as a "vital personal right essential to the orderly pursuit of happiness." It is not a privilege or a blessing conferred by the state, but an aspect of liberty: As Sen. Jacob Howard explained, "a slave 'had not the right to become a husband or father in the eye of the law," whereas "the attributes of a freeman according to the universal understanding of the American people" included "the right of having a family, a wife, children, home." Cato quotes an African-American soldier: "In slavery we could not have legalized marriage: now we have it."

The Supreme Court consistently has held that "choices about marriage . . . are among associational rights this Court has ranked as 'of basic importance in our society.'"

In fact, the Supreme Court has gone so far as to rule that even prison inmates, who have lost so many other rights, still retain the right to marry. "Certainly," observes Cato, "if the right to marry is so fundamental that there is no reasonable basis for denying the right to incarcerated felons, there is no basis . . . for denying that right to committed, loving, same-sex couples."

But what of tradition? Traditionally, marriage has meant the union of one man and one woman. Well, Cato retorts, "no tradition can supersede the Constitution." That is a direct quote from Justice Antonin Scalia in a 1990 case. A nice touch. Cato goes on to cite several other cases, all making the same point as Scalia did. "If a so-called tradition or history of discrimination were sufficient to justify perpetuating the discriminatory practice," writes Shapiro, "our public schools, drinking fountains, and swimming pools would still be segregated by race. . . . Carving out of the text of the 14th Amendment an exception for traditional forms of discrimination would have strangled the Equal Protection Clause in its crib."

Virginia enacted its marriage amendment specifically to prevent gays and lesbians from exercising a liberty exercised by straights. As Cato's brief makes abundantly clear, it is precisely the sort of state-imposed discrimination against a caste of people the 14th Amendment was written to prevent.

NEXT: Kurt Loder Reviews Hedwig and the Angry Inch

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  1. If they are arguing to expand this ridiculous licensing scheme created by the Massachusetts Bay Colony Puritans in the 1600s, then it is marching in the wrong direction from liberty.

    1. Stow it. They don’t want to hear it.

      1. Then take your own advice.

    2. If they are arguing to expand this ridiculous licensing scheme created by the Massachusetts Bay Colony Puritans in the 1600s, then it is marching in the wrong direction from liberty.

      So you are arguing against government involvement in marriage. Good, we are agreed.

      But this article is about gay marriage. So my assumption is you support the position that everyone can do as they choose without government interference, to include gays getting married?

      1. So my assumption is you support the position that everyone can do as they choose without government interference, to include gays getting married?

        I’m not sure how you managed to get from “gays getting married” to “everyone can do as they choose without government interference”.

        1. AA’s argument has NOTHING to do with gay marriage. He is arguing that the government has no business in marriage at all. I agree.

          So I’m assuming he’s fine with gay marriage, as he hasn’t made any arguments against it.

          1. “So I’m assuming”

            Well, you know what they say about assuming…

            it makes you look like a fucking idiot.

          2. AA’s argument has NOTHING to do with gay marriage… So I’m assuming he’s fine with gay marriage, as he hasn’t made any arguments against it.

            And gay marriage has nothing to do with “everyone can do as they choose without government interference”, so I just don’t understand the nexus between the two parts of your sentence, that’s all. If everyone could do as they chose without government interference, marriage of any variety wouldn’t be an issue. Supporting one doesn’t naturally lead to support for the other. In fact, I suspect you’ll find a great many people who strongly support one but not the other.

            1. Then he needs to keep his arguments consistent.

              You don’t get to argue AGAINST gay marriage by arguing against government involvement in marriage.

              TWO DIFFERENT arguments.

              1. In the same manner though, you don’t get to argue FOR gay marriage on that basis either. So the assumption you stated in your first reply doesn’t make a lot of sense. It doesn’t follow from the premise any more than opposition to gay marriage would follow from the premise, right?

                1. So the assumption you stated in your first reply doesn’t make a lot of sense. It doesn’t follow from the premise any more than opposition to gay marriage would follow from the premise, right?

                  My first post was smart-ass sarcasm. I was pointing out his argument had nothing to do with gay marriage.

              2. You don’t get to argue AGAINST gay marriage by arguing against government involvement in marriage.

                Sure you can. Expanding the pool of people benefitting from government benefit programs decreases the pressure to end those programs.

                And unlike, say, a race-based government benefit program, a relationship-based government benefit program can never be expanded to the point of universality since there will always be individuals who are unable or unwilling to have a mate, and thus will continue to be denied such benefits.

                1. You don’t get to argue AGAINST gay marriage by arguing against government involvement in marriage.

                  Easy. Try this (not that its my position):

                  “The government shouldn’t issue marriage licenses at all. And nobody should marry gay folks because its an abomination in the eyes of the Lord.”

                  1. The government shouldn’t issue marriage licenses at all.

                    That’s not an argument against gay marriage. It’s an argument about government involvement in any marriage. Which was my original point.

                    And nobody should marry gay folks because its an abomination in the eyes of the Lord.

                    And that’s not valid as any argument against anything.

          3. So I’m assuming he’s fine with gay marriage, as he hasn’t made any arguments against it.

            Your assumption is correct. I don’t care who gets married, nor how many, and the government should not be picking, choosing, and denying who can get married.

      2. everyone can do as they choose without government interference, to include gays getting married?

        This betrays a misunderstanding of what “marriage” is in the current context. The “marriage” being discussed is a government benefit program, thus one cannot “do marriage” without the state.

        This isn’t the 1950s. No one is rounding up and arresting gay couples for “being married”, and even if such laws existed, it would more rightly be classified as something akin to anti-sodomy laws, which have already been declared unconstitutional.

        As it stands today, anyone — gay, straight, whatever — can stand in front of a preacher and say “I do” without concern over having their liberties infringed.

        The only issue being discussed under the rubric of “gay marriage” is whether or not you get some special perks from the state for being in a particular kind of interpersonal relationship.

  2. Traditionally, marriage has meant the union of one man and one woman.

    Currently, marriage is a union between two people and a government stamp of approval.

    1. The government can express retroactive disapproval too, as was one case outlined by Reason just a few short years ago. The bureaucrats call it “constructive marriage” if you get married by license, divorced by court, and re-married by license without kicking out all ex-spouses while Mormon.

  3. I don’t know if I’d call the 14th Amendment a conservative case.

    A conservative case would be the 9th Amendment, in my opinion.

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

  4. Listen, and understand. The Gay Marriage Article is out there. It can’t be bargained with. It can’t be reasoned with. It doesn’t feel pity, or remorse, or fear. And it absolutely will not stop, ever, until you are wed.

  5. Please don’t hate me, but don’t gay folks already have the same right to marry a member of the opposite sex that the rest of us do? They just aren’t enthused about it, what with being gay and all. The law doesn’t care who you “love.”

    1. No hate here; you speak an obvious truth. The good folks at Reason are grasping at straws to support the expansion of the state-imposed definition of marriage to include same sex couples.

      I find it personally offensive and obnoxious that those who claim to be at least minarchist, if not an-cap, would use the law to impose their own sense of fairness upon society.

      1. “The good folks at Reason are grasping at straws to support the expansion of the state-imposed definition of marriage to include same sex couples.”

        And the state has every right to implement a new legal definition of a term, such as “marriage”. I don’t even know why people waste their breath on this useless talking point.

        1. And the state has every right to implement a new legal definition of a term, such as “marriage”.

          And some states have done so. I don’t think that’s ever been a question. The question is whether every state can be compelled to implement a new legal definition of a term, such as “marriage”.

          I don’t even know why people waste their breath on this useless talking point.

          Because not everyone has fully embraced the total central state quite yet. Don’t despair though, that’s being remedied.

    2. All people have the right of free association. Any attempt by governments to fetter that, is a violation of that right. I would even argue that marriage licensing is a violation of the Contracts Clause. I don’t see a compelling government interest in dictating the terms of private relationships.

      1. Free association says you can associate. It dosn’t say the government has to recognize your association and force others to do the same.

        Laws that outlawed sodomy or people living together out of wedlock violated people’s rights to free association. The refusal to recognize gay marriage does no such thing. You can marry anyone you want. You just can’t get the state to force other people to recognize it.

        1. What is the compelling government interest in licensing marriage?

          To receive the full protection of law, like say for spousal support or child support, non-recognition of courts for contract arbitration or property disputes is not equal protection. Common-law protections for such legal recognition exists only in jurisdictions where it’s not superseded by statutes produced by legislatures, whom have no compelling government interest to justify denying legal recognition of the existence of a contract.

          1. Which John actually defends when he argues AGAINST getting the government out of marriage all together.

            He wants to have it both ways.

            1. No I don’t. You just don’t understand the argument. You can’t “get the government out of marriage” unless you just say no dispute over marriage can ever be litigated in court and no one is ever required to recognize a marriage. That is not going to happen. The first is totally impractical since people are always going to get married and are going to have disputes.

              The second condition is possible but you still wouldn’t have the government out of marriage since people would still be going to court over their marriages.

              The point is that “get the government out of marriage” is just a nonsense statement. Libertarians don’t seem to understand that because they can be as bad as progs when it comes to becoming fixated on nice sounding words.

              1. You can’t “get the government out of marriage” unless you just say no dispute over marriage can ever be litigated in court and no one is ever required to recognize a marriage.

                Because obviously the only way that the courts could possibly hear issues regarding marriage is if there is a licensing scheme in place to dictate unfavorable terms to all participants regardless of their preference.

                Hurrrr durrrr, you can’t get the government out of commerce because contracts are enforced by courts.

                You can’t get the government out of private sexual activity because we prosecute rape.

                Nobody but you is actually stupid enough to think that “getting the government out of (licensing) marriage” means no court will ever hear marriage issues ever again.

                1. Nobody but you is actually stupid enough to think that “getting the government out of (licensing) marriage” means no court will ever hear marriage issues ever again.

                  No. They are just so stupid they think courts ruling on marriages wouldn’t create the same issues we have with licenses. Most people on here are profoundly ignorant about how the law actually works. They think “oh just make it a contract and that will get the government out of it”. It is just fucking laughable. The government is all over contract law. The government determines what contracts will be enforced and what ones won’t be. I could create a contract marriage system that is more restrictive than the licensing system. Calling it a “contract” doesn’t solve anything. It just changes the name.

                  Libertarians don’t often realize that because they are often stupid and fixate on magic words like Progs do. If we just call it a “contract” it must be freer since “contract” is a magic word or something. That is just bullshit. You could make marriage contract tomorrow and we would be having the same debate. We would just be saying “does the constitution require state courts to recognize gay marriage contracts”.

                  1. They are just so stupid they think courts ruling on marriages wouldn’t create the same issues we have with licenses.

                    It wouldn’t. It would create an entirely different set of issues. And contract law being much more permissive than the monumental legal clusterfuck we have built surrounding marriage, it literally wouldn’t be possible for the outcome to be worse. The worst possible case scenario is that certain people might get more flexibility in how they structure they legal relationship to one another. You somehow think that justifies keeping in place the aforementioned monumental legal clusterfuck, because reasons.

              2. So if government HAS to be involved with marriage in order to resolve disputes, then it stand that gays should have access to the same legal document in order to litigate such disputes.

                Again, you want to have it both ways.

                1. So if government HAS to be involved with marriage in order to resolve disputes, then it stand that gays should have access to the same legal document in order to litigate such disputes.

                  That is nice. All you are doing is just restating your position. Some people disagree with you and would say a state court should never recognize a marriage between a gay couple. You and them would be having the same debate you are now and the government would be just as involved as it is now since the governments laws and courts will be the ones deciding what marriage contracts are enforceable and what are not.

              3. You can’t “get the government out of marriage” unless you just say no dispute over marriage can ever be litigated in court and no one is ever required to recognize a marriage.

                Marriage is a contract and there are many areas of law that interest with this. A carte blanche non-recognition of marriages contracts is denial of the existence of a contract, which denies due process.

                The second condition is possible but you still wouldn’t have the government out of marriage since people would still be going to court over their marriages.

                Of course they should be able to arbitrate disputes in the judicial system. All sorts of contract enforcement gets churned through the government judicial system. That doesn’t mean the government has free reign to deny the existence of contracts.

                The point is that “get the government out of marriage” is just a nonsense statement. Libertarians don’t seem to understand that because they can be as bad as progs when it comes to becoming fixated on nice sounding words.

                Please explain how it’s nonsense. What compelling government interest is there to deny the existence of such marriage contracts?

                1. Please explain how it’s nonsense. What compelling government interest is there to deny the existence of such marriage contracts?

                  Read my other posts. Not every contract is enforceable. The government decides which contracts and under what conditions they will be enforceable. You want to sign a contract with a minor? Have fun but no court will enforce it. You want to make a verbal deal to sell land? Have fun but no court will enforce it.

                  For a court to enforce a contract, it has to decide the contract is valid in the first place. You can call marriage a “contract” all you like. Calling it that, doesn’t relieve the court of the responsibility of determining what is and is not a valid marriage contract. Doing that creates the exact same debates we are having now. We could go to contract marriage tomorrow and the states that don’t like gay marriage would just declare any marriage not between man and woman to be unenforceable and people would be suing and we would be having the same debate. The whole thing is a red herring. It is not necessarily a bad way to go. But it doesn’t solve the political disputes.

                  1. We could go to contract marriage tomorrow and the states that don’t like gay marriage would just declare any marriage not between man and woman to be unenforceable and people would be suing and we would be having the same debate.

                    They’d have no basis for doing so since contract law offers no precedent for that type of discrimination. The same states could say that business partnerships with gay participants weren’t valid too, but it would upend 500 years of common law and all current statutory law regarding contracts. Your mistake is in conflating current marriage law with contract law. One of the great things about doing away with the current statutory language governing “marriages” is that you could draft a document that omits or adds significantly to the current structure.

                    1. They’d have no basis for doing so since contract law offers no precedent for that type of discrimination.

                      Yes it does. There are all kinds of contracts that are considered against public policy. Contracts for prostitution are not enforceable in states where prostitution is illegal. Contracts that have interest rates deemed “usurious” by the state are not enforceable. Contracts that have one spouse give up rights to alimony or child support are not recognized. Indeed, the entirety of family law is nothing but a giant restraint on marriage contracts. You way way underestimate the ability of courts to refuse to enforce contracts.

                    2. There are all kinds of contracts that are considered against public policy.

                      Right, namely those like you mentioned that bump into criminal law. There’s just no precedent for excluding people from being party to a contract on the basis of their sexual orientation, and any attempt to pass legislation to that effect would probably be ruled unconstitutional if it ever got enacted.

                  2. Read my other posts. Not every contract is enforceable.

                    Unfortunately I did read your arguments. And I never said every contract is enforceable. In fact not every marriage contract is enforceable, but what does that have to do statutorily mandated non-recognition, statutorily mandated exclusion from litigation rights?

                    You can call marriage a “contract” all you like. Calling it that, doesn’t relieve the court of the responsibility of determining what is and is not a valid marriage contract.

                    You can deny the existence of a contract all you like, it doesn’t make it any less real nor the statutory invalidation any less of an injustice. Know the difference between legislatures and courts, John. Courts not recognizing the validity of such contracts is a statutory requirement. Thus again… What is the compelling government interest in dictating marriage contracts?

                    1. the states that don’t like gay marriage would just declare any marriage not between man and woman to be unenforceable

                      There it is. The problem. Carte blanche invalidation of contracts without due process. The state is taking affirmative actions for which it must have a compelling government interest to do so. That’s just constitutional basis for challenging government marriage regulation laws, and says nothing of the immorality of denying legal rights for a class of politically disfavored contract arrangements.

                    2. There it is. The problem.

                      Sure it is. That, however, is a different issue. Moreover, CATO doesn’t believe that because they don’t support inter family marriage.

                      You think every contract no matter what it says should always be enforced. That is great and maybe you are right about that. Other people disagree. The debate between you and them about gay marriage will not end by calling marriage a contract. It just continues using different terms.

                    3. And I never said every contract is enforceable.

                      If the contract is not enforceable in court it is not really a contract. It is just voluntary behavior between two parties. The whole point of a contract is to have the ability to hold the other party to it in court.

    3. This is the same flawed rationale that was used to justify bans on interracial marriage. “Everyone has the right to marry someone of the same race, so no one is being discriminated against. Interracial couples just aren’t enthused about it, what with being attracted to members of different races.”

      …and if the law doesn’t care who you love, then why are straight people going out of their way to pass laws that ban gay couples from being able to legally formalize their relationships?

      1. No it not. You don’t understand the rational for striking down interacial marriage. The Amendment was intended to protect people on the basis of race. It was therefore untenable for a state to discriminate against marriages based on the race of the people involved. Race has been since the beginning a “protected class” meaning the state cannot discriminate on that basis for just about any reason.

        Sexual preference has up to now and never has been a “protected class” under the amendment. Not all preferences are equal. The class of people who want to marry your sister or have multiple spouses are not “protected classes” like race is. Therefore, the state can consistent with equal protection discriminate against them in a way it can’t based on race. So the question is why is sexual preference a protected class and like race instead of being like polygamy.

        You and Reason engage in the same dumb ass question begging you always do. You just cite the interracial example as compelling and never bother to understand much less explain why sexual preference is like race and not like polygamy.

    4. “gay folks already have the same right to marry a member of the opposite sex that the rest of us do”

      This is just too cute, and too often repeated.

      And, regarding “love”, my grandmother phrased it well “no one else knows what I’m feeling” (although she was talking about her bad knee). If a gay couple says it’s love, you’re just going to have to take their word for it.

      1. “This is just too cute, and too often repeated.”

        And true.

        You want to marry who you want? Fine I have your back.

        Don’t expect me to rubber stamp specious reasoning, however, just to get what I want.

  6. This is an example of question begging. The Equal Protection Clause doesn’t prohibit all forms of discrimination. When the government won’t give you a driver’s license because you haven’t passed the test or you are not of age, they are not treating everyone equally. When it says “only people making this amount of income or less can get welfare” they are discriminating against people who make more than the threshold income. Pretty much everything the government does involves treating people unequally in one way or the other.

    The Amendment doesn’t say “everyone treated equally”. It says “the equal protection of the laws”. It is the final four words that matter. Everyone knows what “equal” means. The question is what does “protection of the laws” mean.

    1. First, even CATO admits that in the context of marriage, “equal protection of the laws” doesn’t mean anyone can marry anyone they want. If they thought that, the government couldn’t deny polygamous marriage or marriage within immediate families. You might agree with that position, but the CATO brief doesn’t take it. So the question is why can the government tell you consistent with equal protection clause you can’t marry your sister but can’t prohibit you from marrying someone of the same sex? CATO doesn’t have an answer to that. The best they can do is say “it means felons can marry and surely no one would think gays are worse than felons”. That is an idiotic analogy. In the case of felons, the argument is about the distinction between felons and felons and non felons. The state in that case was saying “people in jail could not marry at all”. It was about the right to marry under the terms the state set. It wasn’t about the right to marry anyone you choose. If it were, the law would have made it illegal for someone to marry a felon or for certain people to marry a felon. The Cato analogy confuses access to the institution of marriage with the ability of the state to define what that institution is.

    2. We are left with the question “if the state can not recognize marriages to immediate family members or to multiple partners, why can’t it also not recognize marriage to the same sex if it chooses to?” Neither CATO nor Reason have an answer to that question beyond “we really like gays”. That is nice and all and maybe the state should recognize gay marriage. It does not however tell us anything about why the equal protection clause compels every state to do so.

      1. I love to watch John tie himself in knots in order to attempt to leagally justify his bigotry.

        1. Yeah Fransisco, since when is “this is not a constitutional right” mean “this is a bad thing”? Do you think that? You don’t think that in anything else.

          There is nothing wrong with gay marriage. States should enact gay marriage. But it being a good thing, doens’t mean it is required by the Constitution. The Constitution is what it is.

          You cry bigotry becuase you don’t have an argument. You know I am right about this and I have run circles around you so many times you don’t want your ass kicked any more. But you are too pig headed and in love with the culture war and just admit I am right. So instead you just scream I am a bigot and equate not thinking something is required by the Constitution with objecting to it.

          That is pathetic Fransisco. That is Tony level pathetic. You should be embarrassed to make such pathetic arguments.

          1. No John, YOU are pathetic, AND a bigot.

            Tell me John, can a state make a law prohibiting interracial marriage?

            1. Tell me John, can a state make a law prohibiting interracial marriage?

              Of course not. Now you tell me why sexual preference is the same as race and not like polygamy or interfamily marriage.

              You want to beg that question some more or just admit that you don’t have an answer other than you like gays?

              An analogy only works if the terms are analogous. The whole fucking debate here is about whether sexual preference is the same as race. You either don’t understand that debate or are just too dishonest to even have it. Instead you just beg the question and scream about interracial marriage.

              You are as stupid as Tony. You are just lucky enough to have stumbled on better opinions. You have those opinions out of dumb luck not because you are any brighter or capable of rational thought that Tony is.

              1. Of course not.

                I rest my case.

                Now you tell me why sexual preference is the same as race and not like polygamy or interfamily marriage.

                The only place any of those things is different is between your ears. Making you a bigot.

                big?ot noun \?bi-g?t\
                : a person who strongly and unfairly dislikes other people, ideas, etc. : a bigoted person; especially : a person who hates or refuses to accept the members of a particular group

                None of it is ANY of the government’s business, all equal oversteps of authority. And all of my views stem directly from libertarian principle.

                1. People may do as they choose, PROVIDED in doing so they do not infringe upon the rights of others.

                2. The ONLY legitimate purpose of government is to protect the rights of the individual.

                Now, John, if you can show me where my position on this violates either of those two tenets, I’ll happily listen to you. Until then, you’re just an unprincipled Team Red hack.

                1. The only place any of those things is different is between your ears. Making you a bigot.

                  That’s about the laziest argumentation you can resort to. You realize you’ve just descended to “RACIST!”, right? Whether he is right or wrong, or whether you believe him to be right or wrong, John can think that sexual preference and race are different enough to justify different legal treatment without necessarily being a bigot. I’m willing to venture there are circumstances under which you would make that distinction as well (Title IX and public accommodations come to mind).

                  1. John can think that sexual preference and race are different enough to justify different legal treatment without necessarily being a bigot.

                    PM, don’t give me that bullshit. I’ve had this argument with John and his ilk on many occasions. And I’m not rehashing it…again.

                    John can “THINK” whatever he damn well chooses to think. What he can’t do is use rule of law to justify FUCKING with people who haven’t infringed upon the rights of ANYONE. There is no difference between an interracial marriage, a gay marriage, a polygamist marriage or someone who wants to marry their sister. They aren’t hurting anyone by it, why do people insist on using the power of the state to fuck with them?

                    WHO FUCKING CARES what others do, so long as they aren’t hurting anyone? Consistency, how does it work?

                    1. You can think whatever you want Fransisco. But please stop insulting our intelligence by pretending the Constitution says that. It doesn’t and you don’t have a single argument why it does except to say “I like it this way”.

                    2. Don’t have a single argument? You yourself said states cannot stop interracial marriage. There is no difference. PERIOD! You defeated your own argument.

                      Here:

                      Me:

                      Tell me John, can a state make a law prohibiting interracial marriage?

                      You:

                      Of course not.

                      I don’t need to argue one word past that. PERIOD!

      2. I’d happily celebrate gay marriage being foisted on all 50 states via equal protection if they also applied the same standard to any other state license. Something tells me that’s probably not going to happen though. And once this issue blows over, nobody will give a flying fuck about it.

        1. And once this issue blows over, nobody will give a flying fuck about it.

          If only. The Progs will care. They will be using the precedent it sets to justify the court giving them various other ponies. And fuck Reason and CATO when they object. The progs will be at least consistent.

          1. Poor phrasing on my part, I meant that nobody will give a flying fuck about applying the same equal protection logic to any other state licensing scheme. Including Reason and Cato. CCW reciprocity, occupational licensing, vehicle licensing, etc etc.

    3. I’m witcha, John. The question-begging, in my mind, is at the core of the argument.

      Its only an Equal Protection violation if “marriage” for licensing purposes doesn’t mean “two people of the opposite sex, the right age, and degree of consanguinuity.” This argument assumes its conclusion, namely, that marriage means “any two people of the right age and degree of consanguinuity”.

      The real question is, who gets to define what marriage means for licensing purposes? Who has the authority to delete “of the opposite sex” from the definition?

      The argument seems to be that when the definition in common use no longer includes “of the opposite sex”, then the courts have the authority to both (a) determine what definition is in common use and (b) to strike that clause from a statute. This is upside down, to me, because the democratic/legislative process is the logical forum for determining if the definition in common use truly has changed.

      1. That is exactly what is going on here RC. It is very disappointing that CATO and Reason are so myopic and in love with this issue they either can’t see or won’t admit that if the court has the authority to unilaterally change the definition of marriage, it has the authority to unilaterally change the meaning of a lot of other things that I don’t think either Reason or CATO are going to like very much.

        If CATO and Reason believe in gay marriage, they should campaign for it and get states to recognize it. If they want to then argue that the P&I clause requires other states to recognize such marriages, good for them. What they are doing instead is copping out and taking the easy road of just pretending the Constitution gives them what the voters won’t. They of all people should know better than that.

        1. it has the authority to unilaterally change the meaning of a lot of other things

          I don’t think there is any doubt that they have already claimed that power for themselves, with probable cause and interstate commerce heading up the list.

          1. Sure they have. Last I looked CATO and Reason don’t like that and would like to see them stop. That is, as long as stopping doesn’t involve them not getting their gay marriage pony.

            CATO and Reason have pretty much tossed aside every principle they hold in any other context for the sake of gay marriage.

        2. If they want to then argue that the P&I clause requires other states to recognize such marriages, good for them.

          They should, because it does, and that would be the easiest way to ease into 50-state recognition of gay marriage without handing down a federal edict based on FYTW.

          1. I wouldn’t object to that. If California wants to say gays can marry, I don’t see how Texas could say they won’t recognize it. Government marriage is a privilege and states must recognize as such.

            Ignorant fuckheads like Fransisco think this debate is always about gays. It is not. This debate is about raping the constitution to give someone their pony. Actually enforcing the P&I clause is not raping the Constitution. So I don’t have a problem with it.

            1. If California wants to say gays can marry, I don’t see how Texas could say they won’t recognize it.

              Not many licenses are portable across state lines. CA never recognized my Texas CCW, for example. I don’t know the doctrine on when states are required to recognize other state’s licenses, but I think its hard to say that a right explicitly guaranteed in the BOR doesn’t require multi-state recognition, but one never explicitly mentioned does.

    4. 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.

      Equal protection of the laws includes application of the Contracts Clause and common laws that protect freedom of association and contractual relationships from undue interference by the government. Compelling government interest in dictating the terms of private relationships? I don’t see one.

      I think the felon analogy is perfectly reasonably because inmates and/or felon’s are a shining example of someone who has been stripped of their right of free association, for reasons that many people would consider legitimate, i.e. after the due process of law. What crime have gays committed that should allow an a third party to dictate terms of their private contracts?

      1. The conservative response is that marriage and the family are the building blocks of a healthy society and must be upheld. While I agree with this, it is questionable how much government is necessary in promoting these values.

      2. I think the felon analogy is perfectly reasonably

        You are missing the point. Felons could not marry at all. Gays can marry in any state. They just have to marry consistent with the terms that the state sets. The issue here is can the state say “anyone can marry but it has to be to a person of the opposite sex”. The felon case the state was saying “everyone but felons can marry…”

        The example is just not analogous. And you completely confuse the right to associate with whomever you want with the ability to demand that the state recognize and force others to recognize your associations. Gays can marry in any state. They just can’t force the state to recognize it.

        1. You are missing the point. Felons could not marry at all.

          What’s this now? Incarcerated felons can marry, and do marry and the Supreme Court said they have that right, even under their severely restricted circumstances. You missed the point of the analogy, John.

          And you completely confuse the right to associate with whomever you want with the ability to demand that the state recognize and force others to recognize your associations.

          You completely confuse the concept of freedom. So people who want legal recognition of gay marriages, are violating the government’s right to deny them the equal protection of law? What kind proggy mental gymnastics is this? The government is the one taking an affirmative action in their denial of the existence of a contract. Methinks you’re more concerned with laws of Moses.

          And once again, what is the compelling government interest to deny the restriction of free association without due process of law?

          1. Incarcerated felons can marry, and do marry and the Supreme Court said they have that right, even under their severely restricted circumstances.

            That’s the point – the matter at dispute in the case where felons’ right to marry was affirmed was whether they had the right to seek the license *at all*, not whether the conditions of the license were prohibitive to their free association.

            So people who want legal recognition of gay marriages, are violating the government’s right to deny them the equal protection of law?

            This begs the question. If the state has the authority to set the terms of a marriage license, what makes sexual preference any different from any other criteria used in restricting the terms? The problem is trying to pretend that a licensing scheme that has never and will never offer access on an equal basis by its very nature and definition will suddenly become fine and dandy as soon as the exclusive club is expanded by 1.

            1. the state has the authority to set the terms of a marriage license, what makes sexual preference any different from any other criteria used in restricting the terms?

              Compelling government interest being….?

              The problem is trying to pretend that a licensing scheme that has never and will never offer access on an equal basis by its very nature and definition will suddenly become fine and dandy as soon as the exclusive club is expanded by 1.

              Who’s pretending that? It’s the government, via statutory licensing, that takes action to deny the existence of contracts without the due process of law. No one is forcing the state to recognize anything, it’s forcing them to cease the carte blanche invalidation of private contracts without the due process of law.

              1. Compelling government interest being

                What is the compelling government interest in *ANY* of the existing restrictions on marriage? Or the compelling government interest in handing out prizes to people based on their personal relationships in the first place? “Compelling government interest” is a pretty arbitrary standard, and I will be amused when you get hoist on that petard the next time the courts validate a “compelling government interest” in something you happen not to like.

                No one is forcing the state to recognize anything, it’s forcing them to cease the carte blanche invalidation of private contracts without the due process of law.

                What in the everloving hell are you talking about? State marriage isn’t a “private contract” – it’s a legal construct that you need a license to obtain access to. The question here is to whom the state may offer access to that license, and what restrictions they are allowed to enforce on access to that license. This isn’t about the state invalidating private gay marriage contracts. It’s about removing the gender restriction (but no other restriction) on access to the state license. The process is entirely arbitrary, as you keep aptly demonstrating by appealing to the nebulous “compelling government interest”. I’m not sure if this will simplify it for you at all, but there is no “compelling government interest” in licensing private relationships, let alone on what stipulations may be placed on the obtainment of that license.

                1. The great thing about compelling government interest is, once the government is interested in something, they find it very compelling.

          2. Felons didn’t marry before the court case. They were not allowed to marry anyone. The court didn’t rule felons could marry anyone they wanted. They only ruled that felons could marry by the terms of the state. Felons still couldn’t marry family members of have multiple spouses. If states said gays couldn’t marry at all, the felon case would be analogous. That is not the issue however. Gays can marry. They just can’t marry someone of the same sex. Felons couldn’t marry anyone.

            You completely confuse the concept of freedom. So people who want legal recognition of gay marriages, are violating the government’s right to deny them the equal protection of law

            “Freedom” and “equal protection” are not the same thing. You can all kinds of freedom and still be denied equal protection. You are confusing the two terms. You are the one engaging in gymnastics because you can’t seem to grasp that my freedom to do something is a completely different question than my claim to have the government treat me equally when dealing with me. They are both laudable concepts but they are not the same thing. Gay marriage implicates equal protection not freedom unless you equate “freedom” to mean “forced government recognition”.

            1. Gays can marry. They just can’t marry someone of the same sex. Felons couldn’t marry anyone.

              Yes and the analogy being that since even people who have been legally stripped of many of their rights have the right to marry, perhaps it’s reasonable to assert that those fully possessing their rights should be allowed to choose whom they enter into a marriage contract with.

              “Freedom” and “equal protection” are not the same thing.

              I never said they were. Denying equal protection of the law is a violation of individual freedom. Law protects freedom, you may recall.

              my freedom to do something is a completely different question than my claim to have the government treat me equally when dealing with me.

              Statutory laws unilaterally declare the invalidation of private contracts for no compelling government interest. Denying the protection of laws, i.e. use of the monopoly legal system, without the due process of law is a violation of the individual freedom of association and contracts.

              1. Yes and the analogy being that since even people who have been legally stripped of many of their rights have the right to marry, perhaps it’s reasonable to assert that those fully possessing their rights should be allowed to choose whom they enter into a marriage contract with.

                Jesus Christ, bro. Felons aren’t allowed to get gay-married, they’re only allowed to get married under whatever terms the state offers them. They are in exactly the same position as gays or anybody else. No legal argument has ever been put forth that gays can be denied the right to marry, only that they must comply with the arbitrary terms that the state places on obtaining a marriage license – same as felons. Granting gays the same rights as felons would result in no change whatsoever for gays. Do you understand?

                1. i think the problem he is having is comparing gays and felons, when the correct comparison would be gays and polygamists.

                  polygamists are not criminals any more than sodomites are.

                  what he is trying to do is show felons have a limitation, and say gays are a more free class of ppl. therefore they shouldn’t have limitations. its a clumsy train of logic, but it wont die in a fire until its shown another free group who is also restricted.

      3. What crime have gays committed that should allow an a third party to dictate terms of their private contracts?

        Since when is marriage a “private contract”? Go draft a “marriage” contract at your favorite attorney’s office and see how much good it does you in probate or family court when the state decides to substitute its own terms in place of yours.

        1. Before gay marriage, gays since they were not covered by marriage and family law, could do just that. You are correct that straight couples could not do that.

          When you think about it that way, gay marriage actually restricts the freedom of gays to marry in some ways. Before state recognize gay marriage, gays were free to draw up contracts and govern their relationships however they liked. With state sponsored gay marriage, they no longer can do that.

          The point of this is about coercion. You want the license so you can use the force of law to recognize your marriage. If it was about freedom, you won’t want to be a part of the state marriage system since it restricts your freedom to set the terms of your relationship.

          1. Bang on. Although due to the present state of the law, not everything can be fairly contracted privately. But yeah, ironically enough, getting access to civil marriage will have the precise effect of “allow(ing) a third party to dictate terms of their private contracts”.

    5. “When the government won’t give you a driver’s license because you haven’t passed the test or you are not of age…”

      THAT is a rational basis to discriminate. You’d be hard pressed to find any adult that would be in favor of 6-year olds being able to drive cars; or allowing an 18-year old that doesn’t know the rules of the road to drive a car.

      Preventing gay couples from getting a marriage license from the state is not rational. One would then have to assume that any random straight couple is superior to every gay couple, and is somehow more worthy of having their relationship recognized by the state simply because they were born with the “correct” government-approved sexual orientation. Passing that threshold (to validate same-sex marriage bans) is bordering on the ludicrous.

      1. Choosing not to extend same sex couples the right to marry is perfectly rational, because marriage is ultimately a social institution that serves as the basis for the family. Every new person has a sire and a mother, biologically speaking. No person has been nor ever will be conceived by two sires or two mothers acting alone. There is no rational need to extend the protections of the institution to same sex couples. Yes there are childless heterosexual couples who are married, but these are not the question.

        1. Gay couples ARE capable of heading families, and are doing so right now. There are millions of children being raising by gay parents. Those children are also being harmed because their parents don’t have the “protections of the institution” of marriage.

          “Yes there are childless heterosexual couples who are married, but these are not the question.”

          Of course that’s the question. How does one justify the FOUR non-procreative marriages of Rush Limbaugh (and his ilk) while using procreation as a means to disenfranchise gay citizens? Answer: You can’t.

          1. 1. A kid with gay parents is not part of an autonomous family unit, so it can’t technically be a foundation for much. It’s dependent on one or more parent giving up the kid for adoption.

            2. Do you have evidence that kids are more harmed by having adopted parents that aren’t married than by having been given up by their original parents in the first place?

            I don’t care whether gay parents adopt or not, but there are rational arguments against it. The argument for it is a sentimental one.

          2. disenfranchise

            I don’t think means what you think it means. Unless congress voted to strip gays of their voting rights and I missed it.

    1. Yep – Marriage isn’t a Fed issue. Leave it to the States and The People.

      1. I agree. But that means leaving the federal constitution out of it and understanding not every state is going to do what you want them to do. At least when it comes to the Gays, Reason and CATO won’t do that.

      2. So you believe SCOTUS shouldn’t have nullified state bans on interracial marriage in 1967? If marriage is solely a states’ rights issue, then SCOTUS had no right to interfere in what is the purview of the states.

        1. Again, sexual preference is not the same thing as race. Race because of the 13th and 14th Amendments are not just state issues. We are back to the question, what is so special about sexual preference that it should be treated like race?

          1. Sexual orientation IS being treated as *special* under the law. Heterosexuals are being given special treatment because they are attracted to the opposite-sex. They can marry the consenting adult of their choosing. Homosexuals cannot.

            Race and sexual orientation are innate. You might not agree with that assessment, but the medical and scientific communities do. Fortunately, our legal system is also agreeing with that position.

            1. *special* under state law.

              On the Federal level, only the tax code really dives into marriage – and those penalties and benefits ought to be eliminated.

            2. Heterosexuals are being given special treatment because they are attracted to the opposite-sex.

              Honestly, I don’t think “being attracted to the opposite sex” enters into marriage licensing at all. You can get married to someone of the opposite sex regardless of whether you are attracted to them.

              Better to say: “Straights can get a license for marrying someone they want to bang. Gays can’t. Gays and straights can both get licenses for marrying people they don’t want to bang.”

              They can marry the consenting adult of their choosing.

              Again, gay people can get married, and have always been able to get married, to other gay people. What they haven’t been able to get is a license. All we are talking about here is state-issued licenses.

              I can’t even construct a legally enforcable right to get a license for marrying someone of my choosing. There’s a fairly long list of people I’d like to have married at some point in my life, but there’s no way for me to say I have a right to marry any of them.

              At best, you can say that I have a right to get a license for a marriage that someone has agreed to enter into with me.

              Precision makes a difference in this business. A lot of the rhetorical air and moral urgency goes out of this issue, in my opinion, when you use accurate language (“licensing”) rather than inaccurate language (“marriage”).

          2. Again, sexual preference is not the same thing as race. Race because of the 13th and 14th Amendments are not just state issues. We are back to the question, what is so special about sexual preference that it should be treated like race?

            The word “race” is not mentioned once in 14A.

  7. Next, Barton will explain how the right to bear arms arises from the civic necessity of having shotguns enough to bring pregnant gays to the altar.

  8. Get rid of all of the federal and state perks and assumption for and about marriage, and the Cato argument goes away. Until that time, failure to legally recognize gay marriage is indeed discrimination.

    1. Sure it is “discrimination” But so fucking what? The Amendment doesn’t say you can never discriminate against anyone. That is what you people can’t seem to understand.

      1. @ John: There has to be a rational basis to discriminate based on sexual orientation. “But so fucking what?” isn’t a rational basis. The past 11 federal judges haven’t found one — all ruling in favor of marriage equality. Perhaps you should come up with a cohesive argument to present to the federal judge in Oregon? No one is defending the same-sex marriage ban in court since the governor and the attorney general both believe that there isn’t rational basis to exclude gay couples from being able to marry. I’m assuming you know something that 11 federal judges and an attorney general don’t.

        1. “But so fucking what?” isn’t a rational basis.

          It’s rational enough if a court decides it is – which they frequently do. Gay marriage just happens to be a popular issue with popular victims, so that won’t happen. I’ll be looking forward to a Reason “rational basis, bitches!” argument the next time the court comes down in favor of one of the other myriad issues where state discrimination is not only tolerated, but mandated.

        2. There has to be a rational basis to discriminate based on sexual orientation.

          That’s a painfully low bar. Easily cleared, IMO, by reference to the historical definition of marriage.

          If the historical definition was rational for hundreds of years in this country, when, why, and how did it become irrational?

  9. I disagree with this Constitutional argument because it misses the point of what Marriage is. Marriage is not about who you desire or who you choose to spend your life with, that is incidental, it is about procreation and the joining of bloodlines and the property issues that accompany that. While childless marriages have always existed, they are irrelevant. Gays have the same right to form a marriage as anyone else, that is, to form a legal relationship for the purpose of procreation. How they feel about their marriage partner is not relevant. There have always been marriages made for the joining of bloodlines and for procreation. As Tina sang, “what’s love got to do with it”, and the answer is, nothing! Since Gays are not prohibited from traditional marriage, any more than a straight man is prohibited (by the state at least!) from having other lovers and still marrying, then the equal protection clause does not apply.
    I will attend my gay friends’ weddings and truly wish them a lifetime of happiness together. But I won’t discuss politics with them! Because what is a theoretical discussion for me is a heated and heartfelt issue for them. I am sympathetic to their issues of hospital visitation rights and inheritance and such. As for taxes, that is another issue and the inequalities in our tax codes are not limited to gay couples.
    So, to clarify, I am not anti-gay, but I am not persuaded by the Equal Protection clause argument.

    1. While childless marriages have always existed, they are irrelevant.

      Well, that settles it then.

    2. ^ well said Bill E

    3. “While childless marriages have always existed, they are irrelevant.”

      Laughable. The procreation argument is one of the weakest to make. None of the 50 states ban the elderly or infertile from getting married. There is also nothing on the marriage application that mentions procreation, or having an obligation to procreate. What you personally believe and what is actual state law are two completely different things.

      “How they feel about their marriage partner is not relevant.”

      Even more laughable. No response is necessary.

    4. I am sympathetic to their issues of hospital visitation rights and inheritance and such.

      I’m not. Aside from taxes, there is not one single aspect of marriage that can’t be duplicated by regular old contract, powers of attorney, and wills.

      The hospital visitation issue was almost entirely a propaganda ploy with almost no basis in reality. And, to a libertarian, a private hospital is entitled to set whatever visitation policies it wants, and laws limiting those policies infringe on the hospital’s property rights, at a minimum.

      1. “Aside from taxes, there is not one single aspect of marriage that can’t be duplicated by regular old contract, powers of attorney, and wills.”

        Immigration ?

        1. Well, immigration is 100% a federal thing, and what we are talking about here is issuance of licenses by the states.

          Leaving that aside, that’s two. Both, I might point out, totally under the control of the government. You would think that an attack on unfair/discriminatory taxation and immigration might be directed at, gosh, I dunno, taxation and immigration.

  10. Wake me when that “life, liberty, and property” original intent stuff whooped for by Rep. Bingham gets applied across the board to all races and religions, both sexes, all occupations and political opinions, and peaceful enjoyment of one’s earnings and possessions..

    For now it’s just an excuse for special pleading for conjured rights.

  11. May 3 gay males marry one another?

    May 2 gay males and one gay female marry one another?

    May a mother marry her daughter?

    May 3 straight females marry one another?

    If not, why not?

    1. Re: Commmunist Spy,

      Yes, to all. All of those things can happen in May.

    2. If I wake up one day in this country, and I find out that somewhere, out there, there’s 3 gay guys getting married, then I’m just going to have to off myself.

      How could I possibly continue on like that?

  12. Well I’m happy to give David a laugh and I’m not above laughing at myself. However, a laugh is not an argument, and I fail to find an argument here. Whether procreation happens or not has nothing to do with the historical and cultural understanding of the institution through the ages. Sex for the pleasures of desire is as old as marriage itself and really has nothing to do with it. Again, marriage is less about joining two bodies as it is about joining two families, with offspring as the uniting element.
    —-“What you personally believe and what is actual state law are two completely different things.”

    My point exactly, glad we agree! My gay friends SO want “marriage” to mean what they want it to mean. And, as soon as one accepts the term “gay marriage” then the battle is over. For those who think that “Gay Marriage” is as nonsensical a term as “dry water” then the issue is about defining what marriage IS. Rather than go with whatever I might want at the time, I go with what has been understood as “marriage” for hundreds of years by diverse cultures all around the globe, and I find the burden of proof to be on those who are using a phrase that was unheard of until the last few decades.

  13. PM makes the most profound and interesting points that I think has ever been made on one of these gay marriage threads. Before gay marriage and especially before a few states started recognizing gay palimony, gay relationships were totally outside the law. This meant gay people were free to contract with each other and dictate the terms of their relationships in ways straight people were not. As a straight person, I can’t get out of the dictates of family law. Even if I don’t get a license, the courts will still declare my marriage a common law marriage and give my wife half my shit if she wants it. Before all this, if I were gay I didn’t have to worry about that. I am an old rich guy and want a boy toy and trade him in on a younger model every few years, no worries about him taking my stuff. Me and three of my friends want to form a polygamous marriage, we can. Our marriage isn’t recognized by the law so we can’t be guilty of bigamy. Hell, we don’t even have to divorce our wives to do it. Indeed, gays went out and did just this and created all kinds of personalized relationships. State sponsored gay marriage ends their freedom to do that and puts gays into the same family law cage straight people live in. Remember, once the state recognizes your relationship, you can’t escape its control.

    1. Now we have Reason and Cato who both claim to love the concept of marriage by contract and want to “get the government out of marriage” arguing that the constitution requires extending government control over marriage over an entire class of couples who were before this free of that control.

      Who was the first big advocate of gay marriage? Andrew Sullivan. Sullivan in addition to being insane is and was a socially conservative Catholic. He hates the alternative lifestyle and arrangements that exist in the gay community. He has always wanted gays to get in the legal cage with straight couples and become respectable middle class couples with the rest of them. He freely admits he embraces gay marriage as a way to get gay people and gay men in particular to live more conventional and what he views moral lifestyles. Government control of gay marriage is in his view one of the best ways to do that.

      Fuck me that this issue is about freedom. Gays were more free that straights before gay marriage. This issue is about coercion. Coercion of SOCONS into accepting gays and coercion of gays into submitting themselves to the forms and traditions of family law.

    2. Still witcha, John. That was the first new idea I’ve seen on this issue in a long time, and its a good one.

  14. I agree. The entire gay marriage issue is about using the coercive power of the state to force acceptance on a mostly disapproving society at large. If gay marriage is legal then anyone who does not approve is automatically a bigot, whereas for centuries, those who did not approve of homosexual relationships, much less the notion of “gay marriage”, were considered “normal” and those who did approve were considered “deviant” (this word used in it’s strict meaning of deviating from the norm, not as a pejorative).
    The solution, as always, is to get the state out of regulating private behavior and back to doing it’s job of enforcing contracts of whatever sort are agreeable to the parties directly involved. Let landlords rent to whom they choose to rent and let employers hire those they choose to hire, all without fear of discrimination lawsuits.
    And let all individuals determine the nature of their sexual and domestic relationships without government interference.

  15. And let me add that language determines everything! Today it is considered rude to use the term “homosexual”, which is perfectly correct. Who gave anyone the right to redefine the word “gay”? Why does “everyone” have to accept this incorrect usage?
    The same with “transgendered”. I fail to see a reason for that one. To me, an individual either has a penis or a vagina, and that determines their sex. How they FEEL about that is their business, not mine!
    Similarly, “bi-sexual” seems like TMI to me! Why should I have to even know about your sexuality if I’m not involved with it? The whole LGBT rights issue is a misguided attempt to force acceptance on those who do not approve.
    The above is posted by who does NOT disapprove of the above people’s sexual and lifestyle choices, I’m a live and let live type, only their political activist choices.

    1. I don’t approve of buck-toothed heterosexual morons but they should get the same rights I do.

  16. Embracing equal protection as a rationale for homosexual marriage is tantamount to embracing homosexuality as a protected class with all the breakdown on freedom of association that implies. There may be good arguments for SSM, but this is the most damaging to liberty as a whole.

    And again, the traditional regime of marriage laws did not treat homosexuals differently from anyone else under the law. Hinkle’s article claims differences in sex are irrelevant to sexual relationships without ever giving any justification for why.

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