Gay Marriage

States' Supreme Court Defenses of Gay Marriage Bans All Too Familiar

The fundamental question is whether marriage recognition is actually a right.

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"Now let's celebrate with a pizza! I know just the place!"
Credit: CityofStPete / photo on flickr

In just a couple of weeks the Supreme Court will be having a super-sized session to hear arguments over bans on same-sex marriage recognition in four states. Though each of the four states—Ohio, Michigan, Kentucky, and Tennessee—has its own case before the court, the four of them are linked together. Both sides in each case have been asked to address the same two questions: One, does the 14th Amendment require a state to recognize same-sex marriages; and two, does the 14th Amendment require a state to recognize same-sex marriages that have been lawfully performed in other states?

Interested parties have filed dozens of amicus briefs in the cases (SCOTUSBlog has a list of them here for just one of the cases. The other three have similarly long lists here, here, and here). The end of last week was the deadline for the states to file their defenses of keeping the bans. Each state has done so, and now some are analyzing them to consider the strengths and weaknesses of the arguments defending their bans. Or, you know, to be offended and appalled.

Falling in that second category is likely to be Kentucky's defense (pdf). In Bourke v. Beshear the state takes a familiar argument that tends to make eyes roll: Bans against same-sex marriage aren't discriminatory against gays because straight people also can't marry somebody of the same sex. From Kentucky's filing:

The Petitioners state that since Kentucky's marriage laws do not allow for the licensing and/or recognition of same-sex marriage, those laws are "necessarily" discriminating against same-sex couples on the basis of their sexual orientation and that because of that alleged discrimination, they belong to a classification requiring the application of heightened scrutiny. The Petitioners fail to address the fact that Kentucky's marriage laws are not facially discriminatory to gays and lesbians based upon their sexual orientation. Kentucky's marriage laws treat homosexuals and heterosexuals the same and are facially neutral. Men and women, whether heterosexual or homosexual, are free to marry persons of the opposite sex under Kentucky law, and men and women, whether heterosexual or homosexual, cannot marry persons of the same sex under Kentucky law.

Marriage supporters have dealt with this argument time and time again. The seemingly bizarre structure of this argument is actually the most useful way of slicing down to the very meat of the question: Is marriage recognition a right? Because if marriage is a right, then the burden of justifying a restriction on the expression of that right is on the government. If marriage is a right, then this argument is the equivalent of declaring that everybody is "free" to worship a particular religion approved by the state (rather than any religion—or none) or "free" to read from the same list of books the state approves. That's not the nature of rights. Citizens don't have to justify how they want to express a particular right—the state instead is expected make a case that there's a compelling reason to restrict a right in order to protect another public interest.

If marriage recognition is not a right then the expectations are different. Kentucky is arguing that gay marriage recognition is not a right. To be fair to Kentucky's argument, even though this contention is getting the most press, the state also attempts to argue other ways that marriage recognition is not a right, though they're not very compelling. They argue that in every other situation where a court ruling has treated marriage as some sort of a right (including the ending of bans on interracial marriage), it has been tied to a right of citizenry to procreate and then drifts over into presenting the familiar argument that the state has a compelling interest in procreation, because otherwise humanity would die off (without ever explaining why that would happen absent the state of Kentucky's involvement).

The problem with Kentucky's argument is that, in general, the citizenry and the state actually do treat marriage recognition like a right already. The state already makes a case for any restriction it places on the recognition of heterosexual marriage and ties it to some sort of public health or safety issue. The state doesn't actually obligate heterosexuals to engage in procreation or promise procreation in order to acknowledge their relationship under the law. And that's not even getting into the issue that—thanks to science—sexual orientation is increasingly not a barrier to reproduction.

Michigan's response in DeBoer v. Snyder (pdf), while also arguing a state's interest in overseeing procreation, takes a more interesting approach by fighting for federalism. Arguing that the states and their citizens have the right to classify what marriage means for them is not new. But Michigan's petition takes it further by pointing out that, without federalism, we probably wouldn't even be having this debate, to the detriment of gay couples:

That liberty is the fundamental right at stake here. In fact, only that liberty made it possible for 11 states already to choose to issue marriage licenses to same-sex couples—a feat not likely achievable at the federal level and impossible at the state level without democratic rights of debate and self-determination by state citizens.

And later:

Because the Constitution is silent regarding marriage, such court orders indicate a lack of faith in democracy. By teaching that courts are the fastest mechanism to achieve social change, such decisions encourage reliance on the courts for change and thus weaken democracy. This approach lessens the very dignity that the petitioners seek; rather than achieving the dignity that comes from persuading fellow citizens through the democratic process, a litigation victory merely means that a court order requires compliance.

I've been a big fan of how federalism allowed for limited gay marriage recognition in friendly states, if for no reason other than to prove that the argument for the state having a compelling reason to decide who may participate is based on nonsense. But to say the Constitution is silent on marriage is to ignore the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

That's why the question of whether or not the "people" treat marriage like it's a right is so important. The Ninth Amendment doesn't actually confer any additional rights, nor is it evidence that marriage recognition is a right, but rather it's a good reminder that rights don't originate from the Constitution. How would heterosexual citizens act if the state started enacting additional regulations and barriers over their right to be recognized as married couples? It would not fly. Citizens treat marriage recognition as a right. Therefore the government has to justify its restrictions. And that's why, though I'd be perfectly fine if the states were to continue hammering out marriage laws on their own, I don't see a constitutional problem with a Supreme Court ruling ordering gay marriage recognition. The states' arguments for their restrictions simply do not address a compelling government role.

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  1. The sooner we can convince people that the entire issue with the marriage debate is that the government shouldn’t be involved with it in the first place the better.

    It’s the easiest fix to this whole mess.

    1. It would be the best fix, but it isn’t the easiest because it isn’t going to happen. Once the state gets involved in something, does it ever get out? This is why Net Neutrality is so insidiously dangerous; once the state gets its grubby fingers into controlling the internet, it’ll never take them out. And that’s the way marriage has become.

      Too many people are too invested in the “favors” that being married gets them from the state, and they ignore all the downsides. The plea to get the state out of marriage entirely will fall on deaf ears.

      It would be the best thing but it’s a total pipe dream, akin to saying “I wish we could abolish the IRS!”

      1. When marriages fail, the state should be held liable. “You approved us to be together! You should have known it wasn’t going to work! You knew things about this cunt I didn’t know and you still let me marry her. Fuck you, state. Pay me.”

        1. Hahahahaha, I like this.

      2. — “once the state gets its grubby fingers into controlling the internet, it’ll never take them out.”

        Name once nanosecond in history when the state (i.e. the U.S. government or any state government) had zero role in controlling the the internet. Let’s see… there was back in the time it was ARPANET… oh, no that wasn’t it. Ok, how about after that when it was NSFNET… er.. no not then either. In short — anyone who knows the real nuts and bolts, wires and fibers, packets and switches real history of the emergence of the internet from its inception through to today knows that governments have ALWAYS been involved.

        Always. Anyone says otherwise is either ignorant or lying.

    2. But if the government isn’t involved then you can’t sue people who refuse to recognize your union as a marriage.

      1. But if the government isn’t involved then you can’t sue people who refuse to recognize your union as a marriage.

        When you say shit, like that, what do you mean? What, exactly, are you talking about when referring to people “recognizing” a marriage? Are you talking about the government or private citizens and what, exactly are the repercussions?

        I honestly am not following your point.

        1. That’s a nice business you’ve got there. Be a shame if something happened to it.

          1. Wha?

            You didn’t answer any of my questions. What do you mean by “recognizing” a marriage and recognized by whom?

            1. If someone truly believes a marriage to be a husband and a wife, they’re not going to recognize two men or two women as a marriage. If for example they offer services to married couples, but refuse to recognize same sex couples as married, then they better have a good lawyer.

              1. Is there some law, I’m unaware of, that requires a private citizen to recognize someone else’s marriage? FFS, Catholics don’t recognize half the existing hetero marriages. Are they getting sued?

                There ARE misguided laws requiring private businesses to provide services against their will. These laws have been around since the 60s. I don’t see how gays getting married changes that? You are going to be forced to sell to gays whether they are married or not, should legislatures decide to add sexual preference to their civil rights acts. Whether they are married or not, or whether you recognize that marriage doesn’t mean shit from shinola.

                1. Is there some law, I’m unaware of, that requires a private citizen to recognize someone else’s marriage?

                  Yep. Look at employment benefits.

                  The intersection of employment benefits law and gay marriage recognition/licensing generally leads to an employer being required to offer the same benefits to man and woman married couples and gay married couples.

                  Here you go:

                  http://www.dol.gov/ebsa/newsroom/tr13-04.html

                  Caveat: I am not an employee benefits lawyer. If anyone knows of the feds allowing an employer to offer benefits only to hetero couples, and not legally married gay couples, I’d be interested.

                  1. I guess you missed this part:

                    There ARE misguided laws requiring private businesses to provide services against their will…

                    So, you, like sarc aren’t against gay marriage you are against public accommodation laws (and I’ll add laws forcing you to provide benefits against your will). Your recognition of their marriage is not required, as you are going to obey the shitty law whether you recognize their marriage or not.

                    1. Those shitty laws aren’t going away. Why give them more ammunition?

                    2. Because some people on here care more about gay marriage then they do liberty.

                    3. Because some people on here care more about gay marriage then they do liberty.

                      I’ve always thought it interesting that people who claim they want the government out of their lives are clamoring to use force of government to redefine marriage and create an opportunity for assholes to sue businesses that don’t like the new definition.

                    4. Because telling free people how to live is immoral?

                      Because the government favoring one group of citizens over another is immoral?

                      Because of what pa says below?

                      Because of the NAP?

                      Because government treating citizens equally under the law is a good thing?

                    5. F d’A, if I thought it was about those things, then I would agree. But it’s not. Well, for some it is, but for others it is not. My clue-in was when I saw that no compromise that didn’t include the word marriage was to be deemed acceptable. If they could have all those things but not the word marriage, then is it really about those things? No. It’s not. It’s all about a word, and the cultural acceptance that comes with it. That’s not to say I’m opposed to cultural acceptance. I just oppose when it is done by force of government.

                    6. You make me sad sarc. You’ve slipped from the path of liberty on this particular issue. You make me sad that you are willing to deny another their happiness when their actions harm no one.

                      And then you attempt to justify it with a nonsequitur. Allowing gays to marry does not lead to public accommodation laws for gays.

                      You can stand on the moral principle that we are all equal under the law AND stand on the moral principle that no one may force a person into a contract. You don’t have to sacrifice one for the other. Claiming you must is a false premise.

                      It may very well turn out that many in favor of SSM are also in favor of protected classes. And all that means is they are correct on one issue and wrong on another.

                    7. No one is telling you how to live

                      Government isn’t favoring one group over another

                      PA is wrong, if government isn’t supposed to be involved in something then get it out. This is like trying to fight social security by making sure everyone gets it regardless of their age, disability etc. It isn’t going to advance liberty.

                      The only people being aggressed against are Christian bakers who refuse to make cakes for gay weddings, but admit you don’t really care about those icky Socons. Their just are not as important to you.

                      Government is treating everyone equally, everyone is allowed to get married, they just don’t recognize marriage as between the same-sex. Just because a gay guy doesn’t want to marry a women doesn’t mean he’s being discriminated against.

                    8. Government is treating everyone equally, everyone is allowed to get married, they just don’t recognize marriage as between the same-sex. Just because a gay guy doesn’t want to marry a women doesn’t mean he’s being discriminated against.

                      That is the dumbest fucking argument I’ve ever heard.

                      Let’s make the definition of marriage:

                      A man and white woman.

                      Any man can marry any white woman, so the law is treating everyone the same. No 14A violation here. We defined our way around it. I don’t understand what you black women are complaining about?

                      We can get around following the Constitution by passing a law that modifies the definition of words?

                      14A doesn’t ALLOW the government to define marriage as between a man and a woman in the first place, as that would be UNEQUAL protection under the law.

                      Muthafuckah pleez!

                    9. Your basic premise is correct, but about a century of jurisprudence says that your 14A analysis is wrong.

                      The 14A does not restrict all descrimination, it only restricts certain types (such as on the basis of race, religion and sometimes gender). Sexual orientation was never one of these special classes until these recent decisions.

                      Marriage should remain the provence of contract law, largely unfettered by government. Further butchering the 14A to get closer to that point is not a victory worth celebrating, however.

                    10. The only people being aggressed against are Christian bakers who refuse to make cakes for gay weddings, but admit you don’t really care about those icky Socons. Their just are not as important to you.

                      Then you obviously haven’t been listening to a fucking word I’ve said, because THAT is a fucking bald faced lie and I demand you retract it.

                    11. Your recognition of their marriage is not required,

                      Well, not in my heart of hearts, no. But no law can require me to do anything inside my own skull.

                      All any law can ever do is dictate what I say or do, not what I think. So when you ask “Does any law require you to recognize someone’s marriage”, I take that to mean “recognize” in the only sense it is ever used in connection with a law: Say or do things, not think things.

                      The benefit laws are not public accommodation laws, BTW, so I figured you were asking about laws other than public accommodation laws that required private people to treat a gay marriage as a marriage, regardless of whether they believed it really was or not. So I gave an example.

                2. Actually, those laws date much further back. Plessy v Ferguson, at the economic heart, was a question of equal access to public accommodations. That SCOTUS got it wrong, and concluded separate but equal was OK doesn’t undermine the idea that anyone in the public should have access to good “x” in the market.

                  The British law on the public house (“bars or pubs”) long predates our republic, showing that public accommodation is part of common law..

    3. Requiring gov’t to get out of the biz of deciding who’s married (& to whom) would require the closure of gov’t courts.

    4. Thank You,,, Someone who understands the reality of the situation. Marriage is a religious issue, not a governmental (secular) one.

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  3. ” I’ve been a big fan of how federalism allowed for limited gay marriage recognition in friendly states, if for no reason other than to prove that the argument for the state having a compelling reason to decide who may participate is based on nonsense.”

    No state has agreed that they don’t have a compelling reason to decide who may participate. They merely expanded the classes that could participate.

  4. Scott, you make several good points and I agree with most but, sadly, I fear you are wrong to say: “How would heterosexual citizens act if the state started enacting additional regulations and barriers over their right to be recognized as married couples? It would not fly. Citizens treat marriage recognition as a right.”

    I guess we’d need to run the experiment to know, but I think “it” would fly just fine. 90% of the quiet, desperate “Americans” I observe meandering about the city, texting and tweeting one another, look ready to humbly and submissively accept ANY new regulation, provided our leader says it is vital for [insert: safety/ the children/ education/ title 9/ sensible immigration/ to stop climate change/ fighting terrorism/ emotional needs/ the protection of strong, independent womyn from date rapists/ greater economic equality for all/ etc]. If you want to further regulate marriage, just shoehorn it into any of the aforementioned categories.

    1. Well, my wife can’t have children, and if the state had barred us from getting married I would have had quite a few things to say about that.

      But I get what you’re saying: most people are really sheeple and will meekly accept anything their betters tell them is for “the greater good.”

      1. If the govt tried to bar your marriage on some stupid “non-procreational” basis, I’d be in the streets fighting in support of your position, and utilizing my advanced karate skills to great public effect. I’m just saying we’d be outnumbered.

  5. Slightly OT:

    Chinese panda Lu Lu shoots to fame for record-breaking sex session at nearly EIGHT minutes long

    The pandas mated for a record-breaking seven minutes and 45 seconds
    Lu Lu has been bestowed the nickname ‘The Enduring Brother’ by admirers
    Lothario panda ‘lasts longer in bed than the average American male’

    http://www.dailymail.co.uk/new…..-long.html
    Hey babe, let’s do it panda style!

    1. Huh thats weird I thought pandas were the only animal that just seem to refuse to procreate. They’re kind of like the animal version of the Japanese.

      1. They’re the animal version of Al Bundy.

        Doesn’t want to have sex, but if he’s *got* to, then may as well get it over quickly.

  6. May 3 gay guys get married?

    May a mother marry her daughter?

    May a father marry his two sons?

    May 3 lesbians form a marriage unit with two straight males?

    If not, why not?

    1. If their all adults who gives a shit.

      1. You misspelled “there.”

        1. Your mistaken.

          1. Damnit! Both of you need to get your spelling write.

        2. I realized right after I posted, but I didn’t give a shit enough to post a correction.

    2. Polygamy and incest are properly outlawed for rational reasons.

      Polygamy creates impossible to resolve issues of contract law, and has historically been abusive to women. The recent Fundy LDS crimes in the US Southwest do nothing to suggest that polygamy is no longer abusive. It also leads to family breakdown as teen age boys (“beta males”) are expelled from the family and left homelss to make room for mora alpha males to hog all the women. This sort of social dispruption is grossly destabilizing to civil society, so can only survive in an authoritarian culture. Plus, do you really want a lot of horny young men (again, “beta males”) who have no hope of a mate, or even a date when the alpha males snag multiple wives?

      The prime purpose of Marriage is to establish kinship between non related adults. Incest marriage is redundant, and undermines stable society, even before we discuss genetic risks.

      Thus it follows, there is a compelling state interest to ban both incest and polygamy.

  7. “Falling in that second category is likely to be Kentucky’s defense (pdf). In Bourke v. Beshear the state takes a familiar argument that tends to make eyes roll: Bans against same-sex marriage aren’t discriminatory against gays because straight people also can’t marry somebody of the same sex.”

    Can someone explain to me why this argument “makes eyes roll?” Just because you don’t want to take advantage of a government service as its currently structured doesn’t mean your rights are being violated. In this case, the government benefit of marriage does not cover what gay people wish it did. To me this sounds similar to complaining that unemployment insurance does not run as many weeks as you want it to or that Social Security benefits are not available at an earlier age. The fact that the program does not meet your desires does not mean you are being violated in some way. If you don’t like it then don’t use it.

    I guess this gets me more when it comes to libertarians advocating for gay marriage. To me it just comes across as people arguing for an expansion of a government program, which I would expect of others but I find strange to always see pushed for here.

    1. To me this sounds similar to complaining that unemployment insurance does not run as many weeks as you want it to or that Social Security benefits are not available at an earlier age. The fact that the program does not meet your desires does not mean you are being violated in some way. If you don’t like it then don’t use it.

      So, you’d be perfectly fine with a law that said the government won’t issue a drivers license to a black man?

      1. You’re analogy is incorrect. In your scenario a black man is being denied something that white or asian men can take part in. No one is discriminating against gay people when it comes to marriage. Straight and gay people have access to the same pool of marriageable people. Obviously gay men do not want to marry women, so they are seeking to increase the size of marriageable people. I get why they and people on the left are seeking to increase this government program. It baffles me that libertarians are also, however.

        1. When marriage is defined as a union between a man and a woman, then it doesn’t necessarily deny homosexuals from getting married. They just have to marry a member of the opposite sex.

          So the issue is not whether or not homosexuals are being denied marriage. The issue is how marriage is defined.

          1. Who defines what a marriage is? I don’t have a good answer for that. I doubt anyone has a real answer to that that makes many people happy. To me this just illustrates how we should be pushing even louder to get government out of the marriage business all together.

            Instead, everyone here says “well, why can’t marriage be between two people instead of just a man and a woman?”. What’s the philosophical or moral reasoning behind that? I’d love to hear people’s thoughts on that. To me it just sounds like something based off feelings–we want gay people to be happy also. Liberals argue for other policies based on feeling good without a philosophical base and we mock them for it.

            1. Who defines what a marriage is?

              In this case, government. That’s what the fight is all about: How government defines marriage.

              People like to dress the issue up as a matter of hatred or bigotry, when it’s really about how a word is defined by government and what amount of force can be used against people who don’t agree with the government’s definition.

            2. Who defines it? Dictionary makers, esp. legal dictionaries. Which means words are defined by custom, and in the case of legal meanings, by legal custom in cases where ordinary custom leaves doubt.

              Gov’t can license dogs & cats, but a dog license on a cat doesn’t get it into the dog show.

          2. The issue is how marriage is defined.

            Precisely. And what the courts have done is redefine marriage themselves, without bothering their heads with the question of whether they have the authority to do so.

            There is no EP issue if marriage means “man and woman.” There is an EP issue of marriage means “any two people.” The basic question, which nobody even bothers to discuss, is who has the authority to define and redefine marriage for legal purposes?

            That’s the fundamental flaw with the EP lawsuits.

            1. Just as sovereigns redefined money terms like dollar/thaler, pound (of silver), peso, etc. They had meanings before gov’t got involved. The meanings were not established by the state or the church, they were established by the people’s custom.

        2. Oh my fucking god. It astounds me how you people will tie yourself in knots to justify your immorality.

          You are saying that if I define “drivers” as whites it’s okay to pass laws denying blacks a drivers license on the basis that they aren’t drivers by the definition.

          1. You are saying that if I define “drivers” as whites it’s okay to pass laws denying blacks a drivers license on the basis that they aren’t drivers by the definition.

            Not wrong per se, but it would not be the court’s job to change the definition. The real job of the court would be to throw out driver licensing altogether. The state has no authority to make a definition in the first place, just as the courts have no authority to change it.

            1. The real job of the court would be to throw out driver licensing altogether.

              You will get no argument there.

              1. You will get no argument there.

                Then the argument is about what the court should do rather than doing its job. Saying that the court should make shitty judgments to justify shitty premises is bullshit. If the judges don’t want do their fucking jobs, then they should be impeached. But if the legislature was principled, then these matters wouldn’t even exist to come before the court in the first place…

                Ultimately this will always come back to the voters. John is right that you shouldn’t depend on the courts (although he is quite wrong about the implications of that principle); the problem starts and ends with the people who are elected to “represent” us.

          2. You’re analogy is incorrect. It’s more like someone who wants to fly a plane to work complaining that their driver’s license doesn’t recognize a plane as a car, and so says he’s being discriminated against.

        3. By that logic, it could just as easily be framed as a gender discrimination issue as well. Straights and gays aren’t offered different “marriage pools” but men and women are. If a man can marry a woman, why can’t a woman also marry a woman?

          1. That’s a good point paranoid android. I never thought of it that way.

          2. Because you have to change the language and the meaning as well as the intent of marriage. A woman cant fuck a woman either for exactly the same reason .

            1. Irrelevant. Sex as nothing to do with marriage, and is not a requirement to validate a marriage. Turner v Safley detetmined that. If you can’t bar a prisoner from marrying (where no sex will take place if the prison does not permit conjugal visits), then the state most definitely can’t bar same sex couples from marriage becuase they have their orgasmns in the “wrong” way.

        4. But the black man could get a drivers license if he were white – just like every other citizen.

          1. The analogy to driver’s licenses is just a bad analogy, at least as used.

            If “driver” had only meant “white people” in all contexts for hundreds of years (like marriage only meant “man and woman” in all contexts for hundreds of years), then you might have a point.

            And specifically in the miscegenation cases, the court was saying “Wait a minute. Marriage hasn’t meant “man and woman of the same race”, its meant “man and woman”, so the legislature is attempting to restrict the “real” definition of marriage in a way that isn’t allowed. The same can’t be said for the gay marriage argument: its not legislatures trying to impose a restriction on the “real” definition of marriage to kick out or bar gay people.

            What’s up in the air is “what does ‘marriage’ really mean.” The courts have decided they have the authority to just tell us, regardless. Maybe they have this authority, maybe they don’t. But to me, that’s the overriding and contested issue: what does marriage really mean. And the answer is just being assumed.

            1. Actually the states never purported to define “spouse” based on races. Rather, they passed regulatory laws simply forbidding persons of different races to marry. There was no definitional issue there. The state said such marriages were illegal, not impossible.

    2. My read on the actual position of most of the writers at Reason and many of the commenters here is that in an ideal world, the government would assign no privileges or benefits to being married at all. Insofar as those privileges and benefits are politically impossible to eliminate, they should be available to all people equally. If the government decided tomorrow that they would only give social security payments to white people, and cease payments to all other races, I’d decry the policy as monstrous, not celebrate that a government program was being curtailed.

        1. agree w/ andriod

      1. But again, straight and gay people can currently marry the exact same people. I don’t gain some new pool of people to marry simply because I am straight. So discriminating based on race is not an appropriate analogy.

        I see what you are saying about the libertarian vision of marriage not being politically possible any time soon, but since when did “politically possible” stop us from advocating for the position we believe to be true?

        1. When our gay friends and relatives threatened to shun us if we didn’t take their side?

          1. Yes, I probably wouldn’t tell my lesbian mom that I don’t believe in gay marriage, although she knows I don’t think the government should be involved in the marriage business at all.

        2. “Politically possible” didn’t stop us from advocating for gay marriage and for the eventual abolition of civil marriage in the 1970s?

        3. Not only that, but many homosexuals do marry persons of the opposite sex. You can also be sure that if same sex “marriage” becomes law, many heterosexuals will “marry” persons of the same sex. It’s about sex, not sexuality.

      2. Why should social security only go to retired people, and people with disabilities? Why are you discriminating against me because of my young age? We need to expand social security so that everyone starts getting a check from birth, because after all if the government is involved in something it shouldn’t be involved in, then we at least need to expand it until it’s fair.

  8. It is not a gay marriage ban. It is a refusal on the part of the state to recognize gay marriages. That is an important distinction. A gay marriage ban would make it illegal for gay couples to call themselves married. That is not what is happening here and Shackelford knows it.

    1. Look, if hyperbole means the Nazgul gives us our pony, then hyperbole we shall have. And if the mobs who are constantly fed this hyperbole threaten violence and act like the brown shirts well *clears throat, mumbles something about freedom of association*. But those people are icky.

    2. It is a refusal on the part of the state to recognize gay marriages. That is an important distinction.

      Do you think people who don’t care about the distinction between husband and wife vs spouse and spouse care about distinctions like banned vs not recognized?

      1. They don’t even care about the distinction between allowed vs mandatory.

    3. Shackelford knows it.

      Rusty Shackleford?

  9. They argue that in every other situation where a court ruling has treated marriage as some sort of a right (including the ending of bans on interracial marriage), it has been tied to a right of citizenry to procreate. . .

    This is dumb in another way also – the ‘right’ to procreate has never, *ever* been tied to marital status.

    1. You know nothing Jon Snow.

  10. without ever explaining why that would happen absent the state of Kentucky’s involvement

    Apparently the state of Kentucky thinks that people wouldn’t fuck without a government permission slip.

    1. Not at all. Rational people in the state of Kentucky think that stable couples capable of procreating and raising their offspring are a social good and should be encouraged , with the inheritance rights of any resulting children of marriages protected and prioritized over the issue of rapes and casual ruttings.

    2. Believe it or not (and there’s a good chance you know this since I see you on Volokh), that’s how the “fundamental liberty” line of jurisprudence has worked from the Griswold case (birth control) thru the Lawrence case (same sex sodomy). I’ve always thought it was hilarious too.

      The federal courts are extremely loath to declare anything a right under the 9th or 14th amendment that isn’t a civil, enacted right. That way they never have to get into deciding what rights people had before the political process recognized them. But they made an exception in this narrow line of cases, and it’s hilarious partly because they use code language that makes it that procreation and its attendant acts are the, only fundamental liberty, as they call it.

      Their logic is that if it weren’t for people making babies, we wouldn’t be here, hence the US & state constitutions wouldn’t be there, therefore making babies must be a pre-existing right. If it’s a right, then its control must be a right, hence birth control. If it’s a right, then adults (but not children, because children can’t have babies) should be allowed to have sexual intercourse in private, hence laws against sexual intercourse in private are violations of liberty, and because homosexual intercourse is sort of like baby-making, that counts too. But not prostitution, because only making babies is the liberty, not making $. Indeed, making $ has never been ruled to be a constitutional right.

  11. OK, say there’s a federal constitutional right to marriage. Great.

    Now – what *is* marriage?

    Isn’t that the important point? If there’s a right to it, we should define what it is.

    I mean, we have a constitutional right to a jury* – you can’t just give someone a trial by ordeal and say that “jury” can mean whatever you want.

    *Well, in theory we do.

    1. NO NO NO

      There are NO RIGHTS GRANTED BY THE CONSTITUTION.

      You have all the rights. The constitution sets forth the limits of state power and the duties of the state, nothing else.

      The Bill of Rights only delineates what were seen as the *most important* of your rights and is not even a close to complete list of them.

      There is no such thing as a ‘constitutional right’ any more than there is any such thing as an ‘electron hole’. Its just an easy way to talk about the subject but it doesn’t describe reality.

      If you want to restrict what someone can do – *you* have to put up te argument that that restriction is both necessary and permitted under the powers granted to the government.

      We do not have to justify why we want to do a thing.

      1. I want to *not* do some things – I want to *not* radically redefine marriage, *not* tell businesses whom to serve, etc.

        1. This is the bed *you* helped make, now you have to sleep in it. Traditional Christians demanded that the state give them special privileges and protections. Traditional Christians demanded that the state step in when people started forming households that didn’t follow their accepted practice – step in *violently* (Utah War ring any bells? How about laws against co-habitation?).

          If you guys had simply left this alone, left ‘marriage’ as a *religious* institution and kept the state out of it, then we wouldn’t be here right now.

          This, Eddy, is *all* your fault.

  12. So the two major sides in the debate are “We get to control you” or “We get to control you”.

    Dickheads to the left of me. Assholes to the right.

  13. marriage was a big deal when it determined which offspring would inherit the family title, lands and property. Just as the state was involved in registering ownership of lands and adjudicating ownership of property, so it was naturally involved in determination of who was(were) the inheriting heir(s). With the advent of modern totalitarian statism these points all become moot, since the state owns everything and everyone. No-one, certainly not the state, cares if a slaves child is a bastard or not. Moreover, unlike under capitalism, the totalitarian (and hence socialist) state doesnt care if the slaves breed either. More can always be imported or , in time, cloned.

  14. It’s actually pretty straightforward: A union between two people of the same gender, a woman and a goat, a man and an orangutan, three men a flock of geese two women and a cow – are not marriage. Call it something else.

    That said, the state shouldn’t be getting involved in marriage. It shouldn’t give special treatment to married couples. It should not tax people without children for the benefit of those who do have children.

  15. What cracks me up about the religious freedom bills, gay marriage, abortion and every one “hot topic” of the day is both sides will claim they want the government to stay out of our lives right up to the point they want the government to impose their values on others. The government should not be defining or even making statements about the definition of marriage. The only issue the government has any business addressing is the legal aspects of a committed relationship. Issues like property rights and transfers, power of attorney, etc. Easiest solution is every couple, straight or gay who wishes to enter into a legal partnership be given a certificate of civil union. In other words a partnership agreement. Leave the issue of defining marriage to the Church where is belongs.

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