July 6, 2006

Rejecting a state constitutional right to marriage for same-sex couples...

The New York Court of Appeals just announced its decision, and I'm glad to see it, though I'm a supporter of gay marriage. The more courts find a constitutional right here, the more they inspire the movement to amend constitutions and carve a ban in stone.

Citizens of Wisconsin take note: we don't need the amendment. Courts have gotten the message.

About the case from New York's highest court:
The decision called the idea of same-sex marriage "a relatively new one" and said that for most of history, society has conceived of marriage exclusively as a bond between a man and a woman. "A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted," the decision stated.

"There are at least two grounds that rationally support the limitation on marriage that the legislature has enacted," the court said, "both of which are derived from the undisputed assumption that marriage is important to the welfare of children."

First, the court said, marriage could be preserved as an "inducement" to heterosexual couples to remain in stable, long-term, and child-bearing relationships. Second, lawmakers could rationally conclude that "it is better, other things being equal, for children to grow up with both a mother and the father."

"Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like," the court said.

The court rejected parallels to laws barring interracial marriage, and the claim that sheer homophobia lay at the root of current law. "Plaintiffs have not persuaded us that this long-accepted restriction is a wholly irrational one, based solely on ignorance and prejudice against homosexuals," the court said.
Fine. This is an issue that needs to be worked through the political system over time to reach a stable conclusion. I appreciate the arguments that have been made for same-sex marriage as a constitutional right, but these arguments work well -- work better -- in the political arena.

UPDATE: The Georgia Supreme Court just issued a decision reinstating the state constitutional ban on gay marriage:
Seventy-six percent of Georgia voters approved the ban when it was on the ballot in 2004. Lawyers for the plaintiffs in the case had argued that the ballot language was misleading. The ballot measure asked voters to decide on allowing both same-sex marriage and civil unions, which [the lower court judge] determined were separate issues about which many people have different opinions.

255 comments:

1 – 200 of 255   Newer›   Newest»
Marghlar said...

Ann,

As someone who has spent a lot of time making those constitutional arguments, I'd just like to say that I absolutely agree -- I'd much prefer to see this come through the political process, where there will be less backlash. I'm pretty worried that a court decision would provoke a nasty backlash, and do more harm than good.

I am, however, convinced that if the question was properly presented, as a matter of federal constitutional law, there is a right answer, and a court might be compelled to give it. Not being familiar with the NY constitution, I'm not in a good position to comment on the merits of the NY court's decision. But I am glad they reached this outcome.

Marghlar said...

Having read their reasoning, I can't say I am a fan on that score.

Dave said...

I don't necessarily disagree with you, Ann, that this is a matter best left to legislators, but, this makes no sense:

"First, the court said, marriage could be preserved as an "inducement" to heterosexual couples to remain in stable, long-term, and child-bearing relationships. Second, lawmakers could rationally conclude that "it is better, other things being equal, for children to grow up with both a mother and the father."

First, how does defining marriage in terms of a man and a woman induce a man and a woman to remain in a stable relationship? One thing has nothing to do with another; the argument is a non sequitur.

Second, the idea that lawmakers can "rationally decide" anything, especially what it best for children, is laughable. Never mind that there is no evidence that kids adopted by, or born to, gay people fare any worse than kids adopted by or born to straight people.

Goesh said...

Marriage is for men and women. Responsible, vetted adults should be allowed to adopt, to be foster parents and otherwise have custody of children and sexual preference should have no bearing on the matter. There, I've had my say.

Marghlar said...

More and more, I am coming around to the position that the best possible consensus solution is for the state to stop issuing marriage licenses altogether, and let individuals define marriage however they choose. Award tax benefits on some non-discriminatory basis, and leave the state out of the game.

Ann Althouse said...

Marghlar said..."More and more, I am coming around to the position that the best possible consensus solution is for the state to stop issuing marriage licenses altogether..."

I went through a phase when I believed that, but now I think it's completely unrealistic. Theoretically, it makes sense, especially in thinking of the religious aspect marriage has for many people. But the change would be so extreme, more extreme than accepting gay marriage. I think, in time, with a generational change, gay marriage will be accepted and the problem will be over. There might some day be a big problem with singles resenting the benefits given to the married, but you can just eliminate those benefits.

PatCA said...

Dave,
It's not lawmakers who are left with the burden of rational decision, it's the people, the American polity, through their elected representatives. Democracy is not the perfect agent of change, but until the deity in person speaks directly to the world on such issues, it's the best method available.

At some inexorable point, the advocates of gay marriage will have to make their case to the American people and win some measure of approval, because they have to live with us, so why not start with politics?

downtownlad said...

Ann - There is no law in New York that defines marriage as being between a man and a woman. There is no law that bars same-sex marriage.

On what basis does the state have in stopping these marriages? Which law?

Fine - maybe there is not a constitutional "right" to same-sex marriage. But shouldn't the state have to pass a law barring these, before you actually stop them?

Dave said...
This comment has been removed by a blog administrator.
downtownlad said...

Except that the legislature never actually banned same-sex marriages.

But that's ok. An activist court will stop them anyway.

Sydney Carton said...

"Citizens of Wisconsin take note: we don't need the amendment. Courts have gotten the message."

BWAHAHAHAHAHAHA!!!

Courts have gotten the message?! You're telling me that a branch of government, typically unelected, and stuffed with a bunch of unrepentant leftists, have gotten the message?

No thanks. I'll continue to support (and fund) efforts to pass Constitutional Amendments. Courts will never get the message.

michael a litscher said...

Fine. This is an issue that needs to be worked through the political system over time to reach a stable conclusion. I appreciate the arguments that have been made for same-sex marriage as a constitutional right, but these arguments work well -- work better -- in the political arena.

The proposed amendment to the WI Constitution has worked it's way through two consecutive sessions of the state Legislature, and now will go before the voters - rather than being decided by judicial fiat via the WI-SC or the US-SC. I'd say that should satisfy your desire to have the issue "worked through the political system over time to reach a stable conclusion."

Internet Ronin said...

This decision takes much of the wind out of the sails of the federal amendment hucksters and scare-mongers. It just became a tad more difficult for the GOP to energize its somewhat demoralized base for the November election, as well. (IMHO, of course - YMMV)

Simon said...

Being that this is a State Supreme Court judgement, on a scale of probable to certain, how likely do we think it is that this will be appealed to SCOTUS on Federal equal protection grounds?

SWBarns said...

Downtownlad,

Pages 2-3 of the decision cover your arguement pretty well:

See http://www.courts.state.ny.us/ctapps/decisions/jul06/86-89opn06.pdf

Articles 2 and 3 of the Domestic Relations Law, which govern marriage, nowhere say in so many words that only people of different sexes may marry each other, but that was the universal understanding when Articles 2 and 3 were adopted in 1909, an understanding reflected in several statutes. Domestic Relations Law § 12 provides that "the parties must solemnly declare . . . that they take each other as husband and wife." Domestic Relations Law § 15 (a) requires town and city clerks to obtain specified information from "the groom" and "the bride." Domestic Relations Law § 5 prohibits certain marriages as incestuous, specifying opposite-sex combinations (brother and sister, uncle and niece, aunt and nephew), but not same-sex combinations. Domestic Relations Law § 50 says that the property of "a married woman . . . shall not be subject to her husband's control."

New York's statutory law clearly limits marriage to opposite-sex couples.

Matt said...

Odds of a cert petition being filed? Approaching 100%. Odds of the petition being granted? Virtually nil. Seems like the arguments made below were largely state constitutional.

downtownlad said...

Whatever. One more justification for treating straight people like crap.

I'll start by sending people in the wrong direction when they ask where the World Trade Center site is. If I can point them in the direction that gets them out of my neighborhood, all the better.

Marghlar said...

Being that this is a State Supreme Court judgement, on a scale of probable to certain, how likely do we think it is that this will be appealed to SCOTUS on Federal equal protection grounds?

I haven't read the opinion, but the article said that it rested on the NY constitution. So, the question is whether the NY constituiton is truly an indpendent ground for the decision. It does sound as if there is some lockstep interpretation going on, which might cut in favor of federal intervention.

However, my guess is that the SCOTUS wouldn't want to touch this one with a ten-foot pole, and that they will therefore deny cert. I have to think that SCOTUS would be pretty happy about this result, at the current time. I think that a federal decision on gay marriage is absolutely the last thing that they want right now.

But I could be wrong -- we'll just have to wait and see.

Ann Althouse said...

Simon: I don't think the state court looked at the federal equal protection question. I'd say the chances of the US SCt reviewing this are extremely low.

DTL and others: The political process I refer to will go on for a long time. With nothing carved in stone as constitutional law, people will continue to argue for legislative change, and I think it's right that existing statutes shouldn't be read to imply same-sex marriage. There should be an affirmative legislative adoption of this important change.

Maxine Weiss said...

"There might some day be a big problem with singles resenting the benefits given to the married, but you can just eliminate those benefits."---Ann

The State should just get out of the marriage business, period.

Peace, Maxine

Bissage said...

SWBarns: Thank you for your 10:45.

Joseph Hovsep said...

Odds of a cert petition being filed? Approaching 100%.

The actions were deliberately limited to New York State law because the plaintiffs did not see review by the Supreme Court as advantageous. Their (our) best bet was at the New York Court of Appeals. We lost. Its over. No cert petitions.

Marghlar said...

Do you know what the irony is here? NY is one of the few states where I could see a well-crafted legislative proposal succeeding right now. And that is what we need -- some examples of states doing this democratically, and people realizing that the sky does not fall just because some gay people get hitched.

I think that nothing could be better for the gay rights movement than to achieve a little legislative success.

downtownlad said...

There should be an affirmative legislative adoption of this important change.

That won't happen as long as Sen. Bruno runs the State Senate.

It's irrelevant that a majority of citizens support the legalization of gay marriage (according to every poll), or that a majority of legislators in both houses support this, as does our most likely future governor (Spitzer).

This law won't be passed soon, because there will always be more hard-core bigots (20% of the population) than there are gay people. And the rest of the population doesn't give a damn, because it doesn't affect them.

I realize that this issue will be resolved in 50 years, but I'll be dead then - so who cares.

Marghlar said...

Opinion is here, if anyone is interested.

Matt said...

I don't think you'll see anything pass this year in NY--if a bill did pass the Assembly and Senate, I'm fairly sure Pataki would veto, but next year, when there's about a 99.9% chance that Spitzer will be governor and a 50-50 chance that Democrats take the Senate, I could see something passing.

Marghlar said...

From a quick perusal, it looks like NY uses pure lockstep for its equal protection clause (nearly identical wording as well), so the SCOTUS could take cert. if it wanted to (although it seems doubtful, per Joseph, that any petition would be filed).

The DP clause is a dicier question -- they cite federal precedent, but maintain that it has some independent force.

Joseph Hovsep said...

Marghlar, I agree New York is well-situated for legislative action on this issue, but, as Justice Kaye noted in her dissent, lots of bills for marriage, civil unions, domestic partnerships have been proposed but none has yet made it out of committee. But three things may change this situation. First, whatever its negative effects, this lawsuit has highlighted the difficulties faced by gay couples and has encouraged lots of discussion of the topic, which ultimately will favor legalization of same sex marriage, even if it is exploited for short term political damage. Second, as the New York Times pointed out on Tuesday, a "Polls show a slight rise in the percentage of New Yorkers favoring gay marriage — to just over half — in the last three years, while the percentage opposing it has decreased sharply to just over a third", so a faithful legislature should not be too far behind. Third, Eliot Spitzer, who is a vocal supporter of same sex marriage is poised for a landslide victory as governor of New York. And with his and Hilllary Clinton's coattails in November, the state senate's precarious Republican majority (by two members) may turn Democratic like the state assembly, thus paving the way for legislative action.

Sydney Carton said...

It doesn't matter if the legislature passes a law allowing it. It doesn't matter if Congress passes a law allowing it. It doesn't matter if judges force it on the rest of the population.

Same-sex "marriage" is not marriage. It will never be marriage. The wider population will never accept it. And it will always be wrong.

Marghlar said...

The wider population will never accept it. And it will always be wrong.

Sydney, didn't you read Joseph's last comment? A majority of NY residents support such a proposal. Don't they have the right to define civil marriage as they see fit?

I'm not sure on what basis you say it is "wrong," but I heartily disagree. Civil marriage is a creature of the positive law, and it is what a legislature says it is. Perhaps your religious views would not accept such a marriage as a valid religious marriage, but that is a separate question. The problem is that the state institution has gotten bound up with the religious sacrament.

Sydney Carton said...

"Don't they have the right to define civil marriage as they see fit?"

As Lincoln said: You can call a dog's tail a leg, but it doesn't make it a leg.

People seem to think that words are inherently manipulated, that they can mean whatever they want it to mean. But Marriage has never meant, and never will mean, the union of a same-sex couple. So go ahead and call a tail a leg. It doesn't change reality, no matter how many people subscribe to such delusions.

"Civil marriage is a creature of the positive law, and it is what a legislature says it is."

Again, that's where you're wrong. Civil law could also define "family" to mean anyone who lives in your apartment building, but that wouldn't make it the proper definition either. People are not idiots, you know.

Marghlar said...

Actually, Sydney, what you fail to understand is that, if the legislature defined family as you describe, that would become the legal meaning of the word for the purpose of that legislation. That is one of the basic facts of the law -- that words can have different meanings in different legal contexts. So, a legislature could (and has) use "family" as a term of art in a variety of different settings. The same with "marriage."

Sydney Carton said...

"That is one of the basic facts of the law -- that words can have different meanings in different legal contexts."

But people do not view Marriage as purely a legal convenience, but a socially accepted monogomous union. That's why the word is independent of whatever meaning some left-wing judge or legislature wants to assign it.

Brian said...

Whether or not you believe that the the issue of gay marriage is best left to the political process, this is a disgraceful opinion.

In Orwellian fashion, the court announces that an argument lacking even a tangential relationship to what we call reason could be considered "rational." The court compounds the horror of its opinion by finding support in an "undisputed assumption" and the "suggestions" of "intuition and experience." I can't help but see this opinion as a shameless act of intellectual dishonesty and political cowardice (not to mention a blatant disregard of the Althousian principles of critical thinking, strength of mind, and the proper role of a court in the application of facts to law).

Gay marriage has no effect whatsoever on my relationship with my wife and the strength of our marriage. However, it saddens and concerns me to see a court completely abandon its duty to protect the legal rights of political minorities.

To those who believe this is not a very important matter, I suggest removing the references to gay marriage and replacing them with references to racial segregation. Applying the "reasoning" used in this decision, this court would hold that lawmakers could "rationally" impose racial segregation should they choose to do so. This court would find that lawmakers could "rationally" conclude that it is better, other things being equal, for racial minorities to grow up surrounded by people of their own kind. Moreover, "intuition and experience" would "suggest" to this court that racial minorities prefer associating only with people of their own kind and that minority children are much better off being surrounded by role models of their own kind.

When I look at the decision this way, I can't see it as "fine." And, as a practical matter, my "intuition and experience" tell me that attempts to placate bigots by compromising important legal principles have never worked in the past and are destined to fail now.

price said...

The thing that bothers me most about the first quoted paragraph of the decision is the presumption that history and tradition should have bearing on what we decide for ourselves now. I for one am so glad that women and slaves still can't vote. It just seems right to keep these traditions alive, y'know?

Internet Ronin said...

Price: About those women and slaves, refresh my memory, what were those court decisions granting them the right to vote? Were there any minor legislative acts or tiny constitutional amendments on those subjects or were they decided by judicial fiat?

SWBarns said...

From the decision:

We hold that the New York Constitution does not compel recognition of marriages between members of the same sex. Whether such marriages should be recognized is a question to be addressed by the Legislature.

Sorry for just quoting, but it seems that the NY Court of Appeals thought through the obvious objections to their decision. They are saying "you want gay marriage, call your state senator" which seems like a reasonable decision to me.

Joseph Hovsep said...

Internet Ronin, I think your point is a good one with respect to women's suffrage, but if you look at the history of the end of slavery and the Civil War amendments, they are hardly a model for political resolution of a contentious social issue. The slavery issue was only resolved through the political process after the slavery-supporting states left the union and the Civil War amendments were ratified only with the consent of military-dominated state governments in the defeated South.

Joe said...

Brian, read the decision. The majority opinion and Graffeo's concurrence dispose of your issues. Kaye's dissent is a shallow and erroneous exposition of the constitutional issues.

Greg D said...

Citizens of Wisconsin take note: we don't need the amendment. Courts have gotten the message.

Wrong message, IMHO. Right message:

"Liberal" activists take note, attempting to get the Courts to force your latest program on the People can be damaging to you.

Which is why the people of WI should approve the ban. Because it is never appropriate for political change to come from the courts.

You want change, convince the voters. If you can't convince the voters, then you don't deserve to get your change.

price said...

hi internet ronin:

I didn't go to law school or anything, so this will probably be retarded reasoning:

The decision in Reed v. Reed ('71) ruled to enforce the equality of genders (two divorced parents fighting over a deceased child's estate--men were commonly held to be superior in such disputes) even though that equality had already been established in the constitution (the 14th amendment?). To an uninformed person like me, it seems like a lot of laws can be passed by the people but often need to be enforced or interpreted in order to be useful and actually do what they are meant to do: protect the rights of the few. If the case could be made that all citizens in the U.S. are constitutionally allowed to marry the legal citizens they love, couldn't the court have enforced that according to our contemporary standards?

Even if I'm wrong about everything, and I usually am, I just don't like the implication that tradition trumps common sense, and it seems to me that this court would cite tradition rather than reasonable legal interpretation. I'm going to go find a popsicle now.

Internet Ronin said...

Price - I understand what you are saying about tradition, etc. At the same time, as non-lawyer, it seems to me that courts generally place a great deal of emphasis on what has been decided before, and the legislative history, when making their decisions in order to at least give the appearance that they did arrive at their decision by pulling some idea out of thin air.

And, in most states, if we looked, I think we would find out that the laws on the books now are quite similar, if not even more specific, to the laws of the state of New York. Unlike some, I don't think it will take 50 years for change to happen, and I think it will. Unlike others, I deeply resent the decision by th do-gooders on the Massachusetts Supreme Court because I believe they set the cause back by a least a decade with their well-intentioned but misguided decision.

Note: It is just my opinion, folks. Not too terribly interested in debating the subject

LetMeSpellItOutForYou said...

Gay marriage has no effect whatsoever on my relationship with my wife and the strength of our marriage. I agree, and neither does an incestuous or polygamous union have any effect on my own marriage. This is a specious argument.

Sean said...

I wish people would explain what they mean when they say that "The State should get out of the marriage business." Does it mean that if I die, my sister gets my money, instead of my "wife"? Does it mean that if I find a new woman, I can give my "wife" two weeks notice to get out of the apartment, as I can with my housekeeper? Presumably it doesn't mean that anyone I have ever slept with is entitled to live in my apartment, or take my property when I die, so there must be certain relationships that receive special recognition. Those are called what?

Seven Machos said...

Ann Althouse said: "There might some day be a big problem with singles resenting the benefits given to the married, but you can just eliminate those benefits."

Not giving a piece of paper is a bigger change than somehow ending every benefit that married people receive. Really?

As I understand it, you are suggesting that people will accept cutting off real and substantial rights (however minor they are) but will refuse not paying a tax and not getting a piece of paper. I think it's the other way around. The better approach would be to never issue gay marriage licenses, but to add (slowly and piece meal) the substantive rights that marriage entails for gay marriage.

Michael Farris said...

"I wish people would explain what they mean when they say that "The State should get out of the marriage business.""

They mean: I don't like the idea of same sex marriage but I don't want to admit it so I'll propose something that will never happen as an alternative.

Seven Machos said...

Michael -- Red and blue courts today issued opinions deferring to the people of their respective states (via the people's branch, the legislature) on the important question of gay marriage. People -- it would appear in every state -- overwhelmingly reject gay marriage. Therefore, it is likely that legislatures will.

Your job at this point is to sway, not accuse people of secretly disagreeing with you.

Seven Machos said...

And Downtown Lad: Is Brown v. Board of Education one more reason for bigoted racists to treat African-Americans "like crap"?

Face it, pal. You are a terrible bigot. A gayist.

Michael Farris said...

Seven, re-read what I wrote and what it was in response to. Really now, you're capable of much better comments that are actually related to something that somebody has written.

To make it clear (wasting a precious 30 seconds I'll never get back): I was responding to how I interpret the sentence "I think the state should get out of the marriage business" (and related statements). how do you interpret them? There's certainly nothing useful for proponents or opponents of SSM there. It's intellectual bunting.

I carefully wrote nothing about the state court decisions (which I really, really don't want to comment on since "Kabhie Kushi Kabhi Gham" is on TV now and even though I have it on disc I was sort of watching).

Seven Machos said...

I think the State should get out of the marriage business, Michael. Barring that, I think gay people should start marrying each other in their own private ceremonies, much like polygamists.

Palladian said...

You're about as convincing as downtownlad, Machoman.

Marghlar said...

They mean: I don't like the idea of same sex marriage but I don't want to admit it so I'll propose something that will never happen as an alternative.

Actually, Michael, I like the suggestion as a way of ending de jure legal discrimination against gay people, in a way that doesn't drive conservatives nuts by requiring that there be a state definition of what marriage is. If we can't get gay people included, we should stop passing out the licenses. It's a fallback option.

Marghlar said...

I wish people would explain what they mean when they say that "The State should get out of the marriage business." Does it mean that if I die, my sister gets my money, instead of my "wife"? Does it mean that if I find a new woman, I can give my "wife" two weeks notice to get out of the apartment, as I can with my housekeeper? Presumably it doesn't mean that anyone I have ever slept with is entitled to live in my apartment, or take my property when I die, so there must be certain relationships that receive special recognition. Those are called what?

Sean: I don't see why the state need be involved in any of those decisions. As regards who lives in a house, I think it makes sense for people to utilize forms of ownership that give both partners' rights. Beyond that, people's personal lives should be up to them, as long as they aren't harming other people.

You can will your money to whomever you want, including your wife.

You already have to take an affiirmative step to get married nowadays (most states have abolished common law marriage). So, instead of getting a marriage license from the state, now you can just write eachother into your wills, and work out conveyances so that your assets are held in joint tenancy, or whatever you prefer.

Now, I'd much rather we just include everyone within the current system of marriage benefits. I think that encouraging marriages is good for society. But, if I have to choose between legal marriage and discrimination, or private marriage without it, I'll take the latter.

Marghlar said...

But people do not view Marriage as purely a legal convenience, but a socially accepted monogomous union. That's why the word is independent of whatever meaning some left-wing judge or legislature wants to assign it.

Yes, of course, some people have that view, Sydney. But the point is that legal marriage can have a different meaning than social marriage, and indeed, that social marriage can mean different things to different people. You are free to keep your definition and live by it, despite a more inclusive legal regime.

Seven Machos said...

Okay, Marghlar has come around to my position. That's one.

Internet Ronin said...

You can will your money to whomever you want, including your wife.

Not always. In California, at least, you MUST provide a minimum amount (35% IIRC) of your estate to your spouse. The rest is yours to do with what you will. (Unless they change that law since 1990.)

Seven Machos said...

Internet Ronin -- That strikes me as a reasonable law. However, if you are gay, you are unlikely to have a spouse recognized by the State to give 35 percent to.

Michael Farris said...

"I think the State should get out of the marriage business, Michael."

I think I should be elected vice-president of the world. Now, if we can get back to reality, what do you propose?

"Barring that, I think gay people should start marrying each other in their own private ceremonies, much like polygamists."

I agree, they should go through all the legal motions of setting up households (including private marriage ceremonies) and let society deal with the implications.
Barring that, I think that opponents of same sex marriage should start working on legislation to prevent same sex couples from establishing households having custody of children etc. Being in favor of same sex households and against same sex marriage is just sloppy, sloppy thinking.

Marghlar said...

IR: yes, but I was discussing how the law might work if we abolished the legal institution of marriage. At that point, it's hard to see how we could maintain the modern remnants of the special marital inheritance rights.

Marghlar said...

Seven: I agree, to the extent that I think it is preferable to the current arrangement. I think we disagree to the extent that I would say that the ideal solution would be legal marriage for both gay and straight alike (because I want to encourage committed, stable family structures).

Seven Machos said...

"Being in favor of same sex households and against same sex marriage is just sloppy, sloppy thinking."

So a boyfriend and a girlfriend should not be able to live together. A mother and her daughter should not be able to live together. A son and his widowed father, or a widower and his two sons should not be able to live together. Three college students of the same gender should not be able to live together.

After all, "being in favor of same sex households and against same sex marriage is just sloppy, sloppy thinking."

downtownlad said...

One day if we're lucky, the people in this country will be as free as those in South Africa.

Joseph Hovsep said...

Brian: Gay marriage has no effect whatsoever on my relationship with my wife and the strength of our marriage.

Letmespellitoutforyou: I agree, and neither does an incestuous or polygamous union have any effect on my own marriage. This is a specious argument.


Its not specious because this is precisely the rational basis proffered for the ban on same sex marriage in this case: that the state has an interest in fostering the stability of opposite sex couples' relationships and that preventing same sex couples from marrying is therefore rational. Whether gay marriage has an effect on the stability of a straight couple's marriage is an appropriate consideration when evaluating to this logic.

On the other hand, I've never heard anyone claim that incestous or polygamous relationships do not get legal recognition because the state has an interest in promoting the stability of opposite sex couples. Its a ridiculous argument to make. The rationale for banning incestuous or polygamous marriage is that the state thinks those kinds of marriages have bad effects on society or the people involved in those relationships. But in the same sex marriage context, the courts do not claim that gay relationships are in and of themselves bad.

Seven Machos said...

One day if we're lucky, downtownlad, people will be able to walk through American neighborhoods without being and even ask directions without being bullied by straight-hating, bigoted gayists.

Sean said...

Marghlar, I don't think you've thought this through. You didn't answer my question about whether I can dispose of my wife as easily as my housekeeper. Are you saying that I can disinherit my wife? What is she supposed to live on?

Or are you one of those people who believe that contracts should be enforced as written: fiat justitia, ruat caelum. In which case, since we said "Till death do us part," the courts will enforce it, the same as they would for a professor or a federal judge who has been promised lifetime employment. Do you really think that is a workable regimen?

And above all, even if we could construct an alternative legal regimen that produced tolerably just results in domestic relationships without using the concept "marriage," why would we be better off for doing so?

Seven Machos said...

I keep reading "court," "court," "court." Why am I not reading "legislature"? Courts appear to be discovering that they don't make law. Why can't leftists realize that courts don't make law?

Michael Farris said...

"So a boyfriend and a girlfriend should not be able to live together."

That is the legal situation in some municipalities. Not generally enforced, but it's there. 'Traditional' marriage advocates should certainly support enforcement.

"A mother and her daughter should not be able to live together. ...Three college students of the same gender should not be able to live together."

Working out the details of such legislation might be tricky, but it's the least I expect from committed SSM opponents.

Marghlar said...

Are you saying that I can disinherit my wife? What is she supposed to live on?

Well, right now you can divorce her and then cut her out of your will, and she gets nothing. If you sign a prenup, she can also be cut out of any alimony. So I'm not sure this doesn't already exist.

Moreover, why does she have the right to a claim on your assets, after the relationship is over? I fully understand choosing to provide for someone you love, but I'm not sure why the state should enforce it legally (absent a binding contract). Nor do I see why people should be able to make a legal contract (as opposed to a private promise) guaranteeing their affections to another person for their lives. Absolutely unenforceable, as far as I can see.

I fundamentally think that marriage should be a voluntary undertaking, both before and after the wedding. If you want to transfer your assets to your spouse as a joint tenancy, so that you can no longer write her out of a half-share, that's your business, but you don't need the state in order to do that.

Marghlar said...

Are you saying that I can disinherit my wife? What is she supposed to live on?

To be fair, there are broad areas of the law in which the courts do make law. We still have remnants of a common law system, after all, despite the modern ascendancy of statutes.

Marghlar said...

And above all, even if we could construct an alternative legal regimen that produced tolerably just results in domestic relationships without using the concept "marriage," why would we be better off for doing so?

Because unconscionable legal discrimination against people based upon a factor outside of their control has no basis in our legal system. If we can't fix marriage so as to include gay people, we should find a way to do without it (as a legal regime). I think the first option is better, but the second option is a workable compromise.

Seven Machos said...

Sean -- There is really no question that you can dispose of your wife as easily as your housekeeper. Your spouse may have or get rights in the property that you got after marriage.

As far as disinheriting your wife, a will is not a magical instrument. Dying is a lot like divorcing for the surviving spouse, and you won't mecessarily achieve some result with your property merely because your will says something when you die or you desire a result when you get divorced.

Generally, contracts should be enforced as written. That's pretty much the unchanging bedrock of Western-style contract law.

As far as your last question, I'm not 100 percent sure where you stand on this issue but, basically, I suggest that marriage is this thing that the State endorses for one man and one woman. Anyone else who wants to get married is free to do so, but the State doesn't endorse it. And that's not a big deal. You don't need and shouldn't care about the State's endorsement for your actions. Your existence and dignity is independent from and more important than the State.

downtownlad said...

One day if we're lucky, downtownlad, people will be able to walk through American neighborhoods without being and even ask directions without being bullied by straight-hating, bigoted gayists.

Alas - not today. A family of four walking north on Varick street as we speak.

Marghlar said...

Go get 'em, DTL, you petty Gay Avenger, you.

ignacio said...

It would be interesting if we went back to the notion of marriage not as something arising out of "love" but rather as existing for the furtherance of the family (and for property).

When I place inverted commas around the word "love" this is because what is usually meant by this sexual infatuation, and shortlived sexual infatuation at that.

In the old-fashioned model of marriage outlined above, it makes sense that divorce should be impossible or at least very difficult; sexual satisfaction, hetero or by other means, would be often sought outside marriage, through mistresses, lovers or prostitution.

(Notice how close this model is to what is in place, de facto or de jure, in many Muslim states.)

Look back at our own history and notice how recent an innovation the "love marriage" is. We tend also I think to see sex for pleasure as the rule rather than the lucky or happy exception.

Meanwhile, what is the divorce rate and childbirth numbers if we subtract Mormons and evangelicals and others who are religious from the mass? What if we just think about secular humanists? Look at Europe. The secular humanists there will soon die out.

When Muslims critique us as decadent they actually do have ammunition from a perspective most of us however reject.

But consider the case without recourse to mythological "rights." What would be best for society if we were wasps or ants?

Seven Machos said...

Michael Farris -- Your fundamentalist side is showing. You are fighting demons that don't exist.

Show me anyone with any political power who actually, really has an agenda for illegalizing boyfriends and girlfriends living together, or three female roommates cohabitating. I'm not talking about the First Fundamentalist Church of Rural Mississippi, either. I'm talking about serious politic actors.

Those people, if they even exist, have far less political power than gay-marriage advocates, and you know it. And since gay marriage is overwhelmingly opposed in the general population, these people have very, very little political power.

downtownlad said...

Not as petty as these anti-gay laws.

If this country doesn't want to treat me with respect, there's no way in hell I'm going to give them respect in return.

Seven Machos said...

Downtownlad -- You really are a tyrant. The democratic process is working, and you are losing, and you are not trying to change anyone's mind. You are simply calling those who disagree with you stupid and evil.

You should move. The thing is, you won't. You'll just whine and bitch.

downtownlad said...

I don't know about evil, but they are definitely stupid.

And they've now walked at least five blocks in the wrong direction as far as I can tell. So yeah, definitely stupid.

downtownlad said...

Wow - Ruining people's lives (well - ok - just an hour or so of their life) is really fun.

Now I can understand where the anti-gay forces are coming from. There's a certain pleasure in making life difficult and unpleasant for other people.

Seven Machos said...

How do you know those people even oppose your political beliefs? Did you ask them?

You know, the Ku Klux Klan at least ascertained the blackness of its victims. And the Nazis the Jewishness of its victims. And the Soviets the "non-proletariatness."

You are Psycho Gay Avenger. You should change your posting name to that.

Michael Farris said...

Siete male animals: "Your fundamentalist side is showing"

At last, you understand grasshopper. I like well-thought out consistent positions (even when they're wrong), not impressionistic bobbleheaded contradictory pap.

"Show me anyone with any political power who actually... "

No, they just think a couple can live together 12 (or however many) years, buy a house, adopt children (in some states) and the relationship between them isn't any more serious (and the parties deserve no more legal consideration) than 3 guys rooming together for a semester in college. What's wrong with this picture?

"gay marriage is overwhelmingly opposed in the general population"

Gay people are a _very_ unpopular minority. I think we're all agreed on that. I just wonder what new and creative legislation awaits them in the future.

downtownlad said...

How do you know those people even oppose your political beliefs? Did you ask them?

Because their clothing was obviously purchased from Wal-Mart.

Nuff said.

Seven Machos said...

Psycho Gay Avenger -- How have anti-gay forces made life difficult for you? Is it the crosses in the yard? The yellow star you have to wear every day? The separate water fountains? The burkha?

What?

downtownlad said...

Seven,

You take me way too seriously. No - I didn't give false directions to tourists.

I was making a point. Why should I treat people with respect when they refuse to give gay people any in return?

Obviously that point was over people's heads.

And it's getting too difficult to embellish this story further. And the thought of buying clothes at Wal-Mart is getting me ill.

Seven Machos said...

Michael -- I'm guessing yellow stars on everything you wear (but very fashionable ones) and separate water fountains.

Or maybe gay people will be encouraged under the law to move to highly affluent neighborhoods in large cities where they are forced to take well-paying jobs.

Or maybe NOBODY CARES! Maybe people are just fine with what gay people do, they just don't want to eextend the State endorsement of marriage.

Why is it that all loopy leftists constantly, very vaguely allude to future, non-existent violations of rights with no proof whatsoever? When was the last time the United States took away a right from anybody, ever?

Brian said...

Thanks, Joe (of 1:20 pm). I've read the full decision and, although my initial sense of horror is now a feeling of mere disgust, I don't think my issues have been "disposed of."

A majority of the court holds that the state has a rational basis for offering legal benefits to married couples in order to further its interest in channeling oversexed women into a marital relationship so that they will provide their children with a stable environment. Putting aside the absurdity of the notion that a woman will marry someone she's not otherwise interested in marrying so that she can obtain all the wonderful legal benefits of state sponsored marriage, the court's holding skirts the main issue in the case. The question is not whether the state has a rational basis for offering legal benefits in order to encourage marriage. As noted in dissent, the question is whether the state has a rational basis for excluding a certain class of people from receiving those benefits. If there is such a basis, it's beyond my comprehension.

Seven Machos said...

downtownlad -- You take me far too seriously, too. (1) How can you be giving directions and posting on Althouse simultaneously? (2) No one asks for directions in New York. (3) People who wear clothes from Wal Mart look just like people who wear clothes from Old Navy, so it's impossible to tell the difference.

Seriously, though. How have "anti-gay forces" made life difficult for you?

downtownlad said...

Oh let's see.

Gays can work in the military? Um - nope.

Gays can adopt in Florda? Um - nope.

Gays can create contracts with each other in Virginia? Um - nope.

Gays can't be fired for being gay? Um - nope.

Gays can't be denied housing for being gay. Um - nope.

Gays in the military are not sent to jail for having sex. Um - nope.

It's just about marriage. Yeah right.

downtownlad said...

People who wear clothes from Wal Mart look just like people who wear clothes from Old Navy, so it's impossible to tell the difference.

I hope you're not implying that I would approve of Old Navy . . .

Seven Machos said...

Brian -- Here's a tip: any time you a court uses the phrase "rational basis," the odds are overwhelming that the court is going to find for the government. It's almost impossible not to find a rational basis for a law. What legislative body would make a law irrationally, or at least not stipuate something that appears to be a rational basis for making a law? Congresses may be dumb, but they aren't that dumb.

What you are looking for is a framework more stringent than "rational basis." Such a framework applies, for example, to people based on ethnicity and, to a lesser extent, gender. There is no more stringent framework for sexuality.

Seven Machos said...

Speaking of rational basis. Gay people, for all their sophistication, seem to be blind here.

"Gays can work in the military?" They can, as long as they are discreet. Gayness definitely occurs in the military.

"Gays can adopt in Florda?" What does this have to do with marriage? Can singles adopt in Florida? If they can, then just say you are single.

"Gays can create contracts with each other in Virginia?" Absolutely they can.

"Gays can't be fired for being gay?" Straights can be fired for being straight.

"Gays can't be denied housing for being gay." Straights can be denied housing.

"Gays in the military are not sent to jail for having sex." What is it with the military thing? Again, discretion.

downtownlad said...

Seven - You are implying that gay people won't be discriminated against if we just act discreet, i.e. go back into the closet.

It's not the 1950's anymore. There's almost nothing as appalling as asking a gay person to go back into the closet. Except, of course, for being forced to buy clothes at Wal-Mart.

Marghlar said...

Seven:

There may not be heightened scrutiny for sexuality, but there really, really should be.

And vis a vis your examples: you account neither for the history of discrimination against gay individuals, still very real in some quarters, nor for the fact that people shouldn't have to conceal a part of their identity which is harming no one else.

Let's ban all black people from the military, right? After all, they can all get surgery or use cosmetics and pretend to be white. No disparate burdens involved at all, based upon a factor outside of their control and which the state has no business victimizing them for.

Seven Machos said...

Marghlar: African-Americans and all ethnicities are protected under the Constitution, which is a law. If gay people want to be afforded these protections, they should seek to change the law.

You will say, "But Seven Machos, that's what I want." And I will agree. My point has been that the pro-gay marriage contingent has tried to avoid the lawmaking process, by getting judges to make law against the express wishes of an overwhelming majority of the people. Hopefully, these two opinions signal that this strategy has failed.

If I were Leader of the Gay World, I would start organizing private weddings and marriages, and I would gently proclaim that I simply want the State to leave gays alone to enjoy their lives. It's win-win. If the State leaves you alone, you are golden. If the State intervenes, you will witness a sea change in public opinion, because them gays really would be the victims of oppression, not merely overly dramatic wannabe victims constantly and absurdly comparing themselves to Jews during the Holocaust and African-Americans during Jim Crow.

downtownlad said...

African-Americans and all ethnicities are protected under the Constitution, which is a law.

Really? What amendment would that be.

Brian said...

Seven,

Thanks for the "tip," but I'm not looking either for a tip or a more stringent standard. I'm well aware that the phrase "rational basis" is official Courtspeak for, "we're about to duck the issue because we lack the courage to address it." What is the rational basis here?


What I'm looking for is the rational basis for EXCLUDING a certain class of people from certain specified legal benefits.

paul a'barge said...

Just as easily as the courts can get the message, they can unget the message.

Don't stop, run, don't walk to the nearest voting booth and demand to vote against gay marriage.

Seven Machos said...

Well, Brian, off the top of my rusty head, a rational basis is any nexus between the law made and a reasonable, legal public policy goal.

It looks like one of the courts found two rational bases.

One more thing, any law excludes a "class" from rights. A law against rape, for example, completely excludes a class, rapists, from committing a certain act. As I have said before here on numerous occasions, it is not illegal for gay people to be married in most places. There is no law on the books. It is merely that the State chooses not to endorse gay marriage. This is an enormous difference.

Seven Machos said...

"Amendment XV

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude."

Also, as you well know, the Fourteenth Amendment has been construed (properly) to apply to ethnicity. The (hopefully dead) strategy of gay marriage proponents has been to extend this to sexuality by way of court edicts. Like virtually every political movement pushed through the courts, it has failed because a huge majority of the public is against gay marriage.

Brian said...

Seven,

Don't give up. Wipe the rust off of your head and finish your thought. You say it looks like one of the courts found two rational bases.

And they are.........?

(if we had sound effets here, I'd give you a drum roll).

Seven Machos said...

"There are at least two grounds that rationally support the limitation on marriage that the legislature has enacted," the court said, "both of which are derived from the undisputed assumption that marriage is important to the welfare of children."

First, the court said, marriage could be preserved as an "inducement" to heterosexual couples to remain in stable, long-term, and child-bearing relationships. Second, lawmakers could rationally conclude that "it is better, other things being equal, for children to grow up with both a mother and the father."

Here is a decent description of rational basis: http://en.wikipedia.org/wiki/Rational_basis_review

The test of "rational basis" is not whether you agree with the policy or not.

ben wallace said...

Rational basis arguments were used to sustain sodomy laws until courts recognized that these laws were in fact based on irrational reasoning. The courts will in time recognize that the bans on same-sex marriage are based on similar irrational fears of homosexuality. Sodomy laws and bans on gay marriage rest on similar moral and social beliefs. Both views should be rejected by the courts.

The argument that courts should stay out of this is puzzling. Such a view requires well-defined political minority to rely on the political process when the fundamental countermajoritarian bodies in the US are courts. Separation of powers ceases to mean anything if the courts choose to stay out of politics simply because a there are a supermajority in some states that do not support a particular policy.

Brian said...

Seven,

As I said, I'm not asking about the alleged rational basis for providing incentives for people to marry. I'm trying to understand the "rational basis" for not providing these same incentives to gay couples.

If I understand you correctly, you're relying on basis number two, according to which a rational legislature could conclude that it is best to provide incentives for a lesbian, who inexplicably finds herself pregnant, to cast aside her gay lover and marry a random man in order to provide her child with both a mother and a "father."

If this is the "rational basis" for the court's decision, I can understand the reluctance of both you and the court to spell it out for us.

Seven Machos said...

Ben -- You are the quintessential lefty. When your strategy fails, double-down!

The sodomy law is the blip, not the trend. If that's all you have as your argument, it's a poor one.

Here's a better argument, by way of a question: what did more for equal rights for African-Americans in this country?

1. Civil War (executive/legislative branches)

2. 13th, 14th, 15th, and other Amendments (legislative)

3. Brown v. Board and other decisions (judicial branch)

4. Enforcement of Brown (executive)

5. Civil Rights Act (legislative/executive)

6. Martin Luther King, Jr. (non-governmental moral authority)

I would argue that the courts did the least for African-Americans. Courts are utterly dependent on the executive and legislative branches for enforcement. Which is to say, in a democracy, that they can do very little to protect minorities which are not protected in other ways.

Seven Machos said...

"A lesbian, who inexplicably finds herself pregnant"? Like the Virgin Mary?

But, yes, that would be a rational basis. The woman is free to keep her gay lover. There is a rational basis for only endorsing one male-one female marriages if your goal is to have nuclear families because you believe nuclear families are good. I think that's pretty cut and dried.

Also, I copied and pasted from the article. I made no argument.

Marghlar said...

Also, as you well know, the Fourteenth Amendment has been construed (properly) to apply to ethnicity. The (hopefully dead) strategy of gay marriage proponents has been to extend this to sexuality by way of court edicts. Like virtually every political movement pushed through the courts, it has failed because a huge majority of the public is against gay marriage.

The point I would make here is, there is no way of reading the text of the 14th Amendment so that it applies to ethnicity, national origin, etc, but not to sexual orientation.

Please feel free to elucidate what meaning you derive from the text of the equal protection clause that covers race, ethnicity, national origin, sex, or illegitimacy, but doesn't reach sexual orientation. Or for that matter, find me the meaning inherent in the text that just covers race.

Keep in mind that when the drafters wanted to protect just race or similar factors, they knew how -- see the 15th Am. But they didn't do that in the 14th; instead, the drafted a much broader framework for the protection of the rights of those who can't effectively protect themselves within the political process.

Seven Machos said...

Marghlar: How does a law endorsing only one male-one female marriage violate this text:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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."

Everyone is allowed to participate in State-endorsed marriage. Are they not? Who is excluded? Can you not have a State-endorsed marriage if you are gay? Can you not have a private gay marriage not endorsed by the State? Who exactly is getting hurt here?

ben wallace said...

There are many situations where courts are constrained by the possibility coordinate actors will ignore their rulings. Gay marriage is not one of those issues. The relevant veto is a constitutional or statotory override, which implies rational courts may side with the legislature because they fear being embarrassed.

Overruling the rational basis finding with respect to gay marriage is similar to courts overruling the rational basis of Congress in Lopez and Morrison. Both of those cases are good examples of the benefits of courts providing a constraint on rational basis. An overreaching federal government than undermines federalism and overreaching state legislatures that undermine liberty of individuals to determine whom they want to marry are both situations where courts should step in.

I guess my defense of Lopez and Morrison makes it difficult to put me in the lefty camp.

Marghlar said...

Seven: let's start with this. Do you believe that a law banning interracial marriage violates the guarantee that no state deny any person within its jurisdiciton the equal protection of the laws?

If so, please expalin why, with reference to how the text means that.

jinnmabe said...

The point I would make here is, there is no way of reading the text of the 14th Amendment so that it applies to ethnicity, national origin, etc, but not to sexual orientation.

There IS a way, for people who do not view sexual orientation as the same type of immutable characteristic as race, color, etc. There are a great many people who DO see sexual orientation in that same immutable sense, but it's far from the consensus view.

Marghlar said...

jinnmabe: I concede that, if you take a factual position with which I disagree (and which modern science cases into some doubt), the case is no longer clear. The immutability question is important.

But if immutability is conceded, even for only a subclass of gay people, than it is very hard to make a coherent case about why the language of Am. XIV does not apply.

Ann Althouse said...

Looks like the comments are working again.

Carry on.

Seven Machos said...

Marghlar: We've been over this a million times. Interracial marriage involved RACE. Thus the name. Race is held to a higher standard because it's an immutable characteristic about which you have no control or discretion.

I wish you would stop bringing up the interracial marriage thing, when it's obvious why it's different.

Sodomy is also different. The legal foundation is PRIVACY, lefty-people. PRIVACY. You can't simultaneously ask for privacy and an endorsement from the State for your private actions. Or, to be more precise, you can, but why the hell would you? Do you want the State in your lives? Or don't you?

LetMeSpellItOutForYou said...

Joseph Hovsep: It's not specious because this is precisely the rational basis proffered for the ban on same sex marriage in this case I may have overreacted. Still, regardless of its origin, I still consider it a specious argument, one that permeates the debate. A policy may well affect emerging assumptions behind marriage as an institution without affecting any current set of marriages. An instance should not be confused with a class.

Marghlar said...

Seven: you've failed to engage at all with my question. Let me try and make it clearer: explain why the text of the equal protection clause gives special protection against discrimination based upon race. The text -- not some extrinsic understanding beyond what the words can colorably mean.

You'll have to use the idea of immutable characteristics -- the fact that you can't say that government is protecting people equally when it discriminates against some on the basis, not of their conduct, but because of who they are, a factor largely beyond their control.

Sexual identity is like that, Seven. A decent proportion of gay people could no more start being attracted to members of the opposite sex, than I could just decide to be gay now. There are significant correlations between sexual orientation and both genetic and phenotypic variation.

There is a reason that race is protected by the EP clause, and it isn't because it is spelled out. It's because of the immutability question. Now, like jinmabe, you can argue the mutability point if you want (although I think you are wrong). But if you concede it, it is very hard to argue coherently why the text of the EP Clause doesn't apply equally to both race and sexual orientation.

It is not activist to extend precedent in ways that are supported by both text and analogy to prior precedent. It is, in fact, fair constitutional adjudication. And I submit that if it was proper to give special protections to race under the 14th Am., it is equally proper to do so regarding sexual identity.

You still haven't raised a coherent response. You've reminded me several times that race is different than sexual orienation. I concede that. The question is, is it different in some way that is relevant to the application of the Equal Protection Clause? I haven't yet seen a good explanation for why that should be the case.

Lawyapalooza said...

So gays should just shut up and quietly have civil union ceremonies? Umm. That is what they have been doing for hundreds of years. The problem is that the government offers extraordinary benefits to people who can be legally married. DTL hit a few of these benefits, but there are numerous other benefits in the form of substantial tax breaks (there is no such thing as a "marriage penalty"), access to programs, social security, disability, etc. I pay taxes to the government like anyone else, but I should not get the same benefits?

The 2000 census showed that gays and lesbians have children in almost the same percentage as straight folks (lesbians were very close, and gays were a little less, but not substantially so). Most people have no clue about that. If the government's business is to protect children, then they must acknowledge gay and lesbian relationships in the same manner that we recognize straight relationships.

In Michigan yesterday, the folks behind their amendment, the same people who insisted it was not about anything other than "marriage," filed a suit to eliminate domestic partner health care benefits. A vote in favor of the amendments is more than a vote about marriage. It is a denial of basic human rights and dignity. It is also about hate and punishment. They start with the amendment, and move to hurt real families afterwards. Wisconsin will not stand for such lies and manipulation.

Fitz said...

Marghlar (wrote)
"explain why the text of the equal protection clause gives special protection against discrimination based upon race. The text -- not some extrinsic understanding beyond what the words can colorably mean."

Unless your a college admissions commitee

Marghlar said...

Fitz, there you go assuming my position on issues you haven't spoken to me about.

I think the EP clause unquestionably applies to college admissions decisions based on race or other immutable factors. Whether different admissions systems can survive EP scrutiny is a question I don't have strong feelings on, although I tend to suspect that affirmative action is the wrong solution to a real social problem (as a policy matter).

Fitz said...

No Marghlar, as a matter of standing law - "unless you’re a college admissions committee" is the current reading of the EP clause.

So, discrimination based on race is permissible because "diversity" is a compelling state interest.
Under some reasoning however, promoting intact marriages between a Childs Mother & Father is not even a rational basis for public policy.

Oh what a tangled web we weave.

Marghlar said...

No, Fitz, it is you who is incorrect. As a matter of current law, college admissions programs that discriminate on the basis of race have to be narrowly tailored to further a compelling state interest. See Grutter v. Bollinger. Now, I'd like to see the court apply this test a bit more strictly than they have thus far -- but it is undeniable that this is the current legal standard.

Likewise, no one is arguing that promoting intact marriages between mothers and fathers isn't a compelling state interest here. The question is one of tailoring, and whether the exclusion of gay couples from the marriage right is narrowly tailored to further that goal. I submit that it is not.

Fitz said...

Mary

As Marghlar concedes, both issues directly relate to the 14th Amendments equel protection clause.
The analysis is germane. Perhaps in your view they are unrelated. As a matter of law however they are insurmountably linked.
"Compelling state interest" is a much higher bar than "rational basis".

As far a "dragging in another minority group" it is a comparison (race= sex =who you have sex with) that the left is constantly evoking to co-opt the moral authority of the civil rights movement.

I on the other hand am merely forwarding a legal analysis of the law as currently understood.

Fitz said...

No Marglar I am not incorrect (as in factually inaccurate). You are twisting the argument in an unfair way. Grutter v. Bollinger. ruled that diversity is a compelling state interest. Under that standard the programs must be narrowly tailored.

“Likewise, no one is arguing that promoting intact marriages between mothers and fathers isn't a compelling state interest here.”
Nor am I (once again with the twisting). I am arguing that it is a rational basis; under which analysis it never reaches the compelling state interest test and therefore need not be narrowly tailored.

It seems the NY court agrees with me.

Wade_Garrett said...

Let me start by saying that I am an unmarried straight man who supports gay marriage. I live in New York and go to law school in Wisconsin.

The court properly applied the rational basis test. Good for the court. That is the court's job. We may need to turn to the politcal process to create a stable result, but a woman's right to an abortion has been stable for almost 35 years, despite NARAL's fears, and it isn't going to be taken away anytime soon. Why can't the same thing work for gay marriage? Gerrymandering has created a political process where there is almost a complete lack of moderation, and the primary system has created a political system that rewards candidates who appeal to their party's far flanks.

Yesterday, the court basically said that "if it weren't for all of these promiscuous, irresponsible straight people, we wouldn't need inducements to marry, but since straight people sleep around and in so doing may create babies for whom it would ultimately fall to the state to provide, we need marriage incentives to give these procreators a reason to stay together." See how noble the legislature was being when it passed this law? It wanted to make the world safe for all of those responsible gay, elderly, and sexually inactive straight people who would otherwise have to bear the costs of providing for all of those irresponsible straight people's unwanted children.

Marghlar said...

Fitz, please read upthread before jumping in.

I am arguing that there is no legitimate principle of textual interpretation that can include race as an immutable factor, but exclude sexual orientation as an immutable factor, from constituitonal protection.

Now you can (and I know that you do) argue that orientation is mutable -- but I disagree, and the weight of scientific evidence provides support for my view.

If orientation is not mutable, it is properly subject to strict scrutiny. Thus, your interest needs to be compelling (which I concede), and your discrimination needs to be narrowly tailored (which it isn't).

As for Grutter: the point is that you are wrong when you say that the Equal Protection clause doesn't apply to college admissions. It does, and the courts spend a lot of time scrutinizing those admissions. Now, they are perhaps more permissive regarding the narrow tailoring inquiry than you might like -- but the fact is, they are applying equal protection analysis to admissions because of the race discrimination issue. You need to admit when you are wrong.

Fitz said...

“the point is that you are wrong when you say that the Equal Protection clause doesn't apply to college admissions.”

I’ll be happy to admit I’m wrong when I am. My point (one lost on you) was that “diversity” becomes a compelling state interest (narrowly tailored or not) while children being born into hoseholds with their own Mothers and Fathers is not even a rational basis. (in some peoples eye’s)

As far as “Now you can (and I know that you do) argue that orientation is mutable -- but I disagree, and the weight of scientific evidence provides support for my view.

If orientation is not mutable, it is properly subject to strict scrutiny.”


Your former point is certainly arguable scientifically.(and begs the question as to what other behaviors may have a biological link)
Your latter contention is flat out false. Mutability is not some sole test for strict scrutiny.

Marghlar said...

Well, then, feel free to engage with my above challenge:

Find me a textual interpretation of the equal protection clause that explains why it applies to race, but not sexual orientation. Something that flows from the language itself.

You'll find that it is hard to find a way to bring racial discrimination within its sweep without also covering other immutable characteristics.

Fitz said...

But I'm not a textualist (at least not a strict one.)

And that all presumes 1) immutability 2) all immutable characteristics fall under the 14th 3) immutability stands alone as warranting 14th amendment protection

Marghlar said...

Well, if you aren't a textualist, I think there are excellent policy arguments, and arguments proceding from theories of judicial review, to support the position as well.

But I must say, I am a bit surprised. Are you really suggesting that the text of the constitution doesn't bind a constituitonal adjudicator?

Marghlar said...

It does presume 1. It argues 2, rather than presuming it.

3 is totally irrelevant -- it is possible that other types of conduct would also be covered by an interpretation of the clause. But the question is -- whatever else is covered, is immutability within the scope? I think it has to be, if we are to be textually faithful and still guard against racial discrimination.

Seven Machos said...

Mary -- Your post is puzzling. I am not "the one who wants to involve a bigger government here, with 'incentives' and social science goals like role modeling." The Court found rational bases for the law. I don't have to agree WITH the bases, only that they are rational.

You suggest that you have been to law school. You should know, then, that "rational" is a very low threshold to meet. "Rational" does not mean "Mary agrees." Sorry about that, as it obviously greatly troubling to you.

Seven Machos said...

Lawyapalooza -- Are gay people NOT eligible for all the benefits of straight marriage?

Seven Machos said...

Marghlar -- You are really making some 1L arguments. On the one hand, you chide me because race is not mentioned under the 14th Amendment. On the other hand, you upbraid Fitz because "programs that discriminate on the basis of race have to be narrowly tailored to further a compelling state interest." But where is "narrowly tailored" and all that in the Constitution? I can't find it. Maybe you can. If you can't, though, please spare me the "it's-not-in-the-text" line of argument.

What you have defined is "strict scrutiny," the opposite of "rational basis," and which the Supreme Court has and has always applied almost exclusively to ethnicity. The reason "narrowly tailored" only applies to ethnicity is simple: race is always not a choice. Black people are black people in every situation. If the law is "black people must sit at the back of the bus," that is treating a class of people unfairly all the time. State non-endorsement of gay marriage does not treat a class of people unfairly all the time. Any gay person can choose to marry a person of the opposite gender. Any black person can never choose to sit at the back of the bus.

Further, is there a law that says "gay people can't get married"? Not where I live. Gay people absolutlely can marry heterosexually. And it's not even that the State is prohibiting gay marriages. It is a non-endorsement.

You want "strict scrutiny" to apply to gay marriage. That's fine. But it doesn't, and it won't. You can argue that gayness is an immutable characteristic. You should focus on making that argument. Instead, though, you preen like the worst 1L, talking about "textual interpretation" and "narrowly tailored" (you know, like in the Constitution) and how many leftist people who know better than everyone else can dance on the head of a pin.

Politics ain't beanbag, and it certainly ain't a university classroom. The fact is, the only way to win the endorsement of marriage by the State for gays is through legislation. No matter how right you are or smart you are, it isn't going to happen in the courts.

Seven Machos said...

Mary -- I appreciate your recent post. It made a lot more sense and it didn't paint a ridiculous strawman.

Sadly, though, courts are not the anwer. I know that the leftist view of history is that the courts were these valiant mechanisms for good and righteousness in American history. Ask Dred Scott and Plessy (Freguson?) about that. The fact is, it was the army (Civil War), the House and Senate (amendments), the National Guard (actual enforcement of Brown), and a brave minister (Martin Luther King) who effected the political change leading to equal -- or more equal -- rights for people of all ethnic backgrounds.

You need to change opinions on the ground (or have a war!) to obtain your policy goals. One judge or five justices saying something is not going to work.

Marghlar said...

Seven:

My point is that the inclusion of race, and the exclusion of sexual orientation, from enhanced scrutiny, is an aribtrary requirement that does not flow from the text.

I do think that the strict scrutiny rule is perhaps the best compromise a court can make between ensuring that as little discrimination as possible occurs, and allowing for that discrimination that is truly necessary. I think "equally protecting" people can logically encompass the notion that we should try as hard as possible not to discriminate on the basis of factors beyond individual control, and only do it when we really need to (for example, in the prison segregation context).

I think that the vaguenss of the Clause is permissive of such wiggle room for the state. But you argue like a 1L when you robotically insist that the Clause protects this list of things, and only this list of things, because those are the only things the court has said are protected in the past. Both the constitutional lanugage, and logic and policy, are permissive of an extension here. You give no reason in opposition except "they haven't done it yet."

I repeat my point: they are textually authorized to do it, and there are good policy reasons for doing so. I think there are countervailing policy arguments too, primarily revolving around a potential backlash of the kind that Roe stirred up. That's why I'm hestitant to see this question presented to a court that would resolve it in what I view as the correct way.

But it is ridiculous to contend that the meaning of the constitution is totally determined by listing what cases have said up to this date. Many questions exist that have not yet been presented, and their proper resolution awaits Court decision. Even where there is a Court decision, it can be overrruled by a later Court. You smugly assert that it is so absolutely different because it isn't race, but the reasons to single out race are not so unchallengeable as you seem to suppose.

Indeed, it is hard to see on what basis you think that race, and only race, should be protected by the Clause. Where did that come from?

Lawyapalooza said...

Senor Macho,

To answer your question: no, gays are not able to take advantage of all of the rights accorded by marriage. The less-than-1L argument you offer,"Sure they can, if they marry a straight person" is barely worth reading.

So, Mr. Macho, I pose the following challenge to illustrate my point: I will pay you $10,000 to enter into a gay relationship--which must include physical affection--- for two months. Given the financial incentive, do you think you can turn gay for a couple months, because you're assuiming I can turn straight, or that in some way entering into a fake relationship is acceptable to me.

The so-called rational basis for discrimination does not exist here. We have children in the same proportion as do heterosexuals, they turn out just as well as children from straight couples (and in many instances, better) and the only thing tearing apart heterosexual marriage is heterosexuals! There simply is no rational basis for such discrimination.

Seven Machos said...

Mary -- What benefits are there that gay people who have private ceremonies are missing?

The biggest one I hear is health insurance for spouses. But doesn't this affect straight people, too? Don't some companies offer no insurance?

I also hear about Social Security; inheritance laws; taxes (until recently, "the marriage PENALTY"); and my personal favorite because it comes up so commonly for straight people, immunity against testifying in court.

How much of all of these things gays are so awfully missing out on comes up in day-to-day life? None. None much. If gays would simply start getting married, and put up with the occasional hoop to jump through, people would see pretty quickly if it was a worthwhile thing to have in society, and a majority would adjust their views accordingly.

But, no. Gay marriage advocates don't actually want these rights that rarely if ever come up in life. They want to force people to accept gay marriage, and I use the word "force" because there seems to be a refusal to do the heavy lifting required to make laws in the legislature, which is where laws are made, not in the courts.

Marghlar said...

Sorry, missed this:

What you have defined is "strict scrutiny," the opposite of "rational basis," and which the Supreme Court has and has always applied almost exclusively to ethnicity. The reason "narrowly tailored" only applies to ethnicity is simple: race is always not a choice. Black people are black people in every situation. If the law is "black people must sit at the back of the bus," that is treating a class of people unfairly all the time. State non-endorsement of gay marriage does not treat a class of people unfairly all the time. Any gay person can choose to marry a person of the opposite gender. Any black person can never choose to sit at the back of the bus.

There are lots of other things that are just as immutable. Can the government discriminate on the basis of inherited diseases, then? What about on the basis of height? How about disability?

Even your highly restrictive notion of immutability can't logically be restricted only to race. Furthermore, it is not clear that race is so immutable as all that. The phenomenon of people "passing" as other races is quite well documented. Likewise, people who have only a small proportion of minority ancestors can just as easily "choose" to socially identify as white, or as black. Yet the government is just as forbidden from discriminating against them, as it is forbidden from discriminating against a new immigrant from Africa, because radically changing one's identity and appearance in that manner is quite difficult to do, and very invasive to demand.

For most people, who we are attracted to is not a choice. It is part of our makeup. I can no more decide that I will from now on be attracted to men, than may gay people can decide to start digging the opposite sex. It's just part of who we are.

And it is not "equal protection of the laws" for the government to decide that some people's harmless proclivities will be encouraged, while others will not be. Just like it would violate equal protection to give special rights to all people under five feet tall, without a very good reason. Yes, I could cut off my feet and walk on the stumps of my knees, so my height is not absolutely immutable. But it is hard enough to change that it falls inside the equal protection prinicple.

Seven Machos said...

Lawyapalooza -- There is an interesting post upthread by ignacio about "the notion of marriage not as something arising out of 'love' but rather as existing for the furtherance of the family (and for property)."

Marriage is predominantly NOT about sex, as anyone who has been married for awhile can surely attest. It is an economic, political, spiritual, civic union that is really only good for one thing: organizing society in a feasible way. But that thing is an important thing.

The State has more on its "mind" than sex when "thinking" about marriage, like the firmament of society.

As far as rational basis, I really think the pro-gay marriage arguers here are a bit blinded or don't understand the concept. There manifestly is a rational basis for the law and the reasons for the law.

And gays are not a protected class.

Regan said...

The state of NY as did other states by constitutional amendment has just done the impossible and set a slip slope precedent.
Legislating the opimum family.

We have NEVER had a law, and can't that qualifies what kind of human being is fit to marry or bear children.
Until now.
The man/woman model guarantees nothing.
Gays and lesbians represent couples in just another human condition that has no bearing on their qualities has human beings.

The issue of marriage isn't defined, obviously, by the couple except in age, consent, and non related non married status.
This is becoming FAR more complicated than it has to be.
There is an inference of inferiority here specifically of gay people.
And that IS bigotry and irrational.
That is why the comparisons to interracial or marriage equity for women is valid in the way marriage law changed.
Indeed, the optimum benefits of MARRIAGE has been argued for the lifetime incarcerated and the mentally ill or physically compromised.

If the state were truly consistent, it's interests include gay people on ALL OTHER standards except this one, and it IS mind boggling.

This is the first time the state has managed to make laws that PREVENT a citizen, a human being, FROM doing their optimum, by CHOOSING to marry, for their significant other and their children.
Something that would NEVER be encouraged and shouldn't be in an individual.
There aren't even any downsides to marriage equality that's a reality.
What IS the worst that can happen that actually DID?
Which brings me to my point about conjecture and myth and basing a constitutional amendment on it.

It doesn't matter whether the courts, legislature or vox populi ban marriage for gay people.
As a distinct and perpetual minority, gays and lesbians can now argue that their lives are continually left in the hands of a hostile and tyrannical majority against engaging in something that is rightful and protected already in the lives of all citizens.

All the way around, to do this against gay people is to compromise a whole lot of other rights and protections, OTHER than marriage.

Seven Machos said...

Well, Marghlar, as you suggest above, the short people of the world simply haven't bonded together and litigated. But soon, they will! And we'll either have a bunch of physically challenged firefighters.

Or, maybe we just say to hell with it. Since some things that immutable characteristics are not protected and others aren't, the law isn't fair. And since, as you so brilliantly pointed out before, the 14th Amendment does not mention race (before going on and on about the righteousness of discriminating against whites and Asians in college admissions under the Supreme Court's 14th Amendment jurisprudence), maybe we should scrap the whole thing.

One other thing, it looks to me like gay rights have been litigated. You say it's not protected only because it hasn't been litigated? Well, it just was.

Seven Machos said...

"This is the first time the state has managed to make laws that PREVENT a citizen, a human being, FROM doing their optimum."

How can anyone with any sense of history say this with a straight face?

Seven Machos said...

Mary -- I think gay marriages are a fine thing that will not hurt and may help society. I am skeptical about gay people adopting children, but I am more than willing to wait to see what the long-term results are, since the guinea pigs are out there already.

I am also in favor of people, particularly people in local communities, being able to govern themselves the way they see fit. Hence, the people who live at 17th and P in Dupont Circle would see fit to have gay marriage. The people in Provo, Utah would not. The ideal solution regarding this issue (like most issues) would be to let people govern themselves.

This is a novel concept for the left, I know. Your natural instinct is to embrace the least democratic and most theory-driven branch of government to get what you want.

Marghlar said...

Seven, don't be a jackass. Obviously there are good reasons not to have crippled firefighters, and such a restriction could obviously pass strict scrutiny.

And just point out where I have gone on and on about the righteousness of discriminating against whites and Asians in college admissions under the Supreme Court's 14th Amendment jurisprudence. Go ahead, just pull a quote for me. I didn't say that, you just want to assume I did because it seems like a position I'd take. All I ever did was explain that such policies are still subject to strict scrutiny, and then wish that the court would apply the test more carefully. I also said I thought that affirmative action was pretty bad policy.

And, last time I checked, the NY Court of Appeals is not the supreme arbiter of the meaning of the federal constitution. I could be wrong, though.

Re: "the law isn't fair," I'd agree that it isn't. But I don't think it is ridiculous to suggest that some consistency in constitutional law might just be a good thing, and that we shouldn't go out of our way to avoid being principled.

Seven Machos said...

You are right. You did not go on and on. You briefly mentioned college admissions.

I was wrong and stand corrected.

Marghlar said...

Mary, I'd disagree, to the extent that I would much rather see this change come from the legislatures. When the courts institute social change, we usually see a nasty backlash, with troops having to be called in and whatnot. If a legislature or two could usher in this change, and people could see how little harm it actually caused, I think that it would be easy for momentum to build, and a lot of states (not all, but a lot) would follow suit.

If the courts have to intervene, I'd rather it be to nudge the last few states over the line, once there is a broad national recognition that this is important. I think that there is a real constitutional right here, which deserves enforcement. But I think that when an issue is this divisive, it can be counterproductive to win a court victory. Indeed, if such was to happen right this minute, I think there is a decent probability that the constitution would be amended, and then where would we be?

All in all, I'd really like to see the gay marriage movement shift its efforts to fighting for legislative changes in friendly states. Some movement is already underway in CA -- I'd like to see parallel activity in Illinois and other states where it may be possible to make headway.

I think this is one of those issues where the realization that the sky does not fall when gay people get a marriage license will be a big turning point for social acceptance of change. Right now, we need more example states.

Seven Machos said...

Mary -- What is with the ad hominem attacks and innuendo?

You sound like nothing so much as a Leninist or a fundamentalist jihadist or Christian.

"That day is coming with or without your support. And it's going to come through the standard enforcement mechanism: [the proletariat/God/God]. The basis for the laws is already there: you just can't see it yet, and [the proletartiat/the Ummah/the Church] isn't brave or strong enough right now to point it out to people like you."

Seven Machos said...

Wow! I was just about to write a post that said exactly what Marghlar said.

I would add that the issue of abortion is instructive. The courts were ahead of the legislatures on abortion and, whether you are "pro-choice" or "pro-life," I think you have to agree that the continuous flux caused by Roe v. Wade has been politically and socially costly. Much better to let the city councils and state legislatures sort this out.

I would disagree with Marghlar about the national consensus part. I don't think there needs to be one. I am happy if California and Vermont have abortion and gay marriage but Georgia and Idaho don't. Politics is the art of the possible.

Marghlar said...

Seven: Normally I'd agree that local variation is fine -- on most issues, I'm a big fan of leaving things to the democratic process. But as I do view this as a real violation of the constitution, I'd like to eventually see uniform compliance. The question is how to get there without provoking a nasty backlash, and I think the democratic process is less likely to give rise to such a reaction.

I think if the court had held off for thirty years or so before deciding Roe, there would have been very little backlash, because most states would already have been permitting abortions. (Note -- I agree with Roe as a policy but not as a constitutional matter, so here I am just talking about the tactics of social change, not legitimacy of interpretation).

So I disagree that this is a practice that should continue anywhere in the U.S. But I would like to see more gradual change, and more legislative focus. Especially since there are states that would probably be receptive to such proposals.

Seven Machos said...

Marghlar -- So we can be bedfellows, to use a questionable term in this debate, for the next few decades, and then we will have to part ways.

Mary, you are going to be sorely disappointed when the ghost train doesn't come.

Marghlar said...

Say, aren't you supposed to be married and content already, marghlar? You might be smart about the law, but you seem to have too sunny a view on human nature.

Actually, it's more that I have a very dark view of human nature. I think that if you won your court victory right this moment, you'd see a constituitonal amendment that would set this cause back by fifty years. I really, really don't want that to happen -- and hence, even though I think the court should, as a matter of law, correct this nonsense, I'd like them to hold off on it for a few decades, so that the change, when it comes, can be durable.

The best reason to be hopeful is demographics -- younger people tend to be more gay-friendly than older folks. Over time, the majority will be on your side. Which is cold comfort when you are getting discriminated against, I understand, but it's the comfort I can offer.

Marghlar said...

Seven, I'm flattered, but I don't happen to swing that way.

I'm sure you'll find somebody nice eventually, though.

(And yes, we can happily be political bedfellows for the time being. As is often the case with constitutional minimalists (as I take you to be) and those whose constitutional viewpoint is currently disfavored.)

Marghlar said...

Mary, for me, it's all about living to fight another day.

I want what you want -- but I want it enough that I want to be careful about getting it, so as not to end up losing it. I am less sanguine than you about the amendment issue. There are enough people who are hostile to any kind of novel court intervention that a ruling like this could really invigorate the opposition. I think Roe was probably responsible for the rise of the Republican party to power, and the current conservative trend in the judiciary. Given how much that right has been chipped away at (abortion is unavailable as a practical matter in much of this country, as a result of Casey and its progeny), I'm not sure it was worth it.

Courts are not good at forcing radical social change. Even Brown has ultimately failed, given the high rates of de facto segregation still prevalent in the public schools. That doesn't mean they should never make unpopular rulings, but it does mean we should be careful about when we demand that they do so.

Seven Machos said...

Mary -- More ad hominem attacks. You can't help yourself. I frankly think some of the allusions in this thread have escaped you, and so you keep grasping at sleights of hand, like causing those who would argue with you scared. It makes you look foolish. It makes you look dumb.

You sould like a Leninist or a jihadist or a fundamentalist in the sense that you expect this supernatural political force (in your view, a court with enforcement power) to sweep in and create change that actual people with actual political power can't or won't create.

Do you really, really think that because John Paul Stevens, say, or some "enlightened" member of a state appeals court declares something, that the legislators or the police or even the local petty bureaucrats are simply going to enforce it?

Marghlar said...

You know what's right, you just aren't courageous enough to fight for it, probably because it's not really your fight to win.

Well, I think I am fighting for it. One of the ways I do so is spending a lot of time trying to persuade people that there is a real constitutional problem here. I think a healthy amount of fear makes one prudent. It's not always the best strategy to spend all your troops in a frontal assault.

Marghlar said...

Mary, does it ever occur to you that sometimes, in order to maximize its power, a branch of the government has to behave tactically?

The judiciary really is the weakest branch. If they piss people off enough, the majorities will put new people on them who will reverse any progress that has been made. Trying to use the courts to create social change is a delicate process. If you overstep, you get burned.

Seven Machos said...

I agree about getting rid of the court, at least as supreme courts now style themselves. It is not the job of any court to say what the law is. It is the job of the court to decide how legislation applies to certain facts in a certain case.

Marghlar said...

Well, thanks for the personal attacks, Mary. I am on your side, but if you want to alienate me, that is your business.

Feel free to go ahead and litigate your merry way to victory. Just don't blame me (and be willing to bear the brunt of the blame of the wider community) if you end up setting your cause back in the process.

Seven Machos said...

Mary -- You sound ridiculous. No one in this country is willing to die for the State to endorse gay marriages. Least of all you.

Let's keep the conversation realistic.

Marghlar said...

To be fair, Seven, I did start in with the war metaphors.

Now I really have to get back to work.

Seven Machos said...

Marghlar -- I want to tell you that you are a reasonable person. Sometimes, I think I find you unreasonable. Then, I read what others who share some of your opinions have to say and I realize once again that you are a worthy and honorable opponent in matters of law and politics, and one that I would at least in many ways trust to make good and functional law.

Seven Machos said...

Mary -- You are shrill.

Brian said...

Marghlar says: "I think this is one of those issues where the realization that the sky does not fall when gay people get a marriage license will be a big turning point for social acceptance of change."

Marghlar, I can appreciate your point but I'm afraid you'll be disappointed. For the most part, those pushing for a legal prohibition of gay marriage are blind to objective reality and immunized against all forms of rational thought. For them, the sky will be falling (i.e. another hurricane, terrorist attack, space shuttle crash, etc.) and it will be the direct result of gays getting married.

In the 1970s and 1980s, those of us who consider ourselves mainstream Christians consciously chose to ignore the rise of the Falwells and the Reeds of this country, thinking that they'd dry up and blow away when exposed to the bright light of reason. They haven't, and I don't believe they will anytime soon. Why? They're essential to the implementation of the Republican Party's "Rile Up The Rubes(tm)" campaign strategy.

I'd rather put my faith in the courts. I hope still can.

Seven Machos said...

"[T]hose pushing for a legal prohibition of gay marriage are blind to objective reality and immunized against all forms of rational thought."

I'm sure you've wondered why the people who tend to vote for Republicans these days find progressives to be smug, arrogant elitists. Clearly, it is the people who oppose gay marriage who are thoughtless, and look upon those who oppose them as a uniform mass of irrational people who can't be reasoned with.

Anyway, once you have defined the Other as irrational and "blind to objective reality," it does make it a lot easier to avoid the democratic process and impose your beliefs. That's what those bigots who oppose gay marriage are trying to do. Oh, wait...

Seven Machos said...

Careful of what, Mary?

Joseph Hovsep said...

Its unfortunate that long threads on this topic always seem to degenerate into "You're nasty. I'm not nasty, you jerk. Nuh-uh. Yah-huh. You're a bigger nastier jerk than me. No, you're the jerkiest nasty jerk of them all." Blacht.

Joseph Hovsep said...

To get a back to the reasoning of the decision itself... The thing that bothers me about the reasoning of the decision is a criticism pointed out by Judge Kaye's dissent and Brian's comments above. The majority offers rational reasons why the state would want to encourage stable relationships among fertile heterosexual couples who might accidentally have kids. No argument there. What the majority fails to do is show why EXCLUDING same sex couples from the same regime is rationally related to that legitimate state interest. As Judge Kaye puts it:

“Correctly framed, the question before us is not whether the marriage statutes properly benefit those they are intended to benefit—any discriminatory classification does that—but whether there exists any legitimate basis for excluding those who are not covered by the law.”

I didn't find anything in the majority's reasoning to support how the exclusion of gay couples from the marriage regimes has any bearing on the stability of heterosexual couples' relationships.

Marghlar said...

I think you are right, Joseph -- they are focusing the rational basis inquiry on the wrong question.

Seven Machos said...

Joseph --

1. Marriage no longer serves as an inducement to the social good sought by the State -- stable and long-term unions of groups of two people composed of one male adult and one female adult -- if it is available to people who aren't groups of two people composed of one male adult and one female adult.

2. If it is better for children to grow up with both a mother and the father, then the State can rationally restrict marriage licenses to people who will a mother and a father.

I'm not in love with the reasoning, either. State supreme court justices aren't judicial giants. (Of course, neither are the real Supremes. Look at the intellectual disaster that is Roe.)

But that doesn't matter. The issue is: could a reasonable person draw a connection between what the law does and the policy goal sought by the law. There is no question that a reasonable person could do it.

What the dissenters here seem to want to say is, "I disagree. Therefore, it's unreasonable."

"Unreasonable" is a huge burden to bear in our legal system. It's a lot like "crazy."

Joseph Hovsep said...

Seven, The majority does not even attempt to show that there is a benefit to kids being raised by opposite sex couples. The majority bases the rationality of the exclusion on "intuition" and dismisses evidence to the contrary because it "does not establish beyond doubt that children fare equally well in same-sex and opposite-sex households." It seems to me that raionality should depend on more than intuition without any real evidence and that where intuition is the basis, the standard for challenging the rationality should be less than providing evidence proving the intuition wrong "beyond doubt."

Brian said...

Good to see you're back Joseph.

I agree with your comments. The court's refusal to spell out the "rational" basis for excluding gay couples is blatantly obvious. My guess is that these judges felt anything they could say wouldn't pass the time honored Straight Face Test. Better to leave it alone than to risk the political and legal firestorm that would result from expressly stating a "rational" basis that sounds irrational on its face.

Mr. Seven,

Don't mean to sound smug and arrogant but I'm more than willing to wear those labels if I have to in the service of a worthwhile cause. If I hear people claim that various forms of disaster are punishments from God for our tolerance of gays and if I believe such comments are irrational, born of ignorance, and, ultimately destructive to both our society and our form of government, should I not say so? Should I find a more polite way to say it? I'm more than willing to take instruction on this point.

I've enjoyed your comments and the entire thread is fascinating. However, one comment that seems to weave its way through this thread causes me more than a little concern. I'm troubled by the notion that our judicial system is inherently "undemocratic" and run by "arrogant elites" determined to thwart the wholesome, commonsense down-to-earth intentions of this nation's Mom-and-Apple-Pie Silent Majority.

I've always believed that the most important function of our judiciary is to protect individuals from the "tyranny" of the majority. I thought the notion that individual human beings matter, and have rights that are not subject to campaign compromises and legislative log-rolling, was an essential and fundamental part of who we are as Americans. Am I wrong?

In any event, I believe that none of us should have to "call our State Senator" in order to insist that our basic legal rights be respected.

Seven Machos said...

I really don't know where this idea that judges protect the minority came from. Judges interpret the law. The law is made by the legislators, and to some extent by the executive branch.

The bottom line is that people ought to be governing themselves. If 70 percent of the people want something, and 30 percent don't, the 70 percent should win, every time. We do have certain untouchable and semi-untouchable categories -- speech, assembly -- and protected classes -- skin color, religion.

Sexuality doesn't fall into those categories.

ben wallace said...

Machos: The Supreme Court engages in statutory interpretation and constitutional interpretation. Constitutional interpretation involves overturning laws, including laws that a majority supports. If your rule is that the majority should win whenever they are in the majority, then there is no need for courts; the only issue would be taking a public opinion poll. I do not think you understand the difference between the rule of law (i.e. constraints on politics) and the rule of politics (majority vote or some other electoral rule).

There is also the issue of your static notion or rights. You proclaim sexuality is not protected. Sexuality would be protected category if the Supreme Court or state constitutional courts rule that sexuality is protected. As Charles Evans Hughes observed, the Constitution is what judges say it is. The only way this changes is when the Court is overriden by amendment (unless the court is interpreting law, where the override is by a majority). Rights are dynamic in a system with judicial review.

Perhaps you should think more seriously about the benefits of a system based on separation of powers.

Marghlar said...

Sorry, Seven, you may want that to be how it works, but that isn't the constitutional design. The Founders, familiar with systems of legislative supremacy (Parliament, state govts, the Articles of Confederacy), were afraid of unchecked legislatures. Thus, they designed a tripartite government where each branch was to check the others. And they enacted numberous limitations on majority action -- protections of speech, religious freedom, legal process and criminal procedural rights, voting rights, and a broadly drafted equal protection clause. Indeed, they also included provisions which seem to delegate to the judiciary to enforce their understandings of natural rights.

There is still a wide field in which the legislature may reign supreme, but there are a lot of carveouts where the judiciary must lend its approval. The Framers didn't trust pure democracy -- they wanted something that was less pure than Athens, with more of Plato's Republic thrown in.

You may not like it, but it does seem to be the case. They wanted the judiciary to enforce the constitution, which necessarily involves interpreting its ambiguous provisions into enforceable doctrines. Because of the breadth of this power, they were given very little "power" in its more traditional sense -- no control of guns or money.

I don't think they should go out of their way to overrule majorities -- and indeed, I think they should act very carefully when carrying out their mandate might undermine their role in the government over the longer term. But it is their job, and sometimes, they have to do it.

ben wallace said...

Marghlar makes good points. The framers also rejected the idea of a constitutional review council in Congress. The executive and legislative branches accepted the reasoning in Marbury (though they hesitated to use it for the first century). Machos' reasoning is more similar to Carl Schmitt than to the reasoning used by the framers (recall Schmitt believed in the unification of political and legal determination of law as a justification for centralization of authority under Nazi rule). Obviously Machos is not a fascist who supports arbitrary rule, but the argument about politics and law in that post are troubling in that they reject most of the logic of separation of powers.

Marghlar said...

I think that was Godwin's law right there.

I mean, I agree that Seven underplays the importance of judicial review, but the nazi reference was just gratuitous.

ben wallace said...

For me, Schmitt came up for the first time in a law couse at UW. Schmitt's approach is relevant whenever someone rejects the core notion of sepration of powers. Schmitt believed that the most stable form of law arises when law and politics are unified. Schmitt is an important legal theorists; I only made the Nazi reference to note that I was limiting the analogy to jurisprudential theory.

I don't know godwin's law but I agree that the comment seemed gratuitous.

DR said...

Perhaps Ann or one of the other constitutional experts here can answer a question I've always had.

When the US 19th Amendment was ratified giving women the right to vote, why was it necessary to amend the consitution in this way? Could not a plain reading of the Constitution's rights to equal protection be sufficient to extend the vote to female adults as well as male?

Or was it the simple custom of the day that courts did not intrude in such matters and left them to legislatures even if the change process took decades to complete?

On a different note, I'm also puzzled about the Prohibition amendment? Why was such a mundane topic deemed worthy of amendment status?

Joseph Hovsep said...

Godwin's Law:

As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one.

Ann Althouse said...

DR: The answer to both questions has to do with the fact that the Constitution was interpreted differently in that era. The Equal Protection Clause didn't prevent all sorts of discrimination against women. The development of the law in that area didn't happen until the 1970s. With respect to Prohibition, the problem was that congressional power was not seen as broad anywhere nearly as broad as it was later interpreted to be. The idea that states had reserved powers was much stronger before 1937.

ben wallace said...

Thanks Joseph, for the definition and link. But godwin's law does not have a unique solution. If comments on a blog are randomly distributed, then probability of a reference to all individuals who are know to have ever existed on the planet Earth approaches 1 as the number of comments becomes large enough. For example, the probability Althouse is mentioned on any blog discussion is 1 under the assumptions as N converges to infinity!

Seven Machos said...
This comment has been removed by a blog administrator.
Seven Machos said...

Edited for punctuation...

I am honored to be compared to a Nazi, in the sense that people who reach for Nazi comparisons are usually completely out of thought and ideas. That's certainly the case here, as nothing I have said is in any way nationalist, socialist, or facist.

As for ben wallace's interesting theory, let us restate it. "Sexuality would be a protected category if the Supreme Court or state constitutional courts rule that sexuality is protected...[T]he Constitution is what judges say it is."

Now let us try out some variations.

1. "[A traffic violation] would be a protected category if the Supreme Court or state constitutional courts rule that [a traffic violation] is protected...[T]he Constitution is what judges say it is."

2. "[Jim Crow laws] would be a protected category if the Supreme Court or state constitutional courts rule that [Jim Crow laws are] protected...[T]he Constitution is what judges say it is."

3. (And just for you, ben, since you did invoke Godwin's Law), "[A Nazi concentration camp] would be a protected category if the Supreme Court or state constitutional courts rule that [a Nazi concentration camp] is protected...[T]he Constitution is what judges say it is."

Do any of those work? I don't think so. You could argue that courts somehow were the ones who brought down Jim Crow, but history is far more complex. Courts didn't bring down Nazi Germany. Judges would be thrown out next Tuesday if they held that breaking traffic laws is protected under the Constitution. Either you know there is more to lawmaking, or you are the true facist here, because you think elite members of government can proclaim whatever laws they want without consulting the actual populace or popular (or traditional) morality or the majority's theory of the good.

I think you lose here pretty overwhelmingly, Ben Wallace. I do love your hair, though, and I hope you are happy as a Bull.

Chairm said...

well-crafted legislative proposal succeeding right now. And that is what we need -- some examples of states doing this democratically, and people realizing that the sky does not fall just because some gay people get hitched.

Hawaii legislated Reciprocal Beneficiaries a decade ago. There are examples that provide state recogniton of the one-sex nonmarital alternative arrangement. It need not be something attached to the hip of state recognition of the social institution of marriage which serves two essential societal interests in the combination of sex integration with responsible procreation.

The sky hasn't fallen over Hawaii.

Chairm said...

Being in favor of same sex households and against same sex marriage is just sloppy, sloppy thinking.

Tolerance does not dictate that the state replace its recognition of marriage with recognition of a nonmarital alternative.

There is no ban on the one-sex arrangement. The one-sex twosomes of New York are free to live and let live. It is not like the outright prohibitions on polygamous and incestuous arrangements. No ban. And, in NY, there is lawful recognition of nonmarital alternatives such as same-sex households.

Absolutism can be tidy, in concept, but is usually very untidy in its implementation.

Chairm said...

Here's a better argument, by way of a question: what did more for equal rights for African-Americans in this country?

You mentioned Brown as an example of the judicial branch's contribution.

That decision was poorly reasoned even if people today would embrace its moral axioms.

The decision has made a better contribution via those axioms than via its actual legal reasoning and its legal effect.

The judicial branch inserted itself as the admninistrator of school bussing, and has continued making that contribution even though it is poorly equipped to do so; it is also an area of governance in which the judicial branch is uniquely incompetent.

So, lousy legal reasoning and lousy governance, but good points for declaring a moral stance on a divisive issue.

Meanwhile, students self-segregate on high school and college campuses to an extent that could hardly have been predicted by those who applauded (and do applaude) the moral axioms asserted by the Court.

This ought to shed some light on why loads of people on either side of the marriage issue simply reject court imposition of "gay marriage".

But there is the additional problem that whatever oral axiom on sexual identity that some would hope for would contradict the basis for striking down racial segregation.

There is one human race. The racist filter is not based on objective truth. Humankind, and human procreation, are both based on objective classification by sex. "Gay marriage" would have society re-embrace the selective segregation of the sexes based on an identity filter -- in the past it was the racist filter and in the present "gay marriage" push it is a sexual identity filter. That filter is not sexual orientation, but identity, as per, for a prominent example, Goodridge.

Pressing racism into the legal institution of marriage is to introduce something that is extrinsic to what the legal institution recognizes -- the social institution of marriage. Pressing sexual identity into it re-introduces segregation where integration is a unique feature of marriage.

Chairm said...

The 2000 census showed that gays and lesbians have children in almost the same percentage as straight folks (lesbians were very close, and gays were a little less, but not substantially so). Most people have no clue about that.

Actually, about 97% of the homosexual adult population does not reside in same-sex households with children at home.

And of those children, the vast majority (upwards of 90%) migrated from the previously procreative relationships of their parents -- these children have both moms and dads, but one or the other is nonresident after the relationship broke-up. They have the protections that society affords children of divorce or parental estrangement.

The "gay marriage" advocates ought to make their case without exagerating the available evidence.

The participation rate in "gay marriage" in its various forms -- SSM, Civil Union, Registered Partnerships, or even the more inclusive "same-sex household" -- is very low. This form of gay domesticity remains on the margins of the homosexual population and has little claim to being mainstream even in locales with disproportionately greater share of homosexual individuals living in highly tolerant scenarios.

In any case, the point about children should be the establishment of the child-parent legal relationship. Adoption, and second-parent adoption in particular, is the direct route to the issues raised about the presence of children in the homes of a tiny segment of a tiny minority within the adult homosexual population in this country.

An even tiny segment if one takes into account that second parent adoption requires the child's nonresident father or mother to relinquish parental status.

Besides, there is a legitimate matter of proportionality here. Change what all of society recognizes, through the state, as meriting a preferential status at law -- for the sake of very small portion of children who would not gain the direct legal benefits from SSM that would be available through adoption.

Chairm said...

Sorry, for the typo above. My second-to-last paragraph ought to read:

"An even tinier segment if one takes into account that second parent adoption requires the child's nonresident father or mother to relinquish parental status."

Seven Machos said...

chairm -- Finally, someone in the 70 percent. Thank goodness.

Brian -- When you hear people claim that disasters are punishments from God for our tolerance of gays:

1. Laugh at them.

2. Remember that they are dumbasses.

3. Walk away. Do your own thing and wail with it.

They are not serious people and they have no political power. If they get any, we shall reassess, you and me, together, on the same side. But that day won't come. See #2.

As an aside, I question whether you actually have seen these people, live and in person, without going out of your way to do so. And if you haven't, and you've just heard about it, then you are really wasting precious time on earth.

Chairm said...

no one is arguing that promoting intact marriages between mothers and fathers isn't a compelling state interest here. The question is one of tailoring, and whether the exclusion of gay couples from the marriage right is narrowly tailored to further that goal. I submit that it is not.

That's circular -- individuals are not excluded from the man-woman criterion by virtue of their self-identified sexual identity.

There is no fundamental right for an individual to be recognized as the marital partner of someone of the same sex. No "gay" individual is excluded from being recognized as married.

A lone person does not marry him- or herself.

A twosome qualifies for marital status. The nature of that twosome is what matters in terms of the societal, or state, interest. This is why the man-woman combination does not get carte blanche.

A combination that is too much the same -- as in too-closely related -- is barred, just as a combination that is too much different -- as in the marriage of an adult to an underaged person. Also, one-married partner at-a-time, excludes millions of married individuals from combining with persons of the other sex.

The "narrow tailoring" argument is really just a criticism of how the lines are drawn within the pool of man-woman combinations. So, how would you imagine the state to draw those lines better so as to include one-sex-short combinations that are outside of the pool altogether?

The NY Court rightly found that a more narrow tailoring would be highly intrusive and a very bad idea. Would you submit otherwise?

Chairm said...

Grutter v. Bollinger. ruled that diversity is a compelling state interest. Under that standard the programs must be narrowly tailored.

That's right.

Sex integration, combined with responsible procreation, fits that finding. (Though, that court decision is a little wonky.) Lack of diversity, through selective sex-segregation based on the filter of sexual identity, contradicts diversity. That filter is not about immutability, by the way, it is about identity, self-chosen. The race analogy falls apart when you realize that racism is the problem -- enacting racial superiority. The problem is NOT that something immutable, like physical features, are based on self-referenced identity. These are inheritable features and are held as subjective, and irrelevant, criteria upon which to sort men and women into subspecies of humankind.

Self-identification as a superior race, and extrinsic identification of an inferior "other" race, amount to denial of both diversity and unity of humankind. Redressing the wrongs of an entranched racist filter would require, to some extent, recognition of that filter; but that does not imply the filter, with its racist criteria, is objectively truthful.

As I said earlier, there is one human race. It is self-evident that humankind is comprised of two sexes and that this is relevant to human regeneration. There is a compelling interst in recognizing that responsible procreation is 1) two-sexed and 2) best followed-up with sex integration in the family home. This is the foundation of a just society.

Recognition, and tolerance, of nonmarital alternatives, at law, manifests as a liberty exercised rather than a right denied.

Kev said...

I'm late to the party here, and I'm confused: Has Mary gone back and deleted all her comments? It certainly makes other parts of the thread make much less sense when that happens. While it appears that quxxo has been getting the Control-Althouse-Delete treatment lately, am I right in assuming that Mary's deletions are self-imposed? Doesn't make sense to me..

Seven Machos said...

I don't know. Mary did become a little silly -- I think she may have lost her cool just a bit -- but certainly nowhere near quxxo stalker-status. My guess is a self-delete.

Ann Althouse said...

I did not delete Mary's comments.

I am not deleting all of X's comments, however, no matter how innocuous (because he has a cycle of being decent and then getting bad again). So please don't bother responding to X.

I'm sorry your contributions here have been rendered contextless. This shows another way for a commenter to express hostility: by causing you, retroactively, to have wasted your time.

Ann Althouse said...

That is, I am deleting all of X's comments...

Sorry for the "not" in the second paragraph...

Lawyapalooza said...

Where on earth do you get your statistics regarding 97% of gay people not living with children? Mine are from the US Census, backed by numerous additional studies. Look it up.

While some GLBT families are formed when a bio parent comes out of the closet, in my experience the vast majority are created through artificial insemination, surrogacy or adoption. IN any case, the method of having children is irrelevant. The fact is that there are millions of children in GLBT households who do not have the same government protection as children in heterosexual households. I can see no rational basis to discriminate against these children (or their parents).

Lawyapalooza said...

"The "narrow tailoring" argument is really just a criticism of how the lines are drawn within the pool of man-woman combinations. So, how would you imagine the state to draw those lines better so as to include one-sex-short combinations that are outside of the pool altogether?"


How about two consenting adults not related by blood at he first cousin level or closer. In other words, maintain the restrictions currently in place for age and genetic make-up, lose the man-woman requirement. Why is that so terrifying? I have never heard anyone make an argument as to why heterosexual marriage is threatened by gay marriage. And don't start with the, "That's not what this is about." Every piece of legislation against equal civil rights includes a statement about "the protection of marriage." By keeping people from being married. Brilliant.

Chairm said...

Mine are from the US Census, backed by numerous additional studies.

The HRC analysis of the Census was based on 5% of the general adult population being openly homosexual. Not an uncommon estimate.

Compare that with the number of same-sex households. Look up the child population attributed to those households. About 11% of the adult homosexual population resides in same-sex households; 3% of the population resides in such households with children.

The Census also reported that the relatively few pool of same-sex households include resident children at a significantly lower rate than married -- or cohabitating -- man-woman couples.

in my experience the vast majority are created through artificial insemination, surrogacy or adoption.

Your subjective experience contradicts the available evidence.

Gary Gates, for example, acknowledged that only about 4% of children in same-sex households were adopted. And that would include the unavoidable padding of that statistic due to second-parent adoption.

Also, less than 1% of all children in the general child population were conceived and born with novel methods such as ARTs/IVF. (Less than 10% of the women who used these procedures had used "donor" material.) Even if you doubled the rate of IVF use, for example, for same-sex households, or tripled it, these newly available methods would not account for the vast majority of children in those households.

Adoption and IVF practices do not dictate the state's recognition of marriage.

In fact, it ought to be the other way around, with the social institution of marriage shaping adoption and ARTs/IVF practices. Marital status is not bestowed on someone due to use of these methods; but marital status is relevant to access to these methods.

Chairm said...

The fact is that there are millions of children in GLBT households who do not have the same government protection as children in heterosexual households.

Not millions in same-sex households. And since SSM would not bestow the direct child-parent relationship that comes with second-parent adoption, SSM is not what would solve the problem that you think needs solving.

Chairm said...

The question about "terrifying" is irrelevant.

The man-woman criterion is central to the social institution of marriage. The legal institution is merely a shadow of that which society, through the state, accords a preferental status (i.e. marital status).

If you want to establish a preferential status on the basis you just described, why draw the line at too-closely related combinations?

More fundamentally, why should the state provide a preferential status at all? Please, don't piggyback on esteemed conjugal relaitonship of husband AND wife. State the independant claim for the relationship you just described with your criteria.

Afterall, if there was no marital status, you would not make an equality claim. So assuming the slate is blank and society would establish a preferental status of some sort, what would be the basis?

Chairm said...

Typo correctin: "this relatively small pool of same-sex households"

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