May 20, 2008

Obama's statement was "a gracious response from a man the court had just branded as the legal equivalent of a segregationist."

Benjamin Wittes wonders if the Obama campaign read the decision it said this about:
"Barack Obama has always believed that same-sex couples should enjoy equal rights under the law, and he will continue to fight for civil unions as president," the Obama campaign stated oh-so-carefully in response to this week's California Supreme Court decision striking down the state's ban on gay marriage. "He respects the decision of the California Supreme Court, and continues to believe that states should make their own decisions when it comes to the issue of marriage."
The state court likened the policy Obama promotes to "separate but equal" racial segregation:
"[Affording] access to [marriage] exclusively to opposite-sex couples, while providing same-sex couples access to only a novel alternative designation [domestic partnership], realistically must be viewed as constituting significantly unequal treatment to same-sex couples," the court wrote. Those challenging the law "persuasively invoke by analogy the decisions of the United States Supreme Court finding inadequate a state's creation of a separate law school for Black students rather than granting such students access to the University of Texas Law School."
Wittes, who supports gay marriage, criticizes the court for accepting the analogy offered by the litigants:
Somehow, we've confused progress on marriage equality with some of the most opprobrious episodes of our legal, cultural, and moral history. For having the guts to move forward while other states were passing nasty constitutional amendments depriving gays of any marital benefits, Californians stand condemned in their own courts for discrimination and in their own newspapers for bigotry.

Few people, of course, really believe this. When we listen to Obama touting civil unions, we hear the progress that he urges, not some appeal to segregation. But it can't be progress when Obama suggests civil unions, and also progress when a court strikes them down as unconstitutionally discriminatory.
It's very common to say that judges are "confused," but I don't see the confusion. The California Court continued (PDF) in the paragraph Wittes quotes:
As plaintiffs maintain, [the Texas Law School case demonstrates] that even when the state grants ostensibly equal benefits to a previously excluded class through the creation of a new institution, the intangible symbolic differences that remain often are constitutionally significant.
Obviously, the court knows that the state was trying to move toward equality here, and I don't hear it insulting the politicians who want to move only incrementally. It is saying that there is constitutional significance to the symbolism of creating a separate institution. It seems to me that the court was reasoning in a principled, doctrinal fashion and not leavening its decisionmaking with sensitivity toward political realities.

89 comments:

Hoosier Daddy said...

He respects the decision of the California Supreme Court, and continues to believe that states should make their own decisions when it comes to the issue of marriage."

Out of curiosity, I'm wondering if Obama thinks states should make their own decisions with respect to abortion?

For the record, I'm agnostic on abortion. I think its wrong but honestly, it affects me not so I simply don't care either way. I'm just wondering to what extent Obama thinks states can make decisions for their citizens?

The Drill SGT said...

So part of the argument in favor of Gay Marriage is that because the State created a comparable but different status it was Constitutionally discriminating.

Does it follow, that if the Legislature had done nothing, then there would not be an issue?

Is this a concrete example of that "slippery slope"?

What is the basis now for precluding anyone from marrying anybody? e.g. multiple wives, or siblings? Is there a compelling State justification for denying these people their rights as well?

rhhardin said...

If they'd call it the symbolism court, people would understand legal reasoning better.

As it is, there are all sorts of hard feelings it brings up, most of them wondering how to get rid of these judges.

Palladian said...

"What is the basis now for precluding anyone from marrying anybody? e.g. multiple wives, or siblings? Is there a compelling State justification for denying these people their rights as well?"

No, which is why the State should get out of the marriage market completely. There is no other rational solution to this problem. The State should not be in the business of sanctioning what is essentially a religious and/or romantic institution.

paul a'barge said...

it can't be progress when Obama suggests civil unions, and also progress when a court strikes them down as unconstitutionally discriminatory

It can't be progress unless I get everything I want. Wahhhhh! Wahhhh! Oh, I'm such a big ass cry baby!! Gimme what I want or I'm going to be all not accepting.

Dude, take a breath and look up the word progress in the dictionary. It implies motion over time in incremental movements that direct toward an ultimate goal.

Does this mutt even begin to use the English language? Where to they make these nimrods?

Andrew said...

Please. States have always had--and will always have--a critical interest in getting men and women together and keeping them together. Supporting those relationships is discrimination in the same sense that providing benefits to army recruits is discrimination-- it's merited. That the California State Attorneys didn't make the arguments that won in New York just show the collaboration of the progressive 'elites' in this case.

And yes, compromising with this group is about as effective as compromising with Hizbullah or any other ideologically-based group.

Disgusting.

former law student said...

I wonder if the legalization of gayrriage (male bonding?) will have an effect on the 31 states that prohibit or restrict cousins' marrying. They should just open the door and allow any two or more people who show up together at city hall get married.

chickenlittle said...

We have "marriage" and "gay marriage"-two designations for two different entities.

What's so wrong about separate but equal?

We still have "Mens" and "Ladies" restrooms and nobody seems put out by that these days.

William said...

The American public is moving to a greater tolerance of homosexuality. Most people of good will are willing to grant gays civil union status and to refrain from passing judgement on tastes they do not share. There are many Indian restaurants in NY, and their patrons deserve the same service and respect as people with normal gustatory inclinations. At the present time though marriage is a bridge too far. The gay activists wish to conflate this with the civil rights struggle. OK, but I think the closest equivalent is not segregated drinking fountains but forced busing. In one case all but the most retrograde elements of society agreed that it was an abomination; in the other case all but the most liberal elements thought it was an imposition. People reach consensus based on all sorts of variables: court decisions, blog postings, Richard Simmons videos, Jay Leno jokes. There is as yet no consensus on this issue. Perhaps it will go the way of the segregated drinking fountain, or perhaps it will go the way of the E R A that feminists assured us was the sine qua non of a free society. However it goes, I think it would be better that the public and not the courts decide the issue.

Palladian said...

"States have always had--and will always have--a critical interest in getting men and women together and keeping them together. "

The State should have no interest in engineering society. I do not want the State to be running around "getting men and women together", as if it's some malignant match-maker with its own military. That is not a legitimate role for government. And given the current number of out-of-wedlock births and a consistently rising rate of divorce, the State seems to be doing a very bad job of it. Which should be no surprise to anyone who has ever watched the State try to engineer other aspects of society.

"And yes, compromising with this group is about as effective as compromising with Hizbullah or any other ideologically-based group.

Disgusting."

Are you comparing gay rights groups, however misguided you think them to be, with a terrorist organization?

Talk about disgusting.

Hoosier Daddy said...

No, which is why the State should get out of the marriage market completely.

There is a can of worms to be opened. So if the State is out of the marriage picture, who enforces the property settlements when it doesn't work out? Back in the 'olden days' the Church did but the Church simply doesn't swing that big of a stick with folks anymore. If Bob and Frank decided to get married, what happens when Frank meets Raphael then dumps Bob and takes the house, the car, the checkbook and rare clumbers? As it stands now, the State decides that. Absent the State you might see duels settling the matter.

The State is in the marriage business because the Church, whether Catholic or Protestant, don't have the controlling authority to decide those matters.

Andrew said...

The State should have no interest in engineering society.

Wow, that's an impressive statement. How many historic functions of State can fit under that catch-all? I guess you want to get rid of all anti-discrimination laws, too?

As far as your second question, I am comparing the effectiveness of negotiating with ideologues. Can you give me an example of where negotiating with one of the groups I cited led to a lasting compromise? Feel free to substitute 'Leonid Breshnev' for Hizbullah if it makes you feel better.

Mortimer Brezny said...

Eh. The argument that this case is like Brown doesn't hold water, because it is premised on the notion that courts properly operate as counter-majoritarian arbiters of social change.

There are two problems with this premise:

1. Brown was not counter-majoritarian. According to Gallup, at the time it came down, 55% of the American public agreed with it.

2. There is no contemporaneous public polling on Plessy v. Ferguson. But Justice Harlan expressly dissented in Plessy on republican grounds, suggesting he thought the majority was acting in a counter-majoritarian fashion:

"Slavery, as an institution tolerated by law would, it is true, have disappeared from our country, but there would remain a power in the States, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom to regulate civil rights, common to all citizens, upon the basis of race, and to place in a condition of legal inferiority a large body of American citizens now constituting a part of the political community called the People of the United States, for whom and by whom, through representatives, our government is administered. Such a system is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by Congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding."

So, assuming the California Supreme Court in the Marriage Cases was counter-majoritarian, like Plessy and unlike Brown, why does that justify it?

Mortimer Brezny said...

Also, the jump up to strict scrutiny is wholly unwarranted.

Mortimer Brezny said...
This comment has been removed by the author.
Mortimer Brezny said...

Working link here.

Tim said...

most of us gays are really happy about this but there is by no sense a consensus as to whether this was the best step. Believe or not many gays do not believe in gay marriage for one reason or another and base their arguments on the dissenting position of the judges or on the dating/mating habits of wayward gays.
Many like me believe true gay marriage is the only way that gays can be brought in out of the cold that modern society has created for them. By creating an expected healthy monogamous pattern of development for gays to take regardless of whether they are accepted by their families or not I believe many of our unhealthy habits will be a thing of the past or at worst a small fringe of a fringe.
here was our throw down
http://malcontent.biz/blog/?p=1527#comment-23468

Tim said...

oh yeah and no one was that impressed by what Obama said. Now Arnold on the other hand is now beloved!

Trevor Jackson said...

William said, "There are many Indian restaurants in NY, and their patrons deserve the same service and respect as people with normal gustatory inclinations."

Whaddaya got against Indian food? Is my love for chicken tikka masala abnormal?

mandrewa said...

The whole business seems pretty intolerant to me. Why in the world
shouldn't men and women who wish to have a formal relationship be
permitted to have a legal status distinct from two men who wish to have
a formal relationship? Or for that matter two women?

Is making this distinction actually unjust?

This whole argument has been laced with deception all along. The
proponents of "gay marriage" have argued as if the subject were the
illegality of gay relationships. In much of the world that's
a real issue but it hasn't been in the United States for many
years.

Therefore the basic argument from one side, and as the media has
mostly presented it, has always been a lie.

The real issue is, one, whether we deny men and women who marry a distinct
word to describe their status. And, two, whether we disallow the state
from legally distinguishing between the two kinds of relationships.

At bottom there is something kind of hateful about the whole pro "gay
marriage" argument. The reality is confused by the deceptive language,
but underneath there's an anti-straight subtext.

Dust Bunny Queen said...

The State should not be in the business of sanctioning what is essentially a religious and/or romantic institution.

While I agree with this proposition, the problem is that we have the "State" and "Feds" meddling in our contracts of marriage in the form of tax differentials for married vs single, tax credits for reproducing,inheritiance laws, child custody, child support payments, divorce,alimoney, credit reporting etc etc etc. Until we get the government out of these things, how can we get them out of our marriage business. (Also how can we get them out our other lifestyle choices such as CFLs, trans fat, transportation decisions and social engineering our children?)

Palladian said...

"Until we get the government out of these things..."

That's the next step.

Mortimer Brezny said...

The reality is confused by the deceptive language,
but underneath there's an anti-straight subtext.


It's also racist, given how these activists distort the civil rights precedent and make the slaveholder's arguments to reach their conclusion.

Hoosier Daddy said...

Until we get the government out of these things, how can we get them out of our marriage business. (Also how can we get them out our other lifestyle choices such as CFLs, trans fat, transportation decisions and social engineering our children?)

Well again, why anyone cares whether or not two individuals of the same sex get married is beyond me. I take a lot more umbrage with government interference with the latter topics than I do with a legal marriage contract. Cause again, absent the religious aspects, marriage is in essence a contract between two people. Once that contract is breached or both parties no longer want to stay together there has to be come legal recourse otherwise you're simply looking at chaos.

William said...

Trevor Jackson inquired: "Is my love for chicken masala abnormal?". Sadly yes. Chicken marsala is the thin edge of the wedge--the gay equivalent of a Peneleope Cruz-Scarlet Johannsen kiss. There are other items on the menu of which decent people,not even Mexicans, do not speak.

George said...

Ah, another issue for Sen. Obama to spend much time explaining in that lawyerly way of his...

Dust Bunny Queen said...

I take a lot more umbrage with government interference with the latter topics than I do with a legal marriage contract. Cause again, absent the religious aspects, marriage is in essence a contract between two people. Once that contract is breached or both parties no longer want to stay together there has to be come legal recourse otherwise you're simply looking at chaos.

Me too!! But what we are creating with a State by State version of marriage laws colliding head on with Federal laws and regulations is sheer chaos. I could care less if two people of the same gender want to get married. I do care that our laws are in chaos and especially dealing on a professional level with those laws (being registered in many other States besides my own) it is a major headache.

If we are going to make changes let's not do it piecemeal.

Ian said...

Andrew, wouldn't those groups you're so against include the ideological-based Democratic and Republican parties, or perhaps the Catholic Church, or any other religous, political, or like-minded club. Seems like the gays are much closer to the Flat Taxers, or the Pro-life crowd than to Hezbollah. Until they invade Lebanon, I'm not sure you're comparison is very accurate.

"ideology" - the body of doctrine, myth, belief, etc., that guides an individual, social movement, institution, class, or large group.

You're exactly right about Army benefits being like marraige benefits though. If you're gay, you can't get either.

There is a compelling State interest in marraige, as it is one of the fundamental institutions in society. Given that, no one has ever explained why gays should be excluded. I'm not buying the religous argument, because of the seperation of church and state. No one has a problem when two atheists marry. I would think the State would need a compelling interest to not allow gays to marry, and I've never heard one.

Phoenix_Blogger said...

I believe the issue comes down to commitment and in a sense what same sex couples are seeking is recognition of their own commitment to each other in society not only for the emotional reasons, but for the financial ones:health insurance and taxes for starters. I know of one gay couple with twin children who can't get Federal health insurance for their children because the Federal government doesn't offer any benefits for same sex couples. In AZ, the federal employee cannot adopt either, as the mother is her spouse and alive and well. You cannot adopt your spouses children unless you are married. So the result of this situation is the couple pays more taxes then I do and is faced with large medical bills monthly with their children on welfare, despite the federal employee making pretty good money. She is very frustrated to say the least and considering leaving her federal job of many years and moving somewhere that will allow her tax dollars to better benefit her children. Bottomline: We can preach about the value of marriage as a union between a man and a women all we want, but our preaching is impacting real families and their children everyday just trying to make ends meet. I am against judicial activism, but we need some real solutions that will help families like my friend who are really hurting daily.

James said...

Andrew said:

"States have always had--and will always have--a critical interest in getting men and women together and keeping them together. Supporting those relationships is discrimination in the same sense that providing benefits to army recruits is discrimination-- it's merited. That the California State Attorneys didn't make the arguments that won in New York just show the collaboration of the progressive 'elites' in this case."

I believe you made this same argument last time she wrote about this, and it hasn't gotten any better. But I'll take the bait once again, first by saying ditto to what Palladian and Ian said.

The government does indeed have a compelling interest in giving benefits to soldiers. First, so they can continue to recruit more, and second to reward them for their service to the country. "Discriminatory" acts are the only way to accomplish this, because it certainly wouldn't be any sort of reward if everyone in the country got money from the GI bill.

On the other hand, how exactly does the government banning gay marriage encourage men and women to get together and stay together? You must have a really weak opinion of the bonds in straight marriages if you think allowing gay people to join in would suddenly destroy all these straight relationships.

In your argument, the means have absolutely no relationship to the ends. Men and women will continue to get together, with some of them staying together and some not. Allowing gays to marry is not going to change this at all.

The Drill SGT said...

We still have "Mens" and "Ladies" restrooms and nobody seems put out by that these days

You must not have been on a college campus lately. There is a whole movement for unisex multi-stall restrooms and the ability of people of either gender to use any facility based on how they feel about their inner gender feelings and outward gender behavior at any given time. So don't send your 10 y/o daughter to the restroom alone on a college campus she wil likely share the facility with a trans-gender activist of one type or another.

chickenlittle said...

Phoenix- where is the father or sperm donor in this case?

chickenlittle said...

Drill sgt: You're right, I haven't been on a college campus dorm in many years.

It sounds like a clear case of the tyranny of the minority.

kat said...

Mandrewa: "Anti-straight subtext"?! You sound threatened; please let me assuage your fears. I am a married lesbian (in Canada). And I am not "anti-straight", and neither are any of the gay individuals I know. So far as I can tell from my own experiences, the majority of the gay community agrees that two people of any gender who are in love and want to commit to the responsibilities of marriage should have the right to do so by law. As Claire Hoffman wrote in the WaPo a few days ago (May 16): "If marriage is something the government is granting, then all tax-paying citizens of all orientations should have the right by law to receive it." It's not any more complicated than that.

As I've said earlier, gay marriage was enabled by Canada's federal gov't nearly three years ago, and the country survives.

(Andrew responded to that statement with a comment about the country's dropping fertility rates, but:

1) I fail to see a causal connection between gay marriage and fertility rates. Obviously straight couples can keep on making babies in a country that enables gay marriage.

2) Checking CIA World stats, we find that Canada's fertility rate has been consistent since 2003 -- i.e., prior to the institution of gay marriage -- and, moreover, Canada's rates are roughly consistent with those of most industrialized countries, not just the ones that have "legalized" gay marriage.

3) Canada's total population continues to grow.)

wjohnsonw said...

Can't any adult gay man marry any non-related woman (who wants him) he wants to in America?

If yes, then isn't gay marriage a special right?

former law student said...

no one has ever explained why gays should be excluded.

Gays always could get married and in fact many did so. Three gay people I know were married and reproduced in the regular way.

Marriage is simply a union of members of the opposite sex. They don't have to love each other. They don't even have to be attracted to each other. They could have met for the first time on the day of the wedding. This has been society's understanding of marriage for the first five thousand years of human history.

Now gay people want to register their same-sex relationships under the rubric of marriage. Fine, but same sex marriages are not marriages as we have historically understood them, any more than my mother could have been my father.

XWL said...

Has anyone examined the status of California marriages outside the borders of California?

Most states don't recognize gay marriage, many don't even recognize civil unions, yet given that this decision was largely predicated on 'equal protection' issues, can other states continue to discrimate as to which CA marriage licenses they're willing to recognize?

I think many states will begin not recognizing all CA based marriage licenses. States aren't required to recognize each others licenses, but they are required to treat all licensees equally, so either they have to recognize all CA marriages, or none.

I'm betting many states will begin to no longer recognize marriages formed in the Golden State, period.

(and I still think state and federal governments should get out of the marriage business all together)

Palladian said...

"Fine, but same sex marriages are not marriages as we have historically understood them, any more than my mother could have been my father."

"Marriage", that hoary old historical institution is obviously not the same as reproduction and sexual determination. Biological realities and social customs are not equivalent.

It's amazing how thoroughly wrong you are about everything upon which you write.

"Can't any adult gay man marry any non-related woman (who wants him) he wants to in America?

If yes, then isn't gay marriage a special right?"

Marriage is not a right. It's an antiquated contractual arrangement and sometimes a religious sacrament. Your example is one of many that could be offered to illustrate how utterly ridiculous it is that government involves itself in romantic and religious issues. Get government out of the marriage market altogether, all inconsistencies resolved.

Andrew said...

OK, Ian, fair question. Except that the answers have been in front of you. Can anyone prove Canada is dying because of Same Sex Marriage? Of course not, because Canada was dying before it. What's going on--- and this has been explained repeatedly --- is that the less you promote men and women staying together and raising families, the less you get men and women staying together and raising families. To promote means to favor over other entities. In other words, to discriminate.
Now look at two examples: An infertile couple (perhaps by choice) marries and a gay couple marries. In some sense, yeah, both aren't compelling State interests. I'd say that the infertile couple at least models the relationship that the State needs a lot of, and that helps it far more than the gay couple. But I can see where people might disagree.

The larger issue is the State's right to consider and make these distinctions as it sees fit. That's where the court leaped over its bounds.

Now, the question: Can marriage survive with gay marriage? Theoretically, yeah, sure. But the fact is, every single society which has instituted it is in a demographic free fall. This is true at the country level--Canada, Netherlands-- at the city level-- San Francisco is a known childless city-- at the community level -- Reform Judaism. Of course correlation isn't causation. But sometimes it is. And there's an awful lot of correlation going on.
And in the other direction, man-women relationships have been the defining relationship for marriage throughout history. Were the Ancient Greeks homophobes? Romans? Huns? Yet *all* of them arrived at the same point. That's also an awful lot of correlation. We're supposed to ignore that? That's like taking the side of the tobacco lobbyists in the 1960's arguing against linking tobacco to lung cancer.

paul a'barge said...

Palladin: "Until we get the government out of these things..."

That's the next step.


Ah yes. And then we can all rut around in the mud in the ditches like dogs and pigs.

That'll be progress.

Not.

Andrew said...

Oh, and that Canada's population continues to grow is a function of massive immigration and people living longer. Both of those things can't go on forever and just hide the visibility of the problem for a decade or so.

Sweating Through fog said...

Kat,

"So far as I can tell from my own experiences, the majority of the gay community agrees that two people of any gender who are in love and want to commit to the responsibilities of marriage should have the right to do so by law."

This sounds highly discriminatory against asexuals and people suffering from social phobias. What business is it of the state's to set a standard that people must be "in love", or to "commit to the responsibilities of marriage." The only really fair and equitable marriage laws would be ones where any two people can get married, and accrue the attending benefits, regardless of the nature of their relationship.

vbspurs said...

You know, maybe all threads are like this in some way, but it seems whenever gay marriage is discussed, it's the same same same arguments from everyone all the time.

Someone will mention what's to stop a guy from marrying a pony then? Someone else replies you're an intolerant bigot. Then someone hops on the gravy train of intellect and cites the civil rights movement.

This is probably why the topic of gay marriage doesn't engage me.

It's ironically like sour milk. Either you like it, but if you don't, as long as you don't drink it, you can ignore it.

Cheers,
Victoria

Palladian said...

"You know, maybe all threads are like this in some way, but it seems whenever gay marriage is discussed, it's the same same same arguments from everyone all the time."

Yes, I make the same one all the time, because it's correct.

Oh, and Paul (and the dozens of others who have made the same mistake): my nickname's not "Palladin" or "Paladin" (playing too much World Of Warcraft are we?). It's Palladian, as in Palladianism. Get it right!

kat said...

sweating through fog:

Of course you are right; thanks for the point. I was responding to another poster's ridiculous remark about gays promoting an "anti-straight subtext". Reminds me of the "homosexual agenda" rhetoric of the 1980s and 1990s!

Andrew:

Thanks for the comments. I think that some opponents of gay marriage would say that A (gay marriage) and B (declining fertility rates) are both symptoms of C, a secular society that allows/encourages/etc. birth control.

I will speak from personal experience: Only after getting married did my partner and I feel safe enough to start a family. Previously, doing so felt too risky, given that one of our parental rights would have been ambiguous and/or nonexistent and/or dependent on an expensive third-party adoption process. Obviously this is our personal response and one not shared by many couples. But in our specific case, the Canadian government’s decision re: gay marriage encouraged us to seek out a sperm donor -- and thus, in effect, to bolster the country's fertility rate. Now there’s a causal connection!

OK, back to work. Ciao.

buster said...

Palladian:"The State should have no interest in engineering society. I do not want the State to be running around 'getting men and women together', as if it's some malignant match-maker with its own military. That is not a legitimate role for government."If the State has no interest in regulating marriage, it can't legitimately prohibit polygamy or incest. It doesn't help to say that the State should regulate civil unions and leave marriage to religions. The question then becomes whether the institution of civil unions should recognize polygamy and incestuous relationships.

mandrewa said...

Dust Bunny Queen said,

But what we are creating with a State by State version of marriage laws
colliding head on with Federal laws and regulations is sheer chaos.


Actually I think this is a good thing. Yes it has it's awkward parts,
but having every state do its own thing means we can go in 50 different
directions at once. It means we don't have the tyranny of just one
way of doing things. It means we can explore different ways of living
and their unforseeable consequences.

As long as every one is free to get up and move if they don't like
what's going on where they live, then pragmatically this means we end up
with more freedom and more choices than with a more centralized state.

I don't believe that human beings are wise and all-seeing. In
particular we are bad at seeing second-order consequences: the things that
don't happen in the first year but twenty years down. The diversity in
governments that federalism allows makes it possible to detect and
compare, and then for people to change their mind, as these longer-term
differences become clear.

Centralized governments don't allow this sort of discovery process but,
on paper at least, we are fortunate to have a federal government. Most
people seem to have totally lost track of what that should mean.

Nor is federalism just a theory. We actually had a federal government
for the first 150 years or so of the United States and it worked amazingly
well. The United States went from being a backwater to becoming one of
the world's major powers with a central government that was severely
restricted.

Nor do enough people appreciate some of the really big problems that
federalism indirectly solved for the early United States. Namely
land reform, the breaking up of the assets of large landowners and
distributing them to the landless, which is still a problem in many
countries today, and which was driven by the comparative advantages
that land reform offered to states that allowed it and ultimately
drove the whole United States in that direction. And slavery.

People forget that the greater part of the battle against slavery
had already been won before the civil war started and that it occurred
long before it occurred anywhere else in the world under a crippled
central government with states that were free to move in different
directions and did so.

XWL said...

It's ironically like sour milk. Either you like it, but if you don't, as long as you don't drink it, you can ignore it.

If only that were true.

Back in my college days, had a Russian roommate (and veteran of the Afghan war), loved his milk sour (the chunkier the better). His room stank, and the stink of the stuff came off his very pores, but he was older, and russianer, and separated from his wife and child, so you plugged your nose and cut him some slack (and didn't venture into his room too often).

vbspurs said...

His room stank, and the stink of the stuff came off his very pores,

Hmm, that is true. But it makes for a delicious blini, XWL. Yummo.

Palladian, nice to know that's what your ID signifies! I love this link on it.

As for the actual topic itself, I will have to find a way to engage myself. No gay friends, no (out) gay family members. Not seeing gay people mistreated here in lovely SoBe -- in fact, au contraire. It's kinda hard.

But I'll get there.

Cheers,
Victoria

buster said...

Palladian:

"I do not want the State to be running around 'getting men and women together', as if it's some malignant match-maker with its own military. That is not a legitimate role for government."

If the State can't legitimately promote heterosexual marriage, it hard to see how it can prohibit polygamous and incestuous marriages. It doesn't help to say the State should create civil unions and leave marriage to religions and other private associations. The question then becomes whether the State should permit polygamous and incestuous civil unions.

There may be reasons why same-sex but not polygamous and incestuous marriages should be recognized, but I don't think courts are better than legislatures at sorting them out.

George said...

Good news for Mr. Sulu.

Hoosier Daddy said...

But the fact is, every single society which has instituted it is in a demographic free fall.

Well take a look at Italy which recognizes neither civil unions or gay marriage and their replacement rate is somewhere around 1.5 which is essentially a death spiral. Few former Eastern Bloc countries recognize gay marriage either and they’re in the same demographic situation. Europe and Japan’s demographic free fall has a lot more to do I think with and oversized nanny state rather than letting a couple of gays get hitched. It’s rather hard to get in the mode of taking care of kids when you’re so used to the State taking care of you. Hell, 15,000 elderly people died in France a few years back because the kids were too busy on holiday to worry about mom or dad slow roasting in a Paris flat.

Someone will mention what's to stop a guy from marrying a pony then?

Well Vic, that’s a dumb argument because a gay man or women isn’t a pony. Nor is marrying an underage child the same as two consenting adults. Neither of those types of arguments really holds much water in my opinion. About the only slippery slope you can argue is polygamy which again, is an arrangement between (assumed) consenting adults.

my nickname's not "Palladin" or "Paladin" (playing too much World Of Warcraft are we?)

Well if you’re a Horde Palladian I shall smite you with my epic two handed axe!

Hoosier Daddy said...

The question then becomes whether the State should permit polygamous and incestuous civil unions.

Well I think polygamy simply offends sensibilities because of multiple partners however there are clearly medical reasons incest is illegal and should not be allowed.

Sweating Through fog said...

hoosier daddy

But who says marriage has any sexual component? It may seem obvious that it does, but then again at one time it seemed obvious that marriage meant a man and a women.

So why can't a father and daughter marry, so that dad can, in his old age, pick up medical benefits from his daughters government job?

buster said...

The question is whether courts or legislatures should be making these decisions.

buster said...

For example, I'm against same-sex marriage, but I would accept it if the people or their legislators decide otherwise. If courts impose it, it seems to me just tyrrany.

If Californians allow their Supreme Court to force a major change to a fundamental social institution, even though the people rejected that change by a large margin six years earlier, they deserve everything they get.

Pogo said...

Marriage has had numerous purposes: describing housing, or legal sexual expression, or shared property, or lineage, or a partnership between contractual equals.

Amdist all this has been the core obligations for the care of children.

This idea -marriage as the fundamental unit for raising kids- is no longer widely held, however. Marriage as it stands decays at the margins. The promises mean very little. The commitment to children is thin, and the burden is easily and often rejected.

I have in the past here defended marriage from further change because I fear it will not augment child care. But I am clearly swimming against the tide. Kids are increasingly a secondary phenomenon, to jobs, to leisure, and the marriage itself.

I cannot see how the current ghetto-Euro-statist repsonse to child-rearing is any improvement to the nuclear family. Clearly, they are worse. But they are the tidal wave approaching, and my little flag waving means nothing.

And the polygamist will without doubt want in as well, and how can we say no? And why would we, when we now say yes for the reasons they will also use? Marriage for purely economic reasons (e.g. health benefits) will also rise, and expand the definition even further than we ever considered feasible.

Over time, the feminist-leftist plan to destroy the family has fully suceeded, not by arguing against it, or "smashing" it, or by making it illegal, but rather by adopting it, and making it utterly meaningless. Ingenious.

So I declare defeat, not because the idea is wrong, but because its defense is futile.

Andrew said...

Hoosier,

I made no claims that SSM is a necessary component of demographic problems. Certainly, there are plenty of ways for a society to stop having sufficient numbers of children. But to ignore the correlation is to whistle past the graveyard.

For the record, Kat, I'm pro child, and I'm pro lesbian couples raising children. Congratulations. I feel that ultimately, the State must be free to take actions and make policies that it deems necessary without having the judiciary ending debate and, as Ann put it, branding [the opposition] as segregationists. Even if that makes it more challenging for some people, or even some groups to accomplish their goals.

Ian said...

Former Law student, you did a nice explaining how gays have been denied the right to marry, but my question was why is that the way things should be?

Andrew, how is giving gays equal marraige rights in any way undermining the promotion of men and women raising stable families? I'm straight, and I got married last year, and whether anyone else (gay or straight) gets married anywhere on Earth has no bearing on my decision to raise a family. And it doesn't on anyone else's either. Nobody is saying "I was going to get married, but now that the gays are doing it..."

Also, you didn't really answer my question. You equated marraige with raising a family. Those are very different things, and we give different benefits to each group. Lots of unmaried people raise children and we give those people benefits. If the issue is the State's interest in promoting the raising of children, we can talk about whether or not gay couples should be allowed to adopt, but that's entirely different argument. What is at stake here is whether gay people can marry, not whether they can raise families. (I'm pretty sure if we had that debate, I could come up with some pretty convincing arguments.)

Why are those places experiencing demographic free fall? (I'll take your word that they are.) Because that's the only place gays can go and be happy. If it were legal everywhere, you wouldn't see concentrations like you do today.

The question is still out there. What interest does the State have in preventing gay people from getting married? Why is not ok?

Hoosier Daddy said...

hoosier daddy

But who says marriage has any sexual component? It may seem obvious that it does, but then again at one time it seemed obvious that marriage meant a man and a women.

So why can't a father and daughter marry, so that dad can, in his old age, pick up medical benefits from his daughters government job?


Cause that's called gaming the system. I think gay people are arguing, with good reason, is that hetero married couples get financial benefits from marriage that they should be entitled to as well. I agree but I also agree that they need to be bound by the same legal obligations hetero couples have. Now if a gay couple want to 'game' the system, they can just as hetero couples do. The problem is those messy divorce laws when the time comes do tend to outweigh the benefits.

In your example, dad in his old age does have medical benefits: It's called Medicare which we as the taxpayer, foot the lion's share of the bill.

Hoosier Daddy said...

I made no claims that SSM is a necessary component of demographic problems. Certainly, there are plenty of ways for a society to stop having sufficient numbers of children. But to ignore the correlation is to whistle past the graveyard.

Well I can ignore the correlation because I simply fail to see any evidence that it has an impact on a nation's demographics. As I pointed out, there are numerous European countries which do not recognize SSM and are in essentially death spirals. Gays (men anyway) are unable to procreate (a lesbian can at least carry a child). By allowing gay marriage will somehow result in the straight segment of society ceasing reproducing is a stretch at best. You are essentially saying because A and B are happening, A must cause B.

Sweating Through fog said...

"In your example, dad in his old age does have medical benefits: It's called Medicare which we as the taxpayer, foot the lion's share of the bill."

Not necessarily. Dad could be 55, his daughter 30, with primo insurance insurance from her Fortune 500 job.

And yes it is "gaming the system" - but as far as I know the state isn't doing background checks to see if hetero couples that get marraige licenses have any background together, plan on living together, or plan on doing anything together in the future. Nothing prevents hetero couples from getting married solely to get health insurance and tax benefits. I fact I know of a couple that registered as "domestic partners" just so one "partner" could get health benefits from the NYC civil service pension.

Based on the California court decision, I can't see any argument for denying any pair of people - even prior strangers who pay each other to get "married" with an agreed prenup just so that so they can share government benefits - the "dignity" of marriage.

Methadras said...

Palladian said...

No, which is why the State should get out of the marriage market completely. There is no other rational solution to this problem. The State should not be in the business of sanctioning what is essentially a religious and/or romantic institution.


The state will never get out of the marriage business for a couple of good reasons that I can fathom. The first is money, the second is control. They will not give up one for the sake of the other, much less both.

Palladian said...

"Over time, the feminist-leftist plan to destroy the family has fully suceeded, not by arguing against it, or "smashing" it, or by making it illegal, but rather by adopting it, and making it utterly meaningless. Ingenious."

I love you, Pogo, but jeez, get out the violin. I'm not advocating the destruction of the family or anything of the sort. I'm merely saying that the state doesn't have any business issuing licenses sanctioning romantic/financial/spiritual relationships. It's not up to the government to promote or protect marriages. It's up to people, churches, communities, etc. What the state says or doesn't say about your marriage shouldn't matter.

Please note that I do not think the state should grant marriage "rights" to gay people. I'm saying that people, gay or not, already have those "rights" and the State shouldn't have the power to have any say as to the nature of those relationships whatsoever. It's a win for everyone.

Palladian said...

"The first is money, the second is control. They will not give up one for the sake of the other, much less both."

This is why I support the Second Amendment. At some point, for some reason, it may be necessary to force the State to loosen its grip. The Founders realized this. It might seem like a quaint idea now, but some of us haven't given up on the idea of freedom yet.

Mark said...

Some argue that gay marriage should be allowed because it doesn't hurt normal people if gays are allowed to marry. The problem is that the harms aren't clear yet because nothing like this has been done before. The goal of homosexual activists is to have homosexuality treated as though it was no different than heterosexuality. First they pushed for "civil unions", saying they didn't care about being able to be "married". Once civil unions seemed to be accepted, now they are pushing for "marriage". The logic is that their goal is that their sexual perversion be treated as though it were no different whatsoever from normal human sexuality.

I'll give you a concrete, real-world example of how this push to treat homosexuals as normal affects heterosexuals. Married couple friends of mine took a salsa dancing class at a local community education center. One of the ten couples in the class was a pair of homosexual men. At a certain point the teacher said that they were going to be moving into the phase of lessons where they exchange partners. The teacher said that people were free not change partners if they didn't want to. However the homosexual men did not restrain themselves in this way and the husband of my friend ended up being paired up with one of these homosexual men. He didn't want to embarass the man and make a scene, so he gamely danced a hot salsa with this pushy homosexual.

This is the kind of thing that heterosexuals will find themselves facing in all kinds of unanticipated ways as homosexuals push to be treated as though homosexuality was no different from heterosexuality. They will promise that there will be nothing different but their goal is to force the rest of us to change our lives, our eons-old traditions, our ceremonies, and so on so that there is no hint of distinction made between homosexuality and heterosexuality. It will reach the point where if you don't want to dance a sexy salsa with a homosexual man you will be considered a horrible bigot.

You may say that this was an exceptional case, but it isn't. It's the logical consequence of homosexuals seeking to impose acceptance of their perversion - and it IS a perversion by any normal meaning of the word - on everyone else.

Palladian said...

OMG STR8 MEN "FORCED" TO DANCE THE SALSA WITH TEH GAYZ!!!1

IT'S TEH END OF THE WORLD!

Tim said...

I have to laugh sometimes because people are so obtuse. So many try to depend on ancient books to proscribe morals yet in truth we only take the ones we feel comfortable with.

The main argument here is that if gays get the right to marry than everyone should get the right to marry, and incest should be legal and monkeys will dance with geese and spiders will lure your children into dark magical orgies.

Look we make our own laws and morals, all us gays are saying is that there are those among us that are raising kids and in committed relationships. How are they different than your marriages? We see no difference in them and want the same privileges and rights that go along with that family status.

as for your red herrings have you really thought about them? They are the legacy of our forefathers, the ancient trappings and root of our religious marriages.
Incest, is illegal because it warps the ties of families and leaves children at a higher rate of deformity, but hell it's been done for thousands of years by all the leaders of earth so if you want it back go for it I guess. Same with Polygamy, you straights have consistently maintained polygamous relationships because you wanted to. Now you act like this was never done, go ahead I guess ignore history. But the truth is we have rewritten marriage into a contract between two people stating their public love and devotion to one another.

Tim said...

gays perverted the Salsa? OMG is no erotic dance sacred anymore!!!!!

did your friend start getting online and requested bj's from guys on craigs lists next? homosexuality is highly contagious, why just last week I looked at a guy in the gym and the next week he turned gay. true story!!

Pogo said...
This comment has been removed by the author.
chickenlittle said...

Mark: your friend should have simply refused to dance with the man, thereby also forcing the queer guy to sit one out. That was his choice. Appeasement never works.

Dust Bunny Queen said...

Well if you’re a Horde Palladian I shall smite you with my epic two handed axe

Then he would be a BELF Paladin, which kind of makes sense since Palladian has indicated he is gay.

Inside WoW joke.

And.....back to the argument. I am torn. I'm all for States rights and firmly believe that the individual States should have the right to decide on abortion as well as marriage definitions. However, since it is really all about ME.....having different rules and laws to plan financial futures from State to State and then having to reconcile with the Federal laws, makes it very difficult. Actually, it makes it difficult for individuals to plan also.

If your "marriage" is legal in California but not in Oregon and PLUS one state is a community property state and the other is not, it can be extremely confusing. This why DTL's whining about his friends not being able to see his partner in the hospital and inheritances has merit and these issues should be standardized.

TitusAllTheLeavesAreBrown said...

No one's taking my rare clumbers but if this California gay marriage thing is a done deal I am going to be the first to get to court and demand that I can marry my beautiful dogs.

TitusAllTheLeavesAreBrown said...

Adam and Fido not Adam and Steve.

That is the sign I will be holding up when I petition the court.

Palladian said...

"No one's taking my rare clumbers but if this California gay marriage thing is a done deal I am going to be the first to get to court and demand that I can marry my beautiful dogs."

Beautiful? Clumbers are hideous! Even you must have higher standards in the animals you sodomize!

TitusAllTheLeavesAreBrown said...

I don't sodomize my rare clumbers.

We have an asexual intimate loving and commited relationship. I don't see any other dogs.

We do cuddle quite a bit though and sometimes it gives me a hard on but I always keep my underwear on. Cuddling naked with them and then getting a hard on would be too weird.

Also, that is not a beautiful rare clumber-mine are beautiful.

Tim said...

i used to think gays are weird but over time i realized we really aren't that different than the perverted and sexually ambiguous people that spawned us.

Wait is the dog male? cause than it would be okay

chickenlittle said...

I'm just glad that Obama and his glass-jawed followers are the ones keeping the whole topic alive, hopefully all the way until November.

Palladian said...

Clumberfuck!

Mortimer Brezny said...

Oh, that is what clumber means. I hadn't gotten all those clumber jokes until just now glancing at the image. I surf here everyday and just now got those clumber jokes. Those jokes are funny.

Hoosier Daddy said...

Not necessarily. Dad could be 55, his daughter 30, with primo insurance insurance from her Fortune 500 job.

Well at 55, Daddy-O has another decade's worth of work in him.

Nothing prevents hetero couples from getting married solely to get health insurance and tax benefits. I fact I know of a couple that registered as "domestic partners" just so one "partner" could get health benefits from the NYC civil service pension.

You're correct, there isn't. Then again, I'm willing to bet you won't find too many folks who are willing to make that kind of legal comittment in order to get a married tax break or health benefits. I can't answer for NYC domestic couple benefits. Most companies don't provide benefits to 'domestic couples'.

Based on the California court decision, I can't see any argument for denying any pair of people - even prior strangers who pay each other to get "married" with an agreed prenup just so that so they can share government benefits - the "dignity" of marriage.

Not at all. Then again, there is a legal comittment that both sides need to honor. That means when the time comes that Frank wants to dump Joe so he can marry Sebastian, there will be legal channels he will need to go through to do that. A pre-nup may make things easy but its still harder than packing your fabulous wardrobe and rare clumbers in the Volvo and taking off.

Ann, how much are divorce lawyers charging these days?

Be careful what you wish for ladies.

Hoosier Daddy said...

Then he would be a BELF Paladin, which kind of makes sense since Palladian has indicated he is gay.

Inside WoW joke.


Heh...that was good!

Jim C. said...

"the intangible symbolic differences that remain often are constitutionally significant."

What a beautifully vague phrase. I wonder who's going to use it next?

blake said...

That is not a legitimate role for government.

Debatable.

And given the current number of out-of-wedlock births and a consistently rising rate of divorce, the State seems to be doing a very bad job of it. Which should be no surprise to anyone who has ever watched the State try to engineer other aspects of society.

Ouch. Not debatable.

I think a lot of good points have been made here.

I tend to agree with Palladian about getting the government out of this contentious area--but I'd argue that for every contentious area, starting with education. (So, it's a feature, DBQ, not a bug.)

But I also agree with Pogo: The battle's over. 40 years ago, we were given the choice of doing what married people had almost always done (trying to create a stable, healthy home life for children regardless of personal feelings), or trying to find greater fulfillment for ourselves.

We chose the latter. Can't blame teh gays or teh commies or teh feminists or teh Playboy no matter how hard they might have been pushing the idea.

Until that concept is restored, and marriage remains primarily a matter of personal satisfaction, there's little argument against any kind of marriage arrangement (except where other laws apply).

blake said...

Having said that, though, isn't it funny how much of this ties into health care benefits?

So, the government--through various tax breaks started in WWII, protectionism and monopoly--creates a situation where health care is prohibitively expensive, and (whoops!) there are some unforeseen consequences.

What if we started just by getting government out of medicine? Damn, if we were writing the Bill of Rights today, the right to choose medical care (and the prohibition of the government from passing laws establishing one form of medicine) would be one I'd put in there.

There's something I'd bet the Founding Fathers never thought of.

former law student said...

Biological realities and social customs

Do you really think social customs are established by fiat? Good luck with that buddy.

As anyone who has lived with a member of the opposite sex knows, men and women are fundamentally different. If you take one sex out of the equation it becomes lopsided. Therefore, a union of two men is be fundamentally different from a union of one man and one woman. It will be a cake without frosting, or frosting without a cake. The union of two women will be a meatless meatloaf.

Revenant said...

Palladian,

a consistently rising rate of divorce

The divorce rate has been falling for thirty years. It isn't rising. What *is* increasing is the percentage of people who never get married (a group to which I cheerfully belong).

Pogo said...

US adults are figuring out what the Japanese, Italians, Germans, and most of the developed world discovered 20-30 years ago:

Why have kids?
What's the point?
Why spend time and money on even one child, much less two or more?

You can live in the city and do whatever the hell you want whenever the hell you want to.
You can spend all disposable income on your own wants and desires.
Single parenthood? Surest route to poverty.

So we'll develop the shrinking demographics of our smarter European set, and have ourselves one helluva time.

Ain't no reward in parenting, just the hectoring of the gummint and the rest of society.

You want another generation of taxpayers to fund your stupid Ponzi scheme of Social Security and Medicare?
Well, screw you. Raise 'em your own goddamn self. I got better things to do.

Pogo said...
This comment has been removed by the author.