August 5, 2010

"The exclusion of same-sex couples from marriage 'exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage... That time has passed.'"

From the NYT editorial about Perry v. Schwarzenegger:
One of Judge Walker’s strongest points was that traditional notions of marriage can no longer be used to justify discrimination, just as gender roles in opposite-sex marriage have changed dramatically over the decades. All marriages are now unions of equals, he wrote, and there is no reason to restrict that equality to straight couples. The exclusion of same-sex couples from marriage “exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage,” he wrote. “That time has passed.”
That is, the conventional idea that marriage is between a man and a woman rests on gender stereotypes about what men and women are like. Since the sex discrimination cases already reject laws based on gender stereotypes, that conventional idea can't be the basis for rejecting same-sex marriage.
To justify the proposition’s inherent discrimination on the basis of sex and sexual orientation, he wrote, there would have to be a compelling state interest in banning same-sex marriage. But no rational basis for discrimination was presented at the two-and-a-half-week trial in January, he said. The real reason for Proposition 8, he wrote, is a moral view “that there is something wrong with same-sex couples,” and that is not a permissible reason for legislation.

“Moral disapproval alone,” he wrote, in words that could someday help change history, “is an improper basis on which to deny rights to gay men and women.”
That is the Supreme Court case law. As Justice Scalia complained in his Lawrence dissent:
The Court embraces ... Justice Stevens’ declaration in his Bowers dissent, that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice”.... This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review....
It was no stretch to end up where Judge Walker did. Now, the 9th Circuit Court and the U.S. Supreme Court may struggle to find their way back from the routine legal reasoning that took Judge Walker where many people are unhappy he went. But to do that will require stretching for a preferred result, given the precedent.

Why not cheer yourself up by thinking about the boost this will give to conservatives in the upcoming election? And leave gay people alone.

P1010119

Okay?

IN THE COMMENTS: garage mahal starts us off with a comment, that based on previous gay marriage threads, predicts where this thread is destined to go:
Great. Now now I can marry a desk. Or a freezer. Oh wait... 

325 comments:

1 – 200 of 325   Newer›   Newest»
garage mahal said...

Great. Now now I can marry a desk. Or a freezer. Oh wait...

Moose said...

Nope - sorry. This is bullshit and I will not consider it otherwise. The fact that society and the courts choose to descend into frivolity and absurdity does mean I have to.

c3 said...

My wife and adult son and I had several discussions regarding the Cal. court decision last evening. That brought up several questions for me. I'm not a lawyer so the constitutional and legal aspects are over my head (though Justice Scalia's question is a potent one)

A question that keeps rattling around in my head:

Why do gay men and women want to get married?

(I'm asking that as something explicitly separate from an inter-personal commitment or from any legal/financial benefits)

Mark O said...

But, will gay people leave me alone? Alone again?

Unfortunately, the opinion's fact section reads like an argument, not real history.

Comrade X said...

OK, what's the rational basis for giving couples rights that single people don't have? I'd like to give or receive an estate without paying taxes too.

shoutingthomas said...

First, kill all the lawyers.

AJ Lynch said...

The problem with your advice is not everyone views these issues as a just another political battle to be fought with the help of a large phalanx of liberal lawyers and willing activist judges.

TosaGuy said...

California divorce lawyers are dancing in the streets.

Since many divorce and child custody laws favor women (which by the logic in the main post should now be rendered void because they are based on traditional/stereotypical gender roles), how will those be squared in gay divorce? The lawyers won't care, but they will sure profit by it being figured out in court!

Comrade X said...

The exclusion of singles from marriage perks exists as an artifact of a time when married couples were seen as having distinct roles in society. That time has passed.

kathleen said...

Why are you telling us to leave gay people alone? They don't want to be left alone, they want us to pat their heads as we constantly, concernedly, patronizingly assure them that they're A-OK.

Moose said...

Unfortunately, its the unintended consequences that will have the more profound effect on people.

People in states that don't approve of this will find this to be another big government imposition on their values, further eroding moderates and independents of Obama style governing.

It will also further erode people's support and belief in a system of justice that reflects their values. While this may be an accurate reading of constitutional law, it is wide of the mark in relation to how real people think.

This will only hurt gays in the long run...

Dust Bunny Queen said...

Scalia is correct.

“the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice”.... This effectively decrees the end of all morals legislation

If the majority view on immorality doesn't mean jack, then why have any laws regarding adults having sex with minors? Why have any laws that protect animals from cruel treatment, as they are treated in Arabic countries?

If the people of the country cannot decree what they consider moral or right or legal, then perhaps we need to compltetly change out the people who are making these unpopular decisions for us.

One judge and a few lawyers over ruled MILLIONS of citizens. It seems to me that they are the ones who are outnumbered.

Oh. And we should leave gay people alone when they cease using activists to indoctrinate our children.

dbp said...

Denying same-sex marriage is like denying blind people driver's licenses; it is just not fair since nobody chooses to be blind.

I don't see how blind drivers will have any impact on sighted motorist's ability to navigate our roads.

HT said...

Why not cheer yourself up by thinking about the boost this will give to conservatives in the upcoming election? And leave gay people alone.

Um, what?

corsair the rational pirate said...

Jefferson said this about religions:

But it does me no injury for my neighbor to say there are twenty gods or no God. It neither picks my pocket nor breaks my leg.
-Thomas Jefferson, Notes on Virginia, 1782


I would propose that the same applies in marriage. As long as people are not out on the streets scaring the horses, what business is it of mine how they want to define their relationship.

Just because Bill and Ted got married does not mean I am going to not get married.

I really don't understand the because-god-said-so arguments put forth by the opponents to gay marriage.


And if garage wants to marry his freezer, more power to him. She may prove to be a bit frigid, however.

c3 said...

Why not cheer yourself up by thinking about the boost this will give to conservatives in the upcoming election? And leave gay people alone.

This sounds a tad condescending, particularly since there are valid arguments from a conservative perspective for allowing gay marriage.

I would like to hear a non-sectarian (and non-"its tradition") rationale against gay marriage.

phil said...

My prediction is that many younger Republican politicians will try to duck this issue knowing that their opposition could come back to haunt them twenty years from now when people will look back and wonder why this was so controversial. It is important to smoke out these politicians and force them to take a position for liberty now. If they don't it should be duly registered and thrown back in their faces over and over that even conservatives like Dick Cheney and Ted Olson supported gay marriage but they were on the side of bigotry.

And none of that "oh, I was not a bigot, I was just for State's rights" weaseling.

Montagne Montaigne said...

c3: Why did you want to get married?

That's your answer (or a possible one).

AJ Lynch said...

Tosa:

That's it- you are correct. The judge's ruling is a Stimulus Plan for lawyers! Heh.


wv = funkeern

Scott M said...

Just the comment that men and women don't have distinct roles in society shows either a woefully inadequate knowledge of the real world or, worse, a willing ability to lie to oneself in the face of reality.

Sure, the lines are blurred more than ever before contributing to, I believe, our collective aggregate good. That doesn't change the fact that there are very distinct women and men "things" in our society. To say otherwise is to give up the ghost on even minimal observation skills.

If that point of view is the basis of everything else (which would be surprising and not a little dismaying), the whole thing rests on a logical sinkhole.

Sixty Grit said...

Corsair - who said Garage's freezer was female?

WV: trolla - what they call Jermy in Boston.

Paul Zrimsek said...

But to do that will require stretching for a preferred result, given the precedent.

That's assuming they want to treat Lawrence with more deference than Lawrence treated Bowers. But why should they?

victoria said...

If one looks at this pragmatically, this could be an economic boon to our economy. This was the rationale used when same sex marriage went into effect in California. People reasoned that, most same sex marriage couples are at the very least, solidly middle class. If they choose to get married this will impact the wedding business. More catering, more flowers, more invitations, more gifts from Williams-Sonoma. Win, win, win, win.


Vicki from Pasadena

AJ Lynch said...

Phil is still not happy or satisfied. Can he ever be? What's next on your liberal agenda?

Sofa King said...

Corsair: I don't give a shit about who gets married, personally. But it disenfranchises me as a citizen to take away my ability to vote about these things. And that I DO care about.

HT said...

I would like to hear a non-sectarian (and non-"its tradition") rationale against gay marriage.

While I admit, I am getting worn down by it all, and my position is less firm than ever before, and at the risk of drawing ire, I would say that the lack of a tendency to be faithful on the part of many gay men could be one reason. (Forsaking all others) What chaos in the legal system will that create? It's just too much drama - can you imagine "ET" and all the divorce news?

My objection is that while some would take it seriously, the majority would not, but the societal fallout and cost would be large.

Hagar said...

Someone recently commented that "ConLaw" no longer is so much about what actually is in the Constitution, as about the "penumbras" some Supremes have imagined to see arising from within it.

I do hope that Justice Douglas is at least comfortably warm where he now resides.

Sofa King said...

Those who support the ruling want to make this a debate about the merits of gay marriage. But that is a red herring, don't fall for it.

The real issue here is whether the governed have control over their governing. The answer is trending no.

Joe said...

Comrade X is right, I find the quotes here compelling, but for a different reason--there is no cause for government to single out marriage as a special institution.

I add that the true conservative position--less government, more individual sovereignty--would demand that the government stop carving out rights only for the married. Government's responsibility is merely to enforce the contract of a union. (This would also mean that divorce law should be simplified and made more fair--alimony should be seriously cut back [if a couple decides that one should stay home with the kids, upon divorce, that person should get a rehabilitative alimony, but quite limited in scope] and joint child custody should be assumed, which sole custody being the exception.)

C3 also brings up a good point. Take the legal/financial benefits away and why would gays want to get married? Heck, take children out of the picture and without the legal/financial issues why would anyone want to get married? And why isn't a purely religious ceremony sufficient? Why the insistence on bringing the heavy hand of government into the issue?

sunsong said...

Why not cheer yourself up by thinking about the boost this will give to conservatives in the upcoming election? And leave gay people alone.

What a beautiful and kind sentiment. Thank you.

Calypso Facto said...

Isn't virtually all social legislation written on "moral basis alone"? Drugs? Violence? Discrimination?

I am IN FAVOR of allowing gay marriage, but saying a state can't legislate according to the moral strictures of its population is an extremely slippery slope....

c3 said...

MM;
Well, the reasons I got married and the reasons I stayed married are different.

I got married because:
1) I loved my future wife and it seemed to be the next "logical step"
2) clearly there were family and societal expectation of making a commitment and getting married
3)I had a vague notion of wanting to be a parent and that seemed to be the appropriate "venue" for parenting.

I see all of those reasons differently now and I have to acknowledge from todays perspective its no longer the "logical next step", societal expectations are different and parenting doesn't require marriage.

I should add that after 30 years of marriage I see marriage (i.e. "getting married") and a marriage (i.e. a long term covenant) as different things.

c3 said...

Phil;
My prediction is that many younger Republican politicians will try to duck this issue knowing that their opposition could come back to haunt them twenty years from now when people will look back and wonder why this was so controversial. It is important to smoke out these politicians and force them to take a position for liberty now.

Your conviction reminds me of this

SteveR said...

I love making shit up, then you can justify anything.

Flexo said...

It was no stretch to end up where Judge Walker did.

Sure, if you consider the irrational innanities of Anthony Kennedy that went on before and merely take the next step.

But even if a person is only one or two degrees off with each step, after going on a while, you fairly quickly end up with the absurd, millions of miles off of the right path, where reason should have taken you had you not strayed.

garage mahal said...

And if garage wants to marry his freezer, more power to him. She may prove to be a bit frigid, however.

Reference to Frigidaire Woman, Son Seals:

She had the coldest love I ever saw, now
She had the kind of love that would never thaw
I got frost bit and it's still sore
From tryin' to get into her vegetable drawers

Aw, y'all do it
Mean Frigidaire Woman
Mean Frigidaire Woman

former law student said...

I'm looking forward to Mr. and Mrs. and Mrs. Zambesi. (Mr. Zambesi stepped out -- or did he?)

http://www.youtube.com/watch?v=M9Q3xRsZY00

Scott M said...

@HT

While it doesn't get aired out enough for some reason (the dirty laundry defense, most likely), nobody but nobody does gay men more disservice than gay men.

Frankly, I'm definitely in the camp of not caring if Peter married Paul or Mary. The problem is...and always has been for me...how can the gay marriage advocates can say Peter, Paul, and Mary can't get the same rights and recognition. If they are truly polyamorous, how can a gay-marriage advocate now say their love or relationship is "less than"?

The biggest problem I've always had is that the gay marriage advocates want to remove barrier to marriage, but then slam it closed behind them making them as arbitrary as their opponents in the one-man/one-woman camp.

The only argument I get in favor of gay marriage but against polygamy is that "we already have laws for two people. It would be a monumental task to make it legal for more than two". Right. And I'm sure at the outset getting gay marriage passed was a walk in the park. As I said...arbitrary. Possibly even self-serving.

Scott M said...

And why isn't a purely religious ceremony sufficient? Why the insistence on bringing the heavy hand of government into the issue?

I'm in agreement that a true conservative wants less government and thus has no role in dictating who marries who. However, even limited government has an interest in rules that cover death, hospitalization, property, children, etc.

We really screwed up when the civil statutes used the word "marriage" to begin with. That alone is the genesis of all this angst.

The Ghost said...

first we are asked to tollerate lifestyles that we personally don't agree with ... fine, that I can do ...

Then we are asked to accept that being gay is not a choice i.e. a lifestyle and I'm completely onboard with that ...

Then we are asked to accept that a male/female couple is the same thing as a same sex couple ... so that everyone can have an equal outcome ... but even if we agree to that there is one small problem ... biology ...
Try as they might a gay male couple can't "have" a child ... they certainly can adopt and be as effective as anyone at raising a healthy child ... but they can't have a child ... a gay female couple can certainly "have" a child ... well at least one of them can have a child with some man or his seed ... but then there are 2 people involved in having the child and 2 different people involved in raising that child ...
Sorry but not the same ... no judge or law or lecture will ever make it so ...

So why the big fight to make 2 things that are not the same thing be accpeted as the same thing ?

Flexo said...

OK, what's the rational basis for giving couples rights that single people don't have?

Let's be clear about one thing -- this is NOT about a gay person’s “rights.” This is not about equal “justice.” This is about the twisting of reality, it is about the appropriation of the word and concept of “marriage” and destroying it.

In “civil unions,” homosexual couples already have all the same legal protections as heterosexual married persons. The only thing that they don’t have is the word “marriage.”

And this decision does not grant gays any greater rights, it only mutilates and thereby destroys the word “marriage” in order to irrationally apply it to same-sex unions. It is an act of taking something which has a unique application and forcibly applying it to where it does not and cannot fit.

Paul Zrimsek said...

And since we're looking at Lawrence, we might as well note that Justice O'Connor did not agree regarding the "stretch":

"That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations–the asserted state interest in this case–other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group."

Joe said...

The problem with marrying your desk, freezer or horse is they can't give legal consent.

But if you want to, just know that they'd get half in the divorce and if you're rich, I speak for your horse.

Franklin said...

So, wait. The DOMA is unconstitutional in Mass. because the right to determine what constitutes a marriage is reserved to the states but Prop 8 is unconstitutional because the federal government determines what constitutes a marriage? And yes, the Prop 8 ruling means that the federal government determines what constitutes a marriage; the people of California had one idea and the federal govt had a different idea and the federal definition trumped the state’s definition.

I’m sure somebody will say that there’s some difference between the Mass and Cali situations because the Prop 8 decision was based on equal protection under the federal constitution whereas the Mass ruling is based on federalism, but that’s just post facto rationalization.

It will be interesting to see how the two sides argue the appeals - maybe we can even have a long-overdue conversation about federalism.

Kirstin said...

I predict more homeschooling.

Lance said...

The exclusion of same-sex couples from marriage “exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage,” he wrote. “That time has passed.”

Really? So "mother" and "father" are now completely interchangeable, at every level?

Michael said...

I am OK with gay marriage though I believe gays want it only because they cannot, currently, have it. If we have a Federal mandate for gay marriage and heterosexuals then institute a hetero-only form of the sacrament will gays want to follow?

I predict that after this the churches that refuse to marry gays will be in the cross hairs and will be compelled to toe the new line.

Salamandyr said...

It doesn't really help to point out that one thing is a logical extension of another thing when one doesn't agree with the original thing either.

I don't agree with sodomy laws, I absolutely oppose them, but I do believe that state governments have the right, contrary to Lawrence, to pass them. The alternative opens up way too many unintended consequences, of which gay marriage is one of the most benign.

Also, I believe that judging marriage laws as a personal freedom issue misses the point. It's more properly understood as contract law, an area where it's generally agreed that the government does have the right to make distinctions between various kinds of contracts. Otherwise, I want my partnership to get all the same bennies a corporation does.

Ann Althouse said...

Paul Zrimsek said..."And since we're looking at Lawrence, we might as well note that Justice O'Connor did not agree regarding the "stretch""

You're right about that. And I call on those who want to draw a line between the sodomy case and the same-sex marriage case to make a choice between the jurisprudence of O'Connor and Scalia. Do that and stick to it across the broad array of cases. Don't be hypocritical.

Draw the line where it feels right for you and then stop bringing up Justice Scalia as the model of judicial reasoning. That will be your challenge.

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

Here we are again at the thing that drives me crazy about these issues - there is no validation of the need for logic of the result.

This IS a slippery slope - there is NO justification for discriminating against other forms of marriage (let's leave animals out of it for now please). The first one on the radar is polygamy. With SSM in place, there is no justification not to tweak the definition of marriage a bit more for this. I think that gay marriage proponents then have to acknowledge that they would favor discriminating against another class of people, or that they don't care if marriage becomes legal between more than two people. Why isn't this the logical result of this ruling? What is the standard otherwise? What test do you propose must be satisfied to determine who should be married, and if it's discriminatory in any way, what is the justification? Will your justification pass the rational basis test laid out by Judge Walker?

Now, in order to make this a valid court ruling, it would seem to me that sexual orientation would have to be declared a protected class. Gender is protected, but slipping sexual orientation into that class seems disingenuous. So the real argument that must be addressed is whether homosexuals, transgendered, or other sexually diverse orientations will be given special protection under the law. If the answer is yes, then that is the only way this ruling can be RATIONAL.

UNLESS this ruling is based in logical, consistent, interpretation of the Constitution, then in the long run, this rationale can easily be flipped to become a weapon against those who stand behind it now.

The most troubling thing to me is the striking down of the will of the people - an amendment is something different from a statute. I think the consequences of this precedent are extremely invasive.

And now for the social commentary portion - I don't understand what is being gained under gay marriage? I've seen that people want the same benefits, like tax advantages, or being able to go into the hospital room, and perhaps a recognition by the community that two people are committed to each other. But society HAS changed such that committed relationships are recognized in the communities, and most other things that benefit married couples can easily be secured through contract (wills, for example).

So I am confused because the forces of sexual revolution, feminism, etc., have done everything to destroy the importance of marriage. At the end of the day, I fundamentally don't understand the movement to promote gay marriage . . . unless there is something else behind it - like what a few here have said - that the recognition of gay marriage is really the recognition that marriage is meaningless. Is that the goal?

Paddy O said...

"then you can justify anything."

Reminds me of the Douglas Adam's character Gordon Way, who designed software that would give plausible reasons to any predetermined decision.

We don't need software. We have Federal judges.

I'm not too worried about society crumbling because of gay marriage. I am much more worried about society crumbling because of the kind of process reflected in this decision--which, once again, overturns the votes of millions of people. I think we're a very, very long way from any kind of crumbled society, but this is the sort of thing that takes steps in that direction: an over-reaching judiciary coupled with a cowardly legislature. The people have no voice.

This would be true even if the tables were turned and a pro-gay marriage vote was overturned by an anti-gay marriage judge. If the People are not given deference, the People begin to resist more and more.

Franklin said...

"The fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice"

And why would bigamy or polygamy not be protected by the same reasoning?

Salamandyr said...

So, this morning I saw a headline "Obama opposed to gay marriage, and Prop. 8" How exactly does that work?

I mean, I can sort of get the opposite. I support Prop. 8, to the extent I support the right of the people of California to pass it, and oppose overturning the law by judicial fiat, while being tentatively in favor of gay marriage. But how can you say "I'm opposed to redefining marriage, but I'm also opposed to any measure used to stop it from being redefined?" At least Prop. 8 was democratic.

HT said...

... though I believe gays want it only because they cannot, currently, have it.

I agree.

I predict that after this the churches that refuse to marry gays will be in the cross hairs and will be compelled to toe the new line.

And if that happens, I predict that church membership falls, falls, falls.

And this decision does not grant gays any greater rights, it only mutilates and thereby destroys the word “marriage” in order to irrationally apply it to same-sex unions. It is an act of taking something which has a unique application and forcibly applying it to where it does not and cannot fit.

Could not have said it better myself!

Joe said...

I predict that after this the churches that refuse to marry gays will be in the cross hairs and will be compelled to toe the new line.

And it will be their fault. Churches allowed the state to take over many of their responsibilities. The separation of church and state cuts both ways and churches are now discovering that.

One immediate remedy is to dissalow churches from legally marrying anyone. You get a legal union at your local county offices by signing a piece of paper in front of witnesses. If you then want a marriage ceremony, you go get it. It's how much of the world operates and quite wisely.

Meade said...

The state has an fundamental interest in the propagation of society. Legally sanctioned marriage and all of its benefits should be available only to those couples able and willing to procreate. The state should require proof of a live birth along with DNA tests for proof of parentage. Only then should the state extend marriage benefits and responsibilities to the new family.

Roux said...

Get ready for legalized polygamy and incest.... woo hoo. Ain't it great to have no rules or standards.

Flexo said...

make a choice between the jurisprudence of O'Connor and Scalia

Just to be clear, this is exactly what Scalia predicted in Lawrence --

"State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision . . .
"[Justice O'Connor's] reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. . . .
"Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned."

Moose said...

Meade - Really? Meade?

Sully? Is that you?

bagoh20 said...

The sexual aspect to marriage is not a stereotype. It's a natural fact. Marriage is, above all, a sexual union. It was never considered official until consummated by sex, because that was the purpose. The chief, priest or state can do the rights, but without whoopie, no marriage exists.

Marriage makes sex into something human and socially approved, so that we don't procreate like animals, thus keeping the society connected where it most needed it.

I agree with the decision if we are talking about rights under the law, but marriage is more than that.

Just for perspective, imagine 2 islands far out in the ocean, one populated with only straight couples and one with only gay couples. These societies are not the same. They may deserve equal rights but they are vastly different things.

Scott M said...

Get ready for legalized polygamy and incest.... woo hoo. Ain't it great to have no rules or standards.

There is a compelling interest, imho, for laws against procreation between siblings. What about two brothers or two sisters, though? What about a brother and sister that don't have children? Where is the state's interest in that case?

WV - "speremi" - (insert ironic comment here)

Flexo said...

I'm not too worried about society crumbling because of gay marriage. . . . I think we're a very, very long way from any kind of crumbled society

They said the same things about the destruction of marriage through no-fault divorce and through "it's just a piece of paper" justifications for cohabitation. They said the same things during the time of Griswold and its progeny about having a fundamental right to have sex whenever and with whoever you want. They said the same thing about abortion on demand. They said the same thing about the welfare system.

The fact is that society has already crumbled and is lying in a heap of rubble. Just take a look at the destruction of the black family, with everyone else not far behind. Look at generations of children being raised without a father in the home, look at the millions of children being created by our hook-up culture. Look at the waves of sexually-transmitted diseases, some so severe as to literally wipe out large portions of the gay community. Look at our political-legal arenas, which have been locked in a nuclear culture war for decades.

If this is not a crumbled society, I would hate to see the Hell that awaits us.

AllenS said...

Me thinks Meade was making fun of the hillbillies.

Joe said...

Just for perspective, imagine 2 islands far out in the ocean, one populated with only straight couples and one with only gay couples.

Are there swingers on the straight island? Just asking.

Paul Zrimsek said...

And I call on those who want to draw a line between the sodomy case and the same-sex marriage case to make a choice between the jurisprudence of O'Connor and Scalia. Do that and stick to it across the broad array of cases. Don't be hypocritical.

Draw the line where it feels right for you and then stop bringing up Justice Scalia as the model of judicial reasoning. That will be your challenge.

I don't understand who's being challenged here; you seem to be addressing two almost entirely disjoint sets of people as a unit. Most of us who bring up Scalia as the model of judicial reasoning have no interest in drawing a line between the two cases. they're both wrongly decided.

c3 said...

it only mutilates and thereby destroys the word “marriage” in order to irrationally apply it to same-sex unions.

I think the word has undergone a significant, de facto redefinition in the past 60 years. With the liberation of women from the social/financial constraints/necessities of marriage and with contraception liberating the childbearing aspects, marriage today is dramatically different than it was a century ago.

I'm not advocating "going back". In fact I'd ask, given the decline in religious inclinations in America why divorce is also down? (though it should be pointed out that the majority of child are now born outside of a married couple and the percentage of couple that co-habit has gone up.)

Flexo said...

There is a compelling interest, imho, for laws against procreation between siblings.

What business is it of yours what two consenting adults do, or do not do, in the privacy of their bedrooms? Under this decision, the sex act is irrelevant. Whether the spouses have sex with each other or not is none of the government's business.

So why should I not marry my mother? Then I can take advantage of the marital exemption when she dies, rather than paying estate taxes on her estate.

After all, it is none of the government's business what we do or do not do in the privacy of our separate bedrooms, which we would maintain in separate homes, hundreds of miles away.

phil said...
This comment has been removed by the author.
The Crack Emcee said...

Leave gay people alone?

Why?

They don't leave anyone else alone. They didn't leave me alone. No, they forced themselves into my life and wrecked it, but you don't acknowledge that.

They repeatedly climbed into my bed in the foster homes. They tried to suck my dick, while I was sleeping, in the shelters. They hit on me in the receiving line at a funeral. They forced themselves into my divorce - even lying and saying I beat my wife during the restraining order hearing - but you want me to leave them alone? You have got to be kidding.

Ann, even after all the crap gays have brought to me (and I haven't said it all) I still want to be fairer to them than they've been to me. To say otherwise is a lie, it's unfair, and it's wrong. You can put up the image of that nice smiling woman but, if you were honest, you'd allow that that's not the only image that represents this movement - but you're not being honest.

I understand - considering my position on marriage you've got a dog in this fight - but your integrity is supposed to matter, too.

Joe said...

Just take a look at the destruction of the black family, with everyone else not far behind.

Yes, but that was directly due to government taking over familial responsibilities. That was due to pure liberalism.

Darcy said...

I'm not celebrating anything. I don't have an objection to gays marrying. If this encourages more people in loving, adult relationships to make that lifetime commitment to each other, I'm all for it.

I hope it stays between two people, though. I can't see how it will not open the door for more than two people marrying each other. What would be the basis of denying them?

This is going to be interesting.

bagoh20 said...

It's strange that the natural, basic, existential, specialness of heterosexual union is ruled a social construct, while ruling that the idea that it's not special is some more basic principle worthy of being it's replacement. If an existential difference is not a valid one, what is?

Scott M said...

@Flexo

There is a compelling interest, imho, for laws against procreation between siblings.

What business is it of yours what two consenting adults do, or do not do, in the privacy of their bedrooms? Under this decision, the sex act is irrelevant. Whether the spouses have sex with each other or not is none of the government's business.

So why should I not marry my mother? Then I can take advantage of the marital exemption when she dies, rather than paying estate taxes on her estate.

After all, it is none of the government's business what we do or do not do in the privacy of our separate bedrooms, which we would maintain in separate homes, hundreds of miles away.


I think you missed my zeroing in on the word "procreation". I said nothing about sex and even cited the examples of non-procreative couplings between directly related people.

There are serious health risks for offspring of siblings. That's the compelling interest.

phil said...

It was great to hear the four-times-married, soon to be, four-times divorced, Rush Limbaugh go all outraged about gay marriage at the beginning of his show today. LOL, what a hypocrite. I am so glad that he and Newt Gingrich are now the face of the Republican party.

Flexo said...

marriage today is dramatically different than it was a century ago

A century ago, marriage was a union of a man and woman. A thousand years ago, marriage was a union of a man and woman. Five thousand years ago, marriage was a union of a man and woman.

Whether a brother wanted to marry his sister, a black man wanted to marry a white woman, an already-married man wanted to take a second wife, all of these cases are the exact same -- the union of man, on the one hand, and woman, on the other. The nature of marriage, its ontological essence, has not changed. And, in fact, it cannot be changed; it is what it is, and can be only that.

------------

Why do people struggle so with this fundamental concept called "reality"?

We really are in the grips of a dictatorship of relativism.

AllenS said...

And leave poligamists alone.


Okay?

Quayle said...


I think the word has undergone a significant, de facto redefinition in the past 60 years. With the liberation of women from the social/financial constraints/necessities of marriage and with contraception liberating the childbearing aspects, marriage today is dramatically different than it was a century ago.


Yes, the only thing that remains now is to see if that redefinition and restructuring is sustainable.

As sustainable as marriage between a man and a woman has proven to be.

Scott M said...

@Phil

I am so glad that he and Newt Gingrich are now the face of the Republican party.

You should probably drop the 90's-era tactics. None of the conservatives I know, and that's quite a few given how politically active I am locally, listen to Rush. Further, just about everyone I know contends that Gingrich is damaged goods.

You'll have to find a couple of new foils.

Meade said...

"There are serious health risks for offspring of siblings."

Not to mention the hypothetical offspring produced by Flexo and his mother.

AJ Lynch said...

Phil- you need to get your hearing checked. Rush is outraged at the activist court overturning the vote of the people. Rush is not talking about the issue of gay mariage.

slarrow said...

I hate this decision for the same reason I hated the Lawrence decision: it doesn't matter where you live, you have to live by San Francisco rules.

The point of having a federal system is that if your community doesn't reflect what you believe, ultimately you can move to another place that more closely matches what you do believe. Decisions like this strike at the heart of that premise.

We will now have a country where all marriage is one man and one woman (through a federal Constitutional amendment) or where it is not (through the leverage of specific judges and the dereliction of political cowards). No different strokes for different folks as a way to relieve pressure in a multiethnic, multiracial society. We will now fight each other more and more, all at the behest of people in black robes who deem themselves kings and gods with the power to establish both earthly law and moral standards.

It'll all end in tears.

AJ Lynch said...

Meade is quoting something Palladian wrote IMO.

bagoh20 said...

"It was great to hear the four-times-married, soon to be, four-times divorced, Rush Limbaugh go all outraged"

Just because I fall of my bike four times does not mean I'm a hypocrite for extolling the virtues of bicycles, nor make me wrong for insisting that a unicycle is not a "bicycle."

Ah Pooh said...

Meade - And when is the little one due?

El Pollo Real said...

Why not cheer yourself up by thinking about the boost this will give to conservatives in the upcoming election? And leave gay people alone.

Wow. That sounds like a grizzled mama bear coming out!

Darcy said...

Personal failings mean you can't aspire to any ideal or have an opinion/judgment about anything, bagoh20!

Unless you're a liberal.

Smilin' Jack said...

...an artifact of a time when the genders were seen as having distinct roles in society and in marriage...

AKA a time when people were still allowed to acknowledge some of the basic facts of biology.

Matt said...

Gay marriage hurts no one. PERIOD.

And they are not inserting themselves into your precious lives. It is, in fact, conservatives who want to tell consenting adults what they can do in the bedroom and who they can marry.

Time to give up your control people. Laws change. I know that is shocking to some of you. But you'll be fine. Society won't fall into anarchy. And, no, this doesn't now mean that you have to marry someone of the same sex. Unless you want to.

Saint Croix said...

If there was a gay gene, and the government started dividing babies into gays and straights, and started punishing gay babies for existing, that would be unconstitutional. You can't discriminate against people, only against conduct.

But there is no gay gene. Straight people reproduce and pass their genes to their children. Gay people do not reproduce and do not pass genes. Read your Darwin. If homosexuality was genetic then gay people would have died out like the do-do bird.

The reason we have gay people in our society is the same reason we have masturbaters, pedophiles, prostitutes, necrophiliacs and celibates. Because all of us have free will and can do anything we decide to do.

Heterosexuality may be genetic. We may indeed have a biological drive to reproduce. And this may be why societies always have more straight people than gay people, and why the institution of marriage was created by and for straight people. As an institution for the creation and rearing of infants.

This is not to say that no state can recognize gay marriage. Of course a state can if it wants to. This is why we have a democracy. But gay sex is simply another behavior some people engage in. And it's up to democratic society to decide if this behavior is good, bad, or somewhere in between.

former law student said...

There are serious health risks for offspring of siblings.

Where's the data on that?

But we don't bar marriage for other groups who have serious health risks. Take Ashkenazi Jews:

A number of genetic disorders occur more frequently in certain ethnic populations.In the Ashkenazi Jewish population (those of Eastern European descent), it has been estimated that one in four individuals is a carrier of one of several genetic conditions.These diseases include Tay-Sachs Disease, Canavan, Niemann-Pick, Gaucher, Familial Dysautonomia, Bloom Syndrome, Fanconi anemia, Cystic Fibrosis and Mucolipidosis IV. Some of these diseases may be severe and may result in the early death of a child.

http://www.jewishvirtuallibrary.org/jsource/Health/genetics.html

One in four. Think about it.

Scott M said...

It is, in fact, conservatives who want to tell consenting adults what they can do in the bedroom and who they can marry.

Apparently you haven't read through this thread. The number of conservatives that would specifically disagree with your horribly broad brush stroke might shock you into infarction. If you have the requisite body part, that is.

c3 said...

So, this morning I saw a headline "Obama opposed to gay marriage, and Prop. 8" How exactly does that work?

I saw that WaPo article also. It should be noted that they simply took historical Obama positions and a limited "from a spokesperson" comment yesterday and out of that fashioned an article. My thoughts after reading the article

-one has to wonder about the political expediency of our Presidents position(s), and now with different realities whether they need to change
-frankly it seemed fairly consistent with the "average American" position. He's becoming the biggest spokesperson (I mean that ironically since he's not speaking) for the "I'm just not ready for gay marriage" position. Not based on religion and clearly not based in politics.
-its consistent with the "racial" position (2/3 of blacks in Cal voted for Prop 8)

Finally, why is it the Republican Party that gets all of the press regarding "divisions within the party". Isn't it clear by now (and I expect this decision to further expose them) that there are some hard divisions within the Democratic Party?

Meade said...

AJ Lynch said...
"Meade is quoting something Palladian wrote IMO."

Don't know about that but when it comes to the legality of marriage and what is and is not the state's business, one could say Palladian and I are... philosophically... married.

jeff said...

"It was great to hear the four-times-married, soon to be, four-times divorced, Rush Limbaugh go all outraged about gay marriage at the beginning of his show today. LOL, what a hypocrite."

Wow, Rush was in a gay marriage? I had no idea. ANd soon to be 4 times divorced? How do you know this? I suspect he is outraged by a judge overturning 7 million people, but I also suspect you know that.

former law student said...

If homosexuality was genetic then gay people would have died out like the do-do bird.

You need to rethink this argument. Many genetic disorders used to kill children under the age of puberty (and thus reproduction), yet somehow they persisted.

Scott M said...

There are serious health risks for offspring of siblings.

Where's the data on that?


...just one quick google search away from you. The risk for genetic disease and passing along harmful recessives is much higher between siblings.

former law student said...

Meade: You and the professor have just four more years to produce a child before your marriage automatically becomes invalid.

bagoh20 said...

"Gay marriage hurts no one. PERIOD."

It may be fair to married people, but it does definitely hurt single people by forcing them to shoulder yet more marriage benefits to more people who take on zero additional obligation for those benefits. Why can't I and a roommate get all the same benefits? Do I have to be gay...and prove it?

ALP said...

The Ghost @ 10:56

Then we are asked to accept that a male/female couple is the same thing as a same sex couple ... so that everyone can have an equal outcome ... but even if we agree to that there is one small problem ... biology ...
Try as they might a gay male couple can't "have" a child ... they certainly can adopt and be as effective as anyone at raising a healthy child ... but they can't have a child ... a gay female couple can certainly "have" a child ... well at least one of them can have a child with some man or his seed ...

***********************
As the female half of a long term (17 yrs) straight relationship - one in which children were never in the plan - this point of view used to irk me. "My childfree relationship is just as valid as one with kids..." yada yada and all that crap.

Then I realized that this argument wasn't taken far enough. Here is what I mean: it is more than just about having kids - its about CHEATING DEATH, or at least the illusion of cheating it.

Think about it: for most of history, life was pretty dirty, miserable, disease-ridden, and brutal for most folks. If you and your mother made it through childbirth - there were numerous childhood diseases to dodge. Those that didn't die may have been marked by disease permanently. Dirt, sewage, starvation, pus, rotten teeth, disfigurement, body odor...(see any well done period piece) were all part of normal, daily life - doubly so if you were really poor.

In the middle of all this - a couple of fertile teenagers wait until June when its warm enough to take a bath - so they can clean themselves up and have a nice wedding ceremony. After which - they will begin to fuck like bunnies (if they already have not begun to do so) and set about the task of popping out pink, shiny new people - to cheat the death that is all around them - to give death the finger, so to speak.

And that deep, primal "death cheating" function will always set straight, FERTILE couples apart from any other type, including my own childfree by choice coupling.

I'm pro gay marriage, but for the reasons stated above, its not the same. Cheating death isn't as urgent a need today, but I think its one of those human things deep in our minds, not at the forefront of our thinking.

former law student said...

Scott M: and just exactly who are these siblings who are having children?

Matt said...

Saint Croix

Thank you for proving the point I made yesterday. Many conservatives hate gay marriage because it involves gay sex. They fear it. That is all most conservatives think of when they think of homosexuals.
When they think of marriage they think about a union of two people, two visions with a quasi religious angle. But when they think of gay marriage they only think of what happens in the bedroom.

slarrow
you have to live by San Fransciso rules.
Yes, slarrow didn't you know that when rights were given to gays to have sex this means you had to go out and find someone of the same sex and shag with them. That was explicitly written into the law. And now you have to marry your best buddy or you'll be certainly arrested. Idiot.

Scott M said...

and just exactly who are these siblings who are having children?

The studies I remember reading involved geographically isolated populations such as south Pacific islanders and Andes tribes. You're welcomed to do your own research as you've suggested to me in the past.

traditionalguy said...

This pronouncement by a gay judge that all gender roles are gone means marriage itself is gone. Only a fool would go into a marriage now. Concubinage is all this State supports anymore. Thanks a lot.

Scott M said...

This pronouncement by a gay judge that all gender roles are gone means marriage itself is gone. Only a fool would go into a marriage now. Concubinage is all this State supports anymore. Thanks a lot.

I noticed that a pro-gay ruling by a gay judge didn't provoke all of the married people in California to riot, burn, loot, and otherwise act like animals. We must be lazy as I'm sure the media would be sympathetic to our understandable outrage.

Hoosier Daddy said...

If one looks at this pragmatically, this could be an economic boon to our economy.... If they choose to get married this will impact the wedding business. More catering, more flowers, more invitations, more gifts from Williams-Sonoma. Win, win, win, win.

I would have never guess in a million years that Vicki from Pasadena was a believer in trickle down economics.

Well Reagan was from California after all...

former law student said...

tradguy: Marriage has been temporary for a while now. Instead of a marriage license they should issue learner's permits. Gavin Newsom couldn't make five years the first time he wed.

former law student said...

OK Scott, according to what I have read, the risk of genetic defects from brother-sister marriages is comparable to the risk of genetic defects among the Amish, and among Ashkenazic Jews. We must ban such marriages on the strength of the comparison.

The Crack Emcee said...

Hi, Matt!

"Didn't you know that when rights were given to gays to have sex this means you had to go out and find someone of the same sex and shag with them."

No, from what I've experienced, it actually means gays will go out and attempt to shag me.

Meade said...

former law student said...
"Meade: You and the professor have just four more years to produce a child before your marriage automatically becomes invalid."

Exactly. Gotta run.

The Crack Emcee said...

Meade,

LOL!

Joe said...

Five thousand years ago, marriage was a union of a man and woman.

How did all those polygamists fit into this again? And what about that wives and concubines thing?

Following the logic; gay marriage should be disallowed, but polygamy made legal!

Scott M said...

OK Scott, according to what I have read, the risk of genetic defects from brother-sister marriages is comparable to the risk of genetic defects among the Amish, and among Ashkenazic Jews. We must ban such marriages on the strength of the comparison.

I think you need to go back and look at the original comment which only mentions "procreation", not marriage. Please do so and we will both get on with our lives.

I think it would be further helpful for you to look up both incest and marriage and see how the two are slightly different.

Saint Croix said...
This comment has been removed by the author.
Scott M said...

...cont'd...unless, of course, FLS, that you're suggesting that procreation is required for a marriage, in which case you might need to rethink your opinion on the whole same-sex thing.

slarrow said...

Sigh. Why it is always the morons who reply to my points?

To clarify: "living by San Francisco rules" means that a judge has taken a particular point of view (homosexual sex and marriage are just fine and opposition is bigoted) and attempted to enshrine it in the law. If you live in Atlanta or Austin or Minneapolis and think that's a bridge too far, too bad. You can't make any local rules or laws that contradict that because the Man in Black In California Has Spoken.

This is a problem because of instead of allowing a "live and let live" approach, it puts the issue into a pressure cooker where there's no release for conflict and opposition. It happened with abortion, and it's happening with homosexual marriage.

amba said...

What fascinated me about the previous thread was the veiled threats here and there about violent revolution.

amba said...

My objection is that while some would take it seriously, the majority would not, but the societal fallout and cost would be large.

Or perhaps you're seeing a noisy minority that, because it is so in-your-face, gives the false impression of being a majority.

My guess is that the majority of gay couples will be/are as faithful and committed as straight couples. Which admittedly, these days, sets a low bar.

HT said...

amba,

Do you really think the majority of gay men are faithful to their partner?

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

"...I think it would be further helpful for you to look up both incest and marriage and see how the two are slightly different..."

Not if a California judge rules on it.
Incest is just an 'artifact' who's time had passed.

Saint Croix said...

Many conservatives hate gay marriage because it involves gay sex. They fear it. That is all most conservatives think of when they think of homosexuals.

What I have discovered is that it's almost impossible to debate anything with a certain type of liberal without them demonizing you at the first opportunity.

When they think of marriage they think about a union of two people, two visions with a quasi religious angle.

When I think of marriage I think of a man and a woman. When I think of a family I think of a man and a woman and their children. This involves sex. Marrying for love is a modern concept. Marrying for reproduction is a concept going back to the dawn of time.

ricpic said...

That's all marriage is: a union of equals? The reductionism of committed leftists is breathtaking.

LarsPorsena said...

"...Following the logic; gay marriage should be disallowed, but polygamy made legal!"

Follow the logic; gay marriage is allowed then what can be prohibited?
Who can't get married?

Chip Ahoy said...

Artifact. Zing. Ha ha ha ha ha. Good one.

Scott M said...

Follow the logic; gay marriage is allowed then what can be prohibited?
Who can't get married?


I'll give full-blown support of same-sex marriage when same-sex marriage advocates stop discriminating against polygamists. Frankly, I don't think this part of the debate gets aired out enough. I find it to be a fundamental part of the issue.

Freeman Hunt said...

Time for the State to get out. No fault divorce makes State marriage a joke.

I'm Catholic. For me, marriage means something quite a bit different than for, say, another heterosexual couple who promises to stay together as long as they feel like it.

Forget State marriage. It's become almost totally meaningless. Nothing more than a property contract. A mere property contract hardly deserves the name.

Also, if mucking around with State marriage is causing the judiciary to do outrageous things like declaring that law cannot be based upon morality (???) then it's time to drop the issue.

HT said...

Saint Croix said...

Many conservatives hate gay marriage because it involves gay sex. They fear it. That is all most conservatives think of when they think of homosexuals.

____

What I have discovered is that it's almost impossible to debate anything with a certain type of liberal without them demonizing you at the first opportunity.

But be honest: Was that truly the first opportunity? I am against gay marriage, and I am a liberal. Am I your certain kind of liberal I wonder?

And for what it's worth, I think some of what Matt writes is true. There are "certain kinds of conservatives" who fear gay sex. I am in the land of the closeted Southern gay men right now.

ricpic said...

According to Judge Walker the 7 million Californians who voted for the definition of marriage as the union of a man and a woman are...bigots! Which is the leftist position on everything. You oppose me you're a bigot. What does this mean? It means that civil war is INEVITABLE.

Paul Zrimsek said...

Time for the State to get out.

Too late for the State to get out, probably. If being issued a marriage license by the State is a "fundamental right", then the State can't stop issuing them without violating Constitution: The Sequel.

LarsPorsena said...

"I'll give full-blown support of same-sex marriage when same-sex marriage advocates stop discriminating against polygamists. Frankly, I don't think this part of the debate gets aired out enough. I find it to be a fundamental part of the issue."

Me too. Every time this issue has been discussed I've asked the same question i.e., if the state can not restrict SSM what other kinds of unions can it not prohibit?

Consanguinity? Age? What is the basis for annulment now? Non-consummation is what now?

A brave new world..

AllenS said...

I can hardly wait for the first Muslim polygamy case to go to court. Especially if the man and his two wives are standing there, and the wives are in burqas, and one of them is not very large, and her age is impossible to determine. Forget about the Mormon argument, they are so yesterday.

Let's face it. In a lot of countries comprising millions of people, thousands of which are immigrating to this country, women are nothing but property.

Do you hear me, you BIGOTS!

RACISTS!

rhhardin said...

The people own the Constitution, and the people are always recently getting overturned.

It's not because the people need moral enlightenment.

Their intuition is that marriage is not what the judge says it is.

I'd go with the majority on questions of meaning, if you're actually curious about meaning.

The judge's intention is transformation. That's not his job.

phil said...

Rush Limbaugh and Newt Gingrich look like idiots bloativating on this topic. Also, Rush is trashing Gays on his radio program today.

Finally, it was popular among conservatives in the past to claim that they opposed Brown v. Board of Education not because they were against school integration but on constitutional grounds and that it should be settled at the ballot box. But these very same conservatives did nothing to fight for civil rights in the political arena. The same is going on here.

BTW, does Ann Althouse support Gay marriage? Does she believe that there is constitutional grounds to end discrimination against Gays? Is she working to change it in the political arena?

I have read this blog for several months and she has been pretty vague about her position. I know she has a grown gay son. If I was him I would feel like my mom threw me under the bus at this point so as not to offend her conservative acolytes.

mariner said...

The essence of democratic government is that the people have the collective right to decide the rules of society.

The essence of this judge's opinion is that they don't.

Freeman Hunt said...

The state has an fundamental interest in the propagation of society. Legally sanctioned marriage and all of its benefits should be available only to those couples able and willing to procreate. The state should require proof of a live birth along with DNA tests for proof of parentage. Only then should the state extend marriage benefits and responsibilities to the new family.

Isn't the only thing preventing that the idea of "excessive entanglement"? I never see anyone bring up "excessive entanglement," but it seems obvious.

phil said...

mariner wrote "The essence of democratic government is that the people have the collective right to decide the rules of society."


If you were correct then we would still have segragation in the South.

Fred4Pres said...

I would vote for gay marriage. I just do not think this right gets made by some judge. It is really that simple.

Saint Croix said...

You need to rethink this argument. Many genetic disorders used to kill children under the age of puberty (and thus reproduction), yet somehow they persisted.

Okay, for purposes of this argument I'll assume homosexuality is caused by a genetic disorder. It doesn't matter. The law assumes free will. Equal protection assumes free will.

A law regulating marriage regulates conduct, since all of us have free will and can do whatever we want to do. Today I might marry someone of the same sex, or solicit a prostitute, or snort cocaine. This behavior is not biologically determined (the law assumes) so it is fair to punish me if our society has outlawed this conduct.

I say there is no gay gene. It doesn't matter if I'm right or wrong. The government cannot punish us for our genes, our biology, our chemistry, our skin, our DNA, our sexual organs. It cannot punish people for existing.

But it can punish, or discriminate, against conduct. I cannot be punished for high testosterone levels. But I can be punished if my high testosterone levels cause me to engage in some violent behavior deemed illegal or bad by our society.

If California attempted to keep a gay man from marrying a woman, that would be unconstitutional. If California attempted to keep a lesbian from marrying a man, that would be unconstitutional. But California is entirely free to define what marriage is. Once it does so, everyone has a right to engage in that conduct or not engage in it, as people see fit.

ricpic said...

"...Rush is trashing Gays on his radio program today."

How? By saying that 2 +2 = 4? By affirming that the definition of marriage is the union of a man and a woman?

Fred4Pres said...

phil, seggregation in the South is not gay marriage. And that violated the 14th Amendment, so there was a framework of constitutional basis for taking it on legally.

If you think gay marriage is a good idea (which I assume you do), pass a law. Nothing in the constitution forbids it either. I would support your efforts.

Scott M said...

@Phil

A curious stripe of liberal tends to view conservatives as pining for the way things used to be. You appear to desire conservatives that, in the past, opposed Brown V BoE etc, etc, because you don't seem to want to see that conservatives, especially those from the X'er and Millennial age groups, don't quite fit your meme.

Doesn't that make you a conservative in that you pine, if for the conservatives of yesterday?

phil said...

mariner, the majority does not have the absolute right "to decide the rules" if it has an adverse affect on a minority. It is a Bill of Rights thing.

Bob_R said...

So does this mean that all laws based on the governing majority's view of moral concepts such as "fairness" and "equity" have no rational basis. For instance, is the minimum wage law unconstitutional.

Scott M said...

If you think gay marriage is a good idea (which I assume you do), pass a law. Nothing in the constitution forbids it either. I would support your efforts.

...but only if the making of such a law could somehow explain to me how polygamy is illegal.

phil said...

ScottM, please take it up with your fellow conservatives who are arguing that gay marriage is the same thing as wanting to marry your dog.

Stephen A. Meigs said...

Another out-of-touch and tyrannical court decision. But in my opinion the really disastrous case was Lawrence v. Texas. Sadly, religious elites are muddling anti-sodomy issues with marriage issues. Ideally, religions (which unfortunately are rather alone in fighting against sodomy) would largely be focused on keeping people from getting screwed-up, i.e., sodomized; but they can often get more members and more particularly more wealthy members by guilt-mongering through making marriage seem something that is somehow fundamentally connected with avoiding getting screwed-up, whereas, properly, marriage should be something associated with male commitment of resources (there is nothing disrespectable about a female who chooses to be a single mother, say, from having fallen in love with a male who can't commit to care for their children).

When opposing selfish groups are agreed on confusing an issue, that's where lies are at their strongest. Both the religious right and the male homosexuals are encouraging people in the present debate to think that somehow marriage and freedom from sexual depravity are connected, and that's the lie that this whole confused debate is encouraging, a lie that in the long-run might make people more confused in not recognizing sodomy as what screws people up. But the anti-sodomy religious right is less to blame than the pro-sodomizers, since though it is being used by sodomizers to try to make it seem that marriage rather than freedom from sodomy is what respectability is about, at least the former also (correctly) view sodomizing as abominable.

Our constitution is partly to blame for the out-of-touch tyranny that judges are exerting. There needs to be an amendment explicitly forbidding racial discrimination by federal, state, and local governments, and the corporations and organizations they recognize. That way, there will be no plausible excuse for the courts to invoke due process and equal protection with a broadness that defies common sense. And there needs to be another amendment restricting so-called substantive due process and substantive equal protection rights (or anything else, like emanations or penumbras from other rights) in such a way that voters rather than judges are the people to decide whether (say) to view sodomizing as a heinous addicting controlling behavior akin to rape and dope-peddling or rather as merely a trait of a victimized minority. Personally, I recommend an amendment whose purpose is solely to explicitly guarantee the rights of governments and individuals to discriminate against sodomizers. And to make ourselves safe from judicial tyranny from pro-sodomy judges, there should be a clause in the amendment that guarantees the rights of governments and individuals to discriminate sodomizers (males who put reproductive fluid in the digestive system of females or males, whence it can be absorbed and have its addictive and terrorizing pain-sensitizing enslaving effects) from non-abominable people which warns that any justice who presently or in the future when the amendment is in the Constitution declares the amendment unconstitutional or otherwise invalid (e.g., as conflicting with other parts of the Constitution or as being vague) shall immediately forfeit his life and that it is illegal to punish anyone performing such punishment.

Scott M said...

No, Phil, I'll take it up with you as you continue to make ill-considered statements lumping all conservatives into one monolithic group. It's intellectually dishonest.

Paul Zrimsek said...

The state should require proof of a live birth along with DNA tests for proof of parentage. Only then should the state extend marriage benefits and responsibilities to the new family.

"Finally, courts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational-basis review because it ‘is not made with mathematical nicety or because in practice it results in some inequality.’ 'The problems of government are practical ones and may justify, if they do not require, rough accommodations-illogical, it may be, and unscientific.'” -- Justice Kennedy, opinion in Heller v Doe.

Youngblood said...

Comrade X wrote:

"OK, what's the rational basis for giving couples rights that single people don't have? I'd like to give or receive an estate without paying taxes too."

Bingo.

If marriage is the joining of two equals with no higher purpose, then get the state out of the marriage business entirely.

If they're equal to each other and each is equal to any single person, then why treat those in a marriage like they're special snowflakes?

I mean, let's say you have an 80 year old unmarried woman who has enjoyed an intimate platonic friendship with another woman for 60 years.

They're not lesbians though, and they have no romantic or sexual feelings toward each other. However, they've lived with each other for 35 years. They may have even helped to raise each other's children.

What, exactly, is the rational basis for denying them the benefits that married couples receive?

This sort of arrangement is not all that uncommon for women or men. In fact, it's arguably more common than same-sex marriage will ever be.

What makes relationships like those less valid, or the people involved in them less equal in the eyes of the law, than Meade and Althouse, or those involved in a gay marriage?

What's the compelling interest for the state to stick its nose into our private lives in this way and play favorites?

AllenS said...

Sorry, phil, but I don't know anyone who wants to marry his dog, or horse, for that matter. The question is this: what can stop someone from trying to marry his dog, horse, mother, sister, or his two brothers, now that we have this ruling?

reader_iam said...

What fascinated me about the previous thread was the veiled threats here and there about violent revolution.

I've been privately testing a theory of mine here for a while, which is that, when a comment thread reaches a certain amount of comments, a number of those will involve such veiled threats. So far, it's panning out. It's not just the long gay marriage threads, though, Amba; it's not unique to this topic.

AllenS said...

trying = applying for a marriage license.

Freeman Hunt said...

BTW, does Ann Althouse support Gay marriage? Does she believe that there is constitutional grounds to end discrimination against Gays? Is she working to change it in the political arena?

I have read this blog for several months and she has been pretty vague about her position.


You don't know her position on gay marriage? Really?

Here's a swing of the clue bat for you: She's really truly out-and-out totally unapologetically fully and entirely for it. How have you missed that?

LarsPorsena said...

veiled threats = women in burqas

Freeman Hunt said...

I've been privately testing a theory of mine here for a while, which is that, when a comment thread reaches a certain amount of comments, a number of those will involve such veiled threats.

It's because people are frustrated. They feel more and more that the votes they make do not matter. Cases like there, where voters are overturned outright, are especially likely to have comments like that, I think.

Scott M said...

Is that a typo, Lars? Didn't you mean veiled teats?

PJ said...

But to do that will require stretching for a preferred result, given the precedent.

Yes, now that the judges have usurped this authority, they may never un-usurp it in any particular case without being accused of "stretching for a preferred result" harmful to the good people who have been the beneficiaries of the usurpation in that case. Nice ratchet.

phil said...

Freeman Hunt wrote concerning Althouse and gay marriage

"She's really truly out-and-out totally unapologetically fully and entirely for it. How have you missed that?"

After reading this blog for the past several months where this topic has come up repeatedly I have not seen Ann state her opinion. Does she support this important civil rights decision that came out of California yesterday?

Freeman Hunt said...

I find it interesting that precedent is so deeply enshrined as honored law. Even if it's bad precedent. Even if it violates the actual law. People who are into law seem, to those outside the legal professions, overly committed to precedent.

By the way, none of my arguments here should be construed as arguments against gay marriage. That's another thing and, I think, less important than the issue of government overreach and tyranny.

Freeman Hunt said...

That I don't know. But there are a whole lot of gay marriage supporters who don't agree with this ruling.

phil said...

Freeman Hunt wrote

"By the way, none of my arguments here should be construed as arguments against gay marriage. That's another thing and, I think, less important than the issue of government overreach and tyranny."

Unless, you just happen to be gay...

garage mahal said...

I'll give full-blown support of same-sex marriage when same-sex marriage advocates stop discriminating against polygamists

They aren't discriminating against polygamists. They want the same right to marry as their heterosexual neighbor. Something already legal.

jr565 said...

The exclusion of same-sex couples from marriage “exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage,” he wrote. “That time has passed.”

This must come as a shock to all those pre ops and post ops and shemales and transvestites desparate to change their gender from one to the other. Save the money girls (and guys). Don't you know gender as a distinct role in society is a thing of the past?

c3 said...

This poll from Rasmussen (yes, all of you on the left can lob your grenades now) seems applicable to this discussion.

(If you're wondering how Rasmussen defines the "political class" here's the background. YMMV.)

Scott M said...

They want the same right to marry as their heterosexual neighbor. Something already legal.

So do polygamists, no?

jr565 said...

garage mahal wrote:
They aren't discriminating against polygamists. They want the same right to marry as their heterosexual neighbor. Something already legal.


They already have it. I can't marry a gay guy either.

Freeman Hunt said...

Unless, you just happen to be gay...

No, even if you're gay. Growing tyranny is a much bigger deal than getting the legal benefits of marriage. I would absolutely give up the legal status of my own marriage (which wouldn't at all change the fact that I'm married) if it meant fighting tyranny. In fact, that's exactly what I'm suggesting!

Get the government out of marriage.

former law student said...

They want the same right to marry as their heterosexual neighbor.

So might any woman's brother. Why should he be the only one excluded from marrying his sister? Cleopatra married a brother and you never hear anything bad about their kids, right?

bagoh20 said...

"They aren't discriminating against polygamists. They want the same right to marry as their heterosexual neighbor. Something already legal."

They already have the right to marry just like their hertero neighbor. What they want is the right to marry whomever they are attracted to. That's a dangerous and ultimately unacceptable standard. But they don't care, it's what they want.

El Pollo Real said...

Unless, you just happen to be gay...

...or even if you just happen to be guy.

jr565 said...

garage mahal wrote:
They aren't discriminating against polygamists. They want the same right to marry as their heterosexual neighbor. Something already legal.


And how are they not discriminating against Polygamists? is polygamy recognized? Do polygamists want to marry in a polygamist relationship? Is polygamy legal? If it's illegal and polygamists want to do it, then aren't they being discriminated against? The question is whether society should. And that's always where the advocates for gay marriage start hollering about bigotry.

Joe said...

"Marrying for love is a modern concept. Marrying for reproduction is a concept going back to the dawn of time."

That's the judge's argument! Marriage itself has become a union of equals and is not what it traditionally was.

Again, though, the real issue is government entanglement. The ONLY reason marriage is an issue is because there are many legal and financial benefits given to married couples that are not given to others.

For example, if you are married and die, your estate transfers tax free to your spouse. If you are single, your estate gets taxed. Get rid of estate tax and that problem goes away entirely.

(What makes this example even more interesting is if you were married for, say, 50 years. Your spouse dies. You get the estate. You remarry. You die a day after your marriage, assuming you've done all the legal paperwork and wills your new spouse gets the estate tax free. Why? How is that remotely fair? [If this isn't true, correct me.])

bagoh20 said...
This comment has been removed by the author.
bagoh20 said...

In that Rasmussen poll thew 67% political class has to be basically all the Democrats. The numbers are about right for that, and it seem right intuitively. This makes the goal in November pretty clear.

Paul Zrimsek said...

I find it interesting that precedent is so deeply enshrined as honored law.

Well, it is except when it isn't. As I mentioned above, the Lawrence precedent got to be the Lawrence precedent because the Court tossed aside the Bowers precedent like a used Kleenex. Constitutional law nowadays is like a banana republic where the President-for-Life insists on being treated with all due pomp despite the near-certainty that he will be replaced by a different President-for-Life within the year.

AllenS said...

garage,

You didn't think your position through. Try again.

WV: cowdier

Someone who marries..... oh forget it.

Youngblood said...

I can't believe that nobody on either side is going to take that on!

What makes romantic pairings more important than platonic pairings?

Platonic pairings exist. They are arguably more common than same-sex marriages can ever be. They would no doubt be even more common if they received the same incentives that romantic pairings get.

slarrow said...

Following up on something Freeman Hunt said, people are certainly frustrated. The people in charge of the system are doing things that drive them up the wall. So what are they to do?

Well, the standard good citizen things to do are to get involved and work to change things. So they do. They call their senators and representatives--who ignore them in favor of what their political party or president wants to do. They pass laws (by referendum or by legislative allies); those get overturned by judges. So they pass constitutional amendments which again get overturned by judges who seem to feel entitled to their own facts.

The key thing is that people, even when incredibly frustrated, are trying to play by the rules. And then a political and judicial class comes along that ignores the rules to do pretty much what they want (see Pete Stark.) That destroys trust, and societies are built on trust. When trust breaks down, the uglier elements tend to surface. None of that is good, and it's very worrisome.

Michael said...

And the new definition of marriage is what?

Michael Haz said...

DBQ said: Oh. And we should leave gay people alone when they cease using activists to indoctrinate our children.

Freeman Hunt said: Growing tyranny is a much bigger deal than getting the legal benefits of marriage. I would absolutely give up the legal status of my own marriage (which wouldn't at all change the fact that I'm married) if it meant fighting tyranny.

I love strong, intelligent, conservative women.

Whiners and condescenders, not so much.

garage mahal said...

So do polygamists, no?

Polygamy is already illegal. So no.

And how are they not discriminating against Polygamists? is polygamy recognized?

Unless you have some cites from SSM advocates openly discriminating against polygamists, I don't see where that's their problem whether polygamy should be legal or not.

Palladian said...

"...when it comes to the legality of marriage and what is and is not the state's business, one could say Palladian and I are... philosophically... married."

I wonder what a philosophical honeymoon is like?

AllenS said...

garage,

There was a time, and not too long ago that SSM was also illegal. How'd that work out?

Scott M said...

Polygamists want their version of marriage to be just as legal and recognized, with all the benefits the state ascribes to that, as one-man/one-woman.

That is exactly the position the same-sex advocates have, is it not?

Are you absolutely sure same-sex advocates would never say they are against polygamy? Would you rethink your position on this if it were provided?

Palladian said...

WHAT FREEMAN HUNT SAID.

former law student said...

married couples

What a quaint expression!

Did you guys see "One Bride for Two Brothers; A Custom Fades in India"?

http://www.nytimes.com/2010/07/17/world/asia/17polyandry.html

Polyandry brought more resources to the marriage, while limiting the number of children that two men could provide.

A.W. said...

the opinion is ludicrous with findings of fact that cannot properly be called facts. i.e. gay marriage will not harm straight marriage.

that's not a fact. that is a F--ING PREDICTION. a prediction of the future is not a fact. The best the judge can do, reasonably, is say there is no evidence to prove that it will or something to that effect.

and that is not a minor point. If you recognized that this was just a prediction of the future then you might notice that a person might rationally predict a different outcome. and guess what you have, then? a RATIONAL BASIS.

This opinion is riddled with statements are ridiculous as that. For instance, he apparently doesn't believe bisexuals exist. indeed the whole trial, from start to finish, was improper.

if a gay judge is going to rule in favor of gay marriage, then the opinion and better be air tight. this one stinks out loud.

Youngblood said...

Palladian wrote:

"WHAT FREEMAN HUNT SAID."

But wait, Palladian... I thought that what Freeman Hunt said was only applicable if you're not gay? That's what Phil and Mary told me!

Are you kinda gay?

Youngblood said...

That should have been aren't you kinda gay?

Freeman Hunt said...

Remember, you invited the State into your relationship. And if you get that, you're not superior to the homosexual couples in their sexual relationships who want the same -- the societal benefits you're getting, and the protections for you boys/family.

And I was extremely liberal then.

But yes, there are state benefits, and I'm agreeing that those contracts should be open to all. But mere property contracts are not "marriage", so the State should stop abusing the word.

Michael Haz said...

And leave gay people alone. Okay?

Why not tell gay people to leave straight people alone, Althouse? If one statement is right then the other is just as surely right.

Or do you favor an apartheid version of society where the minority quashes the majority?

A.W. said...

another piece of sheer idiocy in the decision. Now you have heard more than a few libertarians say that maybe the government should get out of the marriage business entirely. stop recognizing marriages and instead when you get married you just write up a contract and a set of wills, and that is the end of it. They aren't saying that the constitution requires it, but they think it is a good idea from a policy POV.

According to Judge Walker, however, that would be unconstitutional. See according to him you have a fundamental right to get married that includes a fundamental right to marry anyone you choose regardless of gender. So the states have to recognize marriage. The CANNOT get out of the marriage business.

Now i would be the first to say the libertarian idea is a really bad one. But its not unconstitutional.

Mick said...

The fag judge is employing lawyeristic relativism predictably.
The purpose of marraige in a nation is to propagate the citizenry. That is why it is encouraged by certain perks. Gays want the same "perks" (they can have some by civil unions, but not all), without providing the benefit that married couples give the nation.

Freeman Hunt said...

Oh, so now we're talking government benefits, not contractual matters.

I think that's a problem of having a bunch of absurd government benefits rather than a problem of marriage. I don't expect to see a dime of Social Security money in my lifetime, married or not.

Palladian said...

The root cause of all these "gay marriage" problems and arguments and political moves is that the State is involved in something that it should not be involved in at all, which is defining the religious and/or romantic personal union that is called "marriage". All of this nonsense, all of these negations of majority votes on issues that should not have been voted on in the first place, would disappear if the State would get out of the marriage business altogether. That would be truly honoring tradition, that would be fair to gay people and that would take yet another wedge issue out of the hands of busybody Democrats and busybody Republicans and help focus attention on where it needs to be at the moment: saving our Republic from spendthrifts and regulators and moralists and corrupt incumbents and lobbyists and socialists and theocrats...

former law student said...

A.W.: There are thousands of valid SS marriages in California, two years old on average at this point. So far they have not worked their evil effects on any straight marriages, at least, not that I have heard.

ALP said...

What makes romantic pairings more important than platonic pairings?

****************
"Romance", IMHO, is Mother Nature and her army of hormones persuading humankind to hump and thus ensure the survival of the species. I'm convinced that if humanity looked at childbearing/rearing w/out the influence of "romance" - we would have perished long ago, or the earth would at least be much more sparsely populated. The more one merely THINKS about having kids, the less one is inclined to do it.

Platonic relationships don't further the survival of the species. They add quality and depth to a life already created, but does not drive the creation of more life.

Whether that is a good or bad thing is another issue.

Freeman Hunt said...

WHAT PALLADIAN SAID!

Scott M said...

@Mick...just...why?

This does no one any good. You could have said exactly the same thing and made the same point without lowering it to pejoratives. In this, you are no better than the liberal carpet-bombers that happen by from time to time and poison the discussion with their invective.

You will convince no one using this tact. In fact, you may actually achieve the opposite.

If, on the other hand, you're not trying to convince anyone of your point of view, I'd ask you to take your blogporn elsewhere.

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