"Unless we see a massive about-face (in public attitudes), 25 years from now people will look back at this and wonder why (equal marriage rights) took so long.Chapman University lawprof John Eastman says:
"I hope [Justice Kennedy] won't be swayed by shifting public opinion, assuming there is a shift".... If the law is supposed to change along with public attitudes, he said, "the political process is adequate to the task. We don't need the courts."Speaking of law that is/isn't changing with shifting public attitudes, I can't help changing the subject to the Constitution's Free Exercise Clause and the current flap over contraception and insurance coverage. An awful lot of conservatives — with Rush Limbaugh leading the pack — are endeavoring to shape public opinion about the meaning of these rights. Either they are genuinely ignorant about the case law interpreting the Free Exercise Clause or they are doing the very thing they normally rail against: trying to make the Constitution "evolve" so it says what they'd like it to say. Here's Rush:
The right to religious liberty in this context is unequivocal in our country and in the Constitution. It's right there in the Bill of Rights. Since when does a president have the power to threaten to issue a rule gutting religious liberty?It's absurd to declare there's no right to gay marriage in the Constitution and turn around and say the President's rule about contraception and insurance coverage violates some obvious "unequivocal" right in the Constitution. Have one theory of the Constitution and stick to it, clowns.
The First Amendment -- the Bill of Rights of the Constitution -- explicitly says that government shall have nothing to do with religion. You hear, do you not, the left constantly caterwauling, whining and moaning about "separation of church and state"?Now, he's reached the Establishment Clause, and suddenly he's an arch-separation-of-church-and-state guy. Nice to trash "the left" for inconsistency, but what's more hypocritical than being inconsistent in order to trash the other guy for inconsistency?
I've been a law professor for a long time, so it's not as though this sort of thing shocks me. But I would like to help you see how much dishonesty/ignorance is on display here. What would Rush and the other conservatives who are riding this religious freedom issue say about religiously motivated pacifists who don't want to pay taxes that fund the military?
More Rush:
Whenever a religious Republican or conservative seeks political office [the left worries] about "the imposition of religious moral values on people," and say, "This is intolerable! This is intolerable. It's not permitted! It's a violation of the Constitution." So the left hates the Constitution when it's an impediment to what they want to do. When it supports what they want to do, they're the biggest constitutionalists in the world.And the right? They do the same damned thing.
Posts
302 comments:
«Oldest ‹Older 201 – 302 of 302But the State wouldn't be defining it beforehand. That's a critical difference, I think.
Actually, as with other contracts, the government would make rules — either beforehand or after the fact — about what a marriage can be. For instance, there are rules about what's "unconscionable" in contracts. The government has created an enormous body of law on how to interpret contracts.
With the status quo, it's very easy to agree to accept the rights and responsibilities that flow from marriage without needing to hire a lawyer, since the government has already set the rules. Of course, people can add their own rules through a pre-nup, but they don't have to.
To suggest that marriage should become no different from other contracts is to propose making lawyers play a bigger role in people's lives. Whether this would be preferable to the status quo is a matter of opinion. But we should be honest about what the possible options are. There is no possible option of getting the government out of everyone's business. Saying things should be done through contracts is not a way to get the government out of people's lives — it's a recipe to invite lawyers and government even more deeply into people's lives than they are now.
"I would object to the hypothetical right-winger who attempts to tax the Catholic church in order to pay for XYZ war. Strongly and vehemently object. "
I always considered that the tax exempt status of churches was mostly a recognition of churches as a source of education and charity... in other words, the same as any other non-religious non-profit organization who gets a pass on taxes. And also as a tidy answer to dissociating government and religion, but not a necessary one.
So end tax exemptions for religions and *all other* non-profit organizations and call it good.
Individuals have never ever had an exemption from taxes for any reason. Certainly not for religious conviction.
The Supreme Court has ultimate authority.
Bullshit!
The Supreme Court has authority to resolve cases and controversies, and that's all the authority they have. If they violate their oath of office they can and should be fired.
We the people are sovereign in our country.
Boy, poor old Ann is taking it on the chin here. She's hit a tender nerve. The right is in fact every bit as hypocritical about the Constitution as the left.
I guess we could ask if a minister marries two men is it a violation of the Constitution for the state to say that union is invalid? You know, as in interferring with religious liberty? Wonder what Rush says.
The right is wasting its time on gay marriage in any case. It never had and does not have a thing to do with the real crisis of marriage now, with children, any of it. In any case, it's over folks. And who cares if a gay couple moves next door? None of you would. As long as they shovel the sidewalk when it snows.
As for contraception, the mystery to me in it is wondering who could possibly be left anywhere in this land who cannot get all of it they might want either for free or a pittance. Why the government needs to get involved is beyond me. But religious liberty is just not that issue. Fiscal sanity, now that's another matter.
The Supreme Court has ultimate authority.
That is certainly not what the people who founded the United States thought.
Yes, I thought churches and church-run institutions were exempt from federal taxes so they wouldn't have to pay into such a "fund". No?
They are now. But of course it's "unfair," so who knows what tomorrow will bring.
Well, speaking on behalf of the other clowns, the current tax exemption makes it seem as if someone out there thinks the church should be exempt from having to pay for things it finds morally reprehensible, and that is partially based on the Establishment Clause.
But yeah, I can see how once we've justified making the church pay into the insurance fund we can turn around and say, "well, they pay for birth control pills, even though that's against their religion. We should be able to make them pay for national defense"
The government definition of marriage is a default. No reason if government wasn't in it that pre-written default contracts wouldn't be easy and inexpensive and require no lawyerly intervention, merely a copy machine at the library or a service of a store-front that does the same for wills and other common documents.
Maybe I read far too much science fiction but "I'll take the one-year co-hab agreement with the child support rider" sounds perfectly normal to me.
I’ve never heard any argument against gay marriage that doesn’t boil down to a, “We don’t like the idea of gay marriage” argument.
Could it by that you're closing your ears and mind right after the phrase and refusing to listen to what is said after the word "...because..."
Lord knows that pro-SSM advocates in CA were SO tolerant of the Prop 8 people
Why the government needs to get involved is beyond me. But religious liberty is just not that issue. Fiscal sanity, now that's another matter.
I'll take all of the above.
For heaven's sake, they're going to invoke the Commerce Clause to justify the individual mandate. It isn't as if there's a high bar set for the Constitutionality arguments surrounding Obamacare.
I guess we could ask if a minister marries two men is it a violation of the Constitution for the state to say that union is invalid? You know, as in interferring with religious liberty? Wonder what Rush says.
Many churches solemnize unions that aren't legal marriages. No one arrests the participants and the gov is neutral to the people involved - it just doesn't include them under the "legal marriage contract".
if a minister marries two men is it a violation of the Constitution for the state to say that union is invalid? You know, as in interferring with religious liberty?
If you're asking me, yes.
If you're asking the Supreme Court, no. They've abolished the free exercise clause. Free exercise is subsumed under free speech now.
And who cares if a gay couple moves next door? None of you would. As long as they shovel the sidewalk when it snows.
Well, that's the rub, isn't it? At least in my circle, gay people (at least, the ones you are most likely to know are gay) have something of a PR problem of having a propensity to being hypersensitive, demanding, and generally anti-social.
In any thread I've ever seen on SSM, pro-SSM forces always state, with a straight face, that marriage is not about children, but solely about the relationship between two (or more in the polyamory community) adults. All right.
But, even then, the proponents will say they are against 1st cousin marriage- because of a greater chance of genetic imperfections, and aghast at the thought of father-daughter marriages for the same reason, besides which, that's ICKY!
But if marriage isn't about children, then why do either of the above matter, as long as they are consenting adults?
Even father-step-daughter (think Woody Allen) is ICKY! to most people. In some nations, that marriage would not be allowed.
History is on the side of ever-increasing freedom.
Is this an internally-derived statement or an empirical one?
What about Obamacare? Is he on the wrong side of history because he limited freedom to buy or not buy healthcare? Or is he on the right side of history by recognizing that freedom also means the freedom to live disease-free even if you can't afford healthcare?
On an unrelated point, has anyone ever considered the possibility that we're heading for the world in Logan's Run? Complete freedom to indulge in all pleasure-seeking while also redistributing lifespans? After all, why should one person get more than 60 years and another get only 15 or 20 or less? Pleasure for 30 years for everyone. I bet a lot of people would be quite willing to make that bargain.
I know there was that recent Justin Timberlake film, but I haven't seen it. I believe it's roughly the same concept though.
So long as people have children, the state will be involved, unless we decide as a society that the biological father never has any rights over how the child is raised, or responsibility for support. If we tried to separate marriage from state, presumably it would be brought back in when it came paying the cost of raising children, among other things.
P.S. Are we in the process of restoring something like common law marriage through litigation by cohabiting (or formerly cohabiting) couples?
P.P.S. Classically speaking, the Supreme Court is not the sole and only arbiter of the meaning of the constitution. If all three branches are to be equal, each must have an equal right to interpret the text for itself. That was Lincoln's position, and that of most of our statesmen until rather recently. The Court has final say only in particular cases before it, regarding particular people. Hence, Lincoln reasoned, Dred Scott had to abide by the Court's decision, but the Court did not have final say in deciding for the republic that black people could not be citizens under the constitution.
History is on the side of ever-increasing freedom.
Are you sure about that?
Because I'm quite certain that 100 years ago the federal government didn't ban lightbulbs.
How do you square that assertion with the ever growing nanny & welfare states?
if a minister marries two men is it a violation of the Constitution for the state to say that union is invalid? You know, as in interferring with religious liberty?
What does invalid mean in this case?
The church can perform a marriage ceremony for whomever it chooses. But in order for the marriage to be recognized by the State, there has to be a government-issued marriage license, a marriage service/ceremony, and State validation thereof.
At the time of the enactment of the constitution there was no need for the term marriage or gay marriage since marriage as institution between a man and a woman was known and accepted ...
There’s a lot of things in contemporary society that are newer than the Constitution. Yet the Constitution is the document used in regards to them being legal – or not. Just because something has never been done is not a rational argument for outlawing it.
… the Constitution protects religions from having to recognize/perform all the marriages the government declares acceptable.
No one is trying to force the clergy to perform marriages of same-sex couples. Straw man argument.
So, if the natural order is no longer the objective order, then what remains? … Anyway, given the available evidence, it seems reasonable to recognize individual dignity and to afford tolerance to their voluntary behavior, but not normalization.
… it represents a departure from recognition of an undeniable natural order.
The concepts of ‘natural’ and ‘normal’ are frequently used in arguments against gay marriage. History tells us that homosexuality has been around for a very long time. Time enough to be considered perfectly normal and natural if longevity is the gauge of measurement.
It has already happened. A court has ordered a religious entity to perform gay marriages.
No links were offered by the commentor. But the fact that some court somewhere made a stupid ruling doesn’t impress me, given that such rulings occur all the time – usually to be overturned in the fullness of time. Checks and balances, etc.
Gay marriage can be said to dilute the purpose of marriage, because children aren't the primary focus of the practice.
There’s lots of reason to get married. Should we pass a law that man/woman marriage should be outlawed if the couple are medically unable to conceive?
Being gay is hazardous to your health on top of being immoral, abnormal and unhealthy.
“Immoral” is in the eyes of the beholder. History and research on the number of gays in society tells us that gayness is not abnormal. Being gay is no more unhealthy than being straight.
Given those facts, why should the state encourage such behavior in any way.
I’m not asking the state to encourage anything. I’m just wanting the state to stay out of the bedrooms of consenting adults.
Further, given that we really don't know what effect sticking children into same sex parent homes has, we should err on the side of caution.
And we won’t know, especially as the social sciences and attendant research are rife with political agendas, usually Progressive in nature. Does the commentor believe homosexuality is the result of the environment in the home? I do not. I believe it’s a natural characteristic that perhaps 10% of any population is born with. I think what’s important with the rearing of children is a loving home and gentle guidance and has nothing to do with the sexual orientation of the parents.
Could it by that you're closing your ears and mind right after the phrase and refusing to listen to what is said after the word "...because..."
I used to be against gay marriage for many of the same reasons given by others in this comment section. That was before I started reading and thinking about it. After awhile I realized I was wrong. But I’m not infallible and I recognize that I could be wrong about being wrong. If a compelling argument comes along I’m ready to change again. So far – zilch.
But if marriage isn't about children, then why do either of the above[polyamory, cousins] matter, as long as they are consenting adults?
Polymory and cousins marrying have occurred throughout history, plenty enough for me to consider them natural and normal.
The concepts of ‘natural’ and ‘normal’ are frequently used in arguments against gay marriage. History tells us that homosexuality has been around for a very long time. Time enough to be considered perfectly normal and natural if longevity is the gauge of measurement.
Murder's been around a long time, too. Rape, prostitution, intoxication.
What you need, I think, before you find an "unenumerated right," is a long history of legal behavior. If people have been outlawing something for centuries, we really shouldn't have a bunch of Ivy League dictators come along and say they know better than we do.
Rights have to be majoritarian.
The Constitution explicitly lists raising and supporting Armies, and providing and maintaining a Navy as a responsibility of the Congress.
There is no inconsistency.
You teach Con Law, so I'll take it for granted that you are correct as to the case law.
But how did we get to the point where a religious entity can be compelled to go against its tenets?
For the record, I am a non-proselytizing atheist, and I certainly disagree with the Catholic Church on contraception. But I see that as the Catholics' business, and not for me, or a Wisconsin law professor, or a Stanford law professor, and least of all a dippy politician like the current president, to be messing with. As far as I'm concerned, as long as a religion's doctrines do not involve sacrificing virgins by moonlight, they should be free to practice as they see fit. If the Free Exercise Clause doesn't mean that, then it doesn't mean much.
Ann Althouse said...
"How is what ObamaCare is trying to do any different than the New Jersey hospital that tried to force the nurses to participate in abortions or lose their jobs?"
No one is forcing anyone to get or give abortions or to use or dispense birth control. This is about people who consume health care being forced to pay into a fund that then covers treatments that individuals are free to choose whether or not to use.
The religious problem is about contributing to the fund, which is why I compared the argument to the one pacifists make about paying taxes that pay for wars.
2/12/12 3:03 PM
National defense is a core requirement. Birth control and abortion are not. The whole welfare system isn't either which is why Congress has the authority to modify or repeal social security and the rest at any time it chooses to.
I think that marriage is about property and that property is about the support of the children *and* the support of the adults.
I think that thinking of it in terms of love is a mistake. It's a recent thing, too, isn't it, the love business?
Historically wasn't marriage mostly about who owned what? Cousin marriages were more common than not because the idea was keeping wealth in the family. (Or power in the family, if you were a pharaoh and married your sister.) Wealthier classes had more absolute rules about property and restrictions on dissolving a marriage than poorer classes, who might be denied divorce but just moved out and in with someone else and carried on.
So there gets to be rules... your brother dies and the rules say you must marry his wife and it's absolutely wrong for you to try to permanently inherit your brother's stuff by not getting your brother's wife pregnant and giving your brother an heir.
And so on. It's about property.
It is, yes, about ensuring your children are cared for (and that you know that they're actually your children).
But it's also about who has the responsibility to house and support and feed and care for the spouse. My father must protect and support me... then I am given to my husband to protect and support me. Even if I never conceive (though property demands my husband have an heir, so if I don't give him children I might be sent back to my father, but that's not certain and is mostly a problem created by a prohibition on polygamy.)
Extrapolate this to a less dangerous time and one where anyone has equal earning ability. Children still need protection and support, and a spouse may well still need protection and support. It's still about the consolidation and protection of wealth.
This has been almost completely destroyed by rules that allow someone to leave a marriage on a whim, but I believe that the strongest argument for same-sex marriage is one that calls on the roll of marriage as property consolidation and mutual non-governmental material support.
Jay said...
"Further, given that we really don't know what effect sticking children into same sex parent homes has, we should err on the side of caution."
So we should take the two children that Mary Cheney and her partner Heather Poe are raising away from them?
Truly, marriage isn't about consolidating and preserving property anymore, it's about taking a gamble that your property will be torn away and divided into tiny pieces as soon as your partner's emotions aren't as strong.
Since you can "live in sin" with the person you "love", why would any sane person get married?
Alex said...
History is on the side of ever-increasing freedom, which means eventually gay marriage will be legal in all nations, in all states. Which side of history do you want to be on? Freedom or slavery - it's your call.
2/12/12 4:07 PM
Good. Can we now abolish the entire entitlement state so I as a net taxpayer have the freedom of not being an indentured servant to others?
grackle said...
At the time of the enactment of the constitution there was no need for the term marriage or gay marriage since marriage as institution between a man and a woman was known and accepted ...
There’s a lot of things in contemporary society that are newer than the Constitution. Yet the Constitution is the document used in regards to them being legal – or not. Just because something has never been done is not a rational argument for outlawing it.
Or have the courts impose something that has never been done before against the wishes of the majority.
History is on the side of ever-increasing freedom...
Really? I see no evidence that's the case. In fact, I would say Americans in the 19th century were more free than they are today. There were no federal drug laws, for instance, and no income taxes.
Do you remember when people used to say things like "don't make a federal case out of it"? I've heard now you can't go a whole day without breaking three federal laws. This is ever-increasing freedom?
History is on the side of ever-increasing freedom, which means eventually gay marriage will be legal in all nations, in all states. Which side of history do you want to be on? Freedom or slavery - it's your call.
Really? Where would that be? Cities banning trans-fat, salts, smoking in bars, requiring bike helmets, etc.
Or do you only mean sexual freedom? Does that seem to be more important to you than any other? The only freedom that liberals agitate for is sexual - they want to control every aspect of your life otherwise.
Eric said...
"Really? I see no evidence that's the case. In fact, I would say Americans in the 19th century were more free than they are today."
I know of one segment of the population in this country that would disagree with this statement?
Civil War ring a bell?
Steyn, I think it was , argued that sexual license did define freedom for progressives to the exclusion of anything else. As long as everything having to do with sex is not only permitted but encouraged and all responsibility for consequences removed, it doesn't matter that government governs every single other aspect of your life.
It's one of those things that seems like it's got a lot of merit when a person looks at which liberty issues concern progressives and which ones don't. Not even free speech is an obvious thing... after all, offensive speech isn't free, right? You've the right to say anything you want, so long as it's not the wrong thing.
But hey, look there, sex!
So no worries.
I think it was , argued that sexual license did define freedom for progressives to the exclusion of anything else. As long as everything having to do with sex is not only permitted but encouraged and all responsibility for consequences removed, it doesn't matter that government governs every single other aspect of your life.
Didn't I just mention Logan's Run? You all really should watch more retro-science fiction.
Or do you only mean sexual freedom? Does that seem to be more important to you than any other?
Squirt free or die, eh, Alex?
Squirt free or die, eh, Alex?
So now I'm important enough to mention on a thread where I've barely participated. I feel honored.
Your original comment days ago was so memorable I just can't let it die.
"Further, given that we really don't know what effect sticking children into same sex parent homes has, we should err on the side of caution."
We know that sticking children in polygamous families creates Utah.
And for pity's sake, for most of history children were barely in families at all. Even in modern, Western, history children were on the streets, or in the mill, or, for the very fortunate, looked after by servants with no biological connection. Children were raised in families where mothers commonly died in childbirth, and siblings with them. Children are resilient and the undeniable argument for that is our existence today.
Many of the gay couples I know with children have adopted. They are raising children that were otherwise abandoned. This is called erring on the side of common sense. It is erring on the side of love.
Henry said...
"Many of the gay couples I know with children have adopted. They are raising children that were otherwise abandoned. This is called erring on the side of common sense. It is erring on the side of love."
Nicely stated.
@John Althouse Cohen 2/12/12 4:06 PM
The Supreme Court has ultimate authority. Other federal courts and state courts also have authority subject to being overruled (by themselves) or reversed (by higher courts).
No, they don't; not in something this complex. Congress and the presidency have co-equal powers, under the Constitution ...and Congress, at least, shares responsibilities in this (the argument for executive involvement would typically be less, but the Obama administration has inserted itself where it doesn't belong).
The Constitution doesn't specify the 9 Wise Judges Who Rule Over All, as a gift from the Founders.
What we currently have is a weak legislative branch too afraid (or stupid) to exercise its constitutional responsibilites, an overweening executive branch that has clearly exceeded its constitutional powers in a proto-dictatorial fashion, and a conflicted judiciary that is flailing due to the dishonest incorporation of penumbric manifestations that the Founders clearly never intended.
You need to read history, with a view to understanding it.
But if you want to operate in the real world, you have to understand that this is the actual system.
And by your reply - truly a case of the kettle calling the pot black - you clearly don't understand "the actual system" either (not that I took the time to check if your comment was directed to someone else operating under some equally erroneous historical misapprehension: yours was blatant enough).
You might want to start with Locke this time, and then work your way through the history of the United States.
...can't believe no one called you on this nonsense.
Sorry St. Croix ...you actually did call bs well before I did (I didn't notice the comments had went to multiple pages).
I think this is really about the law as psychotherapy. Fears or anxiety about about possibly being homosexual are a common issue and the historical cultural motif is establish sexuality in marriage. Nobody says that people look down on them for being heterosexual and married. I guess the law is saying wouldn't it be nice if we can do that for homosexuals. I guess we'll see. It's a shame religious and freedom of association has to be ruined for the Catholic Church for the law to be consistent. And that is where I see the democratic battle being.
@Ann Althouse
I see that you didn't repudiate the argument, merely snarked at it. If you have a boiler plate answer I haven't read it.
And yes, I consider it a very valid argument. Believe it or not, I a merely a carpenter. I have no law degree to lead me to nuanced interpretations of the constitution, which in my hillbilly local yokel belief, should be the basis of all law. Not some idiotic, "that's the way we feel today" interpretation that lawyers seem to love so much, or the pandering that so many politicians(unfortunately, mostly lawyers) use to buy votes and favors from whatever special interest group will donate most to their re-election campaign.
Now answer the argument, if I am by law not allowed to marry whomever I want, in as many numbers as I want, and the same is true for homosexuals, how are they being discriminated against?
Or have the courts impose something that has never been done before against the wishes of the majority.
Must the will of the majority always take precedent? Public opinion was probably against Truman when he issued Executive Order 9981 but I’m glad he did because it was a major step toward eliminating institutionalized discrimination.
http://tinyurl.com/6ytyy4x
This is about the thousandth time I've read that argument, which is usually put forward like this, as if it's a solid insight that will advance the discussion.
Seriously, do you have any idea how bad it sounds to people who don't already agree with you? Are you trying to be annoying, or do you actually think this is helpful?
Really? Either you are genuinely ignorant about the case law or you are doing the very thing that leftists usually do.
Probably both.
I've been away all day, and I'm not in a position to read all of the other comments, but make a legal argument, Miss Caselaw I'm a Professor, and stop with the damned ideology, especially tinged with anti-Catholic bigotry.
_________________
The Supreme Court has ultimate authority
Nothwithstanding that comment about the caselaw -- No, No, the Supreme Court does NOT has ultimate authority.
We were here 1800 years before the Supreme Court. We were here 1800 before the United States and the Constitution. And we NEVER -- and no other person who came over the boats on the ocean from the old world -- placed our freedoms, especially our faith, under the tyrannical supremacy of some judiciary, any more than we or they were willing to submit to King Henry or Elizabeth or any other tyrant.
Religious freedom is the ultimate authority here. Good conscience is the ultimate authority here.
@Bender
Damn straight! :-)
Let's talk about judicial tyranny too. In these states that have voted against same sex marriage, and it gets imposed on them by the judiciary anyway. Last I looked there were 3 branches of government, not 1 with 2 advisory boards.
It's about time someone yanked a knot in the tail of the SCOTUS. That ruling about personal property they made a few years ago specifically. What absolute arrogance of those halfwits. Yes, halfwits. They sure don't represent any American belief I ever heard of. So we know that judges fuck up. And politicians are fuck ups. I say we scrap every law and start over, just the Constitution, and the Bill of Rights. Total reboot. Man, wouldn't that be sweet.
Big Mike, 6:17 But how did we get to the point where a religious entity can be compelled to go against its tenets?
Since Reynolds v. United States, if not earlier.
… Now answer the argument, if I am by law not allowed to marry whomever I want …
Baring incest and age of consent I believe the commentor is perfectly free to marry whomever he wants. As far as I can tell the same-sex marriage movement has nothing to do with incest or child/adult marriages so the premise seems false to me
… in as many numbers as I want, …
This seems irrelevant. Same-sex marriage has nothing to do with polygamy. Polygamy is not the same marriage issue as same sex-sex marriage at all. They want to marry one person at a time, just like the rest of society.
… and the same is true for homosexuals, …
But the “same” is not true for homosexuals. The premise is not even true for the commentor.
… how are they being discriminated against?
They are being denied, unfairly I think, the same institution, the institution of marriage, that the rest of us enjoy.
As far as I know, the Constitution doesn't mention marriage at all. As far as I know, the individual states set the rules for the marriage contract and as far as I know, those rules apply equally to everyone.
What would Rush and the other conservatives who are riding this religious freedom issue say about religiously motivated pacifists who don't want to pay taxes that fund the military?
During Vietnam, there were lots of anti-war activists who withheld a portion of their taxes. Don't know how they made out ultimately, but I can guess.
In any event, there's a distinct difference between an individual paying income taxes into a general fund from which government takes money for Constitutionally legitimate purposes including national defense and government dictating to private organizations what kinds of products they must provide to their employees. In fact, the two aren't even related. And the kicker in this case is the explicit prohibition of laws interfering with the free exercise of religion. Surely when any church is compelled by government to act contrary to it's doctrine and beliefs, it's being prohibited from free exercise.
Perhaps it's a shame the Constitution doesn't explicitly protect "religiously motivated pacifists" from paying taxes, but it doesn't. Perhaps the government could take a leaf from, oh I don't know, Planned Parenthood's book which instructs us that money is not fungible and that none of the money we taxpayers give it (whether we like it or not) support abortion. Likewise, the government can tell religiously motivated pacifists that none of their tax money is going to support the military. And it can tell devout Catholics that none of their tax money goes to PP at all since said money is used to provide contraception. And so on...
Do you honestly not know the answer to this question so that you have to ask me? The Supreme Court has ultimate authority. Other federal courts and state courts also have authority subject to being overruled (by themselves) or reversed (by higher courts). You don't need to like this. You can fantasize about having a different system. But if you want to operate in the real world, you have to understand that this is the actual system.
How does this square with the notion of three co-equal branches of government?
My plain reading of the Constitution doesn't show where the framers granted such "authority" to the Supreme Court. While the concept of "judicial review" is articulated in the Federalist Papers its no where to be found in the Constitution.
And if such "authority" existed since founding why wasn't it used before Marbury v Madison in 1803?
BTW, I'm pretty sure that when I looked at this thread earlier there were 243 comments; what happened?
Same-sex marriage has nothing to do with polygamy. Polygamy is not the same marriage issue as same sex-sex marriage at all. They want to marry one person at a time, just like the rest of society.
It's frankly bizarre to say that marrying somebody of the same sex is "just like" marrying somebody of the opposite sex.
In my experience, vagina sex is way better than sodomy. I'm a vagina man. Love the vagina. Gay men, I'm like, "You don't like the vagina? What's wrong with you?" I don't get that at all.
But aside from better sex, straight people do this thing called reproduction, which is pretty cool. Making a baby. It's awesome.
So for brainwashed egalitarians who insist they see no difference between gay sex and straight sex, please. You're killing me with illogic.
And can I say too that just about all of us distinguish on the basis of sex, when it comes to sex itself? Where are the people who cannot tell the difference between men and women? Gay people discriminate against the opposite sex. Duh. We all discriminate. When liberals just repeat their non-discrimination mantra, it drives me up the wall.
You discriminate! We all discriminate!
And it's more than a little insane to say that our Constitution was written and voted upon by a bunch of bisexuals who jump from man to woman to man to woman without noticing any difference. Lies!
I also dissent from the idea that not having a father is a good idea for kids. You have any social science to back up that theory? Because the science I've seen suggests that fatherhood is important.
This idea that "mother" and "father" are just roles that uni-sex people adopt, blah. I feel like I'm arguing with a bunch of brains in jars. Do you not have a body? Are you not a biological creature with biological drives, handed down to you by your parents? Who, by the way, were straight?
SukieTawdry said...
“Perhaps the government could take a leaf from, oh I don't know, Planned Parenthood's book which instructs us that money is not fungible and that none of the money we taxpayers give it (whether we like it or not) support abortion. Likewise, the government can tell religiously motivated pacifists that none of their tax money is going to support the military. And it can tell devout Catholics that none of their tax money goes to PP at all since said money is used to provide contraception. And so on...”
SukieTawdry,
Interesting sarcastic comment about money not being fungible and how this concept could be used to tell devote Catholics their money isn’t being used to provide contraception services.
I understand these Catholic institutions employ non-Catholic workers who obviously receive salaries for services rendered. These non-Catholic employees may, in turn, use these payments to purchase contraceptives and abortion services. It seems if the Catholic Church was truly concerned about not funding contraceptives and abortions - or protecting their religious freedom as they claim - they would only hire Catholic employees who would presumably not use their salaries to purchase contraceptives or abortion services. And if that was in fact the situation this whole exemption debate, at least for these institutions, would be moot.
MayBee said:
"I am pro-gay marriage btw, but I do believe the government has the ability to define marriage while the Constitution protects religions from having to recognize/perform all the marriages the government declares acceptable."
Agreed. I would change "but" to "because", as in I am pro-gay marriage, because I believe the government has the ability to define marriage, through legislation. Marriage is a law that allows people to get defined benefits. I have no problem seeing those benefits extended to same-sex couples.
Marriage as defined legally by the gov't. is obviously not the same as religious marriage. Many hetero couples have a City Hall marriage only (such as my husband and me). If to some, we are not really married, that's fine, as long as the gov't accepts the legality of our union for tax and other purposes. I hope that is good enough for same-sex couples. Some of the push back against SSM is likely a fear that churches will be forced to perform same-sex ceremonies.
@Althouse- Thanks for spelling out the issue in more detail in your comments. It was helpful for someone like myself who has no background in law (as will become apparent).
"The question isn't what "marriage," the word, means, but what the constitutional law at issue means and how it applies to the question of how a particular action of government should be judged. "
Only someone with a law degree could say that the SSM issue is not about defining "marriage"! (I'm just teasing. )
"What is the power of government? How can government impose on and restrict individual human beings? You are free to think anything you want about what the word "marriage" means, but the legal question is whether the government can maintain an institution that includes some associations between individuals and excludes other. "
If the answer is no, do all marriages become legally invalid, unless every adult is allowed to marry whomever and however many other adults they want? AKA "the slippery slope"?
"If the argument is they can do that with "marriage," the question is what legitimate interest supports an exercise of government power? "
The traditional reasons: to simplify inheritance, property, and parental rights issues. If everyone can marry everyone else, determining who gets what when there is a breakup becomes a nightmare.
"One argument is that the legitimate interest is to express the people's understanding of the meaning of a word. Is that enough? That's the issue."
I leave that to legal scholars to decide.
"The institution doesn't have to exist, but it does, and since it does, the government has to follow the constitutional rules about the limits of power."
I'm confused. Again, to me, this implies that marriage has to be open to all sorts of combinations or it is unconstitutional. Unless it is legally decided that yes the government can maintain marriage as an institution that includes some associations between individuals (two consenting adults) and excludes other (multiple consenting adults). Which would also mean states could legally exclude same-sex marriages, wouldn't it? (unless I am misunderstanding the issue altogether- entirely possible).
"If you feel like implementing your preferences as laws that bind everyone, you need to support government power to do that... Conservatives should ask why government has the power. Limited government. It's a conservative value."
This sounds like a compelling argument for no gov't. involvement in marriage at all. Which I like in theory, but in practice it means a lot more money for lawyers, who would be needed to draw up all the terms for property, inheritance, parent rights, and all the other benefits defined by marriage.
A lot to think about. Thanks again.
Same-sex marriage has nothing to do with polygamy. Polygamy is not the same marriage issue as same sex-sex marriage at all. They want to marry one person at a time, just like the rest of society.
Actually, it has everything to do with polygamy.
See, you can't go about changing the commonly understood definition of marriage, then pretend that it is only for 2 people. Why is it for 2 people? Says you?
Public opinion was probably against Truman when he issued Executive Order 9981
Which has nothing to do with gay marriage. Being gay is not the same as being black.
No one is trying to force the clergy to perform marriages of same-sex couples.
It has already happened, and will continue. Just like states have tried to force religious entities to engage in gay adoptions.
This isn't even debatable.
I’m not asking the state to encourage anything. I’m just wanting the state to stay out of the bedrooms of consenting adults.
But the state does encourage marriage. Which again, isn't even debatable.
Further, marriage is not limited to "the bedroom" so that comment really has no relevance.
36fsfiend said...
So we should take the two children that Mary Cheney and her partner Heather Poe are raising away from them?
No, but I think it funny you leftists think it is so cute to reference Mary Cheney as if it has any value.
And we won’t know, especially as the social sciences and attendant research are rife with political agendas, usually Progressive in nature. Does the commentor believe homosexuality is the result of the environment in the home?
Oh, we already know that children raised by single mothers are more likely to do poorly in school and go to jail.
So why would we want 2 mothers?
Wow so very disappointing Ann. All I can see I here is what you care about matters (even though it's not in the text) while what I care about doesn't (even though it's in there, in first place no less).
Self interest masquerading as reason.
Jay said...
"Further, given that we really don't know what effect sticking children into same sex parent homes has, we should err on the side of caution."
I responded:
“So we should take the two children that Mary Cheney and her partner Heather Poe are raising away from them?
Commenter responded:
“No, but I think it funny you leftists think it is so cute to reference Mary Cheney as if it has any value.”
So what is your position? Should or should we not err on the side of caution. And if so, why the exception for Mary Cheney?
Me earlier: Same-sex marriage has nothing to do with polygamy. Polygamy is not the same marriage issue as same sex-sex marriage at all. They want to marry one person at a time, just like the rest of society.
It's frankly bizarre to say that marrying somebody of the same sex is "just like" marrying somebody of the opposite sex.
It’s doubly bizarre to make such an obvious misreading of my statement. Of course same-sex marriage is unusual, otherwise there would be no post by Ann Althouse and no ensuing debate. What’s NOT unusual is the desire to marry one person at a time.
In my experience, vagina sex is way better than sodomy. I'm a vagina man. Love the vagina. Gay men, I'm like, "You don't like the vagina? What's wrong with you?" I don't get that at all.
The commentor shouldn’t worry or be fearful. I don’t believe anyone here thinks he is gay so this rather nervous-sounding declaration is unnecessary. To display anxiety like this makes the commentor seem to be unsure of his own sexual orientation.
… do all marriages become legally invalid, unless every adult is allowed to marry … however many other adults they want?
The commentor is confused. The issue I’m debating is same-sex marriage – not polygamy. The same-sex marriage people want to be able to marry one person at a time just like the rest of society marries one person at a time. And no, all other marriages will stay valid if the institution of marriage is granted to same-sex couples.
See, you can't go about changing the commonly understood definition of marriage, then pretend that it is only for 2 people. Why is it for 2 people? Says you?
Speaking for myself, I’m not “pretending” anything. The commentor needs to understand that the same-sex marriage movement is not lobbying for polygamy and that the institution of marriage could easily be extended to include two of the same sex without also extending it to include folks who might want to be married to multiple spouses. Attempting to conflate SSM with polygamy is a straw man argument.
Me earlier: Public opinion was probably against Truman when he issued Executive Order 9981.
Which has nothing to do with gay marriage. Being gay is not the same as being black.
But it does have to do with an example of a policy change that ran counter to the public opinion of the time. It was in response to a comment that suggested that public opinion should always take precedent in guiding policy. I wanted to give an example of a good(in my opinion) policy change that also ran counter to public opinion. Does the commentor believe the Armed Forces should NOT have been integrated by Truman?
Me earlier: No one is trying to force the clergy to perform marriages of same-sex couples.
It has already happened, and will continue.
I’m aware that some fear that it will happen but I cannot find any examples of this in the USA when I Google it. Could the commentor provide some examples of where a church in the USA has been compelled by the state to perform same-sex marriages? There are several states that presently allow same-sex marriages. Has any church in those states been compelled by the government to perform same-sex marriages?
But public opposition to SSM may become a moot point as opinions evolve. At least one survey has results which may come as a surprise to some. Folks were asked, “Do you favor allowing gay and lesbian couples to marry legally?” The lowest approval came from Alabama, in which 23% answered yes. The highest approval came from Maryland, in which 56% answered yes. So if SSM is ultimately outlawed in Maryland, such a prohibition would be against public opinion. The same holds true for Connecticut, Massachusetts, New Hampshire, New York, Rhode Island and Vermont, where the majority also favors SSM.
http://tinyurl.com/l2fgl7
Me earlier: I’m not asking the state to encourage anything. I’m just wanting the state to stay out of the bedrooms of consenting adults.
But the state does encourage marriage. Which again, isn't even debatable.
But it is a point I did not debate. I’m well aware that the government encourages marriage through tax policy and other laws.
Oh, we already know that children raised by single mothers are more likely to do poorly in school and go to jail. So why would we want 2 mothers?
Actually such studies involve single parent situations. Under the commentor’s own implied standards a gay couple situation might be a desirable improvement over a single-parent situation.
I don't find religious conservatives asking for the government to sanction marriage. I see SSM advocates calling for the government to sanction homosexual 'marriage' even though the history of the institution of marriage is decidedly heterosexual and predates the Constitution (natural law?).
If the federal government can force me to contribute to or participate in activities that I deem religiously repugnant, how can that not be in violation of the 2A?
I don't find religious conservatives asking for the government to sanction marriage. I see SSM advocates calling for the government to sanction homosexual 'marriage' even though the history of the institution of marriage is decidedly heterosexual and predates the Constitution (natural law?). If the federal government can force me to contribute to or participate in activities that I deem religiously repugnant, how can that not be in violation of the 2A?
Allowing same-sex couples to marry would not be forcing the commentor “contribute to or participate” in same sex marriages. Straw man argument.
The commentor’s “natural law” argument is also weak. For example, the institution of slavery has been ubiquitous all throughout recorded history and is still going on in some areas even today. Does that make slavery a “natural law” that shouldn’t be violated?
Grackle said:
… do all marriages become legally invalid, unless every adult is allowed to marry … however many other adults they want?
"The commentor is confused. The issue I’m debating is same-sex marriage – not polygamy."
Way to take my comment out of context and selectively edit it to make a point. I was responding to something Althouse wrote, which you chose to ignore.
I may be indeed be confused about what Althouse wrote; but you are being intellectually dishonest.
Most Americans are fair-minded, and the issue of allowing SSM would more easily pass through legislation if the proponents and activists would debate the issue honestly and fairly, and w/o resorting to insults. When you debate dishonestly- like by distorting people's words to push your point, or play the bigotry card to dismiss the arguments of opponents, people start to doubt your integrity and/or rationality. They may begin to suspect you have a hidden agenda or ulterior motive, and are less likely to want to back you.
What a revelation. The no-gay marriage people don't care about the Constitution any more than the pro-gay marriage people. (See, e.g., Stanford lawprof Pamela Karlan laying a big guilt trip egg. Right up there with sideways ballcap boy in terms of intellectual rigor and nuance.)
Rush Limbaugh is trying to shape public opinion. So what. That's his job and it's not like he's a law professor who should know better about the finer points of the Constitution and the consistent application thereof. All the equal rights can be had in domestic partnerships/civil unions, and could have been had years ago. But oh, no, because this issue has always ever been a passive-aggressive symbolic power play with unfortunate real-world consequences by people who
(1) have a great deal of power already, (2) are not victims of oppression please stop kidding yourselves, (3) and have shown a distinct eagerness to oppress other people.
Are they right anyway?
I could not care less.
Choke on it.
The false meme- SSM has nothing to do with polygamy - has entereed the thread.
The eventual 1,017 page SC 5-4 majority decision is going to be boiled down to this- Failure to recognize SSM is based on Christianist bigotry, and shall not stand as a violation of the first amendment. Furthermore, a whopping handful of other nation's courts representing perhaps 3% of teh world's population have also legalized SSM, and following foreign court decisions, we also must.
10 minutes after that ruling, Abdullah, married already to the lovely Lotus Flower, files suit to take Chrysathenum as his legal second wife. His argumen- polygamy is banned soley due to Christianist bigotry, besides which polygamu is legally allowed in over 25 countries representing over 30% of the world's population.
Explain how any court can refuse to find against him. There is no way to allow SSM without opening up the door to polygamy, unless the 5 justices are honest, tell the truth, and rule the following-
We're invalidating all laws against SSM because we're enlightened and all you dumbshits against it aren't. Don't even bother bring a lawsuit to allow polygamy here because we're going to rule against it- for now. Wait 25 years or so, then we'll find an excuse...
Construct any condensed version of a SC ruling that allows one without allowing the other. It isn't possible. Don't just say one has nothing to do with the other- prove it by careful reasoning of how it could be done. Elsewise, you're being dishonest in your arguement.
The commentor shouldn’t worry or be fearful. I don’t believe anyone here thinks he is gay so this rather nervous-sounding declaration is unnecessary. To display anxiety like this makes the commentor seem to be unsure of his own sexual orientation.
Quit hitting on me.
Way to take my comment out of context and selectively edit it to make a point. I was responding to something Althouse wrote, which you chose to ignore. I may be indeed be confused about what Althouse wrote; but you are being intellectually dishonest.
The commentor is wrong. The editing I did, for brevity’s sake, was to address one part of a longer comment, which is a far cry from “intellectual dishonesty.” But in order to assuage his fears I will redo the comment with no editing.
If the answer is no, do all marriages become legally invalid, unless every adult is allowed to marry whomever and however many other adults they want? AKA "the slippery slope"?
The commentor is confused. The issue under debate is same-sex marriage – not polygamy. The same-sex marriage people want to be able to marry one person at a time just like the rest of society marries one person at a time. And no, all other marriages will stay valid if the institution of marriage is granted to same-sex couples.
The commentor needs to realize that he cannot be selective as to who may address his comments, no matter who he may have addressed in a particular comment. If he wants to have a private communication with Ann Althouse he needs to write a letter or send her an email.
The false meme- SSM has nothing to do with polygamy - has entered the thread.
The eventual 1,017 page SC 5-4 majority decision is going to be boiled down to this- Failure to recognize SSM is based on Christianist bigotry, and shall not stand as a violation of the first amendment. Furthermore, a whopping handful of other nation's courts representing perhaps 3% of teh world's population have also legalized SSM, and following foreign court decisions, we also must.
10 minutes after that ruling, Abdullah, married already to the lovely Lotus Flower, files suit to take Chrysathenum as his legal second wife. His argumen- polygamy is banned soley due to Christianist bigotry, besides which polygamu is legally allowed in over 25 countries representing over 30% of the world's population.
Explain how any court can refuse to find against him. There is no way to allow SSM without opening up the door to polygamy, unless the 5 justices are honest, tell the truth, and rule the following-
We're invalidating all laws against SSM because we're enlightened and all you dumbshits against it aren't. Don't even bother bring a lawsuit to allow polygamy here because we're going to rule against it- for now. Wait 25 years or so, then we'll find an excuse...
Construct any condensed version of a SC ruling that allows one without allowing the other. It isn't possible. Don't just say one has nothing to do with the other- prove it by careful reasoning of how it could be done. Elsewise, you're being dishonest in your arguement.
I don’t see how allowing same sex couples to marry will inevitably lead to polygamy. One involves one partner, the other involves multiple partners. The two situations are so clearly different and distinct from one another that any lawmaking body could easily craft a law that allows one and not the other.
Furthermore, worrying about what some court will do or not do 25 years afterward strikes me as the intellectual version of a child worrying about the bogeyman in the closet.
Quit hitting on me.
Any comment is open to comment by other commentors.
Dude, you tell me I'm in a sexual panic, and I say, "Stop hitting on me." That's funny. Isn't it? You're like the worst straight man ever. So to speak.
I misread the comment entirely. I thought he meant stop ‘picking’ on me. But I should have known, given the commentor’s partiality for sexual references. My bad.
Dude, you tell me I'm in a sexual panic, and I say, "Stop hitting on me." That's funny. Isn't it? You're like the worst straight man ever. So to speak.
What was “funny” for me, in the sense of being strange or odd, was the bizarre references to female anatomy coupled with the irrelevant but emphatic declaration of stereotypical ‘he-man’ values. The first sentence of the quote was interesting:
In my experience, vagina sex is way better than sodomy.
Perhaps without realizing it the sentence strongly implies the author has tried sodomy. Freudian slip?
In my own personal experience such superheated sexual rhetoric sometimes means something’s a bit out of kilter. But that’s just me. Others may have a different take.
"I don’t see how allowing same sex couples to marry will inevitably lead to polygamy. One involves one partner, the other involves multiple partners. The two situations are so clearly different and distinct from one another that any lawmaking body could easily craft a law that allows one and not the other. "
ANy lawmaking body- key words. Lawmaking bodies have already written the rules in the United States- that disallow both.
Now, we're talking about forcing the issue with a court decision. Which is how it's going to come about. Now, give me a court ruling that imposes SSM without allowing polygamy. You can't do that. And you didn't. Every legal argument in favor of SSM can be used to allow polygamy.
I will mention here also that there is a much stronger case for polygamy- it predates the United States, Christianity, even Judaism. And exists to this day. Not so with SSM.
"Furthermore, worrying about what some court will do or not do 25 years afterward strikes me as the intellectual version of a child worrying about the bogeyman in the closet."
If you re-read the comment and pay attention, you'll see that's a snark. The SC isn't going to say we're doing this becasue we can. Even though that's why they'll be doing it.
Every legal argument in favor of SSM can be used to allow polygamy.
I’ll admit that I’m not familiar with the issue of polygamy. But forbidding SSM because it might lead to acceptance of polygamy doesn’t quite make it for me. And I don’t think the commentor can claim with certainty that one will necessarily lead to the other. Should we penalize one group because another group might benefit from the acceptance of the first group?
Lawmaking bodies have already written the rules in the United States- that disallow both.
Not entirely; some pesky lawmaking bodies have passed laws allowing SSM.
http://tinyurl.com/6m8dk9e
Harold said...
"We're invalidating all laws against SSM because we're enlightened and all you dumbshits against it aren't. Don't even bother bring a lawsuit to allow polygamy here because we're going to rule against it- for now. Wait 25 years or so, then we'll find an excuse..."
Harold,
What's your fear of gay marriage?
Me earlier: Furthermore, worrying about what some court will do or not do 25 years afterward strikes me as the intellectual version of a child worrying about the bogeyman in the closet.
If you re-read the comment and pay attention, you'll see that's a snark. The SC isn't going to say we're doing this because we can. Even though that's why they'll be doing it.
But everyone knows the SCOTUS “can.” The SCOTUS doesn’t have to worry about that since it’s a given; The SCOTUS “can” make decisions, something they do all the time. And they certainly explain “why” they make decisions. Is the commentor trying to say the court will make a decision on polygamy in the future against their own legal beliefs, perhaps due to the pressure of increased public acceptance of polygamy?
We're invalidating all laws against SSM because we're enlightened and all you dumbshits against it aren't. Don't even bother bring a lawsuit to allow polygamy here because we're going to rule against it- for now. Wait 25 years or so, then we'll find an excuse...
I was aware that the quote was snide, it was obvious the commentor was satirically speaking for the court but even a snark has meaning, has a point. Perhaps the commentor could explain to us what was meant.
What is my fear of gay marriage?
Where do you see fear? I'm simply opposed, simply because SSM makes absolutely no sense at all in the grand scheme of things. In another very long post on another blog, a different commenter pointed out that when something in a society has been practiced, without question, for a very long time, then anyone who wants to change it should prove it would be beneficial to society to make that change. How would SSM be beneficial?
So far, every single argument I have seen here, or anywhere else, in favor of SSM boils down to screaming "IT AIN'T FAIR!" So what. Life ain't fair. That isn't a great argument.
The legal point that we're treating same sex couples differently and that that somehow violates the constitution requires stretching the constitution to mean anything at all, which means it would mean nothing. No one is treated differently because only opposite sex marriage is allowed. It is and has been the definition of marriage pre-dating our constitution. To see a right to SSM enshrined in it requires reading that invisible ink between the lines emanating from the penumbras. And even though Ann is tired of hearing it, it is true- a gay man has exactly the same right to get married that a poor, short, fat ugly man does- to any woman who will have him. There is a right to get married, but there is no RIGHT to get married- the government can't (yet) force someone to marry. In sharialand, this isn't necessarily true.
The whole question of SSM revolves around the question: What is marriage about? And here's where SSM proponents start being disingenuous. Well, one of the places. Marriage is about children. Children cannot be had by a same sex couple. They can be adopted, because some time ago the courts discovered another novel new right in that invisible ink. They can commit adultery, and ONE of the partners can have a child. But the idea of marriage is not to commit adultery- it is grounds for divorce. So, SSM changes the character of marriage right there. It forces acceptance of adultery. Because a SSM cannot have children w/o adultery. Perhaps mechanically assisted- the sperm was in a test tube at one point, but adultery nonetheless.
But- marriage is not about children! Every, every SSM proponent says so. Even though it isn't true.
Repeat, I don't fear SSM, it simply makes no sense. If proponents can convince enough people to vote 50% +1 in a referendum for it, then its time has come. I'm certain that in the long run, it will turn out to be a bad decision, but it will at least be an accepted one.
Now, polygamy is a whole other matter. And there is no way a court decision can force SSM on the country without providing justification to allow polygamy. I gave the example- the detractors have yet to summarize a counter-example- because they can't. I'm almost done raising my daughter, but I don't want my granddaughters growing up in a polygamous society. Or my grandsons, but moreso granddaughters. Why? Look at sharialand. Do you want the United States looking like sharialand? That's the inevitable consequence of polygamy. All polygamous societies eventually end up with women as property with no rights. The current example of sharialand is the latest historical example. If the Mormons had continued to practice polygamy, and Utah has never entered the Union, sharialand is what Utah would be like today. If you take a good look at any of the "fundamentalist" Mormon communities in AZ and UT, they resemble sharialand in many ways as regards women.
As for my snark, it is obvious what I meant. There is no right to SSM writ large in the Constitution of the United States. To see it requires reading invisible ink between the lines. If the SC decides, it will invariably be 5-4.
In almost every 5-4 split, if both sides are looked at carefully, one side is making its decision on what the constitution actually says, or is silent on, and the other side is basing its decision on what it says the constitution says, without it actually being there. Roe-v. Wade is the penultimate example. Even today's most enthusiastic abortion supporters in the legal community admit that Roe v. Wade has no constitutional basis. It was decided on penumbras, shadows, and invisible ink between the lines.
BTW, I do believe that the right of privacy is embedded in the Constitution- the ninth amendment- "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Putting abortion in the right to privacy requires a crowbar. Putting homosexual conduct in there doesn't.
I don't care what two people (or 3 or 4 or more) do behind closed doors. Don't do it on the front lawn and scare dogs and little children.
I point out the ninth amendment a lot to people. There were a lot of unwritten rights when the constitution was adopted. For example, you could build a house on property you owned. You could drink raw milk if you so chose. (Of course, if you drank milk, you didn't have a choice- but that's actually beside the point.) You could get high in your own home, or totally stinking drunk. But you couldn't be completely stinking drunk in public- public intoxication was frowned on from the beginning. (Not on the front lawn...)
@grackle
The commentor needs to realize that he cannot be selective as to who may address his comments, no matter who he may have addressed in a particular comment. If he wants to have a private communication with Ann Althouse he needs to write a letter or send her an email.
My complaint was that you were avoiding the context of my comment. And you are still doing that. Maybe you just don't understand. It addressed a legal point raised by the professor, to wit:
You are free to think anything you want about what the word "marriage" means, but the legal question is whether the government can maintain an institution that includes some associations between individuals and excludes other. " (emphasis mine)
Explain how polygamy is not included under the heading of an excluded association between individuals.
The commentor is confused. The issue under debate is same-sex marriage – not polygamy.
Based on what Althouse wrote, you can't discuss one in that legal context w/o discussing the other.
And no, all other marriages will stay valid if the institution of marriage is granted to same-sex couples.
Because you say so? Thanks a lot. That makes it all clear.
Have a goodnight.
Harold,
Thank you for the detailed response.
Where do I see fear? I believe it’s the whole basis for the resistance to accepting same-sex marriage. Homosexuality always has and always will exist. It has been observed in over 1,500 other species on this earth. You know, it was once believed, based on scripture, that the Earth was the center of the universe and that the Sun, planets and stars all revolved around the Earth. We now know that is not true. Similarly, the American Psychiatric Association and the American Psychological Association Council of Representatives both consider same-sex sexual and romantic attractions, feelings and behaviors normal and positive variations of human sexuality. As far as how same-sex marriage would be beneficial to society, it would allow two people who are in love to celebrate and express that love just as opposite-sex couples do and that is a benefit to the couple and society. I think people who oppose same-sex marriage are too hung up on the sexual aspect of the relationship and are not considering the emotional and societal benefits of marriage. Again, I think that is driven by fear which leads to hatred and oppression.
As far as your comment that that every argument you have seen in favor of same-sex marriage boils down to screaming "IT AIN'T FAIR!", well is not fair to prevent two people from participating in one of the major events in life. Again, if marriage is considered a right in a society, then it should not be left up to a majority as to who or who cannot exercise that right. It doesn’t matter if you like it or not, it’s a right.
As far as your point that treating same-sex couples differently doesn’t violate the Constitution, the 14th Amendment of the Constitution stipulates all shall be treated equally under the law. The argument supporting “separate but equal” is not valid. As far as the definition of marriage pre-dating our Constitution, that is true. And it was also once believed that if a woman could not prove she was a virgin on her wedding day she would be put to death and if a virgin was raped she had to marry her rapist. We are advancing and so are our definitions of marriage. Your point about a gay man having the right to marry a woman leaves out the most important reason for modern marriage – love. As far as “sharialand”, I would say that those who oppose same-sex marriage are the ones more in line with Sharia law. Take a look at the restrictions of the theocracies in the Middle East if you have any doubt.
Regarding the point about what does the whole question of same-sex marriage revolve around and what is marriage about, you miss the major factor in all marriages – love. Your comment that children cannot be had by a same-sex couple is false. Look at Mary Cheney as an example. Additionally, from my experience in knowing a same-sex couple who is raising a child, they can do an exceptional job. I would not support breaking that relationship up. Your comment about same-sex marriage forces acceptance of adultery makes no sense. And actually, if you think about it, adultery and divorce are the real threats to opposite-sex marriage. I always wonder why there isn’t a bigger push against adultery, which is specifically prohibited by one of the Ten Commandments.
Lastly, proponents of same-sex marriage shouldn’t have to convince enough people to vote 50% +1 in a referendum because marriage is a right and a majority should not be dictating who someone should or should not be able to marry. There is nothing in the Constitution that stipulates you have to be comfortable with someone else’s behavior or actions which is the motivation behind the opponents of same-sex marriage. They are not comfortable with same-sex marriage, i.e., they fear same-sex marriage, and so they want to prevent it.
"Your comment that children cannot be had by a same-sex couple is false. Look at Mary Cheney as an example."
No, your statement is a convenient lie. I don't know if Mary Cheney had the child, or her partner did. Don't care, doesn't matter to the the discussion. ONE of them had a child, through a sperm donor or temporary male lover (either way, the sperm came from outside the marriage- technical adultery.) The other was nothing more than an observer to the process. Which is exactly what I said before- they did not have a child.
I issued a challenge earlier. Come up with a within the realm of legal possibility court decision that throws out all laws against SSM without being grounds for legalizing polygamy. You haven't taken me up on it. Neither has Ann, the law professor, nor anyone else. My assumption- it can't be done, which is why the challenge is being studiously ignored.
And on marriage being a basic human right, and we must therefore allow same SSM. Doesn't logically follow. Marriage is a right, but not a RIGHT. Anyone is allowed to marry within the rules. You are asking for a major change in the rules. One even more controversial than the DH. You are asking for the very definition of marriage to be changed because ITS NOT FAIR. There are rules, lots of rules, governing who can marry who. And they are not consistent from state to state, and certainly not from country to country. But a basic rule has always been- gotta be of the opposite sex.
On children within a SSM- it is a well established statistical fact that people care more for children they are biologically related to. The evil stepmother is not a myth. Maybe not quite so evil. Recent Scandinavian studies show that lesbian couples divorce at twice the rate of male couples, which divorce at a slightly higher rate then opposite sex couples. But what happens to a lesbian couple when one partner has many kids and the other has only one? And the less productive member sees the more productive member favoring her own? Biology is destiny.
I am resigned to the fact that the courts, in their infinite wisdom, are going to force a redefinition of marriage upon us. I have a different idea of what people are going to say 50 years from now. Rather than, "What was all the fuss about?" the question will be, "What the fuck were they thinking?" Time will tell. Not all change is for the better.
And even though Ann is tired of hearing it, it is true- a gay man has exactly the same right to get married that a poor, short, fat ugly man does- to any woman who will have him.
The commentor does not seem to understand that the right he describes – the right of a gay person to marry a straight person - is a hollow right. It’s like telling a person dying of thirst in a desert that they have the right to drink sand. Or maybe he does understand very well. And we know he doesn’t care a bit about fairness since he keeps reminding us at every opportunity that he does not. It’s an odd thing to brag about.
… but I don't want my granddaughters growing up in a polygamous society. Or my grandsons, but more so granddaughters. Why? Look at sharialand. Do you want the United States looking like sharialand?
I too worry about creeping sharia in the West. But it’s not polygamy that makes sharia a daunting possibility. It’s all the other things, the absolute legal authority residing in the religion, the draconian punishments given for violations, the disregard for dignity and freedom, the totalitarian penchant for control over all aspects of the lives of individuals(including marriage), etc., not polygamy. But arguing against polygamy in a SSM debate is still a straw man argument. The commentor cannot know whether acceptance of SSM will inevitably result in acceptance of polygamy no matter how many times he declares it to be certain.
There is no right to SSM writ large in the Constitution of the United States.
Neither is there a right to straight marriage in the Constitution. Should we abolish straight marriage just because the Constitution does not mention it?
Roe-v. Wade is the penultimate example. Even today's most enthusiastic abortion supporters in the legal community admit that Roe v. Wade has no constitutional basis.
I believe there are some legal scholars who would disagree, as they do at the two URLs listed below:
http://tinyurl.com/6w2ojx9
http://tinyurl.com/7ktm77w
Both scholars seem to fit the commentor’s description of “enthusiastic abortion supporters in the legal community.”
My complaint was that you were avoiding the context of my comment. And you are still doing that. Maybe you just don't understand. It addressed a legal point raised by the professor, to wit:
Althouse: “You are free to think anything you want about what the word "marriage" means, but the legal question is whether the government can maintain an institution that includes some associations between individuals and excludes other.”
The commentor’s response:
If the answer is no, do all marriages become legally invalid, unless every adult is allowed to marry whomever and however many other adults they want? AKA "the slippery slope"?
There now. The context should be perfectly clear to all. And my comment on the commentor’s response to Ann? Still the same:
The same-sex marriage people want to be able to marry one person at a time just like the rest of society marries one person at a time.
I don’t believe reiterating the context lessens the validity of my comment at all.
Marriage is about children. Children cannot be had by a same sex couple.
Sure, one of the things marriage is about is children. I never disputed that. But marriage is about other things, too. Otherwise those who cannot have children for medical reasons or choose to not have children would not bother to get married. And I would never wish for the government to forbid marriage for childless couples. I find it astounding that the commentor bases his opposition to SSM because a SSM couple cannot conceive children. It seems so arbitrary, so short-sighted and dare I say it … so unfair.
But fairness never concerns the commentor:
So far, every single argument I have seen here, or anywhere else, in favor of SSM boils down to screaming "IT AIN'T FAIR!" So what. Life ain't fair.
– unless perhaps some form of unfairness is directed toward the commentor, that is. Then I suspect he would be whistling a different tune.
And there is no way a court decision can force SSM on the country without providing justification to allow polygamy. I gave the example - the detractors have yet to summarize a counter-example- because they can't.
I hesitate to say this but I can’t figure out the “example” the commentor says he gave. Perhaps if the commentor would extract the example out of his rather plentiful output and provide it to us then we could know the example for ourselves.
Me earlier: … all other marriages will stay valid if the institution of marriage is granted to same-sex couples.
Because you say so?
No, because common sense and past examples of inclusions are a guide. For instance, when slavery was abolished and the rights of full citizenship was granted to the former slaves, the citizenship of the white citizens remained as valid as it was before the inclusion.
And now I’m tired and will go to bed. Looking forward to further debate tomorrow.
BTW, to 36fsfiend – I found your last comment to be right on point and very well put.
Harold said...
"No, your statement is a convenient lie. I don't know if Mary Cheney had the child, or her partner did. Don't care, doesn't matter to the discussion. ONE of them had a child, through a sperm donor or temporary male lover (either way, the sperm came from outside the marriage- technical adultery.) The other was nothing more than an observer to the process. Which is exactly what I said before- they did not have a child.”
http://en.wikipedia.org/wiki/Mary_Cheney#Personal_life
From that link:
On May 23, 2007, Mary Cheney gave birth to Samuel David Cheney in Washington, D.C. Mary Cheney delivered her second child, Sarah Lynne Cheney, November 19, 2009.
“I issued a challenge earlier. Come up with a within the realm of legal possibility court decision that throws out all laws against SSM without being grounds for legalizing polygamy. You haven't taken me up on it. Neither has Ann, the law professor, nor anyone else. My assumption- it can't be done, which is why the challenge is being studiously ignored.”
OK, we’re not talking about polygamy. We are talking one-on-one marriage. Why do you believe same-sex marriage will lead to polygamy? Again, we talking about lettering a person marry the one they love which is consistent with our society's beliefs, not starting harems which is not a part of the fabric of our society.
“And on marriage being a basic human right, and we must therefore allow same SSM. Doesn't logically follow. Marriage is a right, but not a RIGHT. Anyone is allowed to marry within the rules. You are asking for a major change in the rules. One even more controversial than the DH. You are asking for the very definition of marriage to be changed because ITS NOT FAIR. There are rules, lots of rules, governing who can marry who. And they are not consistent from state to state, and certainly not from country to country. But a basic rule has always been- gotta be of the opposite sex.”
As I pointed out up thread, the definition of marriage has changed through the years. Early marriages involved polygamy. Abraham had more than one wife. King Solomon had 700 wives and 300 concubines. And we have no idea about same-sex relations in the past because such relationships would have been deliberately kept out of scripture.
“On children within a SSM- it is a well established statistical fact that people care more for children they are biologically related to. The evil stepmother is not a myth. Maybe not quite so evil. Recent Scandinavian studies show that lesbian couples divorce at twice the rate of male couples, which divorce at a slightly higher rate then opposite sex couples. But what happens to a lesbian couple when one partner has many kids and the other has only one? And the less productive member sees the more productive member favoring her own? Biology is destiny.
Would you provide a link to those studies? I’d like to review them.
“I am resigned to the fact that the courts, in their infinite wisdom, are going to force a redefinition of marriage upon us. I have a different idea of what people are going to say 50 years from now. Rather than, "What was all the fuss about?" the question will be, "What the fuck were they thinking?" Time will tell. Not all change is for the better.”
I don’t think it will be a big deal. No more problem with same-sex marriage as with opposite-sex marriage based on my experience knowing a same-sex couple who are raising a child. Do you actually know any same-sex couples?
Great. Mary Cheney has had two kids. Congrats to her. You are being deliberately obtuse. Heather Poe, her partner, has not had two kids.
An anonymous, pr perhaps non-anonymous, sperm donor has also had two kids, born to Mary Cheney. Heather Poe has not contributed to the process.
They can commit adultery, and ONE of the partners can have a child. But the idea of marriage is not to commit adultery- it is grounds for divorce. So, SSM changes the character of marriage right there. It forces acceptance of adultery. Because a SSM cannot have children w/o adultery. Perhaps mechanically assisted- the sperm was in a test tube at one point, but adultery nonetheless.
What about childless straight couples who try to have children by artificial insemination from sperm donor banks? The commentor would have us believe that the women in these marriages are committing adultery and are morally deficient. Such a viewpoint seems sharia-like in it’s severity. The commentor hates sharia but seems to possess the same impulse of absolute control of the individual which is one of the foundations of the very thing he claims to hate.
I gave the example- the detractors have yet to summarize a counter-example- because they can't.
We are still waiting for the commentor to post the example that the commentor claims he has given. I’ve waded through his comments and have found nothing that can be definitely labeled as an example. One of the linchpins of his argument is this mysterious example he keeps commenting about.
He rails against us because we haven’t provided a “counter-example.” How can we do this without knowing what the example is? Come out, come out, example, wherever you are … Don’t play hide and seek …
Harold said...
"Great. Mary Cheney has had two kids. Congrats to her. You are being deliberately obtuse. Heather Poe, her partner, has not had two kids.
An anonymous, pr perhaps non-anonymous, sperm donor has also had two kids, born to Mary Cheney. Heather Poe has not contributed to the process."
What Cheney and Poe did to have children is no different than what many opposite-sex couples have done.
Bottomline. Same-sex marriage isn't going to result in more adultery or polygamy. These folks just want the same rights and privileges that exist for the majority of people in this country.
You are against it simply because you fear change.
"What Cheney and Poe did to have children is no different than what many opposite-sex couples have done."
What they did is something that SOME, not many, opposite sex couples have done- those in which the male has proved infertile, or in one case I know of, had a vasectomy because his first GF insisted, who dumped him immediately after he had one- it was ireversible. (Turns out she did that a few times to other guys.) I don't know of ANY fertile male who would agree to it. In the case of a SSM, the couple HAS NO CHOICE. Ever.
In the olden days before test tube conception, there were other ways of handling proven male infertility. Hubby would go camping for a few days, and COusin Jim or Brother Bob would check on his wife to make sure everything was going well. Lo and behold, a miracle would occur when hubby got back, and she would get pregnant. It kept a genetic relationship going with the subsequent child, and would never be mentioned by anyone.
Reproductive technology has far outstripped family law. Recently a young lady born of a sperm donor went hunting for her biological daddy hoping to establish a relationship, and was successful not only in identifying him, but in discovering that she had a few hundred half-siblings running around. Imagine the psychological impact of that. And, now if she dicovers that the guy she gets along with so well was also a product of sperm donation, they need to be DNA tested to see if they're about to commit incest...
And, there have been cases in which sperm donors have been nailed for child support. Didn't even get laid, and stuck supporting a child they'll never see and never had any intention of caring about until they're 18. I'm certain that if the donor was in a relationship with a significant other or married when it occurred that it put a bit of strain on it. And, there have been cases of lesbian couples breaking up- and the judge has agreed with the biological mother- no biological tie- no visitation rights.
Tell me- do you actually approve of someone having 200 kids he cares absolutely nothing about? I think the discreet visit from a biological relative is a better way to do it. In Cheney's case, that would be a visit from Poe's brother or male cousin.
Reality sometimes intrudes on perfection in relationships. My wife didn't believe it until I showed her the records. Back in the 1600-1800's both our families in the US had enourmous numbers of premature 1st births. It was frontier society. While marrying a virgin might be optimal, marrying someone you were cross-fertile with was far more important. The little belly bump and subsequent premature birth were simply overlooked.
Society adopts to circumstances. major changes, however, lead to unknown changes down the road. Turns out no fault divorce for any reason ultimately does not make women happier- it makes them poorer, and causes more kids to be raised in less than ideal circumstances. But it was a BRILLIANT idea, and the genie cvannot be placed back in the bottle.
The concious decision that single motherhood was the same as widowhood was another BRILLIANT idea. See Daniel Moynihan's writing for how thta turned out. If you're not intelligent enough to observe it on your own.
Harold said...
“What they did is something that SOME, not many, opposite sex couples have done- those in which the male has proved infertile, or in one case I know of, had a vasectomy because his first GF insisted, who dumped him immediately after he had one- it was ireversible. (Turns out she did that a few times to other guys.) I don't know of ANY fertile male who would agree to it. In the case of a SSM, the couple HAS NO CHOICE. Ever.”
You can parse the number, but what Cheney and Poe did is what opposite-sex couples have done to have children. It doesn’t mean there will be an increased risk of adultery.
“In the olden days before test tube conception, there were other ways of handling proven male infertility. Hubby would go camping for a few days, and Cousin Jim or Brother Bob would check on his wife to make sure everything was going well. Lo and behold, a miracle would occur when hubby got back, and she would get pregnant. It kept a genetic relationship going with the subsequent child, and would never be mentioned by anyone.”
Looks like you are making the case that adultery is a bigger threat to opposite-sex marriage than same-sex marriage.
“Reproductive technology has far outstripped family law. Recently a young lady born of a sperm donor went hunting for her biological daddy hoping to establish a relationship, and was successful not only in identifying him, but in discovering that she had a few hundred half-siblings running around. Imagine the psychological impact of that. And, now if she dicovers that the guy she gets along with so well was also a product of sperm donation, they need to be DNA tested to see if they're about to commit incest...”
What does this have to do with same-sex marriage?
“And, there have been cases in which sperm donors have been nailed for child support. Didn't even get laid, and stuck supporting a child they'll never see and never had any intention of caring about until they're 18. I'm certain that if the donor was in a relationship with a significant other or married when it occurred that it put a bit of strain on it. And, there have been cases of lesbian couples breaking up- and the judge has agreed with the biological mother- no biological tie- no visitation rights.”
Can you cite these cases? I would be interested in reading the background of the situations involved.
(continued)
“Tell me- do you actually approve of someone having 200 kids he cares absolutely nothing about? I think the discreet visit from a biological relative is a better way to do it. In Cheney's case, that would be a visit from Poe's brother or male cousin.”
I certainly don’t approve of couples having more children then they can support. That applies to both same-sex and opposite-sex couples.
“Reality sometimes intrudes on perfection in relationships. My wife didn't believe it until I showed her the records. Back in the 1600-1800's both our families in the US had enourmous numbers of premature 1st births. It was frontier society. While marrying a virgin might be optimal, marrying someone you were cross-fertile with was far more important. The little belly bump and subsequent premature birth were simply overlooked.”
Again, not sure how past heterosexual behavior should influence denying the rights of some Americans in this day and age.
“Society adopts to circumstances. major changes, however, lead to unknown changes down the road. Turns out no fault divorce for any reason ultimately does not make women happier- it makes them poorer, and causes more kids to be raised in less than ideal circumstances. But it was a BRILLIANT idea, and the genie cannot be placed back in the bottle.”
Again, why should the failings of heterosexuals prevent people from marrying the person they are physically, emotionally, spiritually and psychologically in love with?
“The conscious decision that single motherhood was the same as widowhood was another BRILLIANT idea. See Daniel Moynihan's writing for how that turned out. If you're not intelligent enough to observe it on your own.”
Again, you are justifying the denial of rights and privileges to a minority based on the failings of heterosexual relationships. That, in my opinion, is not reason enough.
In the olden days before test tube conception, there were other ways of handling proven male infertility. Hubby would go camping for a few days, and COusin Jim or Brother Bob would check on his wife to make sure everything was going well. Lo and behold, a miracle would occur when hubby got back, and she would get pregnant. It kept a genetic relationship going with the subsequent child, and would never be mentioned by anyone.
Well, well; it seems the commentor WILL allow adultery under certain circumstances. But only the adultery he likes, not the adultery he doesn’t like. The adultery he doesn’t like is bad, bad, bad. Adultery for me but not for thee.
And, now if she dicovers that the guy she gets along with so well was also a product of sperm donation, they need to be DNA tested to see if they're about to commit incest...
Horrors! The inconvenience!
And, there have been cases in which sperm donors have been nailed for child support. Didn't even get laid, and stuck supporting a child they'll never see and never had any intention of caring about until they're 18. I'm certain that if the donor was in a relationship with a significant other or married when it occurred that it put a bit of strain on it. And, there have been cases of lesbian couples breaking up- and the judge has agreed with the biological mother- no biological tie- no visitation rights.
The commentor makes claims about dire things that have happened because of artificial insemination but offers no real-life examples.
But what if they were true? Should we continue to disenfranchise a significant portion of the citizenry because of a few isolated incidents?
Tell me- do you actually approve of someone having 200 kids he cares absolutely nothing about?
Yes, because those children will go to childless couples and receive all the love and benefit any other child would get.
Turns out no fault divorce for any reason ultimately does not make women happier- it makes them poorer, and causes more kids to be raised in less than ideal circumstances.
Another pronouncement by the commentor without proof. But I guess to the commentor this rises to the level of an example, which he hasn’t yet chosen to explicitly reveal to us. But how did the subject of no fault divorce make its way into a debate about SSM? Maybe because the commentor has the habit of using irrelevant issues in order to attempt to bolster his opposition to SSM.
There’s nothing about no fault divorce that would be true for SSM that would not also be true for straight married couples. If it’s bad it’s bad for all and can’t logically be used as a basis with which to oppose SSM.
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