March 25, 2013

"Ann, if you're correct and gay marriage is inevitable it might be more profitable to ask of gay marriage proponents 'How do you want to win?'"

Asks Bill in the comments, after I said: "Same-sex marriage will win whichever way the Court goes. Its opponents can only lose. Which way would they prefer to lose?" Amplifying this in the comments, I said: "Either it will win through the court cases or it will win in the political process." And:
If ssm wins through the Supreme Court, conservatives can move on to the more abstract and better principled argument against judicial activism.

If the fight continues in the political process, conservatives are going to spend years getting sidetracked into this issue -- rather than the spending and economics issues -- where they will look worse and worse to more and more people.

It's obvious to me that conservative opponents to ssm will be much better off losing in court that going through this political process.

And I think smart conservatives who are writing today in the National Review or the WSJ or wherever actually know this. They are simply pre-loading their judicial activism argument. They can't come out and say what I'm saying or their judicial activism argument won't launch.
Boldface added, because I need you to remember that.  But I want to answer Bill's question. As a proponent of same-sex marriage, how do I want to win? I want to win in the Supreme Court. But I am not hoping for Democratic Party victories in 2014 and 2016. I don't want to see more left-liberal political power leveraged by the same-sex-marriage issue. I don't want more of that distortion, and conservatives should rejoice if the Court saves them from it. Rejoice privately, of course, and move on to your high-road, anti-judicial-activism game.

But the reason I would like to see the win in the Supreme Court is because I think that's the right place to draw the line between the decisions that belong to the individual and the decisions that belong to majoritarian politics. I don't think the government has been able to articulate anything close to a good enough reason for treating committed couples differently because of the configuration of parts of their bodies that the government shouldn't be looking at anyway.

Meanwhile, if the Court decides against same-sex marriage, it will catapult the Democrats politically. They'll rage. But will it not be in (private) delight?

180 comments:

tim maguire said...

Gay marriage is inevitable, but best that it come about through the popular vote (as it is already doing--gay marriage was 3 for 3 in the last election and none of those states have imploded yet).

Ann Althouse said...

@Tim You haven't stated why that is best. I gave reasons.

Jay said...

I don't think the government has been able to articulate anything close to a good enough reason for treating adult committed couples differently

Of course you don't.

There is quite literally nothing, not a single thing, anyone could say to change your mind. Because your opinion is shaped by emotion.

Why are you pretending otherwise?

Bob Ellison said...

"They are simply pre-loading their judicial activism argument. They can't come out and say what I'm saying or their judicial activism argument won't launch."

That's cynical. Maybe they actually believe in their philosophy. Kinda like Nancy Pelosi introducing an amendment to repeal the individual right to bear arms.

Jay said...

because of the configuration of parts of their bodies

Huh?

Newsflash: gay people don't have any "parts" configured differently that heterosexuals.

They use their parts differently.

Watching you disentigrate from law professor to someone with 4th grade logic when this issue is discussed is totally fascinating.

Fprawl said...

I want to get a second wife. The candidate works with my wife (A) . Wife B hates work, and doesn't mind cooking and cleaning. Wife A hates these things, but likes the office.

In return to wife B, I will give room and board, small stipend, and add wife B to my generous benefit package, Health, Life, Dental, Pet Insurance and part of my 403B.

If social norms and not religious tenets are the Litmus Test, then I want to have this happen very soon.

Jay said...

Meanwhile, if the Court decides against same-sex marriage, it will catapult the Democrats politically

Oh please.

The number of people voting on this issue is tiny.

Why do you leftists always insist that "if you don't agree with me, it will be bad for you!"

How silly.

Bob Ellison said...

Bill's question is good. I would ask another that others have alluded to in the various threads here:

Why do you want to win?

SSM proponents give several reasons, including legal access, Social Security benefits, etc. But when offered civil union, they refuse. Why?

It's because SSM is not about getting married. It's about forcing society to recognize SSM as marriage.

Professor, you argue that the SCOTUS should "draw the line between the decisions that belong to the individual and the decisions that belong to majoritarian politics." That's why this issue does not belong in the court. It is not fundamentally an issue of individuals. It's a political/social/cultural argument. Better to decide that with the tyranny of the majority, which, as someone (I think Jay) has already observed, and as shown by Prop 8, says "no SSM".

You can take the blue pill or the red pill.

jacksonjay said...


They'll rage

OMG, they rage whether they win or lose!

Maguro said...

Meanwhile, if the Court decides against same-sex marriage, it will catapult the Democrats politically.

I disagree. Support for SSM in and of itself isn't broad enough to catapult the Dems politically. In fact, I see the reverse: continued Democratic political dominance is essential for SSM to remain as popular as it is. A lot of people who will tell a pollster they favor SSM don't feel all that strongly about it, but everyone likes to feel that they're on the winning side. As UBL noted, people tend to like the strong horse and that is the Dems right now.

All that said, I fully expect Roberts to embrace SSM so it is all a moot point, most likely.

Ann Althouse said...

"It's because SSM is not about getting married. It's about forcing society to recognize SSM as marriage."

It's about allowing society to discriminate against married persons who are the same sex.

FIFY.

RichardS said...

Why is it reasonable to hold that the 14th Amendment did not rquire gay marriage in 1900, 1950, or 2000, but that it does today?

Why not amend the constitution to change its meaning? Isn't that what we the people deserve? If this issue should be taken out of regular politics and given constitutional status, that is how it is supposed to work in our system.

Bob Ellison said...

Then why is civil union unacceptable?

Jay said...

Well at least Claire McCaskill has come out in favor of gay marriage.

She proudly said she was opposed to it after Obama made his big annoucement.

Of course, she was running for re-election then.

Ann Althouse said...

"It's about forcing society to recognize SSM as marriage."

Recognize. This about what's going on. The govt rakes in tax money, then dispenses it in benefits. Here, it is opting to make those benefits depend on the sex of individuals. Why? That must be justified, because ALL exercises of govt power must be justified. This is a lot of power by govt. It's not about making you think something is right or good. It's about not abusing govt power.

X said...

Ann Althouse said...

It's about allowing society to discriminate against married persons who are the same sex.

FIFY.



It's about discriminating against single people too.

Jay said...

It's about allowing society to discriminate against married persons who are the same sex.

Uh, and then what?

"Society" and the state discriminate every day, 24X7X365.

What is your point?

Bob Ellison said...

This feels like shooting fish in a barrel.

jacksonjay said...


Doesn't the SCOTUS exercise judicial restraint in favor of political solutions?

jacksonjay said...


Theoretically?

Bob Ellison said...

Professor, I presume you are aware of the basic arguments for the state supporting heterosexual marriage. Can we dispense with that line of inquiry?

Jay said...

Here, it is opting to make those benefits depend on the sex of individuals. Why?

I think you should go on pretending there is no clear answer to that question.

Dust Bunny Queen said...

As a proponent of same-sex marriage, how do I want to win? I want to win in the Supreme Court.

Because same sex marriage goes against the popular and populist sentiment, the only way you CAN win is to have it rammed down the throats of an unwilling public (and yes...that imagery is deliberate) by a small group of unelected white tower types of people who are basically looking at sheep entrails to come up with penumbras and emanations.

They did the same thing with abortion and see how successful that has been....NOT.

I guess you don't believe in the 10th amendment?

Fprawl said...

So it IS about discrimination, no matter who invented Marriage.
Like the pastor on NPR said, refuse to perform a LGBT wedding and lose tax free church status.

edutcher said...

It's as inevitable as the ERA, but, if it does go through, it will spawn a grievance industry that will pale the feminazis and the Rainbow/NAN crowd combined.

PS The more I hear the word, "inevitable", the more I think it isn't.

bagoh20 said...

Isn't this the same blogger who thought Obama winning in 2008 would force the country to face the damage of liberal policies and respond responsibly?

I understand your point now, as I did in 2008, I just think it rarely works out as you expect. Your arguments consistently underestimate the power of a biased press, and overestimate the wisdom of the electorate.

If I didn't think better of you, I'd say you like spouting of driving instructions from the back of that band wagon.

RichardS said...

"Recognize. This about what's going on."

If that's what is going it, this is a moral crusade and it violates the establishment clause.

Or do you hold that there are objective moral standards, amenable to reason, and that the law must reflect them.

If that is the case, why is the classic natural law teaching here less reasonable than the modern teaching that takes the contrary position? Both positions are, I submit, ultimately based upon leaps up faith.

gadfly said...

There has never been an argument between liberals and conservatives that either side "wins." One reason is that liberals do not base arguments on principles, they base them on mob emotion - whatever drives their base.

Another is the pure lack of definition of "win" inside the feckless liberal mind. Controversy is at the heart of their emotionalism and the basis of their hate. Condescension is their weapon.

Conservatives fall into liberal traps because we will not allow them to berate us. So we will take our wins and they will redefine their losses.

“There are eight million stories in the naked city. This has been one of them.”

Jay said...

Ann Althouse said...

It's about allowing society to discriminate against married persons who are the same sex.


Alternatively, people realize that When society sanctions a behavior, it should be one that benefits society.

Additionaly, the people who founded the American gay rights movement wanted nothing to do with marriage (and there are many gays who oppose the idea today, bigots!), and that the idea is silly. There is zero benefit to society from recognizing SSM. None. Benefits perhaps to the "couples", but none to society.

It's also hard to posit a self-sustaining society that encourages same sex relationships. Because self-sustaining requires children.

I'd also add that no one advocating SSM has ever sufficiently explained why the legal removal of the one-man/one-woman structure doesn't open the door for state-recognized polygamy.

I realize that your position on this is nothing more than emotionalizing (you're a bigot and God tells you to be against it!!) but people can actually think about these things.

Amexpat said...

... I am not hoping for Democratic Party victories in 2014 and 2016. I don't want to see more left-liberal political power leveraged by the same-sex-marriage issue.

The irony here is that it wasn't that long ago that Rove tried to leverage the issue for the GOP.

Truckee Man said...

Marriage is not a right. It is an institution whose main purpose is be a pillar of stability and order in society for the formation of families and the raising of children. SSM is one more attack on traditional marriage in the left's long march through the countries cultural institutions. The state of the American families and children, particular among the lower middle and lower classes reflects the damage they have done. Anyone who can think clearly knows children need a married mother and a father to thrive. The majority of the objective research backs this up. I am not getting into the spiritual and historical arguments here.

Ann, you still have a foot in the liberal camp and are not looking at SSM in terms of the damage it will do to the institution of marriage, heterosexual marriage and ultimately to children.

Marshal said...

If the fight continues in the political process, conservatives are going to spend years getting sidetracked into this issue -- rather than the spending and economics issues -- where they will look worse and worse to more and more people.

It's obvious to me that conservative opponents to ssm will be much better off losing in court that going through this political process.


It seems to me this conclusion presumes there are no negative effects of judicial activism beyond gay marriage. I suspect a great many conservatives believe otherwise.

The long-term precedent will be that judges and legislatures can enact whatever the leftist activists believe approporiate. The fact that the negative effects will reveal themselves over decades doesn't make them less harmful.

RichardS said...

A hypothetical.
Two unmarried businessmen marry, exchange shares for cash, and divorce. Why is taht illegal?

Married couples needn't have sex, and they needn't live together. Marriage has always been an economic institution. Etc.

Dust Bunny Queen said...

"It's because SSM is not about getting married. It's about forcing society to recognize SSM as marriage."

It's about allowing society to discriminate against married persons who are the same sex.

Not if Civil Unions confer the same benefits and tax status, which they do on the State level. If you are really serious about discrimination, then you should be lobbying to fix the Federal Level discrimination.

But even IF civil unions confer the same benefits, the gay activists today reject that option because it IS all about trying to redefine the word and institution of Marriage. And about trying to FORCE people to accept and condone.

Deny this all you want. You are only fooling yourself. If the benefits and tax treatments are exactly the same: Civil Unions for gays and the non religious hetero couples versus marriage in a Church......where is the discrimination?

Personally, I think we should all have civil unions first, and leave the marriages and marriage ceremonies to the religious institutions.

If your beef is about discrimination because people find gay marriage to be either wrong, icky, or just irritating as a topic being jammed in our faces......You cannot FORCE people by law to think the way you want. You MAY be able to change the law, you cannot force people to be accepting of something that they personally find repugnant, sinful or just don't want to like.

I don't care one way or the other about whether gay people get together and what they do with their private lives. I DO care when people are attempting to coerce me into thinking or saying something. At that point, even if I do agree with them, I will take the contrary position.

Human nature.

Truckee Man said...

Ann, what about the anti democratic and elitist attack on California's voter's passage of laws and constitutional amendments? Every time we pass a proposition that is not PC the courts overturn it going back to Prop 206. BTW I voted against 206 but was outraged when the CA court overturned it. The courts have been co-opted by the left in their long march through the institutions. Roe, Obamacare, and now marriage to name the obvious.

chickelit said...

DBQ is a wise woman.

Aridog said...

I don't think the government has been able to articulate anything close to a good enough reason for treating adult committed couples differently

Okay. Is there any reason to treat committed couples who are not gay, but cohabitate otherwise, differently than married heteros or gays? What is the social and civil compunction for providing advantage to hetero or gay marrieds but not cohabitants?

Once the old fashioned concept of "marriage" is removed, what is left and why would advantage accrue to any couple and not to all couples?

Marshal said...

Ann Althouse said...
"It's about forcing society to recognize SSM as marriage."

Recognize. This about what's going on. The govt rakes in tax money, then dispenses it in benefits.


If government believes dispensing benefits based on marriage violates equal protection it can stop awarding benefits and burdens based on marriage.

Glen Filthie said...

As an opponent to gay marriage and an unfortunate father 'blessed' with a gay daughter, I will tell you how I prefer to 'lose':

Total and complete cold fury and Cold War on liberals and queers.

I will not willingly hire them, or do business with them, or recognize them or their 'marriages'. I will do EVERYTHING in my legal power to make their dealings with me as unpleasant as possible. Though I won't openly insult or harass them - they will get the message:

LEAVE ME ALONE. STAY AWAY FROM ME.

Seeing Red said...

Democrats will rage?

When have they stopped?

RichardS said...

If we go rid of the estate tax and the gift tax it would be much easier to separate marriage from federal law. So long as spouses get assets for free, but otherwise assets are taxed at death, that will be hard to do.

RichardS said...

Another hypotetical: A religious Catholic with a gifted child teaches that child the classic natural law teaching, and encourages him or her to ask probing questions of their sex ed teacher. Will that child be disciplined by the school for harassment?

Would a child be allowed to have the relevant passages of Leviticus on a t-shirt? (Note I am not saying that would be good. I am only asking if, given that kids tend to take things to extremes, and we have strong protections for religious liberty and free speech in pluralist/ multicultural America), if such would be allowed? If a gay pride t-shirt is allowed, why would its opposite not be allowed?

P.S. There are a few Rabbis doing some interesting work reinterpreting Levitisus from a somewhat Orthodox perspective. But that's not important for this hypothetical.

Ann Althouse said...

"That's why this issue does not belong in the court. It is not fundamentally an issue of individuals. It's a political/social/cultural argument. Better to decide that with the tyranny of the majority, which, as someone (I think Jay) has already observed, and as shown by Prop 8, says "no SSM"."

You're not doing anything more than asserting this is a question for majoritarian politics. Why?

Government power must be justified.

This is an area of individuals ordering their own private lives and the government discriminating by sex. On what basis? To say the majority is strongly opposed is not an answer. The question is why does the majority get to decide?

m stone said...

Also agree with DBQ. Well said.

RichardS said...

"The question is why does the majority get to decide?"

Alternatively, the question is why a majority of the Supreme Court gets to change the meaning of the 14th Amendment.

edutcher said...

Ann Althouse said...

Meanwhile, if the Court decides against same-sex marriage, it will catapult the Democrats politically. They'll rage. But will it not be in (private) delight?

Roe v Wade. The Demos "won", but it sire helped the Republicans.

It's about allowing society to discriminate against married persons who are the same sex.

No, it's about learning from the stupid mistakes of 2000 years ago.

This is an area of individuals ordering their own private lives and the government discriminating by sex. On what basis? To say the majority is strongly opposed is not an answer. The question is why does the majority get to decide?

That's what you want, though, with all the talk of inevitability.

Either the majority will turn or the courts will bow to the activist pressure.

chickelit said...

This is an area of individuals ordering their own private lives and the government discriminating by sex. On what basis? To say the majority is strongly opposed is not an answer. The question is why does the majority get to decide?

Because the countermajoritarian impulse must have reasonable limits too--that's why.

Chef Mojo said...

It's also hard to posit a self-sustaining society that encourages same sex relationships. Because self-sustaining requires children.

This is moronic and defies logic. Homosexuals, as a percentage of population, are far too small a group to impact the population of our society.

Seriously. I have never seen such a whiny, insecure and faithless group of people freaking out and screaming, "The end is nigh if we let gays get married!" Y'all were screaming it when they were coming out (remember Anita Bryant?), just like your parents screamed about the abolition of miscegeny and separate-but-equal laws. And before that, the abolition of slavery.

We've all seen these arguments before. They were wrong then, and they're wrong now.

Fucking get real. Society is not going to disintegrate because gays get married. If a society is that pathetically weak as to collapse under something so light and insignificant, then it deserves to collapse.

I bet there's not a damn one of you in opposition to gay marriage who isn't religious. You base your opposition on your religious precepts, and that is the very definition of bigotry.

It's amazing to think that slavery was once an accepted and normal institution. For thousands and thousands of years, no less!

Ideas change, and so do norms. Deal.

As far as "How do you want to win?" I could give two shits, as long as the bigots lose.

RichardS said...

"This is an area of individuals ordering their own private lives."
If that's the fundamental moral idea, why is suicide wrong?

garage mahal said...

Newt Gingrich hasn't gotten a divorce since SSM was recognized by a state.

rhhardin said...

Gay marriage is an intentional distraction from the idiot President and his administration.

Along with gun control.

The more distracting it is, the better the left likes it.

chickelit said...

Chef Mojo said...This is moronic and defies logic. Homosexuals, as a percentage of population, are far too small a group to impact the population of our society.

Whining about the wealthy 1 or 2 % is another leftist canard and one which many people buy into.

I see no countermajoritarian sympathy for them.

gerry said...

The abortion issue has worked out well due to SSC interference. Whay not SSM? Penumbra conundrum, in an age when truth is unknowable.

bpm4532 said...

OK, if a marriage is not 1 man and 1 woman, then please tell me why we would restrict it to 2 people, of any sex? If 2 people of the same sex can love, live, and be parents, then why isn't more better?

Richard Dolan said...

"Government power must be justified."

Since it is the states rather than Congress exercising the power to define marriage, not much justification is required. Singling out traditional marriage as a special form of "committed relationship" that the state wants to foster by providing special recognition and benefits could be justified by traditional marriage's unique function for the formation of families, the procreation of children and the care of the young. Other forms of "committed relationships" -- none of which the states forbid by the act of singling out traditional marriage for special treatment -- may offer some or all of the same benefits, but the states are free to conclude that traditional marriage offers them more effectively for its purposes.

Others may disagree -- that's the 'who knows' question you raised in responding to Andrew Ferfuson's article. But once the states articulate that rationale, that the 'who knows' question has no definitive answer will dictate the answer to 'who decides.'

n.n said...

Neither judicial nor political activism are desirable. Neither a tyranny by a minority nor a majority are desirable. We need consistent, objective standards to guide our development and ensure equal protection of individuals rights. We should not stand for democratic leverage to distort our perceptions and corrupt our society.

There is a reason for a society to favor heterosexual unions. There is no reason to confer distinguished rights and benefits to homosexual unions. However, if we do, then there is no longer a reason to discriminate between unions based solely on sexual behavior. Either advocates for homosexual marriage, and their heterosexual patrons, acknowledge this, or they are demonstrating a selective prejudice which only serves to reveal an ulterior motive.

The issue is not same-sex marriage, but of equal protection and treatment under the law. This precludes discrimination by sexual or platonic relationships. It precludes discrimination by stages in human development, which means that the issue is also elective abortions.

The advocates for same-sex marriage must acknowledge all of these conditions or they are guilty of indiscriminate prejudice, and society should respond to their demands for distinguish favor and benefits accordingly.

bagoh20 said...

"I bet there's not a damn one of you in opposition to gay marriage who isn't religious. You base your opposition on your religious precepts, and that is the very definition of bigotry."

Well, you would lose that bet. I have no religion, and I never have, although I like Christmas a lot, but I oppose SSM because it's dishonest, and will lead, like feminism, and Roe v Wade to wide spread problems of definition that tend to get resolved toward evil outcomes like millions of abortions ,and unhappy lives, reduced prosperity and discord.

It's not the idea of equality or fairness that's the problem - it's the lies. Men and women were never equal in the way advertised, abortion was never a widespread unavoidable necessity, and heterosexual and homosexual marriage are not the same thing now or after the government says so.

We should not make these huge changes to policy and culture based on lies. If we can be truthful, I think we would find better solutions. But some people put that second to winning and losing.

bpm4532 said...

This is ultimately about punishing those individuals and institutions that believe marriage is between 1 man and 1 woman.

More punishment from the thought police will be forthcoming.

Inga said...

Ah Chef Mojo, you cook up a good argument, I so agree!

edutcher said...

Interesting piece off Newbusters:

It seems like a lot of people are suddenly going all "The science is settled" on same sex marriage.

Could it be otherwise?

Chef Mojo said...

It's also hard to posit a self-sustaining society that encourages same sex relationships. Because self-sustaining requires children.

This is moronic and defies logic. Homosexuals, as a percentage of population, are far too small a group to impact the population of our society.


Uh, the idea is to do everything possible to undermine the family.

Why doi you think we've been talking about polyamory, etc.?

Seriously. I have never seen such a whiny, insecure and faithless group of people freaking out and screaming, "The end is nigh if we let gays get married!" Y'all were screaming it when they were coming out (remember Anita Bryant?), just like your parents screamed about the abolition of miscegeny and separate-but-equal laws. And before that, the abolition of slavery.

Typical Lefty.

The blacks are the first to take offense when they're compared to homosexuals.

Homosexuality is a practice inimical to a healthy society and, if you adhere to Dr Freud, a mental illness. It spreads VD and other diseases, the latest being meningitis.

Nobody's talking about taking away anyone's Constitutional rights, but they are talking about doing what several thousand years of recorded history tell us is what's in the best interests of society.

gerry said...

This is an area of individuals ordering their own private lives and the government discriminating by sex.

Thought police demand changes to language and attitudes about a fundamental social construct -marriage - and you see it as a private matter.

OK. What the heck. Nothing else has sure meaning in this postmodern age. Why should "private"?

Seeing Red said...

The left has got to live in turmoil. Otherwise life is boring.

Mike said...

In California we did provide a way for same sex couples to "organize their lives the way they see fit" and it was called Civil Unions. The reason SSM extremists rejected that approach was because it closed off the real change they wish to make. As many irreligious commenters have mentioned, much opposition to SSM comes about by way of faith.

In fact for Christians we credit God Himself for inventing the concept of marriage, one man and one woman. And therein lies the rub. SSM extremists wish to force themselves upon the Church (the bride of Christ) and deny religious entities free expression and free association. That is why we continue to fight against the SSM extremists. Because we recognize the "all I want is this tiny little thing that doesn't matter, shouldn't matter to you" LIE for what it is. A lie.

If all they wanted was "equality" then they would have taken Civil Unions. But they didn't and the end game is clear for anyone who isn't so wrapped up in the emotional arguments they can't see the truth.

ndspinelli said...

DBQ wins!!

bagoh20 said...

" Society is not going to disintegrate because gays get married. If a society is that pathetically weak as to collapse under something so light and insignificant, then it deserves to collapse. "

Of course not, but is that the standard? Anything not fatal to society must be a good idea? There have been a lot of terrible things that have resulted from feminism and abortion rights. We could have done a lot better, but with arguments like: "It's amazing to think that slavery was once an accepted and normal institution. For thousands and thousands of years, no less!" it's clear that making good policy is way down the list of satisfying arguments. I mean slavery was bad, some people liked it, but it was still bad. That is deep.

Michael said...

I think the SCOTUS should simply fast forward to depriving established religions of their tax exempt status unless they perform SSM and like it. Mainly, like it. I could care less how we get to stage one, SSM. It is not a big deal for the country and it will be a sad, melancholy, moment for gays when it is passed because being a part of society, the same as much of society, is not what it is all about. Not really.

Hagar said...

If same sex marriage is "legalized" on the basis of non-discrimination, there is no way it can be restricted to just couples.
You could form whole communities of people that would all be "married" to take advantage of the tax laws, AHCA, or whatever, and the whole system of laws built up through the ages around the institution of marriage through the ages would fall apart.

And don't think there would not be people and lawyers to figure out how to do just that.

Bob Ellison said...

"You're not doing anything more than asserting this is a question for majoritarian politics. Why?

Government power must be justified."

Yes, I am asserting that this is a question for majoritarian politics. Why must I justify that? Why are you asking? You said it belongs in the court, which is ludicrous. Why do you think your question is valid?

Fish, barrel. You gotta swim faster than that.

chickelit said...

Of course fostering children is in the State's interest. Sometime in the 19th century, a delegation of Her Majesty's government visited Michael Faraday to view his electric motors and other inventions. One said 'This is all very interesting, but of what possible use are these toys?' Faraday responded: 'I cannot say what use they may be, but I can confidently predict that one day you will be able to tax them.'

Heterosexual couples still produce children, whether the sperm or egg be borrowed, but the State no longer considers marriage essential for raising them. If they do, they are afraid to say so or to speak out against dysfunction. This may change if the State weighed all the costs of governing dysfunctional offspring instead of subsidizing it. Here is where true and unambiguous data and reason should be sought and heeded.

JBC said...

"I don't think the government has been able to articulate anything close to a good enough reason for treating committed couples differently"

Of course not! Where would the data underlying such a reason come from? Harvard? Yale? Any credible academic source? Please. We have a government by "science," remember, and the science--both what is researched and the results therefrom--are strictly controlled. Doubt this? Think that any credible university anywhere is actually funding studies that will show any negative outcome vis-a-vis the acceptance of homosexuality and society? If so, then you are impossibly naive. This is the beauty of our social democracy. Progressivism always wins. Always.
But what about the potential unintended consequences of homosexual marriage some boneheads (i.e. conservatives) might ask. Well, what about them? That's the other beauty of our system. Of course there will be "unintended consequences" likely dire ones, but so what? All deletorious effects will be blamed on the usual suspects, and (here's the real beauty part) any negative effects will require more progressivism to fix. That's why progressives don't care a whit about real-life consequences and cons are foolish for moaning about them There is only one permissible solution set for societal ills, and it ain't coming from the right. Homosexuals should be wary though. Progressives are seriously helping them now. They'd be wise to take a good look at the last sub-group progressives decided to help. If you were the head of a Black family and by some fantastic means had the choice, would you rather live in a Black community in 1950, or one in 2013? Unless your children are bullet-proof and you have a fondness for hopeless wastelands, there's only one real answer, segregation, racism, Jim Crow and all. That's what 50 years of progressive "help" gets you.

Inga said...

DBQ, I agree with you too. Go figure.

bgates said...

I'm not doing anything more than asserting this is a question that belongs to the individual.

I'm not going to write "FIFY", because that's such an obnoxious thing to do.

Chuck said...

Dear Prof. Althouse,

Since it is your profession, I'd like it if just once you articulated the legal position as to how California's Prop 8, and/or DOMA, fail to meet constitutional scrutiny.

My question might be unfair; they are two very different cases, procedurally, and it is a bit odd to me that they have been joined so closely for argument and decision byt the Court. So handle that part as you see fit.

But for the life of me, I cannot understand how a popularly-supported, duly-enacted state CONSTITUTIONAL provision like Prop 8 fails under a rational basis examination to meet the standards of Fourteenth Amendment review.

With DOMA, it is an entirely different federalism issue. What part of the Constitution did Congress offend, in passing DOMA? And what test do we use for examining any such violation?

Respectfully,

pigpaws said...

Ann, if 'your side' redefines marriage via the courts, and your son wants to get married in the church or mosque of his choice and they refuse him, will you support him in suing those religious institutions for discrimination or will you respect and defend their 1st amendment rights?

Chuck said...

Prof. Althouse:"This is an area of individuals ordering their own private lives and the government discriminating by sex. On what basis? To say the majority is strongly opposed is not an answer. The question is why does the majority get to decide?"

Resting with that argument, the personal liberty argument, puts you with Justice Kennedy and the majority in Lawrence v. Texas. Where the next question to be answered by you is the one posed by Scalia in the Lawrence dissent: What about polyamory, polygamy, adultery and incest bewteen consenting adult family members? How does the "liberty" interest of gays and lesbians trump the liberty interests of polygamists?

For what it's worth, I view the situation as raising two distinct constitutional tests. Is it some sort of "liberty" interest, which is on very shaky grounds in terms of specific supporting language in the constitution? Or is it a "suspect classification" argument, giving rise to certain clearly-delineated principles constitutional interpretation?

Baron Zemo said...

She will never support religious freedom.

It will be a matter of "settled law" that churches or mosques or synogouges must perform the sacrament of marriage to people or groups of people in direct violation of the doctrines of their faith.

Today is Passover one of the most important points in the Jewish year. It is also Holy Week which is the most important part of the Christian calendar. We will get many Same Sex Marriage posts but no acknowledgement of the faith of so many of the commenters here.

To Ripic and the other members of the tribe: Pesach same'ach bubbies.

Baron Zemo said...

Give it up guys. It is a lost cause.

Nomennovum said...

Ann's analyis is spot on.

Republicans, being the stupid party, will fight this and lose politically. The reason we as a people are now so willing to give gays marriage is the same reason why it doesn't really matter that they will win this "right" or what the consequences to society of their winning will be: The institution of marriage is currently worthless. Marriage has lost its meaning. It is not taken seriously any longer. Indeed, for men marriage is a net negative. We have destroyed it. As for the consequences? Sure there'll be some, like polygamy for one. So what? There are so few gays, and fewer who want to marry, and even fewer wannabe polygamists, to make any practical difference. The gays and polygamists will quickly discovery the costs of marriage that so many men now see. Very quickly, the gay marriage rates will plummet to rates below that of heteros. And how much fun will it be to see the fallout from the first polygamist's divorce(s)?

Marriage is already a joke, folks, so let it now become a sick joke, and then Republicans can maybe lead the way in picking up the pieces.

The problem is no one in mainstream society (including our religious institutions) seems to have any idea how to fix it, since so few are able (or willing) to identify the cause of the problem.

Chef Mojo said...

Ed Butcher flails:

Typical Lefty.

Hardly. My opposition to bigots like yourself is quite conservative, as am I.

The blacks are the first to take offense when they're compared to homosexuals.

So, you think blacks are exempt from being wrong and bigoted? Interesting.

Homosexuality is a practice inimical to a healthy society and, if you adhere to Dr Freud, a mental illness. It spreads VD and other diseases, the latest being meningitis.

Oh, wow. Really, ed? It's all those damn queers spreading VD! Thanks for the heads up!

Remember, ed: VD Is For Everybody! And it has been for a very, very long time, you sanctimonious moron.

Nobody's talking about taking away anyone's Constitutional rights,

Bullshit.

but they are talking about doing what several thousand years of recorded history tell us is what's in the best interests of society.

Uh, huh. Just like slavery, right? Or absolute monarchies? Or the earth being the center of the solar system? Yep. Thousands of years of recorded history!

Bryan C said...

"You could form whole communities of people that would all be "married" to take advantage of the tax laws, AHCA, or whatever, and the whole system of laws built up through the ages around the institution of marriage through the ages would fall apart."

Tax laws and government health programs are not age-old traditions built around the institution of marriage. They're attempts at social engineering by the state, and they cause all sorts of problems already.

I'm not really interested in deciding such things based on how convenient they are for the government. If same-sex or plural marriage makes it harder for the government to selectively meddle in people's lives, then I think that'd be awesome.

Bob Ellison said...

Nomennovum, some of us still think marriage is real.

RichardS said...

Had the U.S. passed a Defense of Marriage Amendment, rather than a statute, I bet many Lefties would argue that it was somehow unconstitutional. The positive law aspect of the U.S. constitution needs more respect. It is not simply a positive law, but it is that in many ways.

chickelit said...

Nomennovum emphasized: The institution of marriage is currently worthless.

Speak for yourself, pal.

I Callahan said...

Marriage is already a joke, folks, so let it now become a sick joke, and then Republicans can maybe lead the way in picking up the pieces.

Actually, marriage is the building block of any stable society. If what you say is true, and the cause is lost, then society will collapse.

I'm not a church going person, but I was at my niece's first communion at a Lutheran church yesterday, and I saw a whole church full of people who'd tell you you're full of shit. Sounds like you had some bad marriage(s).

The problem is no one in mainstream society (including our religious institutions) seems to have any idea how to fix it, since so few are able (or willing) to identify the cause of the problem.

I'd like to hear what you think is the cause of the problem.

RichardS said...

"Just like slavery, right? Or absolute monarchies?"
Both of which are questionable in both the Bible and in Greek philosophy.

chickelit said...

MoJo reminds me of the song Everyone has AIDS!

I Callahan said...

Are you the same Chef Mojo who I used to see at Protein Wisdom? If so, man, what have you been ingesting? Whatever it is, I'd like to suggest you moderate your use.

edutcher said...

Chef Mojo said...

Typical Lefty.

Hardly. My opposition to bigots like yourself is quite conservative, as am I.


You and Hatman.

Oh, wow. Really, ed? It's all those damn queers spreading VD! Thanks for the heads up!

They have much higher rates than heterosexuals. we wouldn't have an AIDS problem without them.

As for the rest of Mojo's blah blah, I've yet to see anyone tell us how same sex marriage benefits society.

There's a lot of history on how it doesn't, just as there's a lot of history that protecting the nuclear family is vital.

But then, anything Mojo is for, apparently, is anything that's bad.

Dante said...

This about what's going on. The govt rakes in tax money, then dispenses it in benefits. Here, it is opting to make those benefits depend on the sex of individuals. Why? That must be justified, because ALL exercises of govt power must be justified. This is a lot of power by govt. It's not about making you think something is right or good. It's about not abusing govt power.

See, there is value to homosexuals in other people's kids. But as most homosexuals do not have kids, there isn't much value the other way around (sans Lesbian issue, for arguments sake).

Imagine a world of only of homosexuals. No kids, so who takes care of them when they get old?

The marriage subsidies are for people who have kids, in my view. In fact, I can't think of a single good reason to get married if not for kids, especially for the higher income earner.

I can think of NO state interest in male homosexual marriage. I also do not think it is fair to those who expend the energy to create the next generation. Why should gays get a free ride? They already have higher incomes, etc., and in my view because they aren't sacrificing to make the next generation.

Returning some of the money hard working married couples, who have kids, and especially those in the middle class (as opposed to on welfare), deserve the break.

Dust Bunny Queen said...

The institution of marriage is currently worthless. Marriage has lost its meaning. It is not taken seriously any longer.

Again. Speak for yourself. My marriage has much meaning and we take it very seriously. It is a very very serious commitment. We also don't need the government or even the church for that matter to tell us that we are married in heart and soul.

Indeed, for men marriage is a net negative.

This I must agree with, since the laws seem to be stacked against men. And frankly the way that young women act, how they were raised and the unrealistic and denigrating opinions that they have of men, I don't blame young guys for not wanting to stick their ....ahem...into the blender.

But...marriage is what YOU make of it.

I'm sorry that you made bad choices and are obviously bitter, but that doesn't poison the buffet for the rest of us.

Anthony said...

There you go again, referring only to "couples" and forcing your bigoted anti-multiple-spousal phobia on a discriminated-against minority.

ed said...

@ Jay

"Watching you disentigrate from law professor to someone with 4th grade logic when this issue is discussed is totally fascinating."

+1

pigpaws said...

I bet there's not a damn one of you in opposition to gay marriage who isn't religious.

Bzzzt

You base your opposition on your religious precepts, and that is the very definition of bigotry.

Says the bigot. Where did the concept of marriage originate and for what purpose?

It's amazing to think that slavery was once an accepted and normal institution. For thousands and thousands of years, no less!

It still is in many areas, but what does slavery have to do with redefining marriage?

Ideas change, and so do norms. Deal.

According to whom? The ones who have the most money to pay off or blackmail judges to get what they want?

Basic human nature does not change. Biology does not change.



gregq said...

Well, Ann, you're totally wrong, and here's why:

You want to "get married"? Great, have a party and announce you ar "married."

You want to you the power of the state to force everyone else to pretend that your same sex "marriage" is a real marriage?

You're no longer in the realm of "individual rights" there. In fact, you're in the realm of trampling all over the rights of everyone who disagrees with you.

And doing THAT "belong[s] to majoritarian politics".

No honest judge / justice can claim that "We The People" have ever written Same Sex Marriage into ANY State Constitution, or into the Federal Constitution. That means the issue belongs to politics. Trying to get the usurp the people's power, and trample all over democracy and the rule of law, in order to advance your preferred agenda, is not merely wrong.

It is evil.

I thought better of you.

a psychiatrist who learned from veterans said...

A Volokh blogger I think has the better argument. The case is about DOMA wherein the national government sets out to define marriage. It has accepted the states definition of who is married heretofore and here would be unreasonably stretching it's authority to define things and so DOMA should be thrown out on that basis.

Baron Zemo said...

Religion and religious people are under attack in this secularized society every day. Note how the mainstream media and all the lefty concern trolls tell the Republicans that they need to repudiate the religious right and other socially conservative religious people or they will never win an election.

If you see a criminal on TV it is almost never the people who commit 90% of the crimes. It is a white clergyman or business man or just any old white guy. It is the goal of the secular left to destroy any institution that might instill faith based socially conservative values. The Boy Scouts. Religious schools or charities. Marriage.

That is their goal. Make no mistake. They want your surrender. They demand your surrender. There is no escaping the collective. You will assimilate in their soulless creed or you will be destroyed.

Chef Mojo said...

I've yet to see anyone tell us how same sex marriage benefits society.

"I've yet to see anyone tell us how same gun ownership benefits society," said the gun grabber.

It doesn't have to be proven to benefit society. Equal protection under the law is an inherent right, even if on occasion it does not "benefit society."

chickelit said...

MoJo: Which amendment are you conflating the 2nd with?

Bill said...

Wow. I step out to run errands and come back to find myself mentioned in a post.

I haven't read all the comments in either this post or the original (I almost never go past 30 or 40 as that's where it seems to start getting mean and unenlightening) so I assume that smarter people have said these things already but:

I'm not sure how Ann thinks that a SC win for gay marriage will settle anything and just allow conservatives to move on to either other issues or other aspects of this issue. How's that working out on Obamacare or abortion?

My own opposition to gay marriage has nothing to do with gays and is more an opposition to poorly defined civil marriage. There is no social stigma to divorce or out-of-wedlock births and most civil marriage laws reflect that. Historically, civil marriage has been the State's imprimatur/endorsement/support of sacramental marriage. It's supposed to have a civilizing, stabilizing influence on society. As that is no longer the case, I don't see a reason to simply extend it to gays without some framework that would prevent its extension to anyone who wants it. Especially since there are no longer any meaningful responsibilities or penalties to go along with its privileges.

As for how I'd like to lose, I'd like for all civil marriages to become civil unions and to be thought of as something wholly different than marriage but to be a well-defined set of rules that present a genuine benefit to society that could be applied to sacramentally married couples as well as gay couples.

Hagar said...

Tax laws and government health programs are not age-old traditions built around the institution of marriage. They're attempts at social engineering by the state, and they cause all sorts of problems already.

That is about the dumbest comment on this thread so far.

Property and inheritance laws are also all about marriage and legal spouses and offspring; it is not just about the last couple of centuries of income taxes and welfare programs, but they too are intertwined with the older laws.

Chef Mojo said...

I Callahan:

I take it you're offended? Good.

Yes, I used to post at Protein Wisdom. Walked away from it when Jeff stopped posting, and never got back into the habit. I see he's been back at it, and that's a good thing, because I think he is one of the best minds and writers on the intertubes. And I agree with a hell of a lot of what he writes.

Here's the thing: I've been pro gay marriage since I was in college in the late '70s and early 80s. Way before it came on the national radar. That's how I roll.

I'm a conservative/libertarian. Ed Butcher can stamp his little feet all he wants that I'm not hewing to his orthodoxy, but he, and everyone else, can blow it out their ass.

Freder Frederson said...


Because same sex marriage goes against the popular and populist sentiment,

Except that it doesn't. Polls now show majority support of SSM in the country. Now there are many states in the union that will take a very long time before they allow gay marriage. But I bet if the vote came up in California tomorrow it would pass this time around. The question that I am interested in is whether the Court will require the states that do not allow SSM to at least recognize marriages performed in other states.

chickelit said...

but he, and everyone else, can blow it out their ass.

Well, at least it's the right direction for that kind of thing.

chickelit said...

But I bet if the vote came up in California tomorrow it would pass this time around.

SCOTUS may well keep this in mind if they decide to bounce it back. So that's still a win-win for you, right?

RichardS said...

Now that a couple with a husband who works and a wife at home with kids is no longer the norm, what justifies pension benefits, health care benefits, etc.

Visitation rights, and other such things are a different story. They are the rights of an equal partner. But the other rights of spouses only make sense based upon a model of marriage that no longer is the norm in America. Perhaps they should only go to couples, gay or straight, who stay together for the long term and have children.

Freder Frederson said...

Perhaps they should only go to couples, gay or straight, who stay together for the long term and have children.

And how, pray tell, are you going to decide what is "long term". There are lots of reasons to get married other than having children.

Matt said...

At some point [soon perhaps] gay marriage will be legal everywhere in the US and a few years after that people will get used to it. Even Conservatives will shrug at the concept.

There are big political issues out there that need attention. Gay marriage isn't one of them. Many social issues, in time, fall by the wayside.

Basil said...

But Professor, you are confusing the argument for a human right with one for a constitutional right. There is no valid argument that the framers of the 14th Amendment intended to create this right. The Radical Republicans were many things but they were not sexual innovators. How can you teach law when you can't make this distinction? It is a Constitution they are applying, not some ephereal divination of the asserted right of persons to sexual preferences or behavior.

Chef Mojo said...

At some point [soon perhaps] gay marriage will be legal everywhere in the US and a few years after that people will get used to it. Even Conservatives will shrug at the concept.

There are big political issues out there that need attention. Gay marriage isn't one of them. Many social issues, in time, fall by the wayside.


Exactly.

Chef Mojo said...

There is no valid argument that the framers of the 14th Amendment intended to create this right.

"What am I," said the 9th Amendment, "chopped livah?"

Inga said...

"Perhaps they should only go to couples, gay or straight, who stay together for the long term and have children."
-------------------------
"And how, pray tell, are you going to decide what is "long term". There are lots of reasons to get married other than having children."

3/25/13, 4:24 PM

How unfair that would've been to my Granny and her 2nd husband after she was widowed. Both were in their early 80's.

Baron Zemo said...

Gay marriage is just a club to beat traditional and socially conservative people with. Everything you want legally and fiscally can be accomplished by civil unions. But that is not what is desired by those who push it.

It is not the real issue. It is just one step on the road. A little oil for the slippery slope.

Inga said...

It's a canard to keep pushing the idea that churches will be forced into marrying gays. Nothing more than fear mongering.

Civil marriages for everyone, religious marriage in addition to civil for those who can find a church to marry them. It's not that difficult, or scary.

Inga said...

Just like they do in Europe.

Baron Zemo said...

Matt said...
At some point [soon perhaps] gay marriage will be legal everywhere in the US and a few years after that people will get used to it. Then the next step will be to force religious institutions to perform these ceremonies or lose any tax exempt status or other governmental benefit because to do otherwise would be bigoted and unacceptable to the politically correct minority who control the courts and the media.

FIFY

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

Zemo, such utter bullshit.

chickelit said...

Inga wrote: Just like they do in Europe.

We don't follow the continent much and prefer to emulate the British. It's already illegal to street preach against homosexuality in England. Canada is another bad example.

Marshal said...

Polls now show majority support of SSM in the country. ...I bet if the vote came up in California tomorrow it would pass this time around.

I think this is likely true, and it reveals how inappropriate government intervention is. A mere decade ago it was a nonstarter. A few judicial activists and nuts calling everyone bigots later and suddenly 1/3 of the country has changed their minds. People understand the government will not be stopped and will ruin their lives if they don't accede. This is not the appropriate relationship between government and citizens.

chickelit said...

Inga said...
It's a canard to keep pushing the idea that churches will be forced into marrying gays. Nothing more than fear mongering.

Didn't Pogo post an entire paragraph of links countering your assertion last week, Inga?

Bill said...

I can think of maybe 5 gay couples that I know. They have been in committed, monogamous (I assume) relationships longer than many marriages. They live together and seem to share property jointly. They are wonderful, stable neighbors and except that most of them are openly contemptuous of conservatives, they are otherwise wonderful people. I look around at so many valid sacramental marriages that have made a right holy mess of things, leaving a trail of tears and divorce and shattered lives and broken children and I see the fundamental unfairness that motivates people on this issue. I would like for gays to be able to order their affairs as they see fit and I would like for the State to able to support their stable relationship.

On the other hand, civil marriage has always been a reflection of sacramental marriage. We seem to have elevated it to a sacred institution but civil marriage was really just the State saying "Hey, look at that. That works pretty well for society. Let's encourage that." Sacramental marriage, however, has sexual complementarity and procreative potential as fundamental pillars of its identity. Men and woman have sex that is capable of bringing forth new life. Gays cannot.

If we want to bring gays into this institution then I think we need to start thinking of civil marriage as just a social contract. The State would give certain benefits in exchange for certain obligations and restrictions. These contracts could apply to any consenting adults, whether roommates, heterosexual couples, gay couples, married couples, maybe even polygamous groups. They could establish survivor benefits, visitation rights, etc. and could be dissolved fairly easily except where unions have produced children, in which case they would automatically become more restrictive.

But simply looking at today's mess of civil marriage and saying "gee, that's unfair, let's extend this to gays" is a recipe for disaster (or at least a boatload of unintended consequences).

Inga said...

Did he? Perhaps he'll repost it.

Baron Zemo said...

Anyone who wants to leave their religious freedom or their freedom of speech in the hands of people like the execrable Inga, Andy the Hatman or the Nutty Perfessor....well good luck with that one.

They lie.

Matt said...

Baron Zemo

Then the next step will be to force religious institutions to perform these ceremonies or lose any tax exempt status or other governmental benefit

Yeah, but aren't all gay people atheists?

Seriously, though, I think some lawsuits may arise because of this but it's a rather small side issue to the bigger concept of gay marriage itself.

Also, I am sure there were some churches who didn't want to marry interracial couples. That's not an issue anymore.... Moving forward.

Freder Frederson said...

Then the next step will be to force religious institutions to perform these ceremonies or lose any tax exempt status or other governmental benefit because to do otherwise would be bigoted and unacceptable to the politically correct minority who control the courts and the media.

Bullshit. Forty-six years after Loving v. Virginia, no religious institution has ever been punished for refusing to perform interracial marriages.

Freder Frederson said...

Didn't Pogo post an entire paragraph of links countering your assertion last week, Inga?

No, he didn't.

Inga said...

Baron Zemo, fear monger and prognosticator extraordinaire!

Baron Zemo said...

Forcing some religions to defend against lawsuits and other attacks because they will not agree to violate their doctrines to make SSM a sacrament is "a small side issue."

See what I mean?

It would not suffice to let those churches or temples or mosques that wanted to perform these marriages do it to their hearts content......every church temple or mosque would be forced to do it. Wait and see.

X said...

why should I have to get married to get or leave a tax free inheritance? why shouldn't I get the cash equivalent of spousal benefits my colleagues get for the same work? why shouldn't someone with a spouse pay more into Social Security for survivor benefits they'll enjoy but I won't?

why can't I receive Equal Protection?

Baron Zemo said...

The interracial argument is specious. People who want to be married in a religious ceremony will find a church to accommodate them. Almost every one will. That happened naturally. Not by force of law. Which will not be the case with SSM.

SSM is a political tool used as a prybar. People like AndyR will not accept the fact that religious institutions could opt out of performing these ceremonies.

If you think that is the case you are lying. As usual.

Baron Zemo said...

It would be as though the government would force religious institutions to provide birth control or abortion services. That would never happen right? They wouldn't force someone to violate their religion under the force of law...oh wait a minute.

The Godfather said...

Ann, you assert that you've given reasons for your belief that recognition of gay marriage should be imposed by the Supreme Court, rather than by the democratic process, and you accuse those who feel otherwise of failing to give reasons for their position. "I gave reasons." With all due respect, no you didn't.

In your original post all you said was that "I would like to see the win in the Supreme Court . . . because I think that's the right place to draw the line between the decisions that belong to the individual and the decisions that belong to majoritarian politics."

That's not a reason, it's a preference.

Quite a few commenters have offered intelligible reasons why they think that this is a matter that should be addressed democratically. They include: Bob Ellison, 1:30 pm; RichardS, 1:34 pm; Dust Bunny Queen, 1:41 pm and 1:52 pm; Truckee Man, 1:47 pm; Richard Dolan, 2:31 pm; n.n., 2:32 pm; Chickelit, 2:47 pm; Basil, 4:30 pm. I'm sure I've missed some. Sorry.

In a comment you added an argument based on the assumption that gay couples are in fact "married" and so it's sex discrimination not to treat them as married. To make that argument work, you have to show some basis, in law, policy, tradition, natural law, or whatever, for the proposition that the parties to a relationship determine, on their own, whether or not it's a marriage. You haven't even tried to do that.

I understand that marriage has historically been a status that depends on its being recognized by the community. You couldn't be "married" unless you did whatever that community required you to do in order to be married. You didn't necessarily have to go through a religious or civil ceremony, but you had to satisfy whatever the community requirements were. Otherwise, you were "living together" but not "married".

So I don't think you're argument that gay couples are already "married" has legs.

I favor gay marriage. When I lived in south Florida I knew a number of gay couples who had been together for 30 or 40 years, but who could not be married in Florida. Some of them went to other places, like Canada, to be married. It was touching to hear them now be able to say that they were married. I would like that opportunity for all other committed gay couples, and I would like their marriages to be legally recognized everywhere.

But the point of the case before the Supreme Court is that "civil unions" for gays are discriminatory because, although the unions supposedly provide the same benefits and rights as marriage, they don't afford the dignity and societal respect afforded by "marriage". If the objective is to cause straight people to respect gay relationships, do you really think you can do that be ignoring the democratic process and forcing gay marriage on unwilling states by judicial order?

The tide is running in the right direction. Minds are changing. Let's hope that the advocates for gay marriage don't screw up their own cause by their impatience at this stage.

ricpic said...

The people of California said no. The Beautiful People say fuck the people we want what we want and screw democracy screw the majority screw their will we're going to have what We Want!

Alex said...

Gay marriage is just a club to beat traditional and socially conservative people with.

Baron Zemo - guess what? Traditional and conservative people have been beating everyone over the head with their GOD club for millennia. Turnarounds's a bitch aint it?

I can't wait for the day when churches will be forced to marry gay couples! Oh and in Europe/Canada it's already illegal to cite Bible verses that are hateful to gay people, so you better watch out!

Alex said...

Inga - you go girl! Show those baaaad conservatives how stoopid they really are!

Jack Wayne said...

Chef Mojo, it's not just rude but stupid to call someone a bigot who has an opinion. Governments can be bigoted in my opinion but not people who live in a free society. I deny your fig leaf of libertarianism

Dante said...

I bet there's not a damn one of you in opposition to gay marriage who isn't religious.

I'm an atheist.

n.n said...

Neither judicial nor political activism are desirable. Neither a tyranny by a minority nor a majority are desirable. We need consistent, objective standards to guide our development and ensure equal protection of individuals rights. We should not stand for democratic leverage to distort our perceptions and corrupt our society.

The Godfather:

I do not favor democratic leverage to replace other forms of coercion. I support objective, consistent standards for all people. I argue that the issue is equal protection and treatment under the law. I further argue that there is a constitutional and natural basis for a society to favor heterosexual unions. However, if we dispense with both of these arguments, then the only argument of merit is equal protection and treatment. This necessarily precludes distinguishing between unions based on sexual and platonic relationships. All unions are corporate.

There is another important caveat to arguments for normalization of homosexual unions. The equal protection and treatment argument precludes elective abortion.

The advocates for homosexual marriages or unions must address all of the issues above. They must address universal unions, irrespective of their composition, and elective abortions. If they do not, then they are demonstrating a selective prejudice, and society should respond to their demands accordingly.

Dust Bunny Queen said...

why should I have to get married to get or leave a tax free inheritance? why shouldn't I get the cash equivalent of spousal benefits my colleagues get for the same work? why shouldn't someone with a spouse pay more into Social Security for survivor benefits they'll enjoy but I won't?

why can't I receive Equal Protection?


Gee...I dunno. Maybe you should take that up with the Federal Government and the IRS and leave the States to make up their own rules regarding marriage.

California which USED to have Civil Unions you could get the same insurance coverage for your partner. However, those civil unions are now on the chopping block thanks to Obama. They gave every right to same sex and Civil Union or Domestic Partnerships as any other relationship within the State that they could. Even California couldn't fix the problems you are whining about.

Lydia said...

Re our cousins across the pond:

"The Church of England may not be safe from court challenges forcing it to conduct gay marriage as there is 'no unanimous' legal opinion on the issue, a research briefing for MPs says."

ricpic said...

Liberalism is a boot coming down on a human face forever.

--Updated Orwell

Liberal, Progressive, Statist, Marxist: they're all one and the same and they're all about forcing their shit down our throats. In all of Althouse's rationalizing drivel did she ever say leave it to plebiscite to decide? Of course not. She knows, all our betters know that left to the people their homo in your face agenda would be a dead letter.

Alex said...

I can't wait for the day that a Christian pastor is arrested for the hate crime of refusing to marry a GLBT couple.

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

Alex said...
I can't wait for the day that a Christian pastor is arrested for the hate crime of refusing to marry a GLBT couple.


By the same token maybe someday non-leftists will refuse to hire leftists. It's not hard to see what road America is on.

X said...

Dust Bunny Queen said...

Gee...I dunno. Maybe you should take that up with the Federal Government and the IRS and leave the States to make up their own rules regarding marriage.

California which USED to have Civil Unions you could get the same insurance coverage for your partner. However, those civil unions are now on the chopping block thanks to Obama. They gave every right to same sex and Civil Union or Domestic Partnerships as any other relationship within the State that they could. Even California couldn't fix the problems you are whining about.


uh DBQ, I'm not gay or married. I want to know why the arguments SSM advocates use don't apply to singles. I get that they want these financial benefits. but fairness dictates that the unfairness be eliminated for all, not just for the gay.

edutcher said...

At the risk of getting yelled at by someone we all know and love (and we do, pretty much), would it be out of place to ask why we need 4 posts in one day on same sex marriage when the mayor of the biggest city in the country says, "I do think there are certain times we should infringe on your freedom"?

Given that the lady loves the Constitution and its protections as much as she does, that seems something one whole Hell of a lot more important than whether Titus can legally call himself Mrs.

Matt said...

ricpic

Civil Rights would not have passed in the solid South in 1964 if the voters were asked to vote for it in a democratic manner.

Also note if they had left Civil Rights to the states then a few of the Southern states would have voted against the idea.

Sometimes you need the force of a Federal gov't to make it happen.
You say forcing their shit down our throats. I say progress. At least with respect to civil rights and this case.

Now I will admit the legislative method is a different one than the judicial method. But here we are.

X said...

I also get why marrieds have traditionally enjoyed these benefits: they are raising the next generation of society. but if that reason is no longer good enough for the gays, then it's also no longer good enough for the single. all you mofos can't free ride and expect the rest of us to just pull.

Aridog said...

X said ...

I want to know why the arguments SSM advocates use don't apply to singles. I get that they want these financial benefits, but fairness dictates that the unfairness be eliminated for all, not just for the gay.

Finally!

But, not going to happen. As the push to expand what "marriage" means is reinterpreted by the court, the opposite will happen, said benefits will be withdrawn from everyone. Government will serve its own interest first.

Bill said...

"Civil Rights would not have passed in the solid South in 1964 if the voters were asked to vote for it in a democratic manner."

But, the theory goes, it would've passed soon after that, and soon after that it would've been irrelevant because civil rights recognition was marching along fine, just not fast enough for some. Civil rights legislation was said to fan the dying flames of racism. I can't speak to those arguments, but I'm certainly wary of the Supreme Court forcing, yet again, a decision on a controversial issue and producing more division and less resolution.

sinz52 said...

Getting back to the original question:

The best-case scenario for the Republican Party would be for the Supreme Court to mandate SSM. And then for the GOP to say "Well, since even Roberts, a conservative, wrote that majority opinion, we have no hope of overturning it. So let's just drop the issue and talk about the economy."

That takes the SSM issue out of the political arena, so that the GOP doesn't have to continue to actively oppose SSM in states where SSM is popular.

If the SSM issue remains in the political arena, the GOP will be forced to take some stand on it.

And then it will face a real dilemma: If it continues to oppose SSM, it will alienate 80% of young voters and many other voters. But if it gives even tacit consent to SSM, then the evangelical half of the GOP base will walk out.

Much better if the Supremes take the issue out of the GOP's hands altogether.

sinz52 said...

Bill: "But, the theory goes, it would've passed soon after that, and soon after that it would've been irrelevant because civil rights recognition was marching along fine, just not fast enough for some."

While liberals will never admit it,
one of the most democratizing institutions in America is the military.

Blacks and whites serving together in World War II helped energize the push for black civil rights in the following decade.

And I'm sure that if the Supremes hadn't forced black civil rights on the South in the 1960s, blacks would have gotten more support from their cause by the comradeship of blacks and whites serving together in Vietnam.

Dante said...

Meanwhile, if the Court decides against same-sex marriage, it will catapult the Democrats politically. They'll rage. But will it not be in (private) delight?

The nature of life is unfair. There will always be some unfairness for Democrats to rail against, and they have shown they are remarkably good at taking pint incidents, and making it into the law of all.

If not pandering to gays, blacks, hispanics, women, etc., then it will be someone else more deserving of your efforts than you are. Of course, meanwhile implementing policies that help out those Blue State wealthy people.

Nothing is going to stop it. Not even when we are living in 440 square foot homes, so long as people can differentiate.

Bill said...

sinz52,

You may be correct but why is that better for the GOP? Why couldn't we just as easily say that despite gay marriage being popular with the kids, it's deeply unpopular overall. Everyone says they support it but when they get in the voting booth they vote it down again and again even in liberal states. And then they put it back on the ballot and it gets voted down again and then they get a judge to say it's a right that must be accepted and enforced against the will of the voters and everyone says "See? It's inevitable!"

Why couldn't the best outcome be that the Supreme Court strikes it down definitively? And if they do, why does it have to be the GOP that's stuck fighting an unpopular decision? Why can't it be the Democrats that are forced to never let go of an unpopular position?

It feels like conservatives have been told for years, and years, and years that the only way for them to win is to lose this battle that's right in front of them and then the next one will be different.

Matt said...

sinz52

The Supremes didn't force Civil Rights on the south. They passed Brown v the Board of Education in 1954 but the Civil Rights act of 1964 was the main piece of legislation that changed things substantially and for good. So you could say that the Northern Democrats and Northern Republicans 'forced it through'.

The idea that we all should have just waited a little longer or looked at how the races got along in the military for guidance is a rather cynical view.

Dante said...

why should I have to get married to get or leave a tax free inheritance? why shouldn't I get the cash equivalent of spousal benefits my colleagues get for the same work? why shouldn't someone with a spouse pay more into Social Security for survivor benefits they'll enjoy but I won't?

Because you aren't expending massive energy in reproducing.

Why shouldn't single people get the marriage benefits? Same damn reason.

Simply because you are "In Love" isn't enough.

rcocean said...

"If the fight continues in the political process, conservatives are going to spend years getting sidetracked into this issue -- rather than the spending and economics issues -- where they will look worse and worse to more and more people"

What a dumb argument & one that I've been hearing for 30 years. Funny how the liberals can fight on economic AND social issues without any problem at all. And of course, after we surrender on Gay marriage, the liberals will just come out with ANOTHER new burning social issue, at which time the RINO's will advise we surrender on, and rise and repeat.

Sam L. said...

SCOTUS should turn it back to the states. That's why abortion is still a problem. It takes time (oh, no, we must have whatever NOW!), and time can heal. Taking it from the hands of the people angers many. Winning requires persuasion, and ssm proponents don't want to persuade (or take the time to).

edutcher said...

Inga said...

Baron Zemo, fear monger and prognosticator extraordinaire!

That's provocateur.

DAN said...

I'm a member of the Writers Guild. For years, the Guild's health and pension benefits have been extended to "same sex partners" of Guild members, the argument being that those members and their partners could not marry. Heterosexual partnerships were not and are not recognized, the logic being that heterosexual Guild members and their partners who are shacking up make the choice not to marry and with that choice relinquish their right to benefits.

In the brave new world, should unmarried homosexuals in relationships be denied benefits? During the brief period here in California when SSM were legal, the Guild's answer to that question was, "Uh... we'll get back to you."

Ann, would you be in favor of benefits only being extended to married couples, whatever their sexuality?

edutcher said...

Matt said...

The Supremes didn't force Civil Rights on the south. They passed Brown v the Board of Education in 1954 but the Civil Rights act of 1964 was the main piece of legislation that changed things substantially and for good. So you could say that the Northern Democrats and Northern Republicans 'forced it through'.

There were a lot of southerners who supported civil rights. They had to be careful about lest something go bump in the night.

That's not the case here.

The Godfather said...

The civil rights era in the South was different from what we're talking about because there were specific constitutional provisions that were intended to give Blacks equal rights, and which authorized Congress to enforce those rights. That's not true of gay marriage unfortunately.

Titus said...

Personally, I don't give a shit about what other states do.

I am gay married in Mass (but not at Mass) and everything is fine for me. I love him and we will be together forever-my running around days have become much less to the point of minimal in my older years. Every now and then I do want to see what I am worth-some days not much and other days Jackpot. And he's an Indian and they marry for life and I aint going to divorce him ever.

And I aint leaving Mass. I will when I become old but that will be when I move to the southern coast of Maine where fags are are able to be married.

As for the fags in deep red states I say fuck em. They can move and be married in a much more fab area (but would require money and because they are in grossy states are probably poor). Or they just deal with it.

And no fags for no reason are ever going to be moving to these states unless they have to temporarily be there for a sick parent. And then leave immediately after the parent croaks.

So Biloxi, Mobile, Pensacola you have no worries....the fags spend their cash elsewhere because they follow how those hell holes vote. Yes, you have a ocean view but that's not going to attract any gay money but most importantly Gays.

Scott M said...

I've said it before. I'll say it again. Just how affluent does a civilization have to be before this issue takes up so much of it's time?

Michael said...

I am all in favor of gay marriage. But I can tell that those churches that do not perform marriage ceremonies for gay couples are in for it. They will be hectored to kingdom come and the government will be petitioned to remove their tax status as a result of their bigotry. It is logical and inevitable that this will occur. Too bad but there are those who will not be satisfied until the elaborate moral structure of the past is disassembled and reconstructed on a basis to be determined.

Scrooge said...

Titus,

Your comment is disgusting.

Gay people who live in the deep south deserve respect and equal treatment under the law every bit as much as you and I do. Many of them are politically and financially powerless to do anything about the unequal treatment they receive which is exactly why the Supreme Court needs to get involved.

But no, you are obviously too self absorbed to care about the gays that can't move around or fight for their rights like we can. You don't deserve to be able to claim to be a part of the gay community.

kentuckyliz said...

I thought the SCOTUS wasn't to be used as a substitute for politics? At least that's what Roberts said last year in the PPACA decision.

All I have to say is....

Enjoy the decline, you fabulousssss bitchessss! *z-snap*

Erika said...

Titus, that was the most eloquent ode to the Tenth Amendment that I've ever heard. Bravo, sir.

RichardS said...

"Perhaps they should only go to couples, gay or straight, who stay together for the long term and have children."


3/25/13, 4:24 PM

"How unfair that would've been to my Granny and her 2nd husband after she was widowed. Both were in their early 80's."

True, but irrelevant. Presumably they both lived most of their lives in the world of the one career couple. That world is gone. Granting pension benefits to a spouse does no make sense in light of modern legal and social ideas about the equality of the sexes.

Why is it a good idea to give a spouse pension benefits? I submit that that only makes sense when the presumption is that one works to make money and the other is at home raising children. That presumption is not longer reasonable.

It is also unfair to people who never marry to make them contribute equally to pension funds. Formerly, that was a relatively smaller number. I suspect it's no longer the case.

Next question: Why does a spouse get an exemption from the estate/ gift tax? Why should that be the case? One can make a case that a partner deserves such support. But it's an interesting question. After all, the estate tax only hits after the first few (?) million nowadays?

The supporters of gay marriage think it is both reasonable and possible to change only one variable. I submit that it is unreasonable because it probably won't be possible. Gay marriage is part of a larger transformation of marriage. The question is how marriage will be reshaped in the future, and what impact gay marriage will have on it.

Finally, we need to ask what we can do, within the range of possible options, to make the changes that are taking place as good as possible.

Titus said...

Smart fags know what they need to do to be successful. They need to get a good education and develop strong technical skills in order to be able to move out of where they come from and into the competitive creative economy cities where fags thrive.

They want to be financially successful and live in areas that they know they will be "accepted". This means a ton of hard fucking work, especially for the rural fags, who are blown away (literally and the other one) when going to these creative economic cities and are hit by the enormous expense of being able to live, progress and compete. Competing with all the trust fund babies can be incredibly draining too but fuck em.

There are some fags that miss out on this "dream" and stay home or at a town a few miles away from home and has 100,000 peeps rather than 1,000. These fags will never attain the fag dream.

The fag dream, for most, is money, power, education, opportunity love, technology and living in a part of the country where no one gives a shit about their faginess.

As a result, I was out of Madison Wisconsin when I was 17-and all my friends left too. The ones that remain moved from Dodgeville or Lancaster and are complacent working poor paying jobs at uninteresting companies and living in huge uninspiring cookie cutter apartment complexes...with a pool. And probably not being out because they are scared shitless they will be "fired".

I am not officially OUT at work because I don't want anyone at my company or previous companies know about me personally. But as my husband says, "if they met you they know you are gay"...and don't care. Also being around others at my company who are officially out and married and have familes and live in NH, Maine and Mass is comforting.

In Mass, this is reflected in all industries. I have friends in manufacturing, financial services, PR, biotech, hi-tech, health, education, sports, etc and they are all out and noone gives a shit (to their face).

tits.

Scrooge said...

Yeah, who cares about that silly 14th Amendment?

BTW, Ann is absolutely correct that the best outcome for the Right is a broad decision in favor of SSM. The GOP will be a minority party for years otherwise. Say hello to years of Democratic Presidents and Congresses. I can't believe how many people don't get this.

RichardS said...

"why shouldn't I get the cash equivalent of spousal benefits my colleagues get for the same work? why shouldn't someone with a spouse pay more into Social Security for survivor benefits they'll enjoy but I won't?"

Exactly. Why should anyone get those benefits simply because they are married?

I submit most of those benefits were created in a bygone age. If they still make sense at all, it is only for couples, gay and straight, with children.

RichardS said...

"Bullshit. Forty-six years after Loving v. Virginia, no religious institution has ever been punished for refusing to perform interracial marriages."

But classic natural law teaching, with many churches follow, does not recognize race as a reasonable category of distinction. It does, however, recognize male and female as the basic elements of a marriage. Hence there will be many more cases. There are what 70 million Catholics in the U.S nowadays.

How many interracial couples have been blocked from marrying in the church of their choice?

And we have many more secularists nowadays who will want to push such lawsuits, and an ever more radical living constitution faction that thinks all things they like can be constitutionalized. Why? Because there is no limit to what the constitution can mean according to the living constitution as it is often understood.

Alex said...

Titus is a rare moment of candor?

chickelit said...

Scrooge said: BTW, Ann is absolutely correct that the best outcome for the Right is a broad decision in favor of SSM. The GOP will be a minority party for years otherwise. Say hello to years of Democratic Presidents and Congresses. I can't believe how many people don't get this.

Scrooge can barely conceal the Schadenfreude.

Steve Koch said...

I don't know what is best politically in the short run but judicial activism is antithetical to our constitution so conservatives should relentlessly attack judicial activism.

Most political decisions (such as DOMA) should be made at the state level, not at the federal level. Having said that, if Roberts did not vote to overturn ObamaCare on federalism grounds why would he vote to overturn DOMA because it violates federalism?

Pianoman said...

@AA: "It's about allowing society to discriminate against married persons who are the same sex."

It's about allowing society to discriminate against married persons who are first cousins.

It's about allowing society to discriminate against married persons who are mother and daughter.

It's about allowing society to discriminate against married persons who are father and son.

It's about allowing society to discriminate against married persons who are husband and wife and wife.

FIFY

Gene said...

The left will cheer for two days when they win the gay marriage fight. Then we will start hearing about the embarrassment faced by transsexual youths who don't get to use opposite sex bathrooms in junior and senior high school or of the humiliation gay scoutmasters feel compared to the sanction and protection gay priests get from the church as they plow their way though fields of willing young boys. As for marriage, as many here have already pointed out, what possible rationale can there be for limiting the institution to only two people at a time, other than pure bigotry?

Jay said...

Scrooge said...
BTW, Ann is absolutely correct that the best outcome for the Right is a broad decision in favor of SSM. The GOP will be a minority party for years otherwise. Say hello to years of Democratic Presidents and Congresses


Hysterical.

I love that.

Really, that was too funny.

gerry said...

Wow. Titus is on a rant. Now, according to some SSM advocates, that 3.5% of the populaton won't destroy much with this major change in social norms, but Titus believes the gay people who avoid the "South" will cause its ruin.

Goofy.