March 22, 2013

"If the court dismisses the Proposition 8 case on standing grounds and strikes DOMA down on federalism grounds..."

"... the combined effect would be to reaffirm America's democratic, decentralized decision-making process without imposing an answer—one way or the other—to the same-sex marriage question," writes lawprof and former federal judge Michael McConnell.
By taking such a path, the court would be spared from imposing a single nationwide definition of marriage as a matter of constitutional law, and from having to rule, for all time, that there is or is not a constitutional right to same-sex marriage — a momentous step that some justices might be reluctant to take. It would leave the issue to the states, at least for the time being. This course might appeal to centrist justices like Anthony Kennedy, John Roberts and Stephen Breyer — and perhaps could even command a unanimous court, which would have a welcome calming influence on the nation's culture wars.

Considerations of these sorts have long been part of the virtue of judicial modesty, too often undervalued by partisans on both sides.
If we welcome the Court's calming of our culture wars — if we believe calming culture wars is a longstanding part of judicial virtue — we ought to compare the benefits of determining once and for all that the choice of marital partner belongs in the hands of the individuals who enter these relationships.

Individual rights matter, and it is the Court's duty to say what they are. If there is no proper case before the Court — if there really is no standing — then the Court has the duty to shut up. But the Court should no more shrink from saying what rights are than it should strain to find them to be something other than what they are.

If the Court could demonstrate its capacity to live up to these duties and if we could believe in the accuracy of these announcements about the substance of our rights, then telling us what our rights are ought to have a calming effect. And yet even if the Court's reputation is so far gone that we can't believe its announcements anymore, the duty remains.

Maybe it won't be calming, but the notion that the Court must calm us, when it is a question of our rights, defies the meaning of rights.

167 comments:

Hagar said...

On a mission, are we?

ricpic said...

John Roberts is a homosexual and Stephen Breyer is a homosexualist. What is this tripe about them being centrists?

edutcher said...

DOMA was a stunt from the start, part of Willie's never-ending campaign, but striking down the will of the people?

Ann Althouse said...

If we welcome the Court's calming of our culture wars

Por favor, Senora La Professora, but when has the Court ever been a calming influence in our culture wars?

james conrad said...

This is all BULLSHIT! No amount of legal mumbo jumbo can alter the fact that "gay marriage" is all about the redefinition of the word marriage. Individual/ civil rights is a bullshit argument.

Astro said...

I appreciate this approach, but I wonder how this jives with Article 4, Section 1 of the Constitution:

"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."

Is the 'marriage act' not an act? Can a gay marriage made and recognized in Massachusetts be not recognized in, say Ohio? To the extent that a marriage is a contract, how can one state not recognize a contract made in another state?

Bob Ellison said...

Does the court read polls?

khesanh0802 said...

Ann has certainly gotten on her high horse! Unfortunately what she says seems almost incoherent to one not trained in the law. I thought the court's task was to evaluate whether laws and interpretations of laws were consistent with the Constitution. Not to take it upon themselves to define what our rights are. The founders did that. When the court decides to tell us what our rights are there is nothing but trouble (see Roe).

Ann Althouse said...

"If we welcome the Court's calming of our culture wars. 'Por favor, Senora La Professora, but when has the Court ever been a calming influence in our culture wars?'"

Your question should be addressed to McConnell. It's his idea. I said "if."

Ann Althouse said...

"This is all BULLSHIT! No amount of legal mumbo jumbo can alter the fact that "gay marriage" is all about the redefinition of the word marriage."

The Court is asked legal questions. The legal question isn't "what's the definition of marriage." If a government's adopting the tradition definition of marriage is a violation of equal protection or of due process, then the court must say so. That is the court's role.

Ann Althouse said...

"I thought the court's task was to evaluate whether laws and interpretations of laws were consistent with the Constitution. Not to take it upon themselves to define what our rights are."

Rights are part of the law. They are at the top of the hierarchy of law, so whatever conflicts with them isn't law. "It is emphatically the province and duty of the judicial department to say what the law is" — Marbury v. Madison. It is most certainly the role of the court to say what rights are.

m stone said...

"we ought to compare the benefits of determining once and for all that the choice of marital partner belongs in the hands of the individuals who enter these relationships."

I'm sorry, Ann, but what exactly is the comparison?

whoresoftheinternet said...

Roberts lied, the Constitution died.

And Althouse thinks their words on homo-shacking up has any moral authority.

Pathetic. And she's back to 1984-ing history again. Very Joseph Stalin, bitch.

Phunctor said...

The desire to reach by judicial leapfrog what should be reached by long hard political work is baleful, mischievous. This proposition is independent of the desideratum.

Asserting SSM to be "a right" in support of advocating that SCOTUS discover it somewhere in the same galaxy as the Constitution seems strangely circular. Self-undermining almost.

jjones said...

khesanh0802 has it right. Marriage pre-dates the nation state by lots and lots of years. Why is it assumed that the state (and by that I mean the nation state, not Georgia) has any right to regulate it? Why does any government have the power to re-define a state of mankind that has existed long before it has?
The state recognized marriage in order to protect families and children, not to put their imprimatur on who you choose to go steady with.

chickelit said...

Dismissing Prop 8 will send it back for a revote, where it could reverse. This is what should happen. Striking down DOMA would be consistent. I agree with McConnell.

Left Bank of the Charles said...

Keep in mind that second marriages don't count in the eyes of the Catholic Church. I'm not even sure a trip to the Justice of Peace counts.

Canon law is only once removed from sharia law, and most of the other vestiges of traditional marriage, such as wifely duties, have already been rubbed off the books.

chickelit said...

@Althouse: Overturning the outcome of a fairly elected referendum on any subject had damn well better have clear support in the Constitution--otherwise it's just bad precedent.

edutcher said...

Ann Althouse said...

Por favor, Senora La Professora, but when has the Court ever been a calming influence in our culture wars?

Your question should be addressed to McConnell. It's his idea. I said "if."


Feel free to answer it.

You have an opinion, too.

Marshal said...

Ann Althouse said...
If a government's adopting the tradition definition of marriage is a violation of equal protection or of due process, then the court must say so. That is the court's role.


If government's use of marriage violates equal protection the remedy is to stop basing benefits and burdens on marital status.

BaltoHvar said...

Chiklit -

I agree - but "re-vote"? Do you mean by the Proposition Process, or the lower Court?

I would think lack of standing would mean the plaintiff(s) have no legal interest in the case, and cannot petition.

chickelit said...

@BaltoHvar: I meant the Proposition.

james conrad said...

If a government's adopting the tradition definition of marriage is a violation of equal protection or of due process, then the court must say so. That is the court's role.

Again, i say BULLSHIT. Marriage is a religious ceremony, govt adoption is irrelevant. Is the court going to tell the church how to conduct their ceremonies?

edutcher said...

Ann Althouse said...

I thought the court's task was to evaluate whether laws and interpretations of laws were consistent with the Constitution. Not to take it upon themselves to define what our rights are."

Rights are part of the law. They are at the top of the hierarchy of law, so whatever conflicts with them isn't law. "It is emphatically the province and duty of the judicial department to say what the law is" — Marbury v. Madison. It is most certainly the role of the court to say what rights are.


This assumes Marbury wasn't an extralegal encroachment on the Constitution.

Be interesting to see what would happen if people took the attitude, "Mr Marshall/Taney/Taft/Warren/Roberts has made his decision, let me know when my elected representatives vote on it".

chickelit said...

@BaltoHvar: Think in terms of legal processes and methods that will stick rather than stick in craws. Roe v. Wade should be an example.

Basil said...

If there is no federal constitutional issue then the District Court lacked jurisdiction and Prop 8 is in effect. Can't exclude the Supreme Court but leave the district court decision in effect. DOMA is easy. Congress can define statutory terms however it wants. End of analysis.

Bob said...

If these decisions go against the gays we all know "calming" is one adjective that will not be suitable for use. Also, if gay marriage is upheld then polygamy should be thrown in to save some time and effort.

I have come around to agree with the proposition that marriage should be entirely removed from government recognition (no tax benefits, only a single tax rate, etc) except to allow a state the ability to set a minimum age for civil unions/marriage.

"Calming the culture wars" - really?

Seeing Red said...

I thought we're not supposed to use the Court for this type of stuff?

The Drill SGT said...

Let's review the bidding

The Constitutional Amendment was passed by the citizens.

Most importantly, the California Supreme Court found it constitional and upheld it. The Gay community went back for another try and found a Federal Judge to overturn it on Federal Constitutional grounds. So now the Federal courts are mucking in State's business.
A political decision by the Dem State Attorney General left the law undefended. So the Federal Appellate Court allowed it's defense.

Now the learned Professor says that having allowed part of the Federal Court system to intervene, the SCOTUS has no basis for ruling on the correctness of that intervention?

Christian said...

The individuals have a right to engage in, pretty much whatever behavior they want to engage in.

The individuals do not have a right to have their relationship given an official status that is recognized by their peers as marriage.

I don't know why we keep framing this as individual rights when the only thing that will change is not what they can "do" tomorrow, but rather what others definitionally consider their relationship.

Seeing Red said...

Marshall, boy does that change Social Security. Hubby dies, wifey doesn't get his 1/2.

Roger J. said...

yet another SSM post although in a slightly different wrapping--how tedious and banal.

re Marbury: it is simply a legislative surrender to the SCOTUS. In point of fact, Marbury can be abandoned just as was dred scott and plessy v ferguson by a 5 to 4 in SCOTUS.

The last president to point this out, I believe, was Andrew Jackson: "Mr Marshall has made his decision--now let him enforce it."

Marbury simply lets legislatures and executives off the hook in terms of the constitutional obligations.

Gahrie said...

It is most certainly the role of the court to say what rights are.

Perhaps.

But its role certainly isn't to create rights, which is what you want it to do here.

Turmoil is created when the judicial system attempts to create rights, rather than protect the ones enumerated by the People.

Rabel said...

The legal question isn't "what's the definition of marriage."

True, but SSM is a right only if the definition of marriage includes persons of the same sex.

A belief in the inclusive definition will motivate the left side of the court, will it not?

Roger J. said...

Gahrie: I submit that "rights are determined by the people through e legislative processes. The constitution is silent on the courts role in those processes until Mr Justice Marshall usurped those powers.

Mel said...

Am I wrong that DOMA defines marriage only for purposes of federal law - such as who gets to file a joint tax return and who gets spousal social security benefits? If so, doesn't Congress have the right to define the terms used in federal law?

As for Prop 8, how can the people who voted to ban same sex marriage in California not have standing in a lawsuit about that ban?

Those are sincere questions, if anyone can answer them.

I couldn't care less whether same sex couples call themselves married as long as people opposed on religious grounds aren't forced to bless/perform/sanctify the ceremonies. I pretty much think what goes on in your bedroom is between you, the person you share it with, and God.

Bob_R said...

@james conrad - If the government's adopting the traditional term "marriage" is bullshit, are you willing to take the same government benefits as a gay couple - inheritance taxes, SS benefits, etc.? There are plenty of people out there who have floated the idea of getting government out of the marriage business, and that might be the ideal solution. But the government is DEEP into the marriage business, so it's basically a pipe dream.

creeley23 said...

I'd agree that calming the culture wars is not "part of the virtue of the court."

But what do I know? I'm not a lawyer. However, a lawprof and former federal judge says it is, and Prof. Althouse seems to say it isn't.

Frankly, I've reached the point where I consider our fine legal minds to be a fractious group of Red Queens who all say that the law means what they say it means, and they are capable of saying it means just about anything.

Meanwhile the rest of us get to live in their Looking Glass world.

Marshal said...

Seeing Red said...
Marshall, boy does that change Social Security. Hubby dies, wifey doesn't get his 1/2.


Instead of guaranteeing income let them have the money. Then spouses can leave it to each other.

Roger J. said...

Creely: our "fine legal minds" including judges and law professors, are a bunch of kindergartners on the play ground arguing for who gets to use the swing.

bpm4532 said...

Some people won't be calmed no matter what.

Alex said...

Individual rights matter

Only when it's convenient for either side.

mtrobertsattorney said...

What I don't understand in this debate is this: if a same sex couple, by virtue of being united in a civil union, are eligible to receive the identical legal benefits that an opposite sex couple, by virtue of being united in marriage, are eligible to receive, what is the problem?

Is the legal issue simply one of word usage, i.e., the same sex couple's union is not included in the dictionary definition of "marriage" while the opposite-sex union is?

And is the "right" at issue the right to have a long-standing definition that names a partciular relationship between man and a women changed to a include a particular relationship between two men or two women?

In other words, given certain certain circumstances that do not involve the award or withholding of benefits, is there a constitutional right to have a court order that, under the law, a commonly understood word that used to mean x, is now required to mean y?

If so, doesn't this mean courts will now be hearing disputes over whether an established dictionary definition may violate the constitution?

mtrobertsattorney said...

What I don't understand in this debate is this: if a same sex couple, by virtue of being united in a civil union, are eligible to receive the identical legal benefits that an opposite sex couple, by virtue of being united in marriage, are eligible to receive, what is the problem?

Is the legal issue simply one of word usage, i.e., the same sex couple's union is not included in the dictionary definition of "marriage" while the opposite-sex union is?

And is the "right" at issue the right to have a long-standing definition that names a partciular relationship between man and a women changed to a include a particular relationship between two men or two women?

In other words, given certain certain circumstances that do not involve the award or withholding of benefits, is there a constitutional right to have a court order that, under the law, a commonly understood word that used to mean x, is now required to mean y?

If so, doesn't this mean courts will now be hearing disputes over whether an established dictionary definition may violate the constitution?

Renee said...

http://en.m.wikipedia.org/wiki/Marriage_(Catholic_Church)

I realize it is a link not to the civil law, but I fear people will interpret the Church as being homophobic since not only the definition but purpose differs so much from civil law.

If you read into the historical perspective, Catholic Marriage has nothing to do with hate.

There are complications to repealing all marriage laws. But if we rename legal marriages to civil unions, and separating the issue of birth certificates with affidavit of paternity mandating all men (married/unionized or not) to sign one as the father.

It isn't that I want to deny homosexual couples to address legal concerns, but no matter what children have a mom and dad. As a matter of law, it is unjust to deny that.

I really worry about confusion and miscommunication of ideas whether it be legal, cultural, or religious.

Shouting Thomas said...

I'm feeling incredibly calm, but then again the Illini are up by 16 at the half.

I wouldn't even object if Brandon Paul decided to marry DJ Richardson.

khesanh0802 said...

Ann it seems to me you are conflating rights and law. Your quote from Marbury v Madison confirms this. Marshall said "law" not rights. The Rights as I recall are enumerated in the amendments to the Constitution and in the Declaration of Independence.

Does English Common Law enumerate rights? (honest inquiry!)

Steven said...

If the court rejects the Proposition 8 appeal on standing grounds, it directly murders democratic decision-making in the states.

Seriously. Is any provision of the state constitution inconvenient to the Governor and AG of a state? Then have an allied group file suit against it in a friendly Federal district court. The AG makes a deliberately weak defense of the provision, and then refuses to appeal the loss. A Federal court is used to repeal a state constitutional provision, without all that messy business of doing things democratically.

bagoh20 said...

Few Americans see the justices as anything more than 9 more Americans with opinions. They happen to play referee, so it matters, but that does not mean it's respected as wisdom or virtue by anyone other than the winning team.

Steven said...

@ khesanh0802 --

The Ninth Amendment specifically says unenumerated rights are still rights.

Chuck said...

Justice Scalia, dissenting in Lawrence v. Texas, 539 U.S. 538 (2003)

"... Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653.
...
" One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts–and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple’s Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case 'does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.' Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to 'personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,' and then declares that '[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.' Ante, at 13 (emphasis added). Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is 'no legitimate state interest' for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), '[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,' ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising '[t]he liberty protected by the Constitution,' ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case 'does not involve' the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so."


http://www.law.cornell.edu/supct/html/02-102.ZD.html

Sam L. said...

We need another Roe v. Wade decision. To continue the culture war on another front. By stopping the people from working this out.

Chip Ahoy said...

Let's have a vote.
Okay, let's try that again.
That didn't work out. Let's try again.
Okay, let's try again.
Again.
Again.
Again.
Let's do this again.
Look, you're all bastards, now do this again.
You still haven't got it right, try again.
He we go again.
Again.
There. Finally.
Now, while you coming around to your senses another situation has arisen and I say let's have a vote.

creeley23 said...

Few Americans see the justices as anything more than 9 more Americans with opinions. They happen to play referee, so it matters, but that does not mean it's respected as wisdom or virtue by anyone other than the winning team.

What baghoh20 said.

Furthermore, the opinions come first and drive the reasoning to the desired result.

Perhaps it has always been this way, at least to some degree, but I don't remember as much cynicism as we have today about the Supreme Court in my adult lifetime.

When I was a kid I remember some conservatives were horrified by the Earl Warren court, but I wasn't old enough to follow the story.

Lem said...

Let the Supremes be Supremes and vote... again and again, until they get it right and lets move on.

This got to be the longest wedding march ever.

Bob said...

Scalia can write

Gahrie said...

The Rights as I recall are enumerated in the amendments to the Constitution and in the Declaration of Independence.

There are no Rights in the Declaration of Independence. In legal terms, the Declaration is dicta.

There are no Rights enumerated in the Constitution. The Constitution was not written to create, gurantee, protect or enumerate Rights. The Constitution was written to create a limited government with specific enumerated Powers. There was no need to protect our Rights from this government, because it could only do what it was literally and specifically given the power to do. Thus because the government was not given the Power to create a state sponsored church, ano specific Right to the Freedom of Religon was written.

The Amendments to the Constitution (including the Bill of Rights) do enumerate certain Rights. However the list is not exhaustive. For instance the Left's favorite Supreme Court case Roe V Wade depends upon a non-enumerated Right.

Baron Zemo said...

Why should the law be what the people voted for in California?

I mean what do think? That their vote counts for something in the face of political correctness?

Get over it chumps.

Gahrie said...

By the way, I've said it before and I will say it again:

The Bill of Rights was the biggest mistake our country has made. It totally changed the nature of our Constitution and government.

virgil xenophon said...

I agree w. Roger J, above. Marbury was a total sham, strictly the governmental vision sprung fully clothed and armored much as Athena sprung from the forehead of Zeus of one single man--John Marshall--who ursurped the powers of the legislature. Were he intellectually honest Marshall should have told Marbury he was in the wrong court; that he should walk down the hall to lodge his complaint with the Court of Claims for breech of contract. But instead Marshal Bogarted/grafted his personal views onto the Constitution by force of personality and we've been stupid enough to accept it as a permanent, tho TOTALLY artificial fait accompli, Marshal anticipating Leni Rifensthal's "Triumph of the Will" by a goodly number of years..

Steve Koch said...

The courts do not have the right to define rights, that has to be done by a democratic process. Saying the courts have the right to do something because there is a court decision saying the courts have the right to do something is circular reasoning and encourages judicial activism.

In general, I'm for reinforcing federalism and deciding as much as possible at the state level rather than the fed level so I don't agree with DOMA.

There is a difference between civil union and marriage. Marriage is a traditional institution that the feds should leave alone. Civil unions, not marriage, should be the mechanism for defining and distributing federal benefits to couples.

The feds should stay out of the marriage definition business and define laws (where necessary) in terms of civil unions rather than marriage.

PianoLessons said...

The SC decision is all about language: can we redefine the word marriage? Orwellian outcome if the court acquiesces IMHO

BTW - how many of you have really ever read Orwell's "1984",

If you haven't, do so by April 1 when Spring Break ends and you are back to the task.

Howard said...

What Scalia really means: "... My opinion is the product of a Church, which is the product of a Pope culture, that has largely signed on to the so-called anti-homosexual agenda, by which I mean the agenda promoted by some anti-homosexual tea-baggers directed at eliminating the moral opprobrium that has traditionally attached to bigotry against people for who they are. "

PianoLessons said...

I kind of cringe at the notion that the Supreme Court exists to either calm us down or stir us up.

I don't recall voting for this branch of government to fulfill this obligatory (and now days pathetic and corrupt) cultural rhetorical function.

We seem to leave this bullshit to our politicians who we can or can not elect.

Renee said...

Steve, at one time civil law and religious doctrine both had the same goal with marriage. Children can have two gay parents, but not two parents of the same sex. It is frustrating for professional organizations to state that neither biological parent is important and children have no inherent right to be raised by both sides of kin.

Geoff Matthews said...

Let's be clear about something. No one is interfering with homosexuals choosing their partners. No one is preventing them from living together. No one is preventing them from writing each other in their wills.
The question is whether the government should expand the legal definition of marriage to include pairings that have not been included under the law. That is the question at hand. It isn't romance, it isn't love, it isn't 'rights'. It's about a legal term.

bpm4532 said...

The only centrism is among the 5 "conservitive" members of the court. One would be hard-pressed to call the other four anything but pretty far to the left.

Renee said...

Thanks Howard you just confirmed my fear, that this law will be used against the Church to falsely smear us as homophobic when clearly we are not.

I thought the law was not just about liberty but truth. Marriage represented the natural law that from heterosexual behavior babies are made. We need to bring a mom and dad together. That was the idea behind marriage, and now we have a law that stating an idea is unconstitutional and that idea needs to be redefined or be shamed wrongly as a bigot.

BDNYC said...

If we welcome the Court's calming of our culture wars — if we believe calming culture wars is a longstanding part of judicial virtue — we ought to compare the benefits of determining once and for all that the choice of marital partner belongs in the hands of the individuals who enter these relationships.

I support gay marriage, but I hate this kind of statement. No, the choice of marital partner does not belong in the hands of the individuals who enter these relationships. Such a broad declaration reflect sloppy thinking and opens you up to the opposing claims about polygamy, incest, etc.

This is about gays, not every person's right to choose their partner.

Nomennovum said...

If a government's adopting the tradition definition of marriage is a violation of equal protection ...

I find all this talk of "equal protection" quaint. Why do I keep seeing it brought up? Are we intentionally being taunted by our rulers? Do they enjoy using newspeak with us to watch us jump?

The government has been out of the equal protection business for a long long time.

Howard said...

Renee: As the professor said, marriage is really just a legal contract sanctioned by the government. The ceremony is just Kabuki Theater of your choice. The gay just want the same access to the government contract and all the free stuff like lower taxes and IUDs that goes with it. I really don't think it has anything to do with inheritance or medical issues. Maybe you are right, the gay mostly want to consume their vows in on the alter with the Cardinal Winchell Mahoney presiding.

Renee said...

@Howard

Why did government get involved with marriage in the first place?

Why not start there?

Erika said...

I don't like the wording of that WaPo poll that someone linked. "Should it be legal or illegal for gays and lesbians to get married?" I don't give two shits what ceremonies gay couples have in their backyards or in gay-friendly churches or wherever. If they want to stand up and exchange vows and then consider what happened a wedding and consider themselves married, good for them and no that should not be illegal. And the legality of such an activity has never been challenged that I know of. What they are talking about is whether gay marriages should be recognized by the state, and my answer to that is no, for a variety of reasons.

Renee said...

Vows to what? The outward sign of sacramental marriage is the conjugal act of penal vaginal sex. Maybe a vow of friendship, but not marriage.

Erika said...

And Althouse, why do you keep posting about gay marriage? Do you think if you keep beating your readers over the head with your obstinacy and refusal to acknowledge genuine and valid differences of opinion on this topic that we'll all have a collective epiphany and see things your way?

Nomennovum said...

Erica, I have to disagree. Our giving marriage to gays is like William Jefferson Clinton giving his old underwear to the Salvation Army.

Which he did and which we will do, so lie back and enjoy it.

Howard said...

Ratings Erica also, it's fun to rub your nose into your own bigoted excrement

Right Renee, lets change the contracting because you get flipped out about homos.

Nomennovum said...

Howie,

You have no idea how you come across, do you?

Renee said...

@Howard

Not flipping out over homosexuals, just concerned over the high cost of father absence in the lives of children.

A child has a mother and father and it isn't helping anyone to pretend to ignore it. It feels incredible unpopular to hold this view. Sometimes I worry about the social taboo, because of the terrible statements you are making against me. This isn't about law vs. religion, this is humans trying to fool nature. Nature will win. Defeat is ugly for humanity, as we see the mess of adult children from divorce and without fathers confused and very much hopeless. Reasonably they avoid not only religious but legal marriage.

furious_a said...

Is the 'marriage act' not an act? Can a gay marriage made and recognized in Massachusetts be not recognized in, say Ohio?

The states issue marriage licenses like they issue licenses to practice law. A lawyer licensed in one state isn"t licensed to practice law in another. Why is marriage different?

Inga said...

Renee, who created gays? Wasn't it God? Did he make a mistake? Or do you truly think gays choose to be gay as adults, no little gay children exist?

Renee said...

Igna ,

And all gay children have a mom and dad. No mistake at all.

Renee said...

Igna ,

And all gay children have a mom and dad. No mistake at all.

creeley23 said...

The gay just want the same access to the government contract and all the free stuff like lower taxes and IUDs that goes with it.

Howard: No, it's bigger than that and I believe most advocates, including Althouse, would agree.

They see it in the grand moral terms of the civil rights movement, in which gay marriage is another historic landmark in the rightings of past oppressions of minorities.

bagoh20 said...

"Wasn't it God? Did he make a mistake?"

Yes, many. The mosquito for instance. And Barney Frank for the same reason.

Renee said...

@Igna

You can be openly gay in the Catholic Church and even have a legal partner. You just can't have oral/anal sex.

Inga said...

Renee,
Babies conceived in vitro also have a biological mother and father, most of these parents never even meet one another.

hombre said...

Courts can and should guarantee that civil unions adequately protect the contractual rights of homosexuals to enter into relationships.

The notion that homosexuals have the legal or moral right to have the traditional and spiritual union of marriage redefined - yes, Professor, redefined - by the Court to accommodate the sensibilities of an insubstantial minority of the population illustrates how ridiculous we have become. That the SCOTUS might undertake that redefinition illustrates the intellectual and moral vacuity of the Court and the legal profession.

Oh, surely there must be an emanation from some penumbra somewhere in the Constitution that insures that men can marry men and women can marry women, right? And since we appear to be nearly devoid of dignity, what's next?

rcommal said...

There was a becalming long ago now, and it's been ever stormy and stormier ever since. Culture wars, my ass.

Inga said...

No Bagoh, bats eat Mosquitos, what would they do without them? Suck blood of innocents, no doubt.

Ann Althouse said...

"I'm sorry, Ann, but what exactly is the comparison?"

To McConnell's statement of the benefit. He presented X as a good way to calm the culture wars.

Renee said...

From an openly gay Catholic


Http://www.myyearoffaith.com/2013/03/04/hearts-of-flesh/

"My sexual orientation isn’t the most important part of me, but it’s not just an isolated quirk, either. Being gay isn’t just about sexual attraction, any more than being straight is just about liking to look at naked women. Sex, in other words, is a very small part of sexuality; masculinity and femininity, and how we interact with each of them, has to do with a lot more than who we want to sleep with. It has everything to do with how we relate to other people, not only sexually but on the dailiest and most casual of levels.

Men learn how to interact with other men, and they learn how to interact with women, and these are two distinct arts. For me, speaking to other men, especially at an all-male gathering, still sometimes feels like speaking a foreign language. But it’s a language I’ve learned to speak with some fluency, and it’s with something like a linguist’s ear that I can enjoy some of its more idiosyncratic conventions.

I know I’m supposed to be frustrated with the Church for not letting me get married to another man, but I don’t feel that way. I might as well be frustrated with the Church for not allowing me to get pregnant. She couldn’t if she tried, because she doesn’t have the authority. The Church has the power to teach the truth, but not to create it."

Inga said...

I should clarify, if the sperm is from a sperm bank.

Ann Althouse said...

"But its role certainly isn't to create rights, which is what you want it to do here."

You're imputing to me something that I have never said.

This post says over and over that the question is what rights ARE, not what I wish they were or what they could be. I'm saying the Court should give a straight and accurate answer.

You have no ground to accuse me of "wanting" something that isn't a correct interpretation.

It really is you who are projecting what you want here.

bagoh20 said...

"You can be openly gay in the Catholic Church and even have a legal partner. You just can't have oral/anal sex."

Those Catholics are real sticklers, but it seems that many in the church got these rules backwards.

hombre said...

Igna wrote: "Renee, who created gays? Wasn't it God? Did he make a mistake?"

But wait, Igna, "mistake?" Are you saying there is something wrong or aberrational about being gay?

Oh, for shame. Turn in your proglodyte passport immediately.

bagoh20 said...

"I should clarify, if the sperm is from a sperm bank."

I don't really care, just change the dress. Throw it out, get rid of it.

Inga said...

No it's not me saying that God made a mistake.

Ann Althouse said...

"Ann it seems to me you are conflating rights and law. Your quote from Marbury v Madison confirms this. Marshall said "law" not rights. The Rights as I recall are enumerated in the amendments to the Constitution and in the Declaration of Independence."

There is no question that rights are part of the law, and the judicial role articulating the scope of those rights is extremely well established in this country.

Here's another Marbury quote for you: "The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right."

Do you like that?

Ann Althouse said...

"What I don't understand in this debate is this: if a same sex couple, by virtue of being united in a civil union, are eligible to receive the identical legal benefits that an opposite sex couple, by virtue of being united in marriage, are eligible to receive, what is the problem?"

The problem is: On what ground can the government create and apply a separate label to some people? Everything government does must be based on, at the very least, a legitimate interest. What is the legitimate interest for the separate name?

What if, in public schools, white students were called "students" and black students were called "children"?

Lydia said...

Inga said...
bats eat Mosquitos, what would they do without them

A mosquito myth:

“Bats eat up to 600 mosquitoes an hour. This one may have gotten started with a study in which mosquitoes were released into a room full of bats while researchers counted how many they ate. The bats consumed about 10 per minute, or 600 per hour. But mosquitoes were the only insects in the room for the hungry bats to eat. Since then, studies have found that mosquitoes make up less than 1 percent of bat diets.”

creeley23 said...

He presented X as a good way to calm the culture wars.

Althouse: And you argued, persuasively I thought, against that as a consideration.

However, McConnell claims such considerations are a longstanding aspect of court decisions. Is that true?

What are we civilians suppose to make of it when prominent legal authorities say two opposite things that don't seem to be legal opinions but facts about the court's process?

Geoff Matthews said...

What possible interest could government have in encouraging heterosexual couples to be married that homosexual couples don't meet?

What possible reason could there be?

hombre said...

"You're imputing to me something that I have never said."

Perhaps because your reasoning seems a mite less crisp on this issue, the possibility of misunderstanding is greater. Or not.

hombre said...

Geoff wrote: "What possible interest could government have in encouraging heterosexual couples to be married that homosexual couples don't meet?"

What possible interest could government have in imposing any limitations on who, or what, gets married?

dwm said...

'The problem is: On what ground can the government create and apply a separate label to some people?'

hasn't biology already applied separate labels? you know, those basic 'labels' that we use to define the world, like this is a man and this is a women and this is how you have babies and develop a society and a culture and a civilization...etc

edutcher said...

Inga said...

Renee, who created gays? Wasn't it God?

Oh, Christ, the She Devil of the SS trying to tell us she knows the will of God.

Maybe Satan makes people homosexual.

Did he make a mistake?

Always a possibility.

Or do you truly think gays choose to be gay as adults, no little gay children exist?

Why not just pull out the Dan Savage Handbook and quote verbatim?

Little gay children?

Rabel said...

"On what ground can the government create and apply a separate label to some people?"

Biology/Gender

"What is the legitimate interest for the separate name?"

Granting access to the legal advantages of marriage to people who would otherwise be denied those advantages due to biology/gender.

So it is, to me, all about the definition and who has the authority to write that definition.

Nomennovum said...

I think we err in thinking marriage is a right that all should enjoy regardless of choice of partners. Marriage is a "club" where each member is supposed to be composed of two people united into one, which Christians (and others) think should exclude same sex couples. The problem is the government has an interest in this club. This interest will never go away. Modern government thinking holds that things it has an interest in -- its own corporate entity, schools, its contractors, anyone receiving its largess -- must have an egalitarian outcome, regardless of tradition or popluar will. This won't change anytime soon. SSM is coming and there is nothing anyone can do about it. Our government is just too powerful.

You have three options: (1) Move. (2) Revolt. (3) Wait for the inevitable resetting.

(2) is stupid, because gay marriage is not worth it and you'll get killed. As I've said before (tediously, I'm sure), marriage is already dead. (1) Is not out of the question, but move to where? (3) I think is coming in our kids' lifetimes ... but things will get much worse before then.

Lydia said...

hasn't biology already applied separate labels? you know, those basic 'labels' that we use to define the world, like this is a man and this is a women and this is how you have babies and develop a society and a culture and a civilization...etc

That is so yesterday.

The whole point of the push for the word “gender” to replace “sex” was to make sexuality a fungible commodity.

All is flux.

We are so screwed.

Inga said...

"Maybe Satan makes people homosexual."

3/22/13, 6:59 PM

Tell that to parents of a homosexual son or daughter.

Nomennovum said...

But mosquitoes were the only insects in the room for the hungry bats to eat. Since then, studies have found that mosquitoes make up less than 1 percent of bat diets.

Lydia, I love that. Put me in a room with bowls and bowls peanut M&Ms and you will find that humans are responsible for keeping the lid on out-of-control peanut M&M infestation.

Inga said...

What would the love bugs eat, if there were no mosquitos?

dwm said...

'We are so screwed.'

yes. it's 'amusing' (i'll think of a better word later) to watch that phrase and its meaning extend past the threshold distinguishing a casual comment from reality; as in 'oh shit ... we really are screwed, really... and we did it to ourselves'

Revenant said...

Maybe Satan makes people homosexual

Would it be crass of me to call that a fairy tale? :)

Inga said...

Arrrrrggg! Snopes says love bugs don eat mosquitoes either! No wonder they are such pests, no body eats them.

Ann Althouse said...

"Let's be clear about something. No one is interfering with homosexuals choosing their partners. No one is preventing them from living together. No one is preventing them from writing each other in their wills.
The question is whether the government should expand the legal definition of marriage to include pairings that have not been included under the law. That is the question at hand. It isn't romance, it isn't love, it isn't 'rights'. It's about a legal term."

No. The question is whether gay people are denied the "equal protection of the laws." That's the operative legal text. It's not a case about how to define a word in the general language. The courts don't write the dictionaries. Government can choose to use various words in statutes. But the statutes are not allowed to violated constitutional rights. That is absolutely fundamental.

Revenant said...

The SC decision is all about language: can we redefine the word marriage?

That's not the issue before the court. If it were, you'd have nine votes for "yes"; governments have been defining and redefining marriage since the dawn of recorded history.

Achilles said...

If DOMA is struck down on federalism/9th/10th amendment grounds, which it should be IMO, Roe v. Wade should be included in the decision and struck down as well.

Prop 8 is not a Supreme Court issue and the Court should rule that it has no jurisdiction in a state issue. But good luck getting any un-elected elitist in a black robe to reduce their own control over peoples lives or uphold a central tenant of the constitution and limit federal power.

Ignorance is Bliss said...

Rights are part of the law. They are at the top of the hierarchy of law, so whatever conflicts with them isn't law. "It is emphatically the province and duty of the judicial department to say what the law is" — Marbury v. Madison. It is most certainly the role of the court to say what rights are.

That's nonsense, as it would mean that a provision that is in the constitution could be overruled by an imagined right.

The Supreme Court has the power to declare a law unconstitutional based on it's need to find a resolution when there are conflicting laws. When one of those laws is the constitution, the constitution wins.

Note that this gives the Supreme court no power to define unenumerated rights, even if they believe that something is an unenumerated right, a law that conflicts with that right does not conflict with the general statement that there are such rights. No conflict with the constitution = no power to overturn a law.

edutcher said...

Inga said...

Maybe Satan makes people homosexual.

Tell that to parents of a homosexual son or daughter.


Ooooohhhh, She Devil of the SS, your concern is so palpable, I can smell it right next to me.

She asked the cute little question if God created homosexuals (expecting an answer where she could then present herself as God's messenger of tolerance and understanding)and I merely offered a counter possibility.

One bolstered by Scripture, may I add, so the She Devil may be guilty of blasphemy.

And how does she know more parents of homosexual sons or daughters see it the same way than don't?

We only hear from the ones the media wants us to hear from, after all.

Erika said...

Equal protection to have their marriages recognized by the government, you mean. So can the government exclude anyone from recognition? If so, why?

hombre said...

"'No. The question is whether gay people are denied the "equal protection of the laws.'"

No. That's just bullshit! The question is whether they get to call their unions "marriage." This isn't about equal protection. It's about rubbing their "opponents" noses in it.

If the question was equal protection, states that don't provide for civil unions would have been the target of lawsuits long before Prop 8. Civil unions are a perfectly adequate way of guaranteeing equal protection.

Ann Althouse said...

" No, the choice of marital partner does not belong in the hands of the individuals who enter these relationships. Such a broad declaration reflect sloppy thinking and opens you up to the opposing claims about polygamy, incest, etc"

No, it doesn't. The government's interest with respect to those things is easy to see.

Nomennovum said...

The question is whether gay people are denied the "equal protection of the laws.

Given the state of matrimonial law, it's a push, if gays are given the right to marry. The top is screwed. The bottom gets the benefit of a raping. Ironic, I know, but that's equal protection ... and punishment.

Revenant said...

Note that this gives the Supreme court no power to define unenumerated rights, even if they believe that something is an unenumerated right, a law that conflicts with that right does not conflict with the general statement that there are such rights

The government is forbidden from violating unenumerated rights. That's why they are called "unenumerated rights", not "unenumerated stuff the government can take away from you".

No conflict with the constitution = no power to overturn a law.

If you want to get technical about it, all of the benefits the government gives to married couples are in conflict with the Constitution. "Bennies for married folks" is found nowhere in the enumerated powers of Congress.

Revenant said...

The government's interest with respect to those things is easy to see.

Out of curiosity, what is it?

Suppose the incest in question is between two adult brothers. No risk of genetically damaged kids, no questions of consent. It is just squicky.

If squickiness isn't sufficient grounds for refusing to allow a marriage -- or a sex act, for that matter -- what exactly IS the rational basis for laws against such things?

chickelit said...

Howard wrote: I really don't think it has anything to do with inheritance or medical issues. Maybe you are right, the gay mostly want to consume their vows in on the alter with the Cardinal Winchell Mahoney presiding.

Stop trivializing the efforts of some gay activists (thankfully few) who do hold sick grudges against the church.

edutcher said...

It may be interesting to note, the guy who invented same sex marriage now says polygamy is the next logical step.

chickelit said...

Althouse wrote: This post says over and over that the question is what rights ARE, not what I wish they were or what they could be. I'm saying the Court should give a straight and accurate answer.

It seems clear to me (reading you for years now) that you want SCOTUS to find the rights in question in the Constitution. But suppose they're not there? Could you live with it?

Nomennovum said...

It may be interesting to note, the guy who invented same sex marriage now says polygamy is the next logical step. -- edutcher

The Left relies on the slippery slope, while denying its existence.

james conrad said...

The problem is: On what ground can the government create and apply a separate label to some people? Everything government does must be based on, at the very least, a legitimate interest. What is the legitimate interest for the separate name?

Look, if the court wants to decide the govt can't create "a separate label" ( this is nonsense BTW) to some people, FINE! However, the court, if it's wise, will stay the hell out of religious questions like this.

Saint Croix said...

What a great Justice Michael McConnell would be.

james conrad said...

As for the govt not having a state interest in males and females procreate under the term "marriage", this is almost laughable.

EARTH TO ANN, gay couples DO NOT procreate, hello?

Renee said...

"Everything government does must be based on, at the very least, a legitimate interest. What is the legitimate interest for the separate name?"

And this is the real problem, which I can see. The states gave marriage laws a second name, which was civil unions, but they didn't actually create any new or different policy for the second name.

I would like to have seen marriage laws strengthened to focus on stabilizing a heterosexual couple for the needs of potential offspring, while creating new and differing policy for a different relationship status that does not conflict with the goals of marriage and can focus on those relationship needs. Two names, two set of laws, for two different public policy goals.

Like I mentioned I fear confusion and misunderstanding of my faith.

dwm said...

"EARTH TO ANN, gay couples DO NOT procreate, hello?'

finally...

can i go have dinner now?

(bake sales don't count right?)

Rich Rostrom said...

Dismissal on standing would be a dramatic curtailment of democracy. It would establish the precedent that the executive branch may overrule the legislative branch or an initiative of the people with the assistance of a cooperative judge and a token plaintiff.

It would grant the executive branch a de facto veto over all laws.

Here's a hint. Doesn't an oath of office include a pledge to uphold the laws, not just the laws the taker happens to like?

Renee said...

For instance lets say the Church not only accepted homosexuals (which it does), but also homosexual acts* as an expression of love. It still wouldn't call it marriage, instead they would celebrate it as something different.

* to note I do not want to single out homosexual acts, because these acts between heterosexuals is not an expression of love within the Church as well.

Harold said...

As usual, there are people nonsensically stating the STATE has no business defining marriage at all, which the STATE has done since written history began. Marriage between a man and a woman (or women) pre-dates written history. And has existed as such in all cultures, religious or not. Even among officially atheistic states of the ex-USSR and the current Communist China. Why?

Simple. Marriage is about children. Men and women can have them, and a man and a man or a woman and a woman cannot. Even if they f--- each other a lot. In order for a same sex couple to have children- THEY MUST COMMIT ADULTERY. Which in a large part of the world, is still a crime. Including under U.S. law. (The UCMJ for those inclined to argue.) Or be assisted artificially. But, it's not quite the same thing...

What SSM proponents are calling for is to upend all of history to redefine marriage to please their egos.

Why does marriage exist historically in those forms? Hmmm... Men don't want to support another man's child. They only want to invest time and effort into propagating their own genes. Marriage and all the customs that go along with it help in that goal. Are they ever perfect? Let's be real- of course not. No institution involving humans is. But, it's the best we've got- until the advent of DNA testing. Now, a man can be absolutely certain that a child is his. So can the courts- who consistently rule that men have to support someone else’s bastard because they didn't challenge it soon enough. Are the courts correct in doing so? No. Absolutely NO. But they do so anyway. Maybe someone in CA could start a proposition to change that aspect of law... I'd love to see the courts find it unconstitutional to say that a man cannot be required to support another man's bastard.

I'd also at this point add that it is NORMAL for men to like women in a sexual manner, and vice-versa. Normality being defined as a behavior something the vast majority engage in. A man-women marriage is something that 90+% of the population can engage in in order to procreate and ensure another generation exists to continue society. And SSM can exist for... well, for..., well, why? There's no concrete reason for it. I know Ann hates this argument, but gays and lesbians can get married under current law- it's just that they have to find an opposite sex partner they can stomach. It's the rules. If they want to live with a same sex partner and engage in sexual relations- go ahead. LAWRENCE V. TEXAS says it is O'K. Here. In the U.S. Just don't go visiting Saudi Arabia walking down the streets kissing and hugging, and then say to the court you face, HEY, the U.S. Supreme Court says this is O.K. Over in sharialand, there is no debate about SSM- the debate is over what is the proper way to execute homosexuals? (if you search that on google, you find yahoo answers has deleted the question and answer as violating community guidelines...)

But- marriage exist two ways in the world, and has since written history. Monogamous, and polygamous. Why? Interesting question. I'm not completely sure of the answer- but I'm going to take a stab.

From casual observation, almost all of the women I know want a man- not men- a man. One. just one. And a good many of the males I know want as many women as they can get. Not just one- many. So, about half the population is satisfied with one partner- and the other half wants more. Hmm... This is where society steps in and starts making rules. Some societies- one woman per man, that's it. Others- more then one woman per man. Which is better? The U.S. had this debate in the 1800's when Joseph Smith started a new religion, and came down firmly on the monogamous side. Some people today wish to change that also. Not a good idea.

Am I opposed to SSM? Yes. Not for religious reasons- but because it serves no societal purpose.

Gahrie said...

No, the choice of marital partner does not belong in the hands of the individuals who enter these relationships. Such a broad declaration reflect sloppy thinking and opens you up to the opposing claims about polygamy, incest, etc

No, it doesn't. The government's interest with respect to those things is easy to see.


Ann, even ten years ago the government's interest in not recognizing gay marriage was "easy to see", and still is to most of us.

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


No. The question is whether gay people are denied the "equal protection of the laws."

Of course they aren't. It is illegal for straight men to marry a man, and it is illegal for a gay man to marry a man. It is legal for a straight man to marry a woman. It is legal for a gay man to marry a woman. That is what equal means.

You want to create a new right, which would allow men to marry other men

EMD said...

I want to find out who all these homosexuals are who want to avail themselves of free IUDs!

EMD said...

Are they using them with RIng-A-Ma-Jigs to build cool looking towers and stuff?

Inga said...

They might make good earrings.

EMD said...

There are plenty of heterosexuals trapped in same-sex marriages.

EMD said...

They keep having the same sex.

Inga said...

They need to change it up a little. The naughty French maid routine is fun.

Inga said...

Ask Edutcher, he fantasizes about Althouse in red leather and whips, poor Ed, " The Blond" just won't play Althouse, she gets mad and calls him an old fool.:(

Nini said...

Is marriage really a "right"?

Will the justices find SSM as a right as in the bill of rights in the constitution.

I remember reading that Justice Scalia said that the constitution was dead, dead, long been dead. He said that it's not a living constitution, contrary to what some people believe, because it does not morph. So can justices find SSM right inherent in the constitution?

If the justices can't find the SSM right in the constitution that will be good for federalism. Is not federalism what the U.S.A. is about? Let the states decide or to say it in another way let the people decide.

Is marriage really a right? Or it is just a way of "regulating" this kind of activity?

The fact that any government can disinvolved in this marriage matter means it's not a "right" per se that will cause great harm to the citizens when withdrawn. Religions can take care of this activity. And rights of children in case of divorce can be spelled out as rights by the legislature and interpreted by the family court (if you have one, similar to my country). The principal reason the state gets involved in "marriage" is tied to the rights of the children that resulted from hetero-union.

In my opinion, "marriage" conferred by the government is just a way of regulating that kind of activity. And the people through the legislature can set the criteria who can marry; similar to setting the criteria who can get a driver's licence. Of course, marriage is more complicated than that.

AlanKH said...

Wait a minute...wasn't Prop 8 the product of democratic, decentralized decision-making process?

AlanKH said...

Ah, I see Steven has the same idea:

If the court rejects the Proposition 8 appeal on standing grounds, it directly murders democratic decision-making in the states.

Revenant said...

Is marriage really a "right"? Will the justices find SSM as a right as in the bill of rights in the constitution.

The argument in this case is based on the 14th amendment, not the first ten.

gregq said...

You want to get married? Great! Have a little ceremony and announce that you're "married".

Want the rest of us to treat you like you;'re married, and give you benefits?

Then get a marriage that the rest of us value, rather just getting one that you value.

Your right to swing your fist ends where my nose begins.

Your right to "personal fulfillment" ends where it becomes a demand for something from someone else.

Methadras said...

1. marriage isn't a right.

2. all citizens be they homosexual or straight are sovereign citizens with the full rights endowed by their creator an as enumerated in the bill of rights.

3. Prop. 8 was voted on by the majority of californians to protect marriage, not to discriminate against homosexuals.

4. Discrimination exists all over the rules of law.

5. Get over it. Prop 8. proponents won, the butthurt from the velvet mafia knows no bounds.

Nini said...

Dr. Egnor, a neurosurgeon at Stonybrook, brilliantly explains on his blog (Jan 2012) why he thinks gay marriage has nothing to do with "rights".

(At the bottom of my post is the link to his blog).

The vast majority of people-- Christians included-- strongly support full rights for gays. The right to free exercise of religion, the right to freedom of speech, the right to keep and bear arms, the right to trial by jury, etc.

Gay marriage has nothing to do with "rights", because marrying anyone you want isn't a "right".

There have always been constraints on marriage. Constraints on who may legally marry is a matter of statutory law, decided by the mechanisms of representative democracy. There are no "rights" involved in defining marriage, as long as the definition applies to all and thereby satisfies the Equal Protection clause of the Fourteenth Amendment.

Denying marriage to people who want to marry a sibling isn't denying the rights of the incestuous. Denying marriage to more than two people isn't denying the rights of polygamists. Denying marriage to people who want to marry themselves isn't denying the rights of narcissists. Denying marriage to people who want to marry children isn't denying the rights of pederasts. Denying marriage to people who want to marry the dead isn't denying the rights of necrophiliacs.

Denying marriage to gays isn't denying the rights of gays. It's simply defining marriage in accordance with the majority view, which is how a democracy works.

Gays and others who want to change the legal definition of marriage are entitled to do so, through the legislative process. Those who want to maintain the traditional definition are entitled to do so, through the legislative process. The only "right" involved is the right to access to and participation in the legislative process.


http://egnorance.blogspot.com.au/search?q=God,+gays,+and+K'd+up+circuit+boys

MayBee said...

What if, in public schools, white students were called "students" and black students were called "children"?
===========

What if white students were called white students and black students were called black students?

What if the schools kept measures of theses groups, separately?
What if these designations made a difference as to how they were treated by the state for things like university admissions?

Renee said...



Igna, I hope maybe at least understand what the Catholic Church teaches and doesn't teach about homosexuality. They have a very comprehensive website on the it, at couragerc.net . There is a lot thought and reflection, especially about families accepting the fact that there loved one was 'born gay', and especially in the teenager years more then ever like any child they need that love from their parents.


Ministry to Persons with a Homosexual Inclination:
Guidelines for Pastoral Care


"In keeping with this conviction, the Church teaches that persons with a homosexual
inclination “must be accepted with respect, compassion, and sensitivity.”2 We recognize that
these persons have been, and often continue to be, objects of scorn, hatred, and even violence in
some sectors of our society. Sometimes this hatred is manifested clearly; other times, it is
masked and gives rise to more disguised forms of hatred. “It is deplorable that homosexual
persons have been and are the object of violent malice in speech or in action. Such treatment
deserves condemnation from the Church’s pastors wherever it occurs.”3"

"Homosexual Inclination Is Not Itself a Sin
While the Church teaches that homosexual acts are immoral, she does distinguish
between engaging in homosexual acts and having a homosexual inclination. While the former is
always objectively sinful, the latter is not. To the extent that a homosexual tendency or
inclination is not subject to one’s free will, one is not morally culpable for that tendency.
Although one would be morally culpable if one were voluntarily to entertain homosexual
temptations or to choose to act on them, simply having the tendency is not a sin. Consequently,
the Church does not teach that the experience of homosexual attraction is in itself sinful."

khesanh0802 said...

@ Steven

Thank you for your reference.

The amendment DOES say that unenumerated rights are reserved to The People not the courts. That , to me, says that further enumeration of rights is a legislative/referendum process rather than judicial process as Ann says.

khesanh0802 said...

Ann;

I am still having trouble with your broad definition of "law" as "rights". If instead of writing "vested" Marshall had written "enumerated" it would have been clear that he was referring to the Constitution. He did not intend to add a list of those rights.

( We all agree that - right or wrong - Marshall was, in Marbury, codifying his vision of the role of the federal judiciary under the new Constitution)

Methadras said...

Revenant said...

Is marriage really a "right"? Will the justices find SSM as a right as in the bill of rights in the constitution.

The argument in this case is based on the 14th amendment, not the first ten.


The 14th as does the rest of the bill of right only applies to individuals. With that alone, I don't see how this has any merit.

ken in sc said...

Many older people don't get married. They draw more money from Social Security if they are both single. They also have lots of swinging sex. I understand STDs are a growing problem in retirement communities. More and more marriage is just for gays.

mtrobertsattorney said...

Re: Ann's hypothetical: What if, in public schools, white students were called "white students" and black students were called "children"?

A similar hypothetical would be the use by public health officials of the word "obese" to describe those whose are excessively fat-- thus creating a distinction between those who are obese and those who are not.

The obvious difference between Ann's hypothetical and the same sex marriage issue is that the terms "marriage" and "civil union" name a particular kind of relationship. There is no classification here on the basis of racial characteristics.

But more to the point, the root of claim of those who object to the use of the term "civil union" in a statute that creates equal benefits for both a civil union and a marriage is that the phrase "civil union" has a less positive connotation than that of the word "marriage".

The same would be true for anybody who objected to the use of the term "obese" by the federal government.

So, the Supreme Court is being asked to declare there is a constitutional right to require state legislatures and congress to use words in statutes that have a maximum positive connotation.

This is a new right that rests on a claim that cannot be proved or, at the very least, very difficult to prove.

First,the two terms reference an empirical distinction. The terms "marriage" and "civil union" distinguish between two kinds of committed relationships. One names a relationship between two members of the opposite sex, and the other,a relatioship between members of the same sex. This is an entirely rational distinction based on a matter of fact and substantiated by any English dictionary.

Second, how does one prove that a word or phrase has a less positive connotation than another?

This kind of dispute is nonjusticiable. There are no "discoverable and manageable standards for resolving it" and the "strangeness of the issue" is intractable "to principled resolution."

jr565 said...

What rights are you talking about? Have gays EVER had the right to marry another gay person? Do straight people have a "Right" to marry a straight person?

jr565 said...

"we ought to compare the benefits of determining once and for all that the choice of marital partner belongs in the hands of the individuals who enter these relationships."

ugh, I can't stand this argument. Ok, so a dad wants to marry his daughter. "We ought to compare the benefits of determining once and for all that tchoice of marital partner beloings in the hands of indivudals who enter these relationships".
Polgamists can claim this right. Bigamists can claim this right. Any other restricted marriages can claim this right.

jr565 said...

Let's be clear about something. No one is interfering with homosexuals choosing their partners. No one is preventing them from living together. No one is preventing them from writing each other in their wills.
The question is whether the government should expand the legal definition of marriage to include pairings that have not been included under the law. That is the question at hand. It isn't romance, it isn't love, it isn't 'rights'. It's about a legal term.


Yes exactly.

rcommal said...

Call whatever, whatever. What strikes me as most notable is the passing away of truly respecting, honoring and, yes, even revering the notion that primary relationships can last for many decades, even a half-century and sometimes even more than that. That is a thing, and it's a dripping down thing.

FWIW. *shrug*

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