Citizens of Wisconsin take note: we don't need the amendment. Courts have gotten the message.
About the case from New York's highest court:
The decision called the idea of same-sex marriage "a relatively new one" and said that for most of history, society has conceived of marriage exclusively as a bond between a man and a woman. "A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted," the decision stated.Fine. This is an issue that needs to be worked through the political system over time to reach a stable conclusion. I appreciate the arguments that have been made for same-sex marriage as a constitutional right, but these arguments work well -- work better -- in the political arena.
"There are at least two grounds that rationally support the limitation on marriage that the legislature has enacted," the court said, "both of which are derived from the undisputed assumption that marriage is important to the welfare of children."
First, the court said, marriage could be preserved as an "inducement" to heterosexual couples to remain in stable, long-term, and child-bearing relationships. Second, lawmakers could rationally conclude that "it is better, other things being equal, for children to grow up with both a mother and the father."
"Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like," the court said.
The court rejected parallels to laws barring interracial marriage, and the claim that sheer homophobia lay at the root of current law. "Plaintiffs have not persuaded us that this long-accepted restriction is a wholly irrational one, based solely on ignorance and prejudice against homosexuals," the court said.
UPDATE: The Georgia Supreme Court just issued a decision reinstating the state constitutional ban on gay marriage:
Seventy-six percent of Georgia voters approved the ban when it was on the ballot in 2004. Lawyers for the plaintiffs in the case had argued that the ballot language was misleading. The ballot measure asked voters to decide on allowing both same-sex marriage and civil unions, which [the lower court judge] determined were separate issues about which many people have different opinions.
Posts
87 comments:
Marriage is for men and women. Responsible, vetted adults should be allowed to adopt, to be foster parents and otherwise have custody of children and sexual preference should have no bearing on the matter. There, I've had my say.
Marghlar said..."More and more, I am coming around to the position that the best possible consensus solution is for the state to stop issuing marriage licenses altogether..."
I went through a phase when I believed that, but now I think it's completely unrealistic. Theoretically, it makes sense, especially in thinking of the religious aspect marriage has for many people. But the change would be so extreme, more extreme than accepting gay marriage. I think, in time, with a generational change, gay marriage will be accepted and the problem will be over. There might some day be a big problem with singles resenting the benefits given to the married, but you can just eliminate those benefits.
Dave,
It's not lawmakers who are left with the burden of rational decision, it's the people, the American polity, through their elected representatives. Democracy is not the perfect agent of change, but until the deity in person speaks directly to the world on such issues, it's the best method available.
At some inexorable point, the advocates of gay marriage will have to make their case to the American people and win some measure of approval, because they have to live with us, so why not start with politics?
Ann - There is no law in New York that defines marriage as being between a man and a woman. There is no law that bars same-sex marriage.
On what basis does the state have in stopping these marriages? Which law?
Fine - maybe there is not a constitutional "right" to same-sex marriage. But shouldn't the state have to pass a law barring these, before you actually stop them?
Except that the legislature never actually banned same-sex marriages.
But that's ok. An activist court will stop them anyway.
"Citizens of Wisconsin take note: we don't need the amendment. Courts have gotten the message."
BWAHAHAHAHAHAHA!!!
Courts have gotten the message?! You're telling me that a branch of government, typically unelected, and stuffed with a bunch of unrepentant leftists, have gotten the message?
No thanks. I'll continue to support (and fund) efforts to pass Constitutional Amendments. Courts will never get the message.
This decision takes much of the wind out of the sails of the federal amendment hucksters and scare-mongers. It just became a tad more difficult for the GOP to energize its somewhat demoralized base for the November election, as well. (IMHO, of course - YMMV)
Being that this is a State Supreme Court judgement, on a scale of probable to certain, how likely do we think it is that this will be appealed to SCOTUS on Federal equal protection grounds?
Downtownlad,
Pages 2-3 of the decision cover your arguement pretty well:
See http://www.courts.state.ny.us/ctapps/decisions/jul06/86-89opn06.pdf
Articles 2 and 3 of the Domestic Relations Law, which govern marriage, nowhere say in so many words that only people of different sexes may marry each other, but that was the universal understanding when Articles 2 and 3 were adopted in 1909, an understanding reflected in several statutes. Domestic Relations Law § 12 provides that "the parties must solemnly declare . . . that they take each other as husband and wife." Domestic Relations Law § 15 (a) requires town and city clerks to obtain specified information from "the groom" and "the bride." Domestic Relations Law § 5 prohibits certain marriages as incestuous, specifying opposite-sex combinations (brother and sister, uncle and niece, aunt and nephew), but not same-sex combinations. Domestic Relations Law § 50 says that the property of "a married woman . . . shall not be subject to her husband's control."
New York's statutory law clearly limits marriage to opposite-sex couples.
Odds of a cert petition being filed? Approaching 100%. Odds of the petition being granted? Virtually nil. Seems like the arguments made below were largely state constitutional.
Whatever. One more justification for treating straight people like crap.
I'll start by sending people in the wrong direction when they ask where the World Trade Center site is. If I can point them in the direction that gets them out of my neighborhood, all the better.
Simon: I don't think the state court looked at the federal equal protection question. I'd say the chances of the US SCt reviewing this are extremely low.
DTL and others: The political process I refer to will go on for a long time. With nothing carved in stone as constitutional law, people will continue to argue for legislative change, and I think it's right that existing statutes shouldn't be read to imply same-sex marriage. There should be an affirmative legislative adoption of this important change.
"There might some day be a big problem with singles resenting the benefits given to the married, but you can just eliminate those benefits."---Ann
The State should just get out of the marriage business, period.
Peace, Maxine
SWBarns: Thank you for your 10:45.
Odds of a cert petition being filed? Approaching 100%.
The actions were deliberately limited to New York State law because the plaintiffs did not see review by the Supreme Court as advantageous. Their (our) best bet was at the New York Court of Appeals. We lost. Its over. No cert petitions.
There should be an affirmative legislative adoption of this important change.
That won't happen as long as Sen. Bruno runs the State Senate.
It's irrelevant that a majority of citizens support the legalization of gay marriage (according to every poll), or that a majority of legislators in both houses support this, as does our most likely future governor (Spitzer).
This law won't be passed soon, because there will always be more hard-core bigots (20% of the population) than there are gay people. And the rest of the population doesn't give a damn, because it doesn't affect them.
I realize that this issue will be resolved in 50 years, but I'll be dead then - so who cares.
I don't think you'll see anything pass this year in NY--if a bill did pass the Assembly and Senate, I'm fairly sure Pataki would veto, but next year, when there's about a 99.9% chance that Spitzer will be governor and a 50-50 chance that Democrats take the Senate, I could see something passing.
Marghlar, I agree New York is well-situated for legislative action on this issue, but, as Justice Kaye noted in her dissent, lots of bills for marriage, civil unions, domestic partnerships have been proposed but none has yet made it out of committee. But three things may change this situation. First, whatever its negative effects, this lawsuit has highlighted the difficulties faced by gay couples and has encouraged lots of discussion of the topic, which ultimately will favor legalization of same sex marriage, even if it is exploited for short term political damage. Second, as the New York Times pointed out on Tuesday, a "Polls show a slight rise in the percentage of New Yorkers favoring gay marriage — to just over half — in the last three years, while the percentage opposing it has decreased sharply to just over a third", so a faithful legislature should not be too far behind. Third, Eliot Spitzer, who is a vocal supporter of same sex marriage is poised for a landslide victory as governor of New York. And with his and Hilllary Clinton's coattails in November, the state senate's precarious Republican majority (by two members) may turn Democratic like the state assembly, thus paving the way for legislative action.
It doesn't matter if the legislature passes a law allowing it. It doesn't matter if Congress passes a law allowing it. It doesn't matter if judges force it on the rest of the population.
Same-sex "marriage" is not marriage. It will never be marriage. The wider population will never accept it. And it will always be wrong.
"Don't they have the right to define civil marriage as they see fit?"
As Lincoln said: You can call a dog's tail a leg, but it doesn't make it a leg.
People seem to think that words are inherently manipulated, that they can mean whatever they want it to mean. But Marriage has never meant, and never will mean, the union of a same-sex couple. So go ahead and call a tail a leg. It doesn't change reality, no matter how many people subscribe to such delusions.
"Civil marriage is a creature of the positive law, and it is what a legislature says it is."
Again, that's where you're wrong. Civil law could also define "family" to mean anyone who lives in your apartment building, but that wouldn't make it the proper definition either. People are not idiots, you know.
"That is one of the basic facts of the law -- that words can have different meanings in different legal contexts."
But people do not view Marriage as purely a legal convenience, but a socially accepted monogomous union. That's why the word is independent of whatever meaning some left-wing judge or legislature wants to assign it.
The thing that bothers me most about the first quoted paragraph of the decision is the presumption that history and tradition should have bearing on what we decide for ourselves now. I for one am so glad that women and slaves still can't vote. It just seems right to keep these traditions alive, y'know?
Price: About those women and slaves, refresh my memory, what were those court decisions granting them the right to vote? Were there any minor legislative acts or tiny constitutional amendments on those subjects or were they decided by judicial fiat?
From the decision:
We hold that the New York Constitution does not compel recognition of marriages between members of the same sex. Whether such marriages should be recognized is a question to be addressed by the Legislature.
Sorry for just quoting, but it seems that the NY Court of Appeals thought through the obvious objections to their decision. They are saying "you want gay marriage, call your state senator" which seems like a reasonable decision to me.
Internet Ronin, I think your point is a good one with respect to women's suffrage, but if you look at the history of the end of slavery and the Civil War amendments, they are hardly a model for political resolution of a contentious social issue. The slavery issue was only resolved through the political process after the slavery-supporting states left the union and the Civil War amendments were ratified only with the consent of military-dominated state governments in the defeated South.
Citizens of Wisconsin take note: we don't need the amendment. Courts have gotten the message.
Wrong message, IMHO. Right message:
"Liberal" activists take note, attempting to get the Courts to force your latest program on the People can be damaging to you.
Which is why the people of WI should approve the ban. Because it is never appropriate for political change to come from the courts.
You want change, convince the voters. If you can't convince the voters, then you don't deserve to get your change.
hi internet ronin:
I didn't go to law school or anything, so this will probably be retarded reasoning:
The decision in Reed v. Reed ('71) ruled to enforce the equality of genders (two divorced parents fighting over a deceased child's estate--men were commonly held to be superior in such disputes) even though that equality had already been established in the constitution (the 14th amendment?). To an uninformed person like me, it seems like a lot of laws can be passed by the people but often need to be enforced or interpreted in order to be useful and actually do what they are meant to do: protect the rights of the few. If the case could be made that all citizens in the U.S. are constitutionally allowed to marry the legal citizens they love, couldn't the court have enforced that according to our contemporary standards?
Even if I'm wrong about everything, and I usually am, I just don't like the implication that tradition trumps common sense, and it seems to me that this court would cite tradition rather than reasonable legal interpretation. I'm going to go find a popsicle now.
Price - I understand what you are saying about tradition, etc. At the same time, as non-lawyer, it seems to me that courts generally place a great deal of emphasis on what has been decided before, and the legislative history, when making their decisions in order to at least give the appearance that they did arrive at their decision by pulling some idea out of thin air.
And, in most states, if we looked, I think we would find out that the laws on the books now are quite similar, if not even more specific, to the laws of the state of New York. Unlike some, I don't think it will take 50 years for change to happen, and I think it will. Unlike others, I deeply resent the decision by th do-gooders on the Massachusetts Supreme Court because I believe they set the cause back by a least a decade with their well-intentioned but misguided decision.
Note: It is just my opinion, folks. Not too terribly interested in debating the subject
Gay marriage has no effect whatsoever on my relationship with my wife and the strength of our marriage. I agree, and neither does an incestuous or polygamous union have any effect on my own marriage. This is a specious argument.
I wish people would explain what they mean when they say that "The State should get out of the marriage business." Does it mean that if I die, my sister gets my money, instead of my "wife"? Does it mean that if I find a new woman, I can give my "wife" two weeks notice to get out of the apartment, as I can with my housekeeper? Presumably it doesn't mean that anyone I have ever slept with is entitled to live in my apartment, or take my property when I die, so there must be certain relationships that receive special recognition. Those are called what?
"I wish people would explain what they mean when they say that "The State should get out of the marriage business.""
They mean: I don't like the idea of same sex marriage but I don't want to admit it so I'll propose something that will never happen as an alternative.
Seven, re-read what I wrote and what it was in response to. Really now, you're capable of much better comments that are actually related to something that somebody has written.
To make it clear (wasting a precious 30 seconds I'll never get back): I was responding to how I interpret the sentence "I think the state should get out of the marriage business" (and related statements). how do you interpret them? There's certainly nothing useful for proponents or opponents of SSM there. It's intellectual bunting.
I carefully wrote nothing about the state court decisions (which I really, really don't want to comment on since "Kabhie Kushi Kabhi Gham" is on TV now and even though I have it on disc I was sort of watching).
You're about as convincing as downtownlad, Machoman.
You can will your money to whomever you want, including your wife.
Not always. In California, at least, you MUST provide a minimum amount (35% IIRC) of your estate to your spouse. The rest is yours to do with what you will. (Unless they change that law since 1990.)
"I think the State should get out of the marriage business, Michael."
I think I should be elected vice-president of the world. Now, if we can get back to reality, what do you propose?
"Barring that, I think gay people should start marrying each other in their own private ceremonies, much like polygamists."
I agree, they should go through all the legal motions of setting up households (including private marriage ceremonies) and let society deal with the implications.
Barring that, I think that opponents of same sex marriage should start working on legislation to prevent same sex couples from establishing households having custody of children etc. Being in favor of same sex households and against same sex marriage is just sloppy, sloppy thinking.
One day if we're lucky, the people in this country will be as free as those in South Africa.
Brian: Gay marriage has no effect whatsoever on my relationship with my wife and the strength of our marriage.
Letmespellitoutforyou: I agree, and neither does an incestuous or polygamous union have any effect on my own marriage. This is a specious argument.
Its not specious because this is precisely the rational basis proffered for the ban on same sex marriage in this case: that the state has an interest in fostering the stability of opposite sex couples' relationships and that preventing same sex couples from marrying is therefore rational. Whether gay marriage has an effect on the stability of a straight couple's marriage is an appropriate consideration when evaluating to this logic.
On the other hand, I've never heard anyone claim that incestous or polygamous relationships do not get legal recognition because the state has an interest in promoting the stability of opposite sex couples. Its a ridiculous argument to make. The rationale for banning incestuous or polygamous marriage is that the state thinks those kinds of marriages have bad effects on society or the people involved in those relationships. But in the same sex marriage context, the courts do not claim that gay relationships are in and of themselves bad.
Marghlar, I don't think you've thought this through. You didn't answer my question about whether I can dispose of my wife as easily as my housekeeper. Are you saying that I can disinherit my wife? What is she supposed to live on?
Or are you one of those people who believe that contracts should be enforced as written: fiat justitia, ruat caelum. In which case, since we said "Till death do us part," the courts will enforce it, the same as they would for a professor or a federal judge who has been promised lifetime employment. Do you really think that is a workable regimen?
And above all, even if we could construct an alternative legal regimen that produced tolerably just results in domestic relationships without using the concept "marriage," why would we be better off for doing so?
"So a boyfriend and a girlfriend should not be able to live together."
That is the legal situation in some municipalities. Not generally enforced, but it's there. 'Traditional' marriage advocates should certainly support enforcement.
"A mother and her daughter should not be able to live together. ...Three college students of the same gender should not be able to live together."
Working out the details of such legislation might be tricky, but it's the least I expect from committed SSM opponents.
One day if we're lucky, downtownlad, people will be able to walk through American neighborhoods without being and even ask directions without being bullied by straight-hating, bigoted gayists.
Alas - not today. A family of four walking north on Varick street as we speak.
Not as petty as these anti-gay laws.
If this country doesn't want to treat me with respect, there's no way in hell I'm going to give them respect in return.
I don't know about evil, but they are definitely stupid.
And they've now walked at least five blocks in the wrong direction as far as I can tell. So yeah, definitely stupid.
Wow - Ruining people's lives (well - ok - just an hour or so of their life) is really fun.
Now I can understand where the anti-gay forces are coming from. There's a certain pleasure in making life difficult and unpleasant for other people.
Siete male animals: "Your fundamentalist side is showing"
At last, you understand grasshopper. I like well-thought out consistent positions (even when they're wrong), not impressionistic bobbleheaded contradictory pap.
"Show me anyone with any political power who actually... "
No, they just think a couple can live together 12 (or however many) years, buy a house, adopt children (in some states) and the relationship between them isn't any more serious (and the parties deserve no more legal consideration) than 3 guys rooming together for a semester in college. What's wrong with this picture?
"gay marriage is overwhelmingly opposed in the general population"
Gay people are a _very_ unpopular minority. I think we're all agreed on that. I just wonder what new and creative legislation awaits them in the future.
How do you know those people even oppose your political beliefs? Did you ask them?
Because their clothing was obviously purchased from Wal-Mart.
Nuff said.
Seven,
You take me way too seriously. No - I didn't give false directions to tourists.
I was making a point. Why should I treat people with respect when they refuse to give gay people any in return?
Obviously that point was over people's heads.
And it's getting too difficult to embellish this story further. And the thought of buying clothes at Wal-Mart is getting me ill.
Oh let's see.
Gays can work in the military? Um - nope.
Gays can adopt in Florda? Um - nope.
Gays can create contracts with each other in Virginia? Um - nope.
Gays can't be fired for being gay? Um - nope.
Gays can't be denied housing for being gay. Um - nope.
Gays in the military are not sent to jail for having sex. Um - nope.
It's just about marriage. Yeah right.
People who wear clothes from Wal Mart look just like people who wear clothes from Old Navy, so it's impossible to tell the difference.
I hope you're not implying that I would approve of Old Navy . . .
Seven - You are implying that gay people won't be discriminated against if we just act discreet, i.e. go back into the closet.
It's not the 1950's anymore. There's almost nothing as appalling as asking a gay person to go back into the closet. Except, of course, for being forced to buy clothes at Wal-Mart.
African-Americans and all ethnicities are protected under the Constitution, which is a law.
Really? What amendment would that be.
Just as easily as the courts can get the message, they can unget the message.
Don't stop, run, don't walk to the nearest voting booth and demand to vote against gay marriage.
The point I would make here is, there is no way of reading the text of the 14th Amendment so that it applies to ethnicity, national origin, etc, but not to sexual orientation.
There IS a way, for people who do not view sexual orientation as the same type of immutable characteristic as race, color, etc. There are a great many people who DO see sexual orientation in that same immutable sense, but it's far from the consensus view.
Looks like the comments are working again.
Carry on.
Joseph Hovsep: It's not specious because this is precisely the rational basis proffered for the ban on same sex marriage in this case I may have overreacted. Still, regardless of its origin, I still consider it a specious argument, one that permeates the debate. A policy may well affect emerging assumptions behind marriage as an institution without affecting any current set of marriages. An instance should not be confused with a class.
Marghlar (wrote)
"explain why the text of the equal protection clause gives special protection against discrimination based upon race. The text -- not some extrinsic understanding beyond what the words can colorably mean."
Unless your a college admissions commitee
No Marghlar, as a matter of standing law - "unless you’re a college admissions committee" is the current reading of the EP clause.
So, discrimination based on race is permissible because "diversity" is a compelling state interest.
Under some reasoning however, promoting intact marriages between a Childs Mother & Father is not even a rational basis for public policy.
Oh what a tangled web we weave.
Mary
As Marghlar concedes, both issues directly relate to the 14th Amendments equel protection clause.
The analysis is germane. Perhaps in your view they are unrelated. As a matter of law however they are insurmountably linked.
"Compelling state interest" is a much higher bar than "rational basis".
As far a "dragging in another minority group" it is a comparison (race= sex =who you have sex with) that the left is constantly evoking to co-opt the moral authority of the civil rights movement.
I on the other hand am merely forwarding a legal analysis of the law as currently understood.
No Marglar I am not incorrect (as in factually inaccurate). You are twisting the argument in an unfair way. Grutter v. Bollinger. ruled that diversity is a compelling state interest. Under that standard the programs must be narrowly tailored.
“Likewise, no one is arguing that promoting intact marriages between mothers and fathers isn't a compelling state interest here.”
Nor am I (once again with the twisting). I am arguing that it is a rational basis; under which analysis it never reaches the compelling state interest test and therefore need not be narrowly tailored.
It seems the NY court agrees with me.
Let me start by saying that I am an unmarried straight man who supports gay marriage. I live in New York and go to law school in Wisconsin.
The court properly applied the rational basis test. Good for the court. That is the court's job. We may need to turn to the politcal process to create a stable result, but a woman's right to an abortion has been stable for almost 35 years, despite NARAL's fears, and it isn't going to be taken away anytime soon. Why can't the same thing work for gay marriage? Gerrymandering has created a political process where there is almost a complete lack of moderation, and the primary system has created a political system that rewards candidates who appeal to their party's far flanks.
Yesterday, the court basically said that "if it weren't for all of these promiscuous, irresponsible straight people, we wouldn't need inducements to marry, but since straight people sleep around and in so doing may create babies for whom it would ultimately fall to the state to provide, we need marriage incentives to give these procreators a reason to stay together." See how noble the legislature was being when it passed this law? It wanted to make the world safe for all of those responsible gay, elderly, and sexually inactive straight people who would otherwise have to bear the costs of providing for all of those irresponsible straight people's unwanted children.
“the point is that you are wrong when you say that the Equal Protection clause doesn't apply to college admissions.”
I’ll be happy to admit I’m wrong when I am. My point (one lost on you) was that “diversity” becomes a compelling state interest (narrowly tailored or not) while children being born into hoseholds with their own Mothers and Fathers is not even a rational basis. (in some peoples eye’s)
As far as “Now you can (and I know that you do) argue that orientation is mutable -- but I disagree, and the weight of scientific evidence provides support for my view.
If orientation is not mutable, it is properly subject to strict scrutiny.”
Your former point is certainly arguable scientifically.(and begs the question as to what other behaviors may have a biological link)
Your latter contention is flat out false. Mutability is not some sole test for strict scrutiny.
But I'm not a textualist (at least not a strict one.)
And that all presumes 1) immutability 2) all immutable characteristics fall under the 14th 3) immutability stands alone as warranting 14th amendment protection
Its unfortunate that long threads on this topic always seem to degenerate into "You're nasty. I'm not nasty, you jerk. Nuh-uh. Yah-huh. You're a bigger nastier jerk than me. No, you're the jerkiest nasty jerk of them all." Blacht.
To get a back to the reasoning of the decision itself... The thing that bothers me about the reasoning of the decision is a criticism pointed out by Judge Kaye's dissent and Brian's comments above. The majority offers rational reasons why the state would want to encourage stable relationships among fertile heterosexual couples who might accidentally have kids. No argument there. What the majority fails to do is show why EXCLUDING same sex couples from the same regime is rationally related to that legitimate state interest. As Judge Kaye puts it:
“Correctly framed, the question before us is not whether the marriage statutes properly benefit those they are intended to benefit—any discriminatory classification does that—but whether there exists any legitimate basis for excluding those who are not covered by the law.”
I didn't find anything in the majority's reasoning to support how the exclusion of gay couples from the marriage regimes has any bearing on the stability of heterosexual couples' relationships.
Seven, The majority does not even attempt to show that there is a benefit to kids being raised by opposite sex couples. The majority bases the rationality of the exclusion on "intuition" and dismisses evidence to the contrary because it "does not establish beyond doubt that children fare equally well in same-sex and opposite-sex households." It seems to me that raionality should depend on more than intuition without any real evidence and that where intuition is the basis, the standard for challenging the rationality should be less than providing evidence proving the intuition wrong "beyond doubt."
Godwin's Law:
As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one.
DR: The answer to both questions has to do with the fact that the Constitution was interpreted differently in that era. The Equal Protection Clause didn't prevent all sorts of discrimination against women. The development of the law in that area didn't happen until the 1970s. With respect to Prohibition, the problem was that congressional power was not seen as broad anywhere nearly as broad as it was later interpreted to be. The idea that states had reserved powers was much stronger before 1937.
well-crafted legislative proposal succeeding right now. And that is what we need -- some examples of states doing this democratically, and people realizing that the sky does not fall just because some gay people get hitched.
Hawaii legislated Reciprocal Beneficiaries a decade ago. There are examples that provide state recogniton of the one-sex nonmarital alternative arrangement. It need not be something attached to the hip of state recognition of the social institution of marriage which serves two essential societal interests in the combination of sex integration with responsible procreation.
The sky hasn't fallen over Hawaii.
Being in favor of same sex households and against same sex marriage is just sloppy, sloppy thinking.
Tolerance does not dictate that the state replace its recognition of marriage with recognition of a nonmarital alternative.
There is no ban on the one-sex arrangement. The one-sex twosomes of New York are free to live and let live. It is not like the outright prohibitions on polygamous and incestuous arrangements. No ban. And, in NY, there is lawful recognition of nonmarital alternatives such as same-sex households.
Absolutism can be tidy, in concept, but is usually very untidy in its implementation.
Here's a better argument, by way of a question: what did more for equal rights for African-Americans in this country?
You mentioned Brown as an example of the judicial branch's contribution.
That decision was poorly reasoned even if people today would embrace its moral axioms.
The decision has made a better contribution via those axioms than via its actual legal reasoning and its legal effect.
The judicial branch inserted itself as the admninistrator of school bussing, and has continued making that contribution even though it is poorly equipped to do so; it is also an area of governance in which the judicial branch is uniquely incompetent.
So, lousy legal reasoning and lousy governance, but good points for declaring a moral stance on a divisive issue.
Meanwhile, students self-segregate on high school and college campuses to an extent that could hardly have been predicted by those who applauded (and do applaude) the moral axioms asserted by the Court.
This ought to shed some light on why loads of people on either side of the marriage issue simply reject court imposition of "gay marriage".
But there is the additional problem that whatever oral axiom on sexual identity that some would hope for would contradict the basis for striking down racial segregation.
There is one human race. The racist filter is not based on objective truth. Humankind, and human procreation, are both based on objective classification by sex. "Gay marriage" would have society re-embrace the selective segregation of the sexes based on an identity filter -- in the past it was the racist filter and in the present "gay marriage" push it is a sexual identity filter. That filter is not sexual orientation, but identity, as per, for a prominent example, Goodridge.
Pressing racism into the legal institution of marriage is to introduce something that is extrinsic to what the legal institution recognizes -- the social institution of marriage. Pressing sexual identity into it re-introduces segregation where integration is a unique feature of marriage.
The 2000 census showed that gays and lesbians have children in almost the same percentage as straight folks (lesbians were very close, and gays were a little less, but not substantially so). Most people have no clue about that.
Actually, about 97% of the homosexual adult population does not reside in same-sex households with children at home.
And of those children, the vast majority (upwards of 90%) migrated from the previously procreative relationships of their parents -- these children have both moms and dads, but one or the other is nonresident after the relationship broke-up. They have the protections that society affords children of divorce or parental estrangement.
The "gay marriage" advocates ought to make their case without exagerating the available evidence.
The participation rate in "gay marriage" in its various forms -- SSM, Civil Union, Registered Partnerships, or even the more inclusive "same-sex household" -- is very low. This form of gay domesticity remains on the margins of the homosexual population and has little claim to being mainstream even in locales with disproportionately greater share of homosexual individuals living in highly tolerant scenarios.
In any case, the point about children should be the establishment of the child-parent legal relationship. Adoption, and second-parent adoption in particular, is the direct route to the issues raised about the presence of children in the homes of a tiny segment of a tiny minority within the adult homosexual population in this country.
An even tiny segment if one takes into account that second parent adoption requires the child's nonresident father or mother to relinquish parental status.
Besides, there is a legitimate matter of proportionality here. Change what all of society recognizes, through the state, as meriting a preferential status at law -- for the sake of very small portion of children who would not gain the direct legal benefits from SSM that would be available through adoption.
Sorry, for the typo above. My second-to-last paragraph ought to read:
"An even tinier segment if one takes into account that second parent adoption requires the child's nonresident father or mother to relinquish parental status."
no one is arguing that promoting intact marriages between mothers and fathers isn't a compelling state interest here. The question is one of tailoring, and whether the exclusion of gay couples from the marriage right is narrowly tailored to further that goal. I submit that it is not.
That's circular -- individuals are not excluded from the man-woman criterion by virtue of their self-identified sexual identity.
There is no fundamental right for an individual to be recognized as the marital partner of someone of the same sex. No "gay" individual is excluded from being recognized as married.
A lone person does not marry him- or herself.
A twosome qualifies for marital status. The nature of that twosome is what matters in terms of the societal, or state, interest. This is why the man-woman combination does not get carte blanche.
A combination that is too much the same -- as in too-closely related -- is barred, just as a combination that is too much different -- as in the marriage of an adult to an underaged person. Also, one-married partner at-a-time, excludes millions of married individuals from combining with persons of the other sex.
The "narrow tailoring" argument is really just a criticism of how the lines are drawn within the pool of man-woman combinations. So, how would you imagine the state to draw those lines better so as to include one-sex-short combinations that are outside of the pool altogether?
The NY Court rightly found that a more narrow tailoring would be highly intrusive and a very bad idea. Would you submit otherwise?
Grutter v. Bollinger. ruled that diversity is a compelling state interest. Under that standard the programs must be narrowly tailored.
That's right.
Sex integration, combined with responsible procreation, fits that finding. (Though, that court decision is a little wonky.) Lack of diversity, through selective sex-segregation based on the filter of sexual identity, contradicts diversity. That filter is not about immutability, by the way, it is about identity, self-chosen. The race analogy falls apart when you realize that racism is the problem -- enacting racial superiority. The problem is NOT that something immutable, like physical features, are based on self-referenced identity. These are inheritable features and are held as subjective, and irrelevant, criteria upon which to sort men and women into subspecies of humankind.
Self-identification as a superior race, and extrinsic identification of an inferior "other" race, amount to denial of both diversity and unity of humankind. Redressing the wrongs of an entranched racist filter would require, to some extent, recognition of that filter; but that does not imply the filter, with its racist criteria, is objectively truthful.
As I said earlier, there is one human race. It is self-evident that humankind is comprised of two sexes and that this is relevant to human regeneration. There is a compelling interst in recognizing that responsible procreation is 1) two-sexed and 2) best followed-up with sex integration in the family home. This is the foundation of a just society.
Recognition, and tolerance, of nonmarital alternatives, at law, manifests as a liberty exercised rather than a right denied.
I'm late to the party here, and I'm confused: Has Mary gone back and deleted all her comments? It certainly makes other parts of the thread make much less sense when that happens. While it appears that quxxo has been getting the Control-Althouse-Delete treatment lately, am I right in assuming that Mary's deletions are self-imposed? Doesn't make sense to me..
I did not delete Mary's comments.
I am not deleting all of X's comments, however, no matter how innocuous (because he has a cycle of being decent and then getting bad again). So please don't bother responding to X.
I'm sorry your contributions here have been rendered contextless. This shows another way for a commenter to express hostility: by causing you, retroactively, to have wasted your time.
That is, I am deleting all of X's comments...
Sorry for the "not" in the second paragraph...
Mine are from the US Census, backed by numerous additional studies.
The HRC analysis of the Census was based on 5% of the general adult population being openly homosexual. Not an uncommon estimate.
Compare that with the number of same-sex households. Look up the child population attributed to those households. About 11% of the adult homosexual population resides in same-sex households; 3% of the population resides in such households with children.
The Census also reported that the relatively few pool of same-sex households include resident children at a significantly lower rate than married -- or cohabitating -- man-woman couples.
in my experience the vast majority are created through artificial insemination, surrogacy or adoption.
Your subjective experience contradicts the available evidence.
Gary Gates, for example, acknowledged that only about 4% of children in same-sex households were adopted. And that would include the unavoidable padding of that statistic due to second-parent adoption.
Also, less than 1% of all children in the general child population were conceived and born with novel methods such as ARTs/IVF. (Less than 10% of the women who used these procedures had used "donor" material.) Even if you doubled the rate of IVF use, for example, for same-sex households, or tripled it, these newly available methods would not account for the vast majority of children in those households.
Adoption and IVF practices do not dictate the state's recognition of marriage.
In fact, it ought to be the other way around, with the social institution of marriage shaping adoption and ARTs/IVF practices. Marital status is not bestowed on someone due to use of these methods; but marital status is relevant to access to these methods.
The fact is that there are millions of children in GLBT households who do not have the same government protection as children in heterosexual households.
Not millions in same-sex households. And since SSM would not bestow the direct child-parent relationship that comes with second-parent adoption, SSM is not what would solve the problem that you think needs solving.
The question about "terrifying" is irrelevant.
The man-woman criterion is central to the social institution of marriage. The legal institution is merely a shadow of that which society, through the state, accords a preferental status (i.e. marital status).
If you want to establish a preferential status on the basis you just described, why draw the line at too-closely related combinations?
More fundamentally, why should the state provide a preferential status at all? Please, don't piggyback on esteemed conjugal relaitonship of husband AND wife. State the independant claim for the relationship you just described with your criteria.
Afterall, if there was no marital status, you would not make an equality claim. So assuming the slate is blank and society would establish a preferental status of some sort, what would be the basis?
Typo correctin: "this relatively small pool of same-sex households"
The current rule (and I think it is quite defensible) is that any facial discrimination, even that not motivated by racism, is subject to strict scrutiny.
There is no fundamental right to be recognized as the marital partner of someone of the same sex.
There is no facial discrimination on the basis of sexual identity. None on the basis of sex.
Marriage is the foundational social institution and marital status requires the participation of both sexes. It does not exclude one sex or the other. It does not test for sexual orientation.
My previous point about race is that the race identity filter is based on a falsehood. There is one human race.
Where there is facial discrimination on the basis of sex, it is at least based on the objective truth that humankind is two-sexed. Whether an instance of such discrimination is just or not is in the particulars of how one sex is disadvantaged or advantaged.
The purpose of state recognition of marriage is sex integration and responsible procreation. Excluding one sex would be unjust discrimination.
“Loving does provide a good analogue here.”
I find Loving to provide a very poor analogy indeed. The problem with the argument from analogy, is it is merely that; an analogy. It’s streagth rises and falls on the power of the anology.
Gay people were not brought here in chains, forced into chattel slavery and then lived under apartied for 200 years.
We fought a civil war with a countless deathtoll to end slavery and insure equal rights for blacks. We also (and this is crucial in your spurios analogy) have three different constitutional amendments that attemted to address this historic inequality. One of them is the 14th on wich you so slavishly and narrowly rely. Each amendment was ratified by the people. This was done democraticly through a vote. We also have the various civil rights acts ratified through legislative action. Indeed the most important right fought for was the right to vote. Human suffrage goes to the heart of our law. The right to be counted and heard. That’s what this country is, an experiment in popular soverignty. This applies equally to the 19th amendment as well.
Every “fundemental right” in our constituion has been voted upon and ratified by the people. It is equel justice UNDER THE LAW, that is written above the supreme court. We the people decide what those laws aught be. They don’t simply proceed from spurios and weak anologies. Indeed the co-opting of the moral authority of civil rights language not only insults my intellegence, but insults African Americans generally.
All of this is for naught however. It is a mere procedural argument. It pales in comparission to the deeper truth about what we exalt as a family. What we hope our Sons & Daughters will aspire to, and how we best orginize and raise our families.
Marghlar, while I did insert a single sentence about fundamental right, I did not "go on about it".
You argue a circle by assuming that marriage is not two-sexed, as it has always been and will always be. I pointed to the objective truth about the nature of humankind.
What you propose is replacement of marriage with state recognition of some other thing. That may or may not have merit.
It appears you would justify this reform purely on the basis of a sexual identity filter -- i.e. "gay". That filter is analogous with the racial identity filter that Loving rejected.
Both filters would selectively segregate the sexes where marriage has always integrated the sexes. Both filters would impose a claim that is extrinsic to the conjugal relationship of husband AND wife.
"Fitz, this is a disgusting statement. I know a number of gay families. They are loving, supportive environments. There is no relevant quality present in a straight family that will be absent in their homes. They are good, kind, decent people."
"You implicitly assert that they cannot be"
The hyperbole and defensive crouch of this statement reveals the kind of emotiveism that clouds any sound judgment on the part of ss “m” advocates.
I never said or even “implicitly assert” that same sex couples can’t be adequate or even exceptional parents. (as your wounded ego rises up to assert)
The quality of any or all same sex couples is not at issue. The issue is how best to promote the natural parents of children to couple; take up mutual responsibility for each other and their children. Men and women bear children together. It is important that we encourage them to do so responsibly. We call this marriage.
Marghlar, I did not cite religious belief.
You, however, appear to cite the faith of secularists. It is odd that you wish to press sectarianism into a discussion of public policy in a pluralistic society.
Perhaps, for you, the only good faith is the one that endorses SSM as if it was marriage.
Secularists are not all agreed on SSM, but, even if they were, this would not decide the matter for all of society.
>> "Civil marriage is precisely whatever it is defined to be by statute."
Civil marriage is the legal shadow of the social institution that society, through the state, esteems with a preferential status.
Perhaps you wish to replace marriage with recognition of some other thing.
Please explain the fatal flaws in state recognition of the conjugal relationship of husband AND wife and then explain how these are resolved by a substitute that is bound by the limitations of the one-sexed ideal.
That is the task of those who advocate SSM as if it was marriage. Justify the substitution.
>> "The vast majority of modern law is based upon definitions which have changed over time."
Maybe you can cite the man-made law which has repealed the objective truth that humanity is both-sexed, that human regeneration is both-sexed, that human community is both-sexed.
Marriage remains the foundational social institution that combines sex integration with responsible procreation.
The man-woman criterion is not weird. It is central to the purpose of marriage and to the purpose of state recognition of marriage.
“Yes, but you have to contend that to extend similar benefits to loving gay couples who wish to raise children themselves will somehow undo the social benefits of marriage. A doubtful claim, in my opinion. “
But not in mine, and others. So called gay “marriage” does two things necessarily. (that is it follows axiomatically from the very definitional change)
#1. It androgynies the institution.
#2. It separates it from any necessary connection to procreation.
You can have this type of yuppie coupling as our ideal, but it fails to promote (and indeed undermines) the integration of the two sexes as a essential part of marriage. Most people are heterosexual and only opposite sex pairs can concieve children. Your standard explicitly states that a child’s natural Father (or Mother) is non-essential to marriage. That any combination of adult is sufficient.
It further reinforces and locks in the notion that all family forms are inherently equal. They are not.
“You are arguing, not just that marriage is good, but that it must be exclusionary to continue to be so.”
Yes, there is a philosophical maxim that reads – “If it’s everything it’s nothing”. We cant defend what we cant define. You are attempting to severe marriage from its historical and biological heritage, this will have a net effect. (leaving aside the already discernable effects in Europe) That effect is that marriage is outdated and any family form including single parenting is acceptable.
Of coarse I’m going further than that. Mine is not a defensive crouch. I find you to be deeply inhumane and narcissistic in your demands. 40 years of a sexual revolution has given us 50% divorce rates, 70% illegitimacy rates and falling rates of marriage overall, cohabitation and un-chosen childlessness. The social scientific evidence for divorce and Fatherless-ness is in. It leads to sky high crime, depression, suicide, violence, gang activity, and a perpetual cycle of child abandonment.
For you to throw the entire institution up for redefinition is the height of self absorption.
We can and must rebuild the social institution of marriage. Its important that all children are born into married households with their own natural parents. This standard should be advanced not undermined. The institution of marriage is infinitely more important than a vehicle for your inclusion.
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