Althouse: "The New York Times has an amusingly uninformative piece, the gist of which is that hardly anyone is willing to venture a prediction."

August 6, 2010

"The New York Times has an amusingly uninformative piece, the gist of which is that hardly anyone is willing to venture a prediction."

"So it all comes down to that wild and crazy Justice Kennedy, and by gosh, you just never know what he's going to do!"

James Taranto laughs at the NYT, and I'm laughing too. You can agonize and puzzle for the next year or 2 if you want, but the answer is in the cards. There are 5 votes for a constitutional right to same-sex marriage, and 5 is all you need.

138 comments:

Eric said...: What you don't need, apparently, is any basis for it in the constitution.; 8/6/10, 8:19 AM
Fred4Pres said...: I do not think there are five votes for this. It is not a question of if there should be same sex marriage. Personally I think there should. It is a question of whether the supreme court should impose it on the states. And the answer is no.

Because the constitution neither proscribes it or bans it.

Gay marriage is a new thing. Democracy is hard. Do the heavy lifting and get it passed.; 8/6/10, 8:22 AM
Triangle Man said...: @Eric

What is the "it" in your comment?

it = Two people of the same sex can marry one another in a legally recognized manner.

it = States can license a man and woman to marry, but can refuse to license two people of the same sex to marry; 8/6/10, 8:24 AM
Scott M said...: How many votes if three people want the same rights? (...ducking...); 8/6/10, 8:26 AM
dbp said...: I think even Justice Kennedy is capable of making a distinction between criminalization of consensual sexual activities and government endorsement of same.; 8/6/10, 8:43 AM
Scott said...: I'm gay, and I support "same-sex marriage" to give partners important civil rights protections, including defending estates from greedy relatives, and empowering partners to make end-of-life decisions without interference from uninvolved family.

Having said that, I think it would be wrong for the Supreme Court to declare a constitutional right to gay marriage by fiat. This issue has to be resolved legislatively, Otherwise, we'll end up with another Roe v. Wade, where the natural process of society working through tough issues was short-circuited by a small unelected government elite.; 8/6/10, 8:52 AM
A.W. said...: Ann, i literally couldn't disagree more.

i write out my views, here:

http://allergic2bull.blogspot.com/2010/08/why-kennedy-probably-wont-invalidate.html; 8/6/10, 8:56 AM
Saint Croix said...: "There are 5 votes for a constitutional right to same-sex marriage, and 5 is all you need."

You are wrong, Professor! Wrong, wrong, wrong.

You can't count on Kennedy as he has no jurisprudence. None. Zippo. Justice Kennedy dictates his squishy Republicanism to the nation. That's his jurisprudence. Squishy Republican says that you can't go to jail for sodomy. But Squishy Republican also says there is no constitutional right to gay marriage. You think Kennedy is to the left of the people of California? Bah.

How about a bet? If I'm right, you blog my movie book. If I'm wrong, I'll blog whatever you want. Put your blog where your mouth is.; 8/6/10, 8:57 AM
A.W. said...: But let me summarize what i say at the link.

Kennedy above all else cares about the SC as an institution. He will not rule in a manner that the public is likely to consider illegitimate. He saw the pressure placed on the court to overturn Roe and i don't think he would want to create a similar situation with gay marriage.

But i discuss it in alot more detail in my post on the subject.; 8/6/10, 9:00 AM
Wince said...: If there were ever to be an impetus to adopt a federal constitutional amendment limiting the document's ability to impose a definition of marriage, this would be it.

I suppose at that point it would prove that what the Constitution says really doesn't matter.; 8/6/10, 9:00 AM
sunsong said...: In Perry, however, the defendants are unlikely to be able to counter the plaintiffs' claims by arguing that forcing states to recognize same-sex marriage violates anyone's individual rights. Their appeals are to tradition, morality and the collective right of the people to self-government--worthy arguments, we would say, but ones Justice Kennedy has already rejected in Romer and Lawrence.

I like and agree with this. I reject the notion that this is not the purview of the courts. To me, this is exactly why we have the third branch - to determine the constitutionality of what is done through legislation or amendment. That's a no-brainer to me.

It is not up to the people to decide if gays and lesbians are worthy of equality. That is absurd and arrogant. That the people, and the politicians have not had eyes to see their obvious discrimination against gays is their responsibility. And for California to go so far as the try and enshrine that discrinination into their state constitution was abominable.

The courts have a responsiblity to step in here and declare that homosexuals cannot be denied the right to marry.; 8/6/10, 9:02 AM
Scott M said...: @sunsong

...Agreed. Do you also agree that the same consideration be extended to polygamists on the same grounds?; 8/6/10, 9:05 AM
sunsong said...: In Salt Lake City, of all places, there was a celebration of the news that Prop 8 was struck down. Several hundred people attended. They met at the State Capitol and then took a walk around by the Mormon Temple.

At the Celebration they were graced from the heavens with a beautiful rainbow:

pics; 8/6/10, 9:10 AM
Scott M said...: Is that a yes or a no?; 8/6/10, 9:13 AM
sunsong said...: Hi Scott M,

I find the immediate turn to discussions of:

if gays are allowed to marry soon polygamy and beastialty and who knows what will be legal

to be attempts to distract from the discusion of homosexual rights. It's clever, if mean-spirited - and can be alarming for some.

My view is that polygamists will have to make their own case :-)

Gays have been working toward equality of liberty for decades. They have worked hard and made a lot of strides. It is, imo, impressive the amount of attitudinal change that has occured in a relatively short time.

If polygamists believe that they have a case to make. They need to do that themselves :-); 8/6/10, 9:17 AM
Scott M said...: Dammit...I thought we had an agreement too. Asking the same considerations, on the same grounds, for polygamists is not turning the question from gay rights. In fact, it could easily be three dudes. It doesn't matter.

Your point that gays have been working on this for decades and the polygamists need to fend for themselves is the same as saying, "blacks have fought for decades to get civil rights. Hispanics and Asians need to make their own case".

That doesn't make any sense at all. Asking if polygamists should get the same considerations from the state, on the same grounds, is not anti-gay. It's a logical extension of the same issue.; 8/6/10, 9:25 AM
AC245 said...: There are 5 votes for a constitutional right to same-sex marriage, and 5 is all you need.

The enormous disconnect between lawyers/law professors and the American citizenry couldn't be encapsulated any better than by this statement.

The founders fathers would be appalled at how their carefully structured government of "We the people" whose legitimacy is based on the "consent of the governed" has been perverted into government by "They the judges" based on the "whims of the politically-appointed-for-life".; 8/6/10, 9:31 AM
Scott said...: Big Love. :)); 8/6/10, 9:34 AM
Triangle Man said...: @ScottM

You are discussing the constitutionality of laws against bigamy. Those are usually separate statutes from those defining what constitutes a legally recognized marriage. It seems pretty clear that you can address one area of law without touching on the other. The slippery slope argument is weak.; 8/6/10, 9:37 AM
The Crack Emcee said...: Nice editing, Grasshopper - I've been known to do it, too - but you left out this part:

"With four justices now in their 70s, including Kennedy, the makeup of the court is likely to change considerably over the next decade.

The direction of that change depends on who is president and on the partisan split in the Senate, which means that it is anyone's guess. Plausible scenarios for just three years from now range from President Obama and a modest Democratic majority to a conservative Republican president and a large GOP majority."

Which brings it back to the will of the people - and I'm the motherfucking people!

Ann, you're going to succumb to reality, whether I have to bring you to it, kicking and screaming. Your too old for this liberal bullshit, or to be trying to force it on the rest of us to be "cool" - the shit ain't cool. Just because you want to pretend that you and your boy can change the world doesn't mean the rest of us want it changed. It just means you never appreciated it for what it is and, as far as I'm concerned, that means you shouldn't be the one determining shit for the rest of us. You lie.

I think more of you than you think of me - that's the difference - and you should be glad I don't hold your condescension against you.

Signed,

Your straight black male American friend.

P.S.

If I get another e-mail from Meade - who is NOT your husband - saying he might have to kick my ass, for defending right and reason, he just may have to do it.; 8/6/10, 9:38 AM
Salamandyr said...: TriangleMan,

I'm not sure you can say that is true. The logic by which Prop. 8 was struck down can as easily be applied to laws against bigamy, or laws against consensual incest. The only thing that seems safe is the informed consent requirement (so laws forbidding marriage to the underage, or animals, etc. are pretty safe).

But otherwise, either the legislature has power to decide what kinds of relationships constitute marriage in the eyes of the law, or they don't.; 8/6/10, 9:45 AM
Scott M said...: You are discussing the constitutionality of laws against bigamy. Those are usually separate statutes from those defining what constitutes a legally recognized marriage. It seems pretty clear that you can address one area of law without touching on the other. The slippery slope argument is weak.

I could care less about slopes. I have no problem whatsoever with same-sex marriage. My ire is raised by people that claim two people of the same sex getting married should be legal while three or more people of the same sex or varying sexes shouldn't be.

My interest is in intellectual consistency. I believe those that advocate for same-sex marriage and admit that those rules/laws/considerations should be extended to polygamy are, at least, being consistent. I, for the life of me, don't understand supporting SSM and opposing polygamy on the public policy level.; 8/6/10, 9:46 AM
Scott said...: Groucho: “Well whadaya say girls? Are we all gonna get married?
Woman: “All of us? But that’s bigamy!”
Groucho: “Yes, and it’s big-a-me too.”; 8/6/10, 9:52 AM
Scott said...: Housewife: “I have seven children.”

Groucho: "Seven? That many?"

Housewife: "Well, I love my husband."

Groucho: "I love my cigar, too, but I take it out once in a while."; 8/6/10, 9:53 AM
Chad said...: It would be interesting if Ann did a post on premier conservative legal eagle Ted Olson and why he has become a costitutional champion for gay marriage. Also, I predict that not only will Anthony Kennedy will uphold this ruling but so will Roberts. They will not want to go down in the history books as modern day supporters of a Plessy decision.; 8/6/10, 9:56 AM
Scott said...: "I could care less about slopes."

Racist.; 8/6/10, 9:58 AM
Scott M said...: @Scott re: Groucho

Have you ever heard the audio or seen video from Groucho's talk show (later after the Marx Bros movies)?

If you remember the context of the time in which they were done, his talk show was filthy. Funny as shit, to be sure, but for 40's and 50's? As blue as it got and still able to keep sponsors :); 8/6/10, 9:58 AM
garage mahal said...: The slippery soap effect. That's what I'm worried about if gays get to marry.; 8/6/10, 10:01 AM
The Crack Emcee said...: This ain't Plessy - you're a pussy - and we dicks are gonna fuck you for this one.

The era of feminism is over.; 8/6/10, 10:01 AM
Chad said...: Crack, why did your wife leave you again?; 8/6/10, 10:04 AM
The Crack Emcee said...: Because I was too fucking nice.; 8/6/10, 10:05 AM
The Crack Emcee said...: Now, do you have any theories why she killed three people, smart guy?

I do.

It was because she hung with a bunch og gay guys whoi filled her head with bullshit about hating men and not appreciating the difference between right and wrong.

You want to opine on THAT, asshole?; 8/6/10, 10:08 AM
Scott said...: @Scott M.: Yeah, I think sex must have been a lot more interesting back then. Innuendo is creative and funny, and Groucho was king.

I remember the first time I had sex. I kept the receipt. --Marx, Groucho; 8/6/10, 10:09 AM
The Crack Emcee said...: As a matter of fact, it was a "gay guru" who I heard tell her, on a cassette tape, that "'good' is when you get your way and 'bad' is when you don't."

Which, when I think about it, is probably the most appropriate slogan for this new campaign of yours that could ever be devised.; 8/6/10, 10:13 AM
test said...: "The slippery slope argument is weak."

That's what the left said when critics pointed out that Loving would lead to gay marriage.

That's also what the left claimed when critics said the tobacco settlement would lead to litigation against foods not deemed acceptable by the nannies.

Critics of slippery slope arguments are simply those who prefer not to defend their preferences logically.; 8/6/10, 10:14 AM
GMay said...: Oh God, the bitterness and self pity continues on yet another fucking thread.; 8/6/10, 10:14 AM
Ploni said...: Presumably, my new-found fundamental right to marriage also includes the right to "marry" my parents so as to avoid taxation on intergenerational transfer of wealth.; 8/6/10, 10:17 AM
kathleen said...: "There are 5 votes for a constitutional right to same-sex marriage."

Really, law professor? That's news to me. Have you called the psychic hotline?; 8/6/10, 10:18 AM
Chad said...: Thanks Crack Emcee. You are always good for a laugh.; 8/6/10, 10:26 AM
The Crack Emcee said...: GMay,

Your bullshit about "self-pity" ain't getting shit here:

From birth, I have endured, and survived, more than you've EVER encountered in your punk-assed life, you callous piece of shit, so don't think for a second I'm going to cowed by your pissy, wimpy, you-ought-to-be-happy judgement. Your ass ain't even HUMAN to me. Your the product of a liberal culture, bred in a dish, and worthy only of being thrown out in the trash. I know no-good two-bit, stupid as fuck wannabe "ganstas" with more humanity, and intelligence, than you.

I piss on you.; 8/6/10, 10:27 AM
ironchefoklahoma said...: @Scott M
I think the "Intellectual Consistency" horse is a long way out of the barn. The SCOTUS' pretzeling on affirmative action is the proof.

@sunsong
I believe I understand (and I sympathize) with your position. I'm interested on the basis of your "equality" argument. Do not ALL men and women in America have the same right to marry? Don't they ALL have to conform to the same state regulations (blood tests, cosanguinity, age, etc)? How, then, does California law discriminate against a class?

Isn't the question more, may the state legislatures define what is and what is not marriage?

(and finally, as an extreme case, could I say that jaywalking statutes discriminate against me because of my unique pedestrian style?); 8/6/10, 10:29 AM
Chad said...: I want to build on what Sunsong wrote.

There is no doubt that if we waited ten or fifteen years many more states would recognize same sex marriage.

BUT, equal rights for gays should not rest on the consent of the majority. Instead, they need to be grounded in the Fourteenth Amendment and the rest of the Constitution.

So, it is important that the Supreme Court is quickly forced to act now.; 8/6/10, 10:30 AM
The Crack Emcee said...: So are you, Phil:

I've read your opinions.

And by the way, great way to fake out of an issue. What issue is that? The way the gay culture will twist reality for the weak minded until they're compelled to do the wrong thing.

Hey, I've got an idea: LET'S TALK ABOUT THAT!; 8/6/10, 10:31 AM
rcocean said...: Of course there are five votes. The 4 ultraliberals plus drama queen Kennedy. I bet he's already fantasising about his great NYT's write-up. Not to mention all the liberal/gay praise he'll get at cocktail parties. He's not as bad as Grandma O'Connor - but he rules based on his feelings and the amount of positive publicity. The Constitution has little to do with it.; 8/6/10, 10:36 AM
Unknown said...: Eric said...

What you don't need, apparently, is any basis for it in the constitution.

I seem to remember an Amendment that said what was in the power of the states is not disparaged by the Feds.

But that's what judicial review is all about.

BTW, keep in mind the Black Dresses outlawed capital punishment in the 70s. Remember how that worked.

Marshal said...

"The slippery slope argument is weak."

That's what the left said when critics pointed out that Loving would lead to gay marriage.

The Lefties love to invoke the slippery slope when it's to their advantage. As Marshal notes, that's the way they operate when they're destroying our institutions. Polygamy and incest are already on the radar.

WV "woots" What's at the bottom of Baba Wawa's garden.; 8/6/10, 10:38 AM
The Crack Emcee said...: Come on, kids, you think you're all such great legal scholars - let's deal with the real world:

Here's the psychology that led to the post-AIDS gay marriage movement - do you endorse it or not?

And here's an exit question: since everyone told the gays to stop fucking after AIDS hit** - and they insisted on doing because no one straight was going to tell THEM what to do - why should I have compassion for them not being able to get into a hospital, etc.? They did it to themselves. I was living in San Francisco at the time, had lots of gay friends, and say the madness with my own eyes.

I told you there was more to this than anybody - but most of all gays - w3ant to talk about. You want to push me around? Fine, now I'm pushing back!

**I designed one of the first oh so compassionate AIDS awareness brochures to ever appear in S.F.; 8/6/10, 10:39 AM
Chad said...: Hey Crack Emcee! Isn't there an empty Taxi cab in New York City that you should be driving right now?; 8/6/10, 10:42 AM
The Crack Emcee said...: Hey, Phil, how do talk with a dick in your mouth?; 8/6/10, 10:47 AM
Scott M said...: Good to see we're keeping the level of discourse up to the highest standards.; 8/6/10, 10:49 AM
X said...: I think it's funny that the big-govenment pro-tax people have won a right that will result in the effective end of the death tax and eventually social security spousal survivor benefits. The rich thank you!; 8/6/10, 10:49 AM
Chad said...: Crack Emcee wrote "(blah, blah, blah)"

What ever you say Frances.

Now please go hump someone else's leg.; 8/6/10, 10:50 AM
The Crack Emcee said...: Fuck that, Scott:

The discourse was lowered when this topic became an issue. Listen to these poofs - my divorce isn't off-limits to them. Nothing is off-limits to them. All the limits are on us - it's PC bullshit. I say there's more to this discussion than they will allow - but only if you give in to the idea that they get to determine the dialogue. They don't. I am a free man. I am a black man. I know more about civil rights in this country than they can ever know - that's why they're always trying to use me for their validation - even after I tell them I'm not to be used that way: I'm not gay and the two issues have NOTHING to do with each other. But still they don't care. All they care about is advancing their agenda. I know: I used to be on their side. But that still didn't mean I wasn't listening, and taking note of when they were wrong. And this whole set-up is wrong. And it's going to take the men of this nation to wake the fuck up and decide how far they're going to let this nonsense go on, because the whole thing is an assault on them. You can't be a man in your own house. You can't be a father to your child. Your wife and her gay friends will determine what's the right behavior for you. They'll determine everything.

Fuck them all.; 8/6/10, 10:59 AM
Peter Hoh said...: I would prefer the issue to work its way through the states by legislation and referendum. At some point, I'd like to see Congress get rid of DOMA. At that point, I' favor a judicial ruling about whether some states can refuse to recognize marriages performed in other states.

But Justice Kennedy will want to be remembered as being on the right side of this issue, and so I think the fix is in. On the other hand, maybe one of the liberals on the court will side with the conservatives and help create a majority that finds a solution that defers the issue a while longer.; 8/6/10, 10:59 AM
Mortimer Brezny said...: I’m not so certain there are 5 votes for same-sex marriage as a right mandated by the federal Constitution, if the compositional outcome you seek is Kennedy plus the liberals.

One hook for that belief is Kennedy’s ruling in Lawrence. But Lawrence involved criminal penalties imposed selectively on one class of citizens after world opinion had moved on and most American states had stopped seriously enforcing such laws. Here, by contrast, the European Court of Human Rights recently held that EU member states need not adopt gay marriage, but they could if they so chose; the reality of gay families to some extent would have to be accommodated by domestic relations law. Furthermore, most American states have state DOMAs; those that provide benefits to gay families do so through a variety of schemes: civil unions, domestic partnerships, and gay marriage. There is no national or international consensus in favor of gay marriage. Lastly, Kennedy himself makes a distinction between criminalizing sodomy and gay marriage in his opinion. So did Justice O’Connor, who arguably was to his left.

A second hook for that belief is Kennedy’s ruling in Romer. But Romer involved a case of pure animus. Stripping gays of access to equal rights jurisprudence. Colorado’s Amendment 2 would have singled out gays and lesbians for lack of equal protections for anti-discrimination law. What possible motive could there be to strip gays of the right to receive the benefits of anti-discrimination law? To allow bigots to discriminate against them! There is no similarly compelling case in favor of pure animus as the motivation for Prop 8, in part because the California Supreme Court, in pronouncing the legality of Prop 8, explicitly held that gays and lesbians receive the benefits of anti-discrimination laws in California.. Indeed, in Judge Walker’s opinion, the jurist outlines a non-religious, non-animus-motivated argument made by the proponents of Prop 8. He rejects it, but the point is, it is there. So this case is not on point with Romer, either.

A third hook is that Kennedy is generally “the swing vote”. Really? Boy, he really swung for the liberals on the Second Amendment. That liberal, cosmopolitan Kennedy, siding with world opinion in favor of gun control. Man, what a swinger he is.

A fourth hook is that the proponents of Prop 8 lacked any convincing rationales. That is a matter of opinion. The proponents of Prop 8 have at least two defensible rationales: (1) traditional marriage laws focus on heterosexual couples because heterosexuals often have children by accident, and marriage is a social institution that the government subsidizes to ensure the stable upbringing of children; and (2) if the institution is to be extended to gays and lesbians, regardless of the terminology, it should be done through the legislative process or a ballot initiative. Those may be weak rationales, but they are valid, real-world, non-discriminatory rationales.

A fifth hook is that Judge Walker baked the cake by citing to Kennedy’s opinions in his ruling and finding facts that must be deferred to because he is a trial judge. Plenty of advocates who lose before the Supreme Court cite to Kennedy’s opinions. He is not a robot. Furthermore, it is unclear that this case would reach the Supreme Court by itself. There are at least two cases playing out in the Texas judicial system involving the right to a gay divorce under state law. In those cases, Texas Attorney General Greg Abbott is arguing that there is no equal protection clause right to a gay marriage in Texas, therefore there is no corollary right to a divorce in Texas, either. One of those cases could be consolidated with Perry v. Schwarzenegger, or the Texas judicial system might move more quickly than the Ninth Circuit. We don’t know what the entire factual record before the Supreme Court will be in 2012, putting aside the glaring reality that amicus briefs on both sides will provide copious Brandeis briefs to the Court in the event it takes up a gay marriage case.; 8/6/10, 10:59 AM
Krumhorn said...: A.W., you make a very interesting case that Justice Kennedy is "only willing to do blatant activism when he believes that the people won’t really mind very much." After all, the legitimacy of the court as an even-handed impartial non-involved arbiter of constitutional issues is very much open to question.

As Justice Thomas wrote in his Lawrence dissent,

If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide cases 'agreeably to the Constitution and laws of the United States.

It's really up to us to decide these kinds of things and not the court. But judicial over-reach by lefties who seem determined to short-circuit the political processes because they mean so well and know better than the rest of us has put the politics of the judiciary plainly on the table.

Still, I think that Ann is right. The outcome of this question was baked into the Lawrence cake. While I suppose that Kennedy could try to distinguish Lawrence as having been a criminal matter arising from private conduct, the language of his opinion was far broader.

He went out of his way to lyrically insist that the case "involves liberty of the person both in its spatial and more transcendent dimensions."

Awesome.

And then he points out that there is "emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex" and then makes the obligatory reference to the opinion of "a wider civilization".

We all know that marriage is regarded as a fundamental liberty interest. It's very hard to see how Kennedy can avoid the inevitable impact of the central assertion in his Lawrence opinion that Justice Stevens had properly formulated the controlling legal test: "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,"

While precluding homosexual couples from marrying is not the same as prohibiting homosexual practice, it's no great leap to apply the logic of the Romer case: "After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal".

O'Connor crystallized the issue by pointing out: "While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual."

Kennedy would have to do quite a remarkable Kabuki dance to avoid the conclusion that a fundamental liberty interest has been denied a class of people who are defined by their sexual conduct (which is now some sort of due process liberty interest), and that their exclusion from the marriage institution is a result of majority moral disapproval which Stevens says is an insufficient basis for a law.

...........; 8/6/10, 11:08 AM
Saint Croix said...: "There are 5 votes for a constitutional right to same-sex marriage, and 5 is all you need."

Justice Brennan used to make a similar crack all the time. "Five votes can do anything around here."

It's not true, of course. If you are dictating your politics to a majority, there will be pushback against the Court. Brennan found that out the hard way. Kennedy knows it already.; 8/6/10, 11:14 AM
GMay said...: Jesus Crack, put your little e-peen back in your pants and spare the blog your narcissistic, whining rants already.

Everyone understands you because you're pretty fucking easy to understand. You've had a harder life than anyone. Ever! It's all about what you want to talk about because you're the only one with the answers.

The sooner you grow the fuck up and realize you're not the only one who's encountered hard times, that you're obviously a shitty judge of character, that your opinion is just not as important as you think it is, and that there's nothing, nothing manly or macho about whining about women and your life on the internet...the sooner the blog can be spared fron sifting through your psychoses.; 8/6/10, 11:16 AM
slarrow said...: Couple of things. First, to Scott's post of 8:52 am: hear hear! I am anti-SSM and am a social conservative, so I oppose his position. But we can agree on where the debate should take place and how it ought to be decided. I can respect an opponent who'll take me on the ring; I can't respect one who wins by slipping money to the judge.

On Scott M's repeated polygamy question, well done, sir. I recognize and applaud your tactic. For those who still have trouble with it, it's a rights v. power question.

The claim presented thus far is that homosexual marriage is a civil rights issue. The problem is that in reality, a same-sex "marriage" is different from an opposite-sex marriage, most notably when it comes to children and inheritance. In order to make them look the same, you have to clear out a bunch of criteria that show that they're different. When you clear out those criteria, though, you don't have the tools to argue against other related marriage rules; you threw the baby out with the bath water.

When Scott M. confronts people with this, though, people shift to a power-based argument instead of biting the bullet and recognizing what they've done. They pull out claims like "not many need to, it's illegal, organize and fight for it yourself, etc." But that indicates that they may view this judicial decision as the result of a political, power-based campaign that has only used the concept of "rights" as a tactic. If that's the case, it makes a lot of the "civil rights/second class" citizen stuff a bunch of rhetoric, not a serious moral case. It's a fairly devastating technique, and I applaud it.; 8/6/10, 11:17 AM
chickelit said...: But Justice Kennedy will want to be remembered as being on the right side of this issue, and so I think the fix is in.

That logic reminds me of a reason why Althouse voted for Obama.; 8/6/10, 11:18 AM
Chad said...: Saint Croix wrote " If you are dictating your politics to a majority, there will be pushback against the Court."

There won't be substantial political push back because most Republicans officeholders, especially younger ones, realize that there is a generational shift in opinion on this issue that does not benefit those opposed to equal rights for gays and lesbians.; 8/6/10, 11:25 AM
The Crack Emcee said...: Mortimer and Krumhorn,

I have to admit, I looove when y'all start doing these long lawyerly posts because you remind me why lawyers make so much money: they do useless arguments around issues - not directly at issues - in a manner that the average person can't understand, and that wouldn't be worth that money even if they could.

This shit is simple:

We know what marriage is and it ain't gay. As a matter of fact, until the AIDS crisis, even gays didn't want shit to do with it. They thought it was a joke and disdained it. I'm not saying there weren't gays in long-term relationships - there were - but the idea of formalizing them wasn't in the fore-front of their minds. AIDS changed that.

But just because they've changed their thinking about the nature of their relationships doesn't mean the definition of marriage has changed - it means we need to come up with a new description for what a formal long-term gay relationship is. This idea that marriage is to be used as a hammer to hit straights over the head for discrimination is bullshit. Discrimination is built into every idea you're presenting when two gays wanting to be married is like my black ass wanting to be white - it can't happen.; 8/6/10, 11:26 AM
The Crack Emcee said...: GMay, I'm not a shitty judge of character:

THIS PLACE IS FUCKED UP!

What do you think complaints about PC bullshit are telling you?

THIS PLACE IS FUCKED UP!

Why do you think we're glorifying in dissing our own country - even in a time of war?

THIS PLACE IS FUCKED UP!

And why is it fucked up?

BECAUSE OF IDIOTS LIKE YOU WITH YOUR NEVER-FEEL-SOORY-FOR-YOURSELF-NO-MATTER-WHAT-HAPPENED BULLSHIT.

Lost a leg? Act cool about it. Somebody killed your family? Watch American Idol and see what "real losers" look like.

GMay, you're an idiot. A major fucking know-nothing idiot. People like you are everything that's wrong with this country. You're as boneheaded as Obama when it comes to seeing others and the human condition. You want me to project an image. Well guess what? THAT'S NOT ME! You're Joe Biden wanting a false negro that's "clean and intelligent" - a fairytale, man! Well, it's you who are living the fairytale. You're fucking delusional and insisting I join you, only to make you feel better. Well, fuck you, I don't want to live in la-la-land but fix America.

Are we clear?; 8/6/10, 11:38 AM
rcocean said...: Ha, right on "Crack" - lawyers HAVE to make it all complicated and full of "nuance", otherwise how could they charge all that money?

Can't ever just say "Hey, there's nothing in the Constitution about this, go to Congress" - nope, EVERYTHING is covered by the Constitution and they always pick one phrase out of the sacred parchment then write 50 pages of BS as to why something is "constitutional". "Constitutional", meaning whatever 5 politically connected Ivy league lawyers think.; 8/6/10, 11:40 AM
Triangle Man said...: But otherwise, either the legislature has power to decide what kinds of relationships constitute marriage in the eyes of the law, or they don't.

The legislature's power, and the peoples' power through referendum, is not and should not be unlimited. The judiciary decides where those limits are. That's just what is happening here. The system is working as intended.; 8/6/10, 11:41 AM
Trooper York said...: I think you guys should stop busting on my friend the Crack Emcee. I mean the man has been a Rico Sauve kind of guy.

Don't hate the playa baby, hate the game.

You know what I'm saying?; 8/6/10, 11:41 AM
Chad said...: GMay, thank you from the rest of us for taking the leg humping from Frances here.; 8/6/10, 11:42 AM
Scott M said...: Well, fuck you, I don't want to live in la-la-land but fix America.

Are we clear?

Seriously, Crack. Regardless of whether or not I agree or disagree with you on a given issue, who do you think you're going to persuade with tactics like that? You want to fix America? This isn't the way to do it. All it will do is piss people off that might agree with you and shut down debate.

That being said, if you're not out to persuade people to your point of view, wtf are you doing here?

As I told Mick and Jeremy, who both use similar tactics, if you're not honestly trying to persuade, it's just blogporn.

If every single thing you've said about what happened to you is true, you're not doing yourself any favors by continuously bringing it up in graphic detail, picking at it like a scab that will, coincidentally, never heal.

God bless if you're in pain, but what you're doing (and Phil's not helping, really) doesn't further any cause or stance.; 8/6/10, 11:46 AM
Triangle Man said...: My ire is raised by people that claim two people of the same sex getting married should be legal while three or more people of the same sex or varying sexes shouldn't be.

If the basis for prohibiting bigamy is the same as the basis for Prop 8, then you are correct. However, I do not think that they are the same.; 8/6/10, 11:47 AM
Phil 314 said...: I'd like to contrast these two statements:

I'm gay, and I support "same-sex marriage" to give partners important civil rights protections, including defending estates from greedy relatives, and empowering partners to make end-of-life decisions without interference from uninvolved family.

and

Gays have been working toward equality of liberty for decades.

Now I agree with Scott's statement. However, that says less about marriage and more about a contractual arrangement (and the contractual realities we've built around marriage)

Now Sunsong's comment is about something far beyond legal and contractual realities. I don't want to discount what many gay couples have been seeking but I don't know that they'll acheive "equality". (That's why I asked my question yesterday.)

I'd further say that when one group "has something" and the other group doesn't, inevitably the "fairness" argument comes up. Assuming SSM wins in SCOTUS I believe you'll see a rapid change in attitudes among its strongest opponents (religious groups). Not because they're now "OK with it" but because they see it as a decision by the secular government not representative of their worldview (a position they've been in before.)

Now that group is a minority of opponents to SSM (IMHO). To use a Nixonian term, its that "silent majority" that doesn't support SSM for vague and sundry reasons that won't/can't speak up for fear of being called a racist or a homophobe. How will they deal with such a decision. (And for the political "players" out there) how can their reactions be "played" for political gain.; 8/6/10, 11:47 AM
The Crack Emcee said...: Trooper York, you are the best.

I love you, man. I really do.; 8/6/10, 11:48 AM
Trooper York said...: Well Uncle Cleetus used to sing
"Lighten' Up" when he was jamming with Archie Bell and the Drells.

Just Sayn'; 8/6/10, 11:51 AM
Trooper York said...: Or was that "Tighten Up."

I misremember.; 8/6/10, 11:52 AM
The Crack Emcee said...: Scott M,

"If every single thing you've said about what happened to you is true, you're not doing yourself any favors by continuously bringing it up in graphic detail, picking at it like a scab that will, coincidentally, never heal."

I hear you, but you don't get it either:

What I went through is existential - my wife was "spiritual" - it touches everything. Gays were involved - and now they're still pushing their bullshit on me, but as a group. From Day 1, like in the movie Falling Down, the whole deal is to make me - "a man" - bow down to nonsense. Now they're going to change the world. But I ain't Michael Douglass, you hear? If it was me at the end of that movie, and that bitch said, "the problem is you", I would've thrown her ass out of a window. (If I had known, when my wife and I were still together, that she had killed somebody, I would've thrown her ass out of a window.)

At some point, the rest of you guys - and I do mean the guys - are going to have to get your balls back and quit insisting we act like girls, talk like girls, think like girls, etc. hell, when Sarah Palin can convincingly say the President of the United States doesn't have the balls of a woman, you know men have lost the fucking plot.

Scott, the problem isn't my debating style, it's what the men around me have become:

Wimps. Pushovers. People who just want a non-existent "peace" as others run over you.

That's why we're losing in every arena. That's why Osama thinks he can beat us - and he can with these "can we talk?" pussies. There would be no way gays should be able to force this shit down our throats if we were real men - because they'd understand violence. They'd have to make sense or face the wrath. None of this, oh you've got to change for me bullshit. No, your punk ass has got to learn to fly right - not go straight but make fucking sense and get off my dick. You think gays act like this in the black community? If so, why didn't any gays go to the black community after Prop. 8 lost and complain? Because they knew better. Wasn't nobody gonna hear it and they'd get their asses beat if they tried. End of fucking story.
Better go bitch at the Mormons.

You're pussies and I ain't joining you. I've lost enough from just being around it. And you know how the old saying goes:

"Fool me once, shame on you,..."; 8/6/10, 12:12 PM
Scott said...: @c3:

Now I agree with Scott's statement. However, that says less about marriage and more about a contractual arrangement (and the contractual realities we've built around marriage)

Like it or not, the "contractual realities" are embedded in marriage. But the self-styled marriage defenders won't even accept civil unions; which ought to be a middle ground. They actually want to make life miserable for gays and lesbians. That's fucked up.

If it was up to the Maggie Gallagher types, homosexuality would be criminalized, like it is in most of sub-Saharan Africa.; 8/6/10, 12:13 PM
Trooper York said...: Dude, whats up with the broccoli?; 8/6/10, 12:15 PM
The Crack Emcee said...: Trooper,

ROTFLMAO!!!!!!; 8/6/10, 12:19 PM
The Crack Emcee said...: Scott,

"If it was up to the Maggie Gallagher types, homosexuality would be criminalized, like it is in most of sub-Saharan Africa."

Yea, and if you guys weren't so intent on trying to stick it to regular guys, we'd set them straight too, but instead you're picking a fight with all of us.

Your bad.; 8/6/10, 12:22 PM
Scott said...: Manhood doesn't need to be defended.

And if it did, whining and bitching about it constantly wouldn't do the trick.; 8/6/10, 12:22 PM
Saint Croix said...: the self-styled marriage defenders won't even accept civil unions

Really? I don't have a problem with civil unions. Who on the right has attacked civil unions?; 8/6/10, 12:23 PM
Scott M said...: Crack,

Replied to you on the wrong thread...over in the White House advisor turning tail and running thread.

In any case, Scott (without the noble M) made my point in far, far fewer syllables.; 8/6/10, 12:24 PM
The Crack Emcee said...: Like I said, they ain't in South Central demanding shit. They're fucking with white men, just as everybody else is, because they let them. They're cowed. I don't know why, but it's true and it's the worst thing to happen to the country.; 8/6/10, 12:25 PM
The Crack Emcee said...: Y'all have internalized too many episodes of All In The Family, seeing yourselves as Archie, when, by now, you should know that, for all his faults, Archie was a better man than Meathead - and smarter than Gloria who slept with the jerk. Archie supported the whole thing. And he was a good guy. He knew what was important, give or take a few, and didn't back down. But he was outnumbered - even at home - and that was his failing.

The whole thing being written by a liberal didn't help, either, you feel me?

You gotta stop this shit - not trying to stop me, because I ain't buying it.; 8/6/10, 12:33 PM
The Crack Emcee said...: One last thing, Scott M:

Your boys are 19. Let this shit keep up, as you're waiting for the boomers to die, and by the time your boys mature these fools will have them in such an existential vice they'll never get out. It's like when I learned the rules of divorce and had to face that marriage - as defined now - was merely a joke that was played on me. "Oh, yea, I'm supposed to give her everything and she can leave whenever for whatever. OooooKay." Is that what you want for your boys? Even the possibility? Because as long as it's on the books - and this gay shit is an offshoot of it - that's at least in their (potential) wive's heads.

Start dismantling this shit NOW.; 8/6/10, 12:45 PM
Scott M said...: I find it amusing, truly, how you turn every single point back to yourself.

As I don't believe you're going to agree with me, let's just leave it with this. Don't pretend to understand a single thing about the way someone has raised their children.; 8/6/10, 12:56 PM
Saint Croix said...: They're fucking with white men, just as everybody else is, because they let them. They're cowed. I don't know why

It has nothing to do with gay men and a lot to do with men wanting to impress women with how sensitive we are. Gay rights goes hand in hand with feminism, and an ideology that says men should be more feminine. Kinder, gentler, softer, weaker. It's a version of feminism that hates sex difference and promotes unisex. Thus the love for gender-benders.

Many liberal men kowtow to this ideology, out of appeasement, or even self-hatred. Don't forget that our society has been bashing masculinity for a long time. Bashing that really hasn't happened (yet) in the black community.

Gay men don't get bashed because of the feminist assumption that they're not really masculine. Instead gay men are perceived as feminine and weak--victims--and not manly and strong.

The truth is that a gay man could be as rough and violent as any straight man. (Eddie Murphy used to do a routine about getting beaten up by a gay man).

A large part of this debate has to do with how large a part sexuality plays in your life. If you're a sexual person, and straight, you really don't want to spend a lot of time with gay people.

On the other hand, you're very interested in people of the opposite sex, regardless of their orientation. Straight men dig (hot) lesbians. They feed our fantasies and we hope to convert them. And straight women like gay men for similar reasons.

Finally, many people think sexuality shouldn't be politicized and so just shut up about the whole thing.; 8/6/10, 1:10 PM
Anonymous said...: Troop, Scott has always been all about the broccoli.; 8/6/10, 1:22 PM
The Crack Emcee said...: Scott M,

"Don't pretend to understand a single thing about the way someone has raised their children."

Deal. But I wasn't referring to, or judging, you but the world, and bogus life-invading laws constructed around them. And, by the same token, don't you presume to understand the trauma of a foster child. Talk of "healing" is a joke to me - as it is to Christopher Hitchens and Anderson Cooper - both men who have seen war zones, which my life is. (They say anyone lame enough to say such shit has never suffered anything of substance, and I agree.)

Your boys have you, and have always had you, to protect them from the world. My conversation might be coming back to me, not out of narcissism, but because there ain't ever been nobody else to make it even that easy for me. I know the bad things y'all talk about in the abstract. Gays aren't wonderful people who need my help. Many - not all - are predators who want to see what they can get away with, and to deny that is to hold a false conversation. You don't know the half. I wouldn't wish my dreams on anyone. I wouldn't wish my life on anyone. I'm the best thing about it. Fuck anyone that doesn't agree.

I'm not alive by anyone else's graces but my own and, considering I still go for right instead of succumbing to wrong, as so many around me do (I'm picturing Bill Clinton now, for some reason, probably because he's worshipped and a president) I think I've done a damn good job.; 8/6/10, 1:24 PM
mtrobertsattorney said...: The trial judge identified three types of sexual identities that occur in human beings: 1)same-sex identity, 2) hetrosexual identity and 3) bi-sexual identity.

Relying on post-modern and sociological thinking, he goes on to hold that each individual's sexual identity is fundamental to their sense of personhood.

The notion that the third type of sexual identity has a constitutional right to marry two people of opposite sexes may just be enough to spook J. Kennedy into thinking that this matter is best left to state legislatures.; 8/6/10, 1:25 PM
Fred4Pres said...: Crack Emcee is making a hell of a lot of sense.; 8/6/10, 1:30 PM
Fred4Pres said...: Oliver Wendell Holmes was a steadfast defender of First Amendment rights to free speech, a position which led to many of his most famous dissents; those cases laid the groundwork for First Amendment arguments later in the 20th century. But Holmes also advocated "judicial restraint," arguing that a judge's own opinions about good or bad laws should not prevent him from upholding the will of the elected legislative majority.

Holmes is rolling over in his grave with this crap. But Holmes said some other cool things too:

“This is a court of law, young man, not a court of justice.”

“The great act of faith is when a man decides he is not God.”

“I have no respect for the passion of equality, which seems to me merely idealizing envy.”

and

“I should like to see any kind of a man, distinguishable from a gorilla that some good and even pretty woman could not shape a husband out of.”; 8/6/10, 1:34 PM
Fred4Pres said...: That latter one applies to me. Thanks Honey.; 8/6/10, 1:35 PM
Scott said...: Broccoli has more protein per calorie than a steak, and more vitamin C per ounce than an orange. It has iron, fiber, antioxidents, and phytonutrients.

It is a better source of nutrition most of the lame vegetables you see in this garden.

Eat me.; 8/6/10, 1:41 PM
GMay said...: Still waving that big ol' e-peen eh Crack?

The more narcissistic bullshit you type, the less and less believable your personal story becomes. Not that it was really believable in the first place.

But keep swingin' that giant virtual cock to knock down those big bad strawmen you stuff into most every thread, big guy. The only reason you're more entertaining than Mick with his one issue, is because at least yours is original. Counter-intuitive, but original.

Oh, and the colorful language. You might be a big, bad ass whiny projecting pussy, but I can appreciate the colorful language.; 8/6/10, 2:18 PM
Anonymous said...: "I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions." -- Oliver Wendell Holmes, Baldwin v Missouri (dissenting).; 8/6/10, 2:20 PM
James H said...: I am curious why People put Ginsburg in the YES column for a Federal Right for Same Sex Marriage. Looking at her comments on ROE and how that was handled I am not sure of that at all; 8/6/10, 2:51 PM
James H said...: As to Gnsburg see her comments I am referencing here

http://opinionatedcatholic.blogspot.com/2010/08/is-justice-ginsburg-sure-yes-vote-for.html; 8/6/10, 2:53 PM
Anonymous said...: Best thread yet, thanks to Crack.; 8/6/10, 3:06 PM
Phil 314 said...: Scott;

But the self-styled marriage defenders won't even accept civil unions; which ought to be a middle ground. They actually want to make life miserable for gays and lesbians. That's fucked up.

If it was up to the Maggie Gallagher types, homosexuality would be criminalized, like it is in most of sub-Saharan Africa.

Not a big fan of Ms. Gallagher but I have to ask, wasn't Prop 8 essentially saying "no we'll just stay with civil unions?" So I assume you're statement above doesn't apply to the Cal situation.

PS I like broccoli but I sense your retort was more than a nutrition lesson, so this time I'll pass.; 8/6/10, 3:59 PM
Peter Hoh said...: the self-styled marriage defenders won't even accept civil unions

to which Saint Croix replied:

Really? I don't have a problem with civil unions. Who on the right has attacked civil unions?

Many libertarian conservatives like the idea of civil unions, but most social conservatives don't.

The chief lobbyist for the national organization of evangelicals, Richard Cizik, was forced to resign after voicing support for civil unions.

Check out Virginia's constitutional amendment, which bans same-sex marriage as well as anything that looks like a civil union.

This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.

And don't forget Tim Pawlenty, who vetoed a bill that would have let same-sex couples designate each other for making decisions related to funerals and burial.; 8/6/10, 5:32 PM
Beth said...: The constitutional amendment that passed in Louisiana in 2004 includes this statement: "A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized."

The social conservatives took aim at civil unions along with same-sex marriage. I agree with Peter, that libertarians tend to be fine with civil unions (or against state marriage altogether, but is any state, anywhere, even considering getting out of the marriage business?), but most conservatives don't seem to notice that the anti-same-sex marriage amendments they vote for include language gutting civil unions as well.

If the so-cons weren't intent on banning civil unions as well, I wonder if we'd be seeing the marriage question on the path to the Supreme Court now. That's just speculation.; 8/6/10, 5:45 PM
Fred4Pres said...: Oliver Wendell Holmes was pretty spot on. Except for that eugenics stuff. He was wrong on that.; 8/6/10, 5:45 PM
Anonymous said...: I'd like to see any doctor, hospital, or other coincidental entity reject a Durable Power of Attorney.

A person has the right to assign PoA, regardless of relationship. Properly executed, the assignee is the person's attorney.; 8/6/10, 5:55 PM
Fred4Pres said...: If I were gay, I would find guys like this to date...; 8/6/10, 5:59 PM
Scott said...: @Peter: In May of 1994, when my partner was dying at Hennepin County General Hospital, he had properly drawn up a living will that was supposed to keep me in the loop regarding his care.

The hospital ignored it. Having gone through that, how can I not support gay marriage?

It's really too bad that the notion of two men or two women caring for each other offends the delicate sensibilities of social conservatives. But in a legal environment that, over time, increasingly formalizes the relationships that people have with each other, same-sex couples are being hurt in tangible ways by the legal status quo.

I think that many social conservatives want this brutality to occur, because they want to destabilize same-sex relationships and hurt gay people. It's a repugnant crusade. They should at least have the intellectual honesty to own their objectives.; 8/6/10, 6:03 PM
Anonymous said...: Scott said...
...he had properly drawn up a living will that was supposed to keep me in the loop regarding his care.

To act on one's behalf, you [also] need a Durable Power of Attorney. This is normally done in conjunction with the Living Will.; 8/6/10, 6:17 PM
Fred4Pres said...: Scott, I would absolutely support a federal statute to make personal contractual/power of attorney decisions enforceable for visitation, end of life decisions, etc., etc. I suspect that would readily pass with strong bipartisan support.

And in fact it is a good idea for everyone. These POA decisions should be memorialized in a writing with simple and clear standards of what is required to create them.; 8/6/10, 6:18 PM
Phil 314 said...: Scott;
Peter: In May of 1994, when my partner was dying at Hennepin County General Hospital, he had properly drawn up a living will that was supposed to keep me in the loop regarding his care.

I'm very sorry that you experienced that. I honestly cannot understand that. During that same time I was caring for inpatients at a Catholic hospital and that would simply not have happened or been allowed to happen. I don't get it. Its not legal either. As an adult I can designate whoever the hell I want.

As for the desires of certain social conservative, you're probably correct. But speaking as someone who's regularly around a lot of social conservatives, they're not as prevalent as you think. They usually just shout louder.; 8/6/10, 6:20 PM
GMay said...: "The hospital ignored it. Having gone through that, how can I not support gay marriage?"

Having gone through that, how could you not sue?; 8/6/10, 6:32 PM
Eric said...: Having gone through that, how could you not sue?

This, and as a corollary, if the hospital is willing to ignore the law, what makes you think calling your relationship "marriage" will make any difference?; 8/6/10, 6:37 PM
Scott said...: GMay: Why should I sue if I'm not going to recover enough to pay the lawyer? I wasn't rich back then.

There are many, many people and institutions who do illegal things knowing that few will end up pulling their card.; 8/6/10, 6:43 PM
amba said...: Meade - who is NOT your husband

Why's that, Crack? Because one can only marry once in your church? Or because they weren't married in a church/by a minister/ in their own state, or what?; 8/6/10, 7:13 PM
Anonymous said...: Because Meade is secretly Kenyan and that's why he refuses to produce his bir... Never mind. Wrong obsessive.; 8/6/10, 7:46 PM
amba said...: it means we need to come up with a new description for what a formal long-term gay relationship is.

I saw that very argument put forth by a gay conservative.; 8/6/10, 8:13 PM
Krumhorn said...: Peter Ho wrote:

And don't forget Tim Pawlenty, who vetoed a bill that would have let same-sex couples designate each other for making decisions related to funerals and burial.

This bill included at least three provisions, one of which was the final disposition issue. However, Pawlenty earlier signed a health care agent law for same sex partners that only required they fill out a health care agent form that was required to be recognized.

The rest of it was more problematic. It would have given "domestic partners" (defined as same sex) the right to sue for wrongful death including punitive damages as would normally apply to a surviving spouse or next of kin.

The question on the table is whether this right is appropriately given to non-married or non-related parties. It certainly is an economic burden that society is prepared to bear for the benefit of the family of the deceased. And 'family' most certainly includes the surviving spouse.

However, the issue of marriage is whether there is a superior value to society, generally and over the long term, of that particular relationship that has shown to be the most important civilizing building block of social organization that has led to the development and growth of mankind.

The wrongful death right falls into the same category of other benefits that society has granted marriages that include tax benefits, tax free inheritance, pension survival rights, social security survival rights and the extension of healthcare benefits to a worker's spouse and children.

This wrongful death thing is a close call, and I suspect that it's marginally ok if there is some sort of domestic partnership registry that exists in many states.

However, this legislation leaves a great deal of ambiguity that must be later resolve about precisely what this relationship really was.

And it excluded a similar relationship between unmarried heterosexuals. Of course, the argument is that heterosexuals can marry if they choose which is an opportunity that same sex couples don't have.

But if viewed through the prism of how society has generally valued a marriage over the span of hundreds, if not thousands, of years, one could argue that it's not an appropriate economic right to grant to participants in any unmarried relationship.

There were all sorts of politics involved in this particular case that only demonstrates the kinds of issues involved in same sex marriages.

As Judge Walker observed, Prop 8 was a declaration that "opposite sex couples are superior to same-sex couples". I would have put it a little differently. I would have said that, from a societal point of view, generally and over the long term, heterosexual marriages are a superior basic social unit than any other, including unmarried heterosexual couples.

If that's the case (which I agree is certainly loudly in dispute), then there is a rational basis for a state to nurture and support heterosexual marriages to the exclusion of others.

However, most folks agree that there is some middle ground here that shouldn't be hard to negotiate so long as the courts step back and let the political process continue.

............

........; 8/6/10, 8:15 PM
amba said...: But the self-styled marriage defenders won't even accept civil unions; which ought to be a middle ground.

Yes, that's what gives away the game.; 8/6/10, 8:19 PM
amba said...: Dude, whats up with the broccoli?

Troop asks the question that's been on a thousand lips . . .; 8/6/10, 8:21 PM
amba said...: Who on the right has attacked civil unions?

A number of the anti-gay marriage propositions and statutes passed in various states outlaw civil unions, too. (No, I'm not going to do the homework and look up which ones right now.); 8/6/10, 8:23 PM
Peter Hoh said...: Krumhorn, every time you wax on about "superior value to society" of marriage, the "most important civilizing building block of social organization," I can't help but think of that fine exemplar of traditional marriage, Newt Gingrich.

And his good friends John McCain and Rudy Giuliani.

The state currently recognizes those men as married to their current spouses, though I have a hard time understanding what value society gets from allowing men to divorce their wives, walk out on their children, and marry their affair partners.

But somehow, they get a pass.

Oh, some might give a "tsk, tsk," but that's about it.

Marriage, thanks to heterosexual activists, has been fundamentally changed.

If a man can marry divorce his wife and marry his affair partner, I hardly see how it can be more damaging for a man to marry another man, or for a woman to marry another woman.

But go ahead. Try to explain it to me.

Social pressures used to link marriage and procreation. That's no longer the case. There's a prominent conservative family I could use as an example, but I'm going to be accused of picking on Republicans if I name names.

These days, marriage is something that people do independent of procreation.

Marriage has become a lifestyle choice.

As Fukuyama put it, "Today many people have come to think of marriage as a kind of public celebration of a sexual and emotional union between two adults, which is why gay marriage has become a possibility in the United States and other developed countries."

Again, thanks to all those pioneering heterosexuals who paved the way for it.; 8/6/10, 11:07 PM
Peter Hoh said...: Krumhorn @8:15, thanks for pointing out the nuances in Pawlenty's record with regards to recognizing some rights for same-sex couples.

I'd be delighted if some conservative politician were to advance the idea of a civil union compromise, but I'm not expecting that kind of leadership from Pawlenty.

I can think of any number of Democrats who would like to see a civil union compromise, but can you imagine any Republican with ambition (i.e. not Dick Cheney) pushing the idea?; 8/6/10, 11:25 PM
amba said...: Peter Hoh, 11:07:

Bravo. Thank you. For exposing the sanctimony of so many of the sanctity crowd.

Traditional marriage was more like, you stayed married all your life and you had your mistress(es) on the side, if you were a guy. That wasn't ideal either, BUT WHAT IS?

(I'm reading that Fukuyama essay.); 8/7/10, 1:09 AM
Krumhorn said...: Peter Ho wrote

Krumhorn, every time you wax on about "superior value to society" of marriage, the "most important civilizing building block of social organization," I can't help but think of that fine exemplar of traditional marriage, Newt Gingrich.

And his good friends John McCain and Rudy Giuliani.

Well, that's why I have been using the formulation of 'generally and over the long term' since I know it's fun to poke at Newt and Rush as synecdoches for Republican pretense and hypocrisy. I get it.

And the argument isn't made any stronger when 50% of marriages supposedly end up in divorce.

And yet 15 guys I join for a week each year to play golf were all frankly startled, after 5 or 6 years of this, to discover that each of us are still with our first wives and all with great kids.

Humans are often going to fail. And the higher the aspirations, the more likely they will fail. I don't think it's much of an advertisement for a point of view that sets few standards for performance at all but that gleefully mocks others who can't seem to get out of their own way.

Even so, it takes no real effort of imagination to picture the horror world in which men are disconnected from their obligations to women and the children they have gratuitously spawned. Frankly, we can see those results in some of our communities today.

Similarly, it is well-established how much better women generally fare when they marry and the civilizing impact a wife has on a husband, who is, at his core, just a feral dog. And hormones in proximity tend to yield a bounty of little pink critters that benefit from this stable environment and then, in turn, pass that social improvement along to the next batch of pink critters.

The value of this magic, when looked at generally and over the long term, cannot be summarily dismissed because we can find examples of a drunk wearing a wife-beater undershirt who takes off his big belt to render everyone in the house a special. Nor is it significant that periodically some couples don't produce kids or that Newt is said to have served divorce papers on his cancer patient wife in her hospital bed.

There are still plenty of men living with their first wives and their kids. It would sure be better for all of us if there were a great deal more. Perhaps, then, our prisons wouldn't be so stuffed with our failures who were raised by their 3rd generation welfare mothers and have no idea who their fathers were.

We have every incentive as a society to nurture and support this magic to the exclusion of others who don't meet the qualifications. That is not a product of bigotry. It is the result of trial and error experience of mankind from the time we discovered we could talk and had opposable thumbs and our friend Cheeta couldn't and didn't.

But that's not to say that a useful compromise on the point can't be negotiated in a way that both serves society's goals and still keeps faith with what we have learned. You make a serious mistake if you think that Conservatives wouldn't support that.

After all, Rush supports civil unions and Ann Coulter, who calls herself the rightwing Judy Garland, is the keynote speaker at GOProud.

.......
............; 8/7/10, 2:06 AM
Peter Hoh said...: Fine, two non-politician Republicans support civil unions. Big deal. Show me a Republican running for office -- outside of New England -- who is a vocal supporter of civil unions.; 8/7/10, 2:40 AM
Krumhorn said...: Peter Hoh wrote:

Fine, two non-politician Republicans support civil unions. Big deal. Show me a Republican running for office -- outside of New England -- who is a vocal supporter of civil unions.

Well, I did manage to offer up two high profile and influential conservatives, and, as everyone knows, Rush is the head of the Republican party as far as libruls are concerned. But I realize that you feel the hot fire of a fervor that will not be denied, and you want action....and pronto!

However, Republicans have other fish to fry right now, and the name of the game is message discipline.

As was discussed in the house organ of the Democratic Party:

Republicans said that dwelling on the issue could become a distraction in the effort to win back the House or Senate from Democrats this fall. At a meeting of the Republican National Committee in Kansas City, Mo., several party leaders and strategists said it would be a mistake for the midterm election campaign to suddenly become focused on gay marriage, immigration or other hot-button issues. The only path to winning control of Congress, they said, rested on making an economic argument.

“This election needs to revolve around five issues: taxes, spending, the economy, jobs and debt,” said Ron Nehring, chairman of the California Republican Party. “That doesn’t mean that other issues aren’t important — they are important — but the first issue on the minds of people is the economy.”

As Allahpundit said,

Why gamble on an issue on which the electorate’s already fairly closely split when you’ve got the heavy artillery of 9.5 percent unemployment and staggering national debt to run on?

And to that I would add the repeal and replace of ObamaCare, a position which is hugely supported among likely voters.

This other thing is just going to have to percolate for awhile.

......

........; 8/7/10, 3:34 AM
Saint Croix said...: Show me a Republican running for office -- outside of New England -- who is a vocal supporter of civil unions.

The Republican party is filled with people who don't like homosexuality because they think it's a sin. I'm like that. Officially. Unofficially, I think lesbians are kinda awesome.

Why would any Republican running for office be a vocal supporter of civil unions? He would only do so, I would suggest, as an alternative to gay marriage. "See how reasonable I am?" Civil unions is the squishy alternative that doesn't please the extreme left or the far right.

Civil unions are basically a down low recognition that there are people who don't think homosexuality is a sin (or don't care). Republicans who are willing to recognize civil unions (most of us) don't want to talk about it, but we're willing to accept civil unions as a public hypocrisy. Maybe you're sinning but as long as we ain't talking about it, we don't have to recognize your homosexuality, or accept it. Civil unions is marriage-in-the-closet.

In short, many, if not most Republicans grudgingly support civil unions so the other side will shut up and leave marriage alone. That's how democracy often works. When there's not a clear cut right or wrong answer, we find the squishy middle.

How a dictatorship works, you have a small number of people dictate their views, and then they insist that everyone must think the same way they do.

Which model of government does the left prefer?; 8/7/10, 6:48 AM
somefeller said...: I see that Beth and Peter both came up with specific examples of social conservatives going after civil unions in actual legislation/state constitutional amendments (such an amendment is in place in Texas, also), in response to Saint Croix's question about "Who on the right has attacked civil unions?". (This question was obviously asked to imply that people on the right don't generally oppose such things.)

And does Saint Croix even acknowledge that examples of actual legislation/constitutional amendments have been provided to show that there are in fact a lot of people on the right who are opposed to civil unions, and try to engage that rather important point? No, he simply ignores the facts provided, tries to change the subject and ends with a little rant that includes the internet comment box cliche that this is just another example of how the left is moving the US towards a dictatorship. Typical.; 8/7/10, 9:44 AM
Peter Hoh said...: St. Croix, if civil unions are to be a viable compromise on the marriage question, it's time to promote that option.

As I and others demonstrated above, finding that compromise you think should be easy means overturning state constitutional amendments that were written to make such a compromise difficult.

You seem to want to have it both ways: maintaining the status quo re. marriage is a bulwark against societal breakdown, and yet it's not as important as maintaining party discipline heading into the midterms. Fine, but we aren't likely to see leadership on a civil union compromise after the midterms.

Waiting until after Romney/Obama-care is repealed is a strategy designed to let Justice Kennedy make the decision.

If it's such an easy option, I would expect a few GOP politicians behind the idea. And while the governor of California may back the idea, he sees fine with full marriage for same-sex couples, so he isn't exactly moving towards compromise with a call for civil unions.

Like Althouse, I would love to see the messy process work its way slowly through the legislatures and ballot initiatives. Boies and Olson pushed the issue into the federal courts, and that, right now, is going to drive the issue. I would very much liked to have stopped this lawsuit, but no one is in a position to tell petitioners that they can't take their case to court.; 8/7/10, 9:59 AM
Peter Hoh said...: I have to go to work, but I'll be back to this thread later.; 8/7/10, 10:01 AM
Saint Croix said...: St. Croix, if civil unions are to be a viable compromise on the marriage question, it's time to promote that option.

If I make a list of political issues that are important to me, civil unions for gay people is maybe #1692. I am totally cool with horse trading a baby's right to live for gay marriage. I'd make that trade in a second.

Gay marriage doesn't bother me, in and of itself. Churches can marry who they want to marry. Marry dogs if you want. I'm not worried about the symbolism of it. I signed a card for a lesbian in my office who got married. I wished them well, and I meant it.

On the other hand, legal recognition of homosexuality as a protected class is a very big deal. With legal recognition comes the whole liberal aparatus of lawsuit, lawsuit, lawsuit. Gay men adopting 10-year-old boys. Gay men wearing dresses to work. All the crap. Turning the USA into San Francisco, by judicial fiat. I'd just as soon skip that, thanks.

It really is horrible for an unelected judge to strip our people of a right to vote. And when judges act this way, the positions harden and it's harder and harder to find the mushy middle like civil unions.

I don't blame litigants for suing. But I do blame liberal judges who see their office as a means to dictate their version of utopia. When you dictate your side, I have less sympathy for it. Does that make sense?; 8/7/10, 12:14 PM
The Crack Emcee said...: amba,

"Why [do you say Meade and Ann are not married], Crack? Because one can only marry once in your church? Or because they weren't married in a church/by a minister/ in their own state, or what?"

I am an atheist, amba - I don't have or go to church.

Marriage is where you pledge your life to another - which, both, Meade and Ann have already done before. Are you seriously going to tell me you think, like, Zsa Zsa Gabor's 8th "marriage" is legit? It's a one shot deal, that's the whole point.

What's funny to me is you guys know this stuff. You were raised in the same country I was, went to the same schools, learned the same lessons about right and wrong, yet you want to try and act like you don't - like everything's different now because you say so - it's bullshit.

You remind me of "atheists" who (unlike me who was born this way) discovered religion isn't all it's cracked up to be in college and spend the rest of your lives attacking God. It's childish. You're not addressing the issue of long-term gay relationships - you're out to bash social conservatives, right-wing Christians, and anyone else you assume is against you - just as you assumed I went to church.

I, on the other hand, have no interest in punishing anyone - I merely want a real discussion of the issues and have proposed an answer that gives gays what they want, hurts no one else, nor does damage to the fabric of society or asks anyone to have to "redefine" anything.

Considering this ia all about gays, and their supporters, itching for a fight against those they imagine are thier enemies (Ann: now leave gays alone) I can understand why suggestions that work but don't get your ya-yas out are treated as sexism.

Right now, gays are no better than the freaks yelling "raaaacism" every day - another past time of Ann's, I might add.

It's a stupid obsession that drives me crazy and has to stop.; 8/7/10, 1:39 PM
Peter Hoh said...: St. Croix, what's your evidence that Walker is a liberal judge? He was nominated by Reagan, and his nomination was blocked by Democrats who thought Walker was too conservative.

If Prop 8 supporters thought that Walker should have recused himself, they should have made that claim early in the trial -- not now, after the decision was announced.

You wrote: When you dictate your side, I have less sympathy for it. Does that make sense?

Yes, it makes sense, as long as the "you" in that sentence isn't meant to be me. I'm not dictating my position. I would prefer the messy muddle of the legislative process.

If the Supreme Court rules in favor of the plaintiffs, I will be robbed of one of the pleasures that I had been looking forward to witnessing: watching the 30 plus states with marriage amendments holding ballot initiatives to overturn those amendments. I've got money on Mississippi being last, but Alabama might be a good bet, too.; 8/7/10, 2:18 PM
Saint Croix said...: St. Croix, what's your evidence that Walker is a liberal judge?

In the future, when we all realize that Roe v. Wade killed some innocent people, and it's overruled, you know some damn liberal will say that Blackmun was a Nixon nominee. And he was a Republican. And I'll insist that Blackmun was a liberal. And we'll have a stupid argument about it.

How do I know he's a liberal judge? Because right-wingers don't use the Constitution to dictate unpopular rights to the American people, that's why.

He's a frickin' liberal who thinks he's writing Brown v. Board, saving an oppressed minority from Amerikkka. In California, no less. This opinion is a Brown v. Board wet dream. "Yes, America is screwed up, but I, the Platonic Guardian, will fix it. I will dictate justice to the ignorant hillbillies." Liberal, liberal, liberal.

He's not a classical liberal. I'm a classical liberal. He's a leftist, dictating his refined sensibilities to us, the unwashed and the stupid. He's an elitist, a fascist with a friendly face and a nice use of Orwellian wordplay. He's a liberal because he doesn't actually like or respect democracy, or majority rule.; 8/7/10, 5:40 PM
somefeller said...: This comment has been removed by the author.; 8/7/10, 5:55 PM
somefeller said...: I see Saint Croix has commented a couple of more times, and still hasn't even acknowledged the fact that his question "Who on the right has attacked civil unions?" was answered, much less the fact that it was answered in a manner that sliced his implication that such attacks were nonexistent or irrelevant to bits. But he still has the rants going on. Maybe next he can explain to us how Ted Olson is a big liberal also, after he changes his diapers.; 8/7/10, 5:57 PM
Saint Croix said...: Maybe next he can explain to us how Ted Olson is a big liberal.

On this issue he is a big liberal. Olson is having his Brown v. Board moment. He's reading the tea leaves and is on the Thurgood Marshall route to ultimate power. I wonder who will play Olson in the movie?

Maybe he's trading gay marriage for a baby's right to live? That's pretty sneaky. It'll be hard for liberals to keep him off the Court now, right?; 8/7/10, 6:15 PM
somefeller said...: I guess the diapers have been changed. But still no acknowledgment from Saint Croix that his question was answered, and in a very unfavorable manner for him. But I guess ignoring the subject is best for the questioner, or at least more comfortable.; 8/7/10, 6:28 PM
Saint Croix said...: still no acknowledgment from Saint Croix that his question was answered, and in a very unfavorable manner for him.

It was an actual question. I haven't heard any of the talk radio guys bitch about civil unions. I haven't heard any Republicans running for office in the South bitching about civil unions. Civil unions seems like a non-issue to me. This is not to say there's no unjust laws in the South. Only that if Democrats push for civil unions, there will be little Republican opposition to that.

On the other hand, you can expect heavy Republican opposition to gay marriage. Particularly dictated by a judge in San Francisco. That television ad writes itself.

Gay marriage is a very symbolic attempt to say that homosexuality is normal and fine and good. And we all have to accept it and dissent will not be allowed. Vast numbers of Republicans will object to that. Gay marriage opens a legal door. You can imagine a wave of lawsuits. A constitutional right for gay men to adopt 10-year-old boys. A constitutional right for a gay man to wear a dress to work.

Do we tolerate homosexuality in the South? Of course. We're Americans in the 21st century. But this case is about more than tolerance. It's about dictating a point of view, and demonizing all who disagree. Do you see the pushback coming because it's obvious to me.; 8/7/10, 7:56 PM
somefeller said...: Only that if Democrats push for civil unions, there will be little Republican opposition to that.

If Democrats push for civil unions in states that have the constitutional amendments that were mentioned (which aren't limited to the South - and why are you singling out the South?), they won't be able to get anywhere in the legislature because the state constitution (as amended) forbids civil unions, unless the state constitution itself changes. And such amendments were pushed by - wait for it - social conservatives. They used the gay marriage issue to also snuff out civil unions via such amendments. And while you may not have heard about social conservatives complaining about civil unions, they certainly have been doing so, as shown by the results. And in any case, your memory or analytic skills don't look like something the rest of us can set our watches to.; 8/7/10, 8:19 PM
Krumhorn said...: There is an unhealthy insistence on getting things all tidied up quick fast and in a hurry. And by tidied up, I mean getting everyone's bucket list of grievances and perceived social slights put right at the top of the to-do list.

For myself, issues about homosexuals, gender confusion and all the other leftie postmodern nonsense about who does what and in what hole are not way high up on my list of things that particularly require urgent action.

I'm not saying folks don't have a beef here or there, but the really big issues have long been satisfactorily settled which has led to a reasonably happy consensus that as long as we can avert our eyes from the conduct that defines them, as Justice O'Connor put it, life is good.

And it is true that society is a beneficiary of terrific contributions of folks who know the love that dare not speak its name. Our home decorations and color schemes are fabulous. Our women are stylishly dressed. And our church organs are beautifully played.

Most significantly, society is always far better off when committed and loving relationships of any kind are a common denominator in our population.

I think it's clear to all of us that a generation from now, attitudes may well have changed to the point that folks might not even avert their eyes from the closely correlated conduct.

But until that happy day, I like the concept of don't ask, don't tell. It's a remarkably effective social contract between us agreeing that I will ignore that you are obviously gay if you won't rub my nose in it that you actually are and demand approval.

It's very much like that bargain Shelby Steele writes about between whites and certain middle class blacks that provides that the black guy will not rub my face in the race issue in exchange for which I won't hold his race against him.

As far as social contracts go, it works pretty well in smoothing out the rough edges long enough for everyone to get to know each other and form personal bonds. In the process, the member of the grievance class gets a nice warm embrace for letting us bigots off the hook, and we get to feel all warm, self-satisfied and evolved.

It's a win-win. And God smiles.

..........; 8/8/10, 3:38 AM