There was much talk about the perversity of imposing more severe constitutional limitations on a state that has done much — but not everything — to include gay people and to give great leeway to the states that have excluded gay people altogether.
It does make some sense. The states that resist any inclusion have preserved arguments about the function of marriage that states like California have given up by structuring civil unions to provide almost equal treatment. It's hard to articulate a legitimate interest in only withholding the name.
But if the Court wants to leave the issue of same-sex marriage to the political process, why would it attach a consequence to taking the intermediate step of creating the civil unions category? That hampers the very process it would be purporting to enable.
ADDED: Later in the argument, Justice Scalia had this colloquy with Solicitor General Verrilli (who argued against Prop 8):
GENERAL VERRILLI: We are not … taking the position that it is required throughout the country. We think that that ought to be left open for a future adjudication in other States that don't have the situation California has.Amusingly, at exactly this point, Verrilli’s time’s-up red light comes on and he says” “It’s on.” He could have said, “Saved by the light!” But Chief Justice Roberts tells him to go on.
JUSTICE SCALIA: So your -- your position is only if a State allows civil unions does it become unconstitutional to forbid same-sex marriage, right?
GENERAL VERRILLI: … I would just take out a red pen and take the word "only" out of that sentence. When that is true, then the Equal Protection Clause forbids the exclusion of same-sex marriage, and it's an open question otherwise.In other words, to recapture that “only” and put it in a paraphrase: He’s only arguing now that his argument is limited to states like California. If he wins this case, in the next case, when the other issue is presented, he will argue that ssm is required everywhere. Anyone can predict that. Roberts pushes:
CHIEF JUSTICE ROBERTS: You [say] it's got to happen right now in California, but you don't even have a position about whether it's required in the rest of the country.What state doesn’t “allow” gay couples to have children and families? I can infer that Verrilli means allow adoption by gay couples, but it’s obvious that the concern about children extends to all the states, since a gay person can be a natural parent to a child and then live with a partner who is not the child’s parents.
GENERAL VERRILLI: If -- with respect to a State that allows gay couples to have children and to have families and then denies the stabilizing effect.
Roberts doesn’t pursue that but sticks with his original point. Presumably, he's building the argument that it's incoherent to strike down Prop 8 without finding a right to ssm that applies to all the states.
CHIEF JUSTICE ROBERTS: So it's got to happen right away in those States where same-sex couples have every legal right that married couples do.Verrilli is saying that the state that permits adoption by gay couples can’t go back to the argument that a child is better off having both a mother and a father in the home. Does this cure the incoherence? I doubt it. It's a distinction that might be employed by a judge who looks forward to extending ssm to all the states in the next case. I don't think Roberts is one of those judges.
GENERAL VERRILLI: Well, we think… you can wait in…
CHIEF JUSTICE ROBERTS: States where they have fewer legal rights.
GENERAL VERRILLI: What I said is it's an open question with respect to those States and the Court should wait and see what kind of a record a State could make. But in California you can't make the record to justify the exclusion….
Posts
129 comments:
It's hard to articulate a legitimate interest in only withholding the name.
No it's not. You just refuse to listen to them.
You could just as easily have written:
It's hard to articulate a legitimate interest in holding out for the name.
But if the Court wants to leave the issue of same-sex marriage to the political process, why would it attach a consequence to taking the intermediate step of creating the civil unions category?
More importantly, if they want to leave the issue to the political process why wouldn't they overturn the actions of the California Supreme Court who overruled the will of the people expressed through a political process?
It is name that is important, the name that normalizes what is not considered normal.
But, But, But, Our Liberal Overlords promised there was no slippery slope on the issue...
Sure. What the 2.5% do is the norm.
Fuck it. Strike down all marriage.
"structuring civil unions to provide almost equal treatment"
What's missing besides the "marriage" word since you say "almost equal"?
Can you explain for me, please?
Gahrie,
I think the California Supreme Court found Prop 8 constitutional. Which is why the Gay Lobby went back for another bite in Federal Court, after they found the right one, in front of a gay judge. What luck :)
" It's hard to articulate a legitimate interest in only withholding the name."
Or fighting so hard including damaging people to have the word redefined to no constructive effect. It's simple aggression at this point.
The Althouse post says ...
... California, where voters amended the state constitution to restrict marriage to opposite-sex couples and where there permit civil unions that give gay people access to everything but the word "marriage."
and then goes on...
It does make some sense. The states that resist any inclusion have preserved arguments about the function of marriage that states like California have given up by structuring civil unions to provide almost equal treatment. It's hard to articulate a legitimate interest in only withholding the name.
It is this "almost equal treatment" concept, vis a vis California, that bothers me. If all tangible benefits that a state, that "the" state, can ascribe to couples are given, why is the emotional issue of what the union is called worthy of the SCOTUS?
I'd be interested to know if a heterosexual couple could opt for a "civil union" in California and skip anything termed "marraige?"
If not, then there is nothing "equal" about the rights given to two protected groups versus all groups. Now THERE you'd have a real "Civil Rights" issue.
I'm not going to look up California law, becasue A) I no longer care, and B) they don't apply to me. I have long lived with the government discrimination I cited above vis a vis couples, of any bent, so I'm not impressed with such trivia making it all the way to the SCOTUS over emotional humiliation. BTW...I pay for the difference, so I can say I don't like it...as long as I keep paying. Please. Just f'ing please.
The real goal of gay marriage is to try to encourage gay men to cease the self-destructive behavior that caused the AIDS epidemic. The hope here is that gay men will ape the behavior of monogamous hetero marriage.
Although I doubt that that will be the outcome, I don’t object to that hope.
What I do object to is the “bigotry” campaign, i.e., the strategy gay activists decided to employ… that is scapegoating straight men for gay men’s self-destructive behavior.
Scapegoating straight men, and white men, has become an odious habit of the left. (I know, we’re supposed to be above complaining about the left employing the very tactic that it regards as a capital offense when used by their opponents.)
Lefties, if you want to reform the behavior of gay men, why not just be honest about it, instead of dragging us through another horrific, detestable campaign of scapegoating straight men? I wonder how this would have worked out, lefties, if you’d been honest about your goal.
"You could just as easily have written: It's hard to articulate a legitimate interest in holding out for the name."
No. Government must have a legitimate interest for everything it does. Otherwise government may not act.
You are saying that government may do anything unless those who are affected can establish that they have a legitimate interest in being free of what the government is doing.
That is not the way American law works, and I challenge you to think about what you are saying. Do you seriously believe that principle you are relying on, which rejects the idea of limited government?
Is that your America? If you say yes, you are not a conservative; you are not a libertarian.
In zoning law, the might-as-well-go-all-the-way-and-fill-the-gap argument is supposed to be an instant loser but it never is, has been my experience.
It's the triumph of a primitive aesthetic impulse, is my surmise.
Althouse you know that your son is engaging in unnatural perverted behavior. But instead of confronting that your son is mentally sick you want to force his misbehavior on society and make us accept what is inherently evil as being good.
You know that the above is true and that is why you have been twisting in the wind over the last few days.
So, without hte word "marriage" there is no stability?
you are not a libertarian.
You, Obama voter, certainly are not.
Watching you pretend that you have some sort of limited government principles is becoming a theater of the absurd.
Hey, remember all those posts you made questioning the governmental interest regarding ObamaCare, Ann?
I do too!
bagoh20 said...
It's simple aggression at this point.
Yes it is...and the issue of the word alone has always been aggression, and nothing else.
Someone wants what someone else has and is determined to take it by coercion.
Althouse you know that your son is engaging in unnatural perverted behavior. But instead of confronting that your son is mentally sick you want to force his misbehavior on society and make us accept what is inherently evil as being good.
Jesus, this is stupid.
You don't do anybody any good by publishing this brutally stupid, vicious crap.
Verrilli is saying that the state that permits adoption by gay couples can’t go back to the argument that a child is better off having both a mother and a father in the home.
Given the options of orphans, (e.g. institutions, successive foster parents, etc), and the ability of single people to adopt, I'd prefer a married Man and a woman to adopt, but there are too many kids, so, I have no problem with a gay adoption. But I'd build in a hetro preference. "for the good of the children :) "
" It's hard to articulate a legitimate interest in only withholding the name."
Like "tax" versus "penalty". The SCOTUS magic dictionary is, ... magic.
No. Government must have a legitimate interest for everything it does. Otherwise government may not act.
Remember when you said this about HHS forcing organizations to provide "free" birth control?
Remember when you questioned the Assault Weapons Ban using this principle?
Remember when you questioned Obama appointing Czars using this principle?
Remember when you questioned Sarbanes-Oxley using this principle?
Me too~!
1) Society has an interest in promoting marriage* for the creation an upbringing of the next generation.
2)To promote that, society has chosen to give that relationship special recognition and status.
3)insert all reasons listed by SSM supporters as to why the term marriage is important for equality.
Q.E.D.
It's hard to articulate a legitimate interest in only withholding the name.
It's easy if you try.
*note that the term marriage does not include same sex pairings. I almost qualified the term with the word heterosexual, but that would have been redundant.
I heard Sotomayor used the word "benefit", to describe marriage, when marriage "right" could have been expected.
I don't expect her to break with the liberal wing, but if true, I thought that significant.
Marriage is not a civil right.
It's hard to articulate a legitimate interest in only withholding the name.
Preserving the name.
Because marriage expresses an idea different from civil unions, as with DOMA these Civil Unions are poorly written as well.
Words matter, and it would be unfortunate if we lost the idea behind marriage. I understand our laws can do what the wish, and even be sloppy and make grave mistakes that bring much confusion for many.
Things have been very personal for me on this issue, leading me with tears with relatives under the misinformed beliefs I somehow hate homosexuals. They were very confused, my actions for homosexuals is obviously not phobic. In fact I'm oblivious and apparently have very bad gaydar. But they began to understand my position, because words express ideas. But I had to break it down, slowly bit by bit without being tempting to say the word marriage.
We have laws in many states like in Michigan, where it is important to establish paternity and the state goes to great lengths for children whose mother and father who are not married.
"Both parents have the right to know and the responsibility to support their son or daughter emotionally and financially."
"It is illegal to provide false documentation on a birth certificate."
Marriage is different historically, it has an additional goal that civil unions do not. That is bring both biological parents together. Children have an interest in marriage as well, considering they share the DNA of their mother and father.
Again this isn't law vs religion, this is humans against nature. I can fully and openly accept people that are gay as a part of nature, but I must accept based on that same understanding of nature that children have a mother and father.
The Drill STG,
The child and their social worker chooses the parent, not the couple or single person.
If a child wants a father, the social worker will not seek out potential parents from a lesbian couple or a single woman. It is all based on the child's needs, not others wants.
M + M ≠ M + F
the state that permits adoption by gay couples can’t go back to the argument that a child is better off having both a mother and a father in the home.
I see his point there, but I think that it misses an important part - the child who is up for adoption necessarily does not have access to a home with his or her mom and dad. Adoption is always going to be the next best choice in a less than perfect situation.
It seems fine to say that the child with a biological mom and dad is best, but, when that's not possible, an adoptive gay couple is an acceptable alternative.
So, at long last, Althouse, we have sorted out what this fiasco is about. The left wants to encourage gay men to stop killing themselves with their sexual behavior. Hell, I'm all for that.
They've chosen the "victim" strategy, essentially arguing that gay men engage in wildly promiscuous behavior because of poor "self-esteem." This is in accord with the strange and errant logic of Brown v. Board of Ed. And the cause of that poor "self-esteem" is that straight men really dislike them.
Althouse, deal with reality here. I know that women and gay men (who are a lot like women) like to engage in deceptive, sideways, tortuous social strategy. They read a lot of crappy novels that train them in this behavior. Can you be straight with us for a moment?
So two questions? How much do we have to give the homos to put a bandaid on their "self-esteem?" And, will it really work, i.e., is "self-esteem" really the issue?
Interesting that people are fleeing CA as rats fled the Titanic (and for pretty much the same reason).
Darrell said...
Sure. What the 2.5% do is the norm.
Actually, 1.3%, but who's counting?
Shouting Thomas said...
The real goal of gay marriage is to try to encourage gay men to cease the self-destructive behavior that caused the AIDS epidemic. The hope here is that gay men will ape the behavior of monogamous hetero marriage.
Dan Savage has already told us they have no intention of being faithful.
Ann Althouse said...
You could just as easily have written: It's hard to articulate a legitimate interest in holding out for the name.
No. Government must have a legitimate interest for everything it does. Otherwise government may not act.
Then explain, por favor, why DHS needs 2 billion rounds of ammo.
Why we needed a Stimulus that was one big boondoggle.
Why we needed ObamaTax.
Why we're starving the armed forces of ammo, but sending weapons to the Moslem Brotherhood in Egypt.
Why 4 men were left to die in Benghazi.
Lyssa,
In Massachusetts guardianship with kin (biological family) is the next best alternative.
Shouting Thomas you don't believe gay sex is perverted?
Renee said...
The Drill STG,
The child and their social worker chooses the parent, not the couple or single person.
If a child wants a father, the social worker will not seek out potential parents from a lesbian couple or a single woman. It is all based on the child's needs, not others wants.
The child, by definition, does not know what he/she needs, regardless of what he/she wants. Other things being equal, I think most people understand that a child is best off with a father and mother, and that, if that's not available, other alternatives are better than nothing (institution, being shuttled around, etc).
Shouting Thomas you don't believe gay sex is perverted?
Lots of things are perverted. So what?
I'm no saint. Are you?
" It's hard to articulate a legitimate interest in only withholding the name."
I would articulate it thusly:
The name has a valuable meaning to a significant group of people, who are now being forced to bind a different meaning to that word. That the meaning they bind to that word bears religious components that are unrecognized in secular law does not mean the Court has no interest; since words and their meanings are a basis of law, the Court has an interest in how those words and meanings are bound.
In this case, a forced change in meaning constitutes a forced change in belief, which is a clear infringement on the freedom of religion guaranteed by the First Amendment.
...this would shift the argument over to whether this "significant group of people" had a legitimate claim to the word and its meaning. It would not be a slam dunk. A nontrivial case would have to be made that marriage has never meant anything other than man-woman throughout known human history, and I know there is literature that claims otherwise.
There is also the matter of whether this meaning interests the Court by changing the meaning of past laws. It clearly does, and Prop8 clearly got around that by introducing civil unions; I could argue that that showed good faith in the lawmaking process.
I personally prefer either letting marriage mean any civil union - man-woman, same-sex, three-to-twenty people, whatever - or taking up Palladian's argument and getting government out of it altogether. But I prefer following the law even more; this justice-by-the-times makes me ill.
In the US forty eight percent of babies are born to single mothers and we're so concern that gays be allowed to marry.
We've sure came a long way from the fifties when most children had non divorced mothers and fathers and our population was composed of ninety percent white and ten percent black.
AA said: Government must have a legitimate interest for everything it does. Otherwise government may not act.
Wow, I'd sure like to live in that country!
If marriage is a civil right then the tax code is a blatant violation.
The real question is whether the constitution prohibits a state from making a moral judgment that homosexual unions are wrong. Is it unconstitutional to make a moral judgment about conduct by failing to institutionalize it, even though the conduct may no longer be criminalized? Indeed is it constitutional to make such moral judgments by criminalization?
Yet nobody seems willing to frame the issue that way. That is why the debate becomes so strange and internally contradictory. And that is why the proponents of gay marriage will probably carry the day. If you are unwilling to assert your position with clarity, you probably will lose.
"It's hard to articulate a legitimate interest in only withholding the name."
"Preserving the name."
Too late. No-fault divorce already corrupted the name.
With the current Supreme Court interpretation of the Establishment Clause, it is highly improper for the State to allow priests/imams/rabbis/medicine men to act as State officials.
What is so difficult about that?
Chad said...
Shouting Thomas you don't believe gay sex is perverted?
Only when done right.
( The same with heterosexual sex.)
Michael said...
It is name that is important, the name that normalizes what is not considered normal.
Horse pucky. Claiming the name, already an accepted convention for others, avoids actually normalizing a social form by hiding behind a norm established elsewhere.
Far more would be served if gay/lesbian couples were just established as a form of normal, rather than steal the word [form] to imagine it.
Gay advocates have gotten much of the public to approve of gay civil unions. They are hurting their cause and their image, and making supporters and non-supporters question their motives, by pushing for the courts to intervene.
It seems childish for them to argue that even though they can get a legal civil union issued by the state that will give them the same legal benefits of a marriage license, including the ability to "get married" in any religious institution that is willing to provide SSMs, right now, they still need the word "marriage" on their state licenses, because otherwise they feel bad; their marriage feels second-class to them unless some nameless govt. bureaucrat sanctifies it with that word.
Boo freaking hoo. They need to grow up. They are making progress; it takes time. They could probably get the word "marriage" on their state licenses in a decade or less, assuming they still want it.
Meade said...
"It's hard to articulate a legitimate interest in only withholding the name."
"Preserving the name."
Too late. No-fault divorce already corrupted the name.
Disagree. The fact that people do not always live up to their own values does not mean they shouldn't have values and try to live up to them.
The fact that people don't always live up to their marriage vows does not mean they shouldn't try to, or that the vows themselves are devalued.
The traditional marriage model worked pretty well for a long time, despite many failures to live up to it. I'm not sure there is any reason to change it, certainly not because Kennedy thinks so.
Meade said...
It's hard to articulate a legitimate interest in only withholding the name.
Preserving the name.
Too late. No-fault divorce already corrupted the name.
Something else we need to get rid of.
They are making progress; it takes time.
That's the kind of "friendly" advice from that prompted Martin Luther King Jr. to write and publish Why We Can't Wait.
Justice delayed is justice denied.
I think California took the right approach in reserving the word "marriage" for the union of a man and a woman. Without correct terminology or concise meanings we are adrift and the battles between people who don't understand each other and can't communicate will increase.
However, that may be the whole point of the great liberal experiment, it's not what that is right or true or correct or proven that matters, it's all about how you feel at the moment.
Now that I understand the real motivation behind the gay marriage fiasco, i.e., the desire to encourage gay men to stop killing themselves with their sexual behavior, I see the relevance of this issue to Althouse quite differently.
She wants the best for her son and for gay men in general. She doesn't want her son to engage in that self-destructive behavior so common to gay men. I'm down with that. She already bought into the "self-esteem" argument back when she adopted feminism. (She's not very aware that the "self-esteem" argument demands a scapegoat because she's not standing in the shoes of the scapegoat. I am.)
Althouse, I'll defer to your incredible legal mind for a moment and ask you... was there another way to go about achieving the laudable goal of encouraging gay men to stop killing themselves with their sexual behavior... besides scapegoating straight men?
However, that may be the whole point of the great liberal experiment, it's not what that is right or true or correct or proven that matters, it's all about how you feel at the moment.
If by "great liberal experiment" you mean the United States of America, allow me to correct you. It's really about liberty, equality and justice for all.
"Government must have a legitimate interest for everything it does. Otherwise government may not act."
There you go trying to use words like "legitimate" as if they mean something. Lawyers are funny...tragically funny.
Tank said (in response to Meade on No Fault) The fact that people don't always live up to their marriage vows does not mean they shouldn't try to, or that the vows themselves are devalued.
I would agree with this; however, I think that Meade's point would be that, not only do people fail to live up to it, but that our system has developed a means to excuse people for not living up to it, claiming that it is not anyone's fault and just something that happened.
She doesn't want her son to engage in that self-destructive behavior so common to gay men. I'm down with that.
Jesus had two dads and he turned out just fine!
No. Government must have a legitimate interest for everything it does. Otherwise government may not act.
In the Prop 8 case, it wasn't the Government that acted. It was the People per referendum. Which isn't UnConstitutional on its face. If anything, the State Government abandoned the People to deny defense tof Prop 8 in court.
WA and CO State legalized pot using the referendum process and essentially told the anti-pot folks, "tough beans" and told the Federal Gov't "go away".
How is Prop 8 any different, from a peoples or States rights standpoint, seeing as there is no recognized Constitutional right to marriage and DOMA is still on the books?
They are making progress; it takes time.
That's the kind of "friendly" advice from that prompted Martin Luther King Jr. to write and publish Why We Can't Wait.
Well then maybe they need a leader to publish their version of "Why we can't wait". A lot of people, even supporters like myself, are unconvinced that not getting the word "marriage" stamped on their license is analogous to what blacks went through in this country. Maybe we're missing something.
Jesus had two dads and he turned out just fine!
It's not surprising, garage, that you immediately attempt to turn the discussion away from the gay male behavior that caused the AIDS epidemic. It's a painful subject.
No, I'm not referring in any way to the ability of gay men to be adequate fathers.
I am really confused here: "a state that has done much — but not everything — to include gay people"
What specifically hasn't it done to include gay people? Reading the post, it seems the only difference is that when a hetero couple gets a license it says "marriage" on it, but when a gay couple gets a license it says "civil union" on it. Is that really the entire difference? It is difficult to believe that the Court would bother with this now.
I would be all for striking the word "marriage" from all licenses and just having "civil unions" for all.
phx said...
They are making progress; it takes time.
That's the kind of "friendly" advice from that prompted Martin Luther King Jr. to write and publish Why We Can't Wait.
I suspect you have no idea why the conflation of this "marriage" issue with the civil rights movement is so insulting and aberrant. THEY-ARE-NOT-THE-SAME.
They are not even close in severity: Just to cite one issue of many,....come back to me when you find a locale that has laws requiring gays or lesbians to step off the curb in to the gutter when heteros pass by? Drink from different fountains, poop in different restrooms, sleep in different hotels, ride only in the back of a bus, be served out the rear door of restaurants, et al ad infinitum.
Ms Althouse,
No. Government must have a legitimate interest for everything it does. Otherwise government may not act.
You are saying that government may do anything unless those who are affected can establish that they have a legitimate interest in being free of what the government is doing.
That is not the way American law works, and I challenge you to think about what you are saying. Do you seriously believe that principle you are relying on, which rejects the idea of limited government?
Is that your America? If you say yes, you are not a conservative; you are not a libertarian.
No.
SSM is a change. The govt must have a legitimate interest to make the change.
You have utterly failed to demonstrate even a preponderance of evidence that the govt has a legitimate interest to make that change.
If there is no legitimate reason to make that change, then the govt must continue with the principles of Common Law inherited from English tradition. You know: the legal principles and concepts that were evolved over many centuries by judges in the English courts of law, that formed the basis of the US Constitution.
Those assumptions and foundations still underpin our society.
So you cannot support SSM and be a conservative or a libertarian, by your own argument.
I am a conservative and a libertarian: the govt must have a compelling interest to go against tradition and established law. There is no compelling interest to do so.
There is a hope that SSM will be stabilizing and normative for the homosexual community. There is no evidence it will do so.
It would be nice if you followed your own logic and principles and dropped your support for SSM, but I expect you will continue to be a hypocrite.
FWIW, I suffered a lot of "marriage discrimination" as a lad. The Army, in its wisdom, does a lot to preference marriage in terms of pay, benefits and preferential assignemnts for marrieds. You can alway expect that a single guy has duty on Christmas, regardless of what the roster says. funny how that works :)
If by "great liberal experiment" you mean the United States of America, allow me to correct you. It's really about liberty, equality and justice for all.
No, the great liberal experiment is an all-powerful govt run by liberal elites and unelected bureaucrats that will determine every aspect of your life, ensuring that what isn't forbidden is mandatory, and what isn't mandatory is forbidden.
Exactly the opposite of liberty, equality, and justice for all.
So Ann, please tell us the legitimate interest the government had, to prevent the Mormons from practicing polygamy?
"Oh the gays are so oppressed, they say, by those nasty voting Mormons who should know what it feels like and should know better.
But one of the great lies of this SSM debate has been the claim of how oppressed gays are. They even compare themselves to the 18th century slaves and 20th century segregated blacks.
it is a false comparison. Gays NEVER sat at separate lunch counters.
Let’s take a look at the last time someone tried to alter the traditional notion of acceptable marriage in the U.S. The federal government disenfranchised the Mormon church, took their property,
and threw their leaders in jail, for daring to claim that another constitutional right – the First Amendment – allowed the Mormons to follow what they believed to be God’s edict to practice marriage as they did (a marriage pattern btw which even had historical precedence)
And the SCOTUS said that majority of citizens, through their representatives had the right to tell the Mormons to pound sand, and even to dissolve their church, take their property, and jail their leaders.
I took some crap yesterday for my Mormonism and the modern social faux pas of mentioning the name Satan in pointing out the once commonly held notion of a cosmic struggle between good (happiness and joy) and evil (suffering). Fine, I don’t care about the derision. (The first person Satan wants you to believe doesn’t exist isn’t God, it’s him.)
But if anyone has a special position in thus debate it surely are the Mormons who got told by the government with its absolute force, what was and wasn't acceptable marriage, and who later complied with the majority of the people after the SCOTUS upheld the oppression.
So Ann please tell us the legal logic and rationality of a view that says that the 1st Amendment was insufficient to prevent the majority and their government from telling Mormons what marriage must be, but the 14th amendment magically IS somehow sufficient trump the majorities notion or morality now
How exactly does that logic work, Ann?
Ann Althouse said...
"You could just as easily have written: It's hard to articulate a legitimate interest in holding out for the name."
No. Government must have a legitimate interest for everything it does. Otherwise government may not act.
The problem with legitimate interest is unless there is a broad consensus what defines a legitimate consensus? While I am personally for SSM what is the legitimate interest in negating a constitutional provision that was voted on by the electorate? Marriage in of itself isn't a federal issue. It's a state issue. The federal issue in marriage or civil unions is only a recognition of the what the co-sovereign states deem to be a marriage or a civil union with respects to federal issues such as taxation.
As for the prop 8 case, what standing did the plaintiffs have? The smarter course of action for the court in my opinion is to rule that plaintiffs had no standing and that the state has a duty to defend it's laws and constitution and thus render the issue as it never occurred leaving prop 8 standing and thus letting the political process in California take place with a new initiative removing prop 8 with amendment allowing for SSM.
I suspect you have no idea why the conflation of this "marriage" issue with the civil rights movement is so insulting and aberrant. THEY-ARE-NOT-THE-SAME.
Absolutely correct.
The Civil Rights Movement was based on the fact that minorities (and mostly blacks) were treated differently on the basis of appearance (which they did not control), regardless of how hard they worked to make sure their behavior was exemplary.
The Gay Movement is based on the fact that homosexuals are treated differently on the basis of behavior (100% within individual control), regardless of the fact that their appearance is indistinguishable from anyone else.
Treating people differently on the basis of chosen behavior is the basis of a free society, and touches on Freedom of Association, one of the basic tenets of liberty.
Not sure why people want to demonize that.
Well then maybe they need a leader to publish their version of "Why we can't wait". A lot of people, even supporters like myself, are unconvinced that not getting the word "marriage" stamped on their license is analogous to what blacks went through in this country. Maybe we're missing something.
I'm not backing off but I understand your point. While the totality of the black experience was no doubt worse, it still seems very similar to setting aside drinking fountains or bus seats for whites only.
It could also be argued that the difference is partly because of the inescapable recognition of black people vs. the relative anonymity of gays. More importantly, the reason why it's easier for gays today than for blacks is precisely because black people wouldn't wait for equality. As a result of the civil rights movement of the sixties the means of discrimination against gays and other groups are no longer available to others.
I think there's still a good argument why we can't wait. I do respect those who feel different about it however, at least in part because they aren't turning the fire hoses on gays.
Hey PHX - Did you see this about the nine year old chess master?
Guess my middle son waited too long.
No. Government must have a legitimate interest for everything it does. Otherwise government may not act.
I'm with Lyssa. I want to live in this country. It certainly isn't the same country that requires all citizens to pay for insurance that covers free birth control.
The problem with this argument, as hard as Althouse is trying to make it seem simple, is "legitimate interest" slips very easily into "stuff I agree with".
@Aridog I didn't see your comment while I was composing the one above. Hope it addresses some of what you don't like in my earlier one.
phx said...
However, that may be the whole point of the great liberal experiment, it's not what that is right or true or correct or proven that matters, it's all about how you feel at the moment.
If by "great liberal experiment" you mean the United States of America, allow me to correct you. It's really about liberty, equality and justice for all.
3/27/13, 9:18 AM
Really? My liberty is greatly impact by being forced to pay taxes for the benefits of others, benefits which don't benefit me at all.
My liberty is greatly impact by being forced to pay taxes for the benefits of others, benefits which don't benefit me at all.
You know, it's my opinion that your liberty is not impacted by your tax bill in the least.
@phx,
where does the money come from to pay individual income taxes?
If I didn't have to pay individual income taxes, what would I do with the money?
Or would I choose to work less and choose to do something else with my time other than work?
So yeah: your opinion on taxes in regard to liberty is demonstrably wrong.
Phx ... dang, you really don't get it. The crux of the California matter is over a word, a frigging word. Just how is that remotely comparable to anything from the civil rights movement's causus belli?
I am saying this as the guy a former commenter here cited as the worst of all racists here, on his own blog, worse than "whores" yada yada....because I said plainly that I don't care for "gangsta rap" or "G-Funk" style per Dr Dre. An imaginary concept of my racism is no concept at all...just delusional imagination. You'd think I advocated deed covenants and worse.
You conflating civil rights issues with the "marriage" term debate is like the guy calling me racist because I don't care for one type of music of the many in the world....and making false presumptions, stated, from that point.
@Aridog maybe you're right, but help me out here.
If we gave black people all the rights they now enjoy EXCEPT that they had to drink from the waterfountains labeled "Colored" and everyone gets to drink from the fountains right next to it with some other label on it like "whites only" or "others", isn't that also a form of discrimination, even though it's only a word that separates them?
Now give me something to think about b/c I don't think you're racist and my stand is not something I'm willing to defend to my last breath. I came a little late to SSM party and I'm still working stuff out for myself.
phx said...
My liberty is greatly impact by being forced to pay taxes for the benefits of others, benefits which don't benefit me at all.
You know, it's my opinion that your liberty is not impacted by your tax bill in the least.
3/27/13, 9:57 AM
So if I choose not to pay the portion of my taxes allocated for other peoples benefits but not mine I won't go to jail? Great! Now lets raise your taxes to pay for what benefits me and doesn't benefit you. According to you your liberty won't be impacted in the least.
If I didn't have to pay individual income taxes, what would I do with the money?
If I didn't have any responsibilities as a citizen, what couldn't I do with my "liberty."
Why are people so angry on the subject? I think it is really cool that a group of people are challenging the constitution - taking it places it's never been. Isn't that the point of the document, to push it to its absolute limit - squeeze every possible right out of it. I'm not saying ssm is the final frontier, but it's really thrilling to see this happening. I am sad for those whose emotions are getting in the way of enjoying the process.
Jesus had two dads and he turned out just fine!
That is amusing for its flip, because Jesus had no Earthly dad for long. And that's the part that totally gets me. When I learned this all my resentments evaporated on the spot and I cried for being so thick for so long.
Joseph died when Jesus was fourteen and as the oldest son the responsibility of Joseph's family fell directly to Jesus. On the day Joseph died Jesus became the head of his household, and he saw through the responsibility of raising Joseph's family, his earthly brothers and sisters, supporting his mother, and guardian of his home.
Ruth, the baby was born the next year. Imagine the grief in that household.
A chief feature of his parenting style was instructing each sibling to take responsibility for the care of the next in age, so Jesus instructed James directly on the management of the family affairs and James instructed MIriam, to Joseph, to Simon, to Martha, to Jude, to Amos, and finally darling baby Ruth, and in so carrying out these family duties thrust upon his youthful shoulders Jesus did experience the same level and degree of parenting that he would have had fathered the children himself.
So that by the time James was eighteen, Jesus could solemnly leave responsibility of family affairs reliably in the hands of James.
If I didn't have any responsibilities as a citizen, what couldn't I do with my "liberty."
non-sequitur.
I'm not actually arguing taxes are unConstitutional.
But to pretend it doesn't impact liberty is clearly wrong.
If taxes are at 100%, it is slavery.
If taxes are at 0%, it is anarchy.
It is a sliding scale between them: the higher the taxes, the lower the liberty.
To maximize liberty, you should push for a govt as small as possible, in order to have taxes as low as possible.
We might disagree where that optimal point is, but your current argument reveals that you are embodying Fen's Law: you lecture others about Life, Liberty, and Justice while not caring a whit about it in reality.
phx: "If by "great liberal experiment" you mean the United States of America, allow me to correct you. It's really about liberty, equality and justice for all."
Allow me to correct you. It was just a matter of awkward phrasing. It should have read: "The whole point of the great liberal experiment is to create a United States where it's all about how you feel at the moment and getting the SCOTUS to agree."
There, fixed.
Allow me to correct you. It was just a matter of awkward phrasing. It should have read: "The whole point of the great liberal experiment is to create a United States where it's all about how you feel at the moment and getting the SCOTUS to agree."
Gee. Must seem like you don't live in America anymore.
<<<>>>
phx said...
You know, it's my opinion that your liberty is not impacted by your tax bill in the least.
A statement so stupid, one wonders how you get through the day.
But to pretend it doesn't impact liberty is clearly wrong.
Okay. In the same sense any prohibitive law "impacts liberty."
"The whole point of the great liberal experiment is to create a United States where it's all about how you feel at the moment and getting the SCOTUS to agree."
If the Constitution allows for it, who cares if that is the motive?
Verrilli is saying that the state that permits adoption by gay couples can’t go back to the argument that a child is better off having both a mother and a father in the home.
Not at all. Adoption isn't either/or. A child is BEST in with mom/dad. but a child is better off with a same-sex couple rather than being in an institution.
phx;"If we gave black people all the rights they now enjoy EXCEPT that they had to drink from the waterfountains labeled "Colored" and everyone gets to drink from the fountains right next to it with some other label on it like "whites only" or "others", isn't that also a form of discrimination, even though it's only a word that separates them?"
Not the same. Imagine that everyone drinks from the same fountain but the liquid that blacks drink is called something other than water. Still the same opinion?
phx: "If by "great liberal experiment" you mean the United States of America, allow me to correct you. It's really about liberty, equality and justice for all."
Allow me to correct you. It was just a matter of awkward phrasing. It should have read: "The whole point of the great liberal experiment is to create a United States where it's all about how you feel at the moment and getting the SCOTUS to agree."
There, fixed.
phx said...
You know, it's my opinion that your liberty is not impacted by your tax bill in the least.
Right.
Because if your tax bill were 85% of your total income you'd be like totally free and stuff.
Really. You would.
Aridog said...
I suspect you have no idea why the conflation of this "marriage" issue with the civil rights movement is so insulting and aberrant. THEY-ARE-NOT-THE-SAME.
^That is the 2nd funniest part of this whole thing (the 1st part is the people like Ann pretending they are libertarians).
Watching these lilly white privileged leftists pretend that by supporting gay marriage they are walking across the bridge into a group of angry men with axe handles who want to prevent them from voting, would by roll on the ground funny if it weren't so pathetic.
"Not the same. Imagine that everyone drinks from the same fountain but the liquid that blacks drink is called something other than water. Still the same opinion?"
Indeed it makes denying the term even more absurd. And the very term is the heart and soul of the movement. (Would you rather be called a person or property even if you had all the same rights? Wait, that don't make no sense.)
phx wrote:If we gave black people all the rights they now enjoy EXCEPT that they had to drink from the waterfountains labeled "Colored" and everyone gets to drink from the fountains right next to it with some other label on it like "whites only" or "others", isn't that also a form of discrimination, even though it's only a word that separates them?
It's not the same argument. youre trying to build an equivalency there where one doesn't exist. Because gay marriage would not be the same as straight marriage. one has brides and grooms and one has two brides or two grooms. by default it is 'OTHER'.
The only way one could consider same-sex marriage no different than traditional marriage is to declare there is no difference between male & female.
in the gay marriage is equivalent to the black civil rights movement it would actually be a requirement that gays drank at a different waterfountain, or drank a different drink, since they physically cannot drink the water at the existing water fountain. A new one has to be built for them.
IN fact aren't gays actually asking for us to assume a separate but equal stance? They are simply demanding that two separate things be considered the same thing.
Considering urban minority communities have taken the brunt of father absent home, the very place where our public policy should be focusing itself with stabilizing and reunification of the family, making references about blacks and water fountains is in poor taste.
But consider this...
THE ONE HUNDRED BILLION DOLLAR MAN
The federal government spends $99.8 billion dollars every year on programs - such as child support enforcement and anti-poverty efforts - to support father-absent homes.
Key Findings:
The Federal Government spent at least $99.8 billion providing assistance to father-absent homes in 2006.
This is a conservative estimate; it does not include federal benefit programs for communities, indirect costs related to poor outcomes of children from father-absent homes, and long-term costs in reduced tax income from low-earning single-parent families
--------
and that is just the federal government, not adding in all of costs from the states.
I heard Sotomayor used the word "benefit", to describe marriage, when marriage "right" could have been expected.
Interesting, abortion is a right, but marriage is a benefit?
abortion is about a woman's right, solely hers. When we talk about rights it is usually strictly talking about the individual.
Can the government benefit one type of organization over another? This organization, consisting of one male and one female over other forms of organization.
Notice I said organization, not orientation.
@Patrick Nine years old, eh? No, I hadn't seen that, it's phenomenal. I've never sat across from a 4th grader like that but it is humbling enough to lose to a middle schooler - which has happened more than once.
At one time btw Judit Polgar broke Bobby Fischer's record as the youngest grandmaster. Since then it's been a string of males.
In the case of comparisons between interracial marriage versus gay marriage the comparison isn't apt either. Because the requirement for marriage would be a man and a woman. Are black men not men? and are white women not women?
Back in the days when blacks were considered 3/5ths human, there would be an issue with blacks marrying whites, because are you a man if you are only 3/5ths human?
but by the time interracial marriage became legalized it was no longer the case that blacks were viewed that way. So they meet the criteria for marriage. What other state interest would be served in denying men and women from being able to marry?
But gay marriage is different right off the bat, in that allowing it means you have to necessarily redefine marriage.
Interracial marriage is closer to a ban on incest. That is, people who would otherwise be allowed to marry (traditionally as defined by society) are still restricted because of some other reason that society deems to be worthy of banning. i.e. in the case of incest, that they are marrying a family member.
Gay marriage is more like polygamy. where to legalize it means you have to fundamentally change what marriage means since it doesn't meet the criterion.
As we see, states can ban marriages where people would otherwise meet the criterion (i.e. are male and female, of age etc) because of who they are marrying. so why would the states not be able to ban marriages that aren't marriages?
If we gave black people all the rights they now enjoy EXCEPT that they had to drink from the waterfountains labeled "Colored" and everyone gets to drink from the fountains right next to it with some other label on it like "whites only" or "others", isn't that also a form of discrimination, even though it's only a word that separates them?
Segregation was about physical, tangible things; and often what was available for whites was better than what was available for blacks. That's not exactly what gays experience under civil unions, if they are legally defined to have the same rights and benefits as marriages. Gays are not being denied any tangible things or rights; they are being denied a word on their license.
A better analogy that I have heard is if blacks and whites could get married but their licenses said "interracial union" instead of marriage. Which is not a bad point, BTW.
But what makes the SSM issue different from inter-racial marriage is the obvious one: Marriage has always been defined as among people of opposite sexes, traditionally for the purpose of procreation (yes I know there are exceptions and old sterile people marry).
Gays are asking the courts to redefine the word marriage in existing law. That is different than blacks demanding to be seen as persons as equal as whites. Gays cannot procreate on their own- no human law will change that. Their marriages will always be different in that respect.
Renee wrote
abortion is about a woman's right, solely hers. When we talk about rights it is usually strictly talking about the individual.
Is abortion really a womans right alone though? Her right allows her to destroy the life of another person who, presumably has rights too. Also, her rights trump the reproductive rights, simply because she has a uterus and their baby is in it.
I think my analogy of the drinking fountains was too strained. I'm taking my argument off the road and back into the workshop for now.
jr565,
I don't agree with it. But it is her body, and she has more rights to her body, even if the unbaby dies in the process. (which is actually the goal, it isn't about her body rather it is about 'getting rid of the unborn baby'.
Marriage is about organization.
Renee said...
Can the government benefit one type of organization over another? This organization, consisting of one male and one female over other forms of organization.
You tell me. This debate is over creating one more benefited organization, calling it the same as the primary benefited organization, and still excluding all other organization types.
In other words, the whole debate is bullshit if we're talking about equality.
like a family tree, it is nice no only to have and know your mother and father, but with organization who don't have sex with another relative.
IN fact aren't gays actually asking for us to assume a separate but equal stance? They are simply demanding that two separate things be considered the same thing.
Whereas those pushing for civil unions are saying yes it's separate but equal, but thats because its separate and not the same thing.
In the case of the civil rights movement there is no valid reason to have separate but equal since blacks and whites both being men (as in mankind) have the same rights under law.
Gay marriage doens't have the same definition or vocabulary, so its perfectly valid to have a separate standard for things that are separate.
Equal access to your mom and dad? That kind of equality?
Darleen said...
The only way one could consider same-sex marriage no different than traditional marriage is to declare there is no difference between male & female.
This.
...being a necessary step on the road to progressive utopia...
...to deny the very existence of the "individual".
Renee wrote:
Marriage is about organization.
Since abortion requires killing an infant growing inside you, it too is about an organization. Granted, one party can't enter into a contract, but that doesn't mean it's solely about the womans right.
A womans right to choose strikes me a lot like Michael Vicks right to have a dog fighting ring. Michael vick takes dogs which he can't contract with and does horrendous things to them, or lets them to horrendous things to themselves, for his benefit because dogs are just dogs. fetuses are actually human, and not dogs.
And mothers do far worse things to their fetuses than Michael vick does with dogs.
phx said...
@Aridog maybe you're right, but help me out here.
If we gave black people all the rights they now enjoy EXCEPT that they had to drink from the waterfountains labeled "Colored" and everyone gets to drink from the fountains right next to it with some other label on it like "whites only" or "others", isn't that also a form of discrimination, even though it's only a word that separates them?
1.) We didn't **give** black people anything, we just finally acknowledged their rights as equivalent to ours.
2.) No, your example is a fallacy of reason...it isn't the word "colored" that is discriminatory, it is the provision and requirement of separate allegedly equal facility that is discriminatory.
3.) It would have been absurd if African Americans had demanded to be called **white** rather than be recognized as full human beings and entitled to the same benefits and liberties as all other humans, white or otherwise, just as they are in nature.
Renee said...
like a family tree, it is nice no only to have and know your mother and father, but with organization who don't have sex with another relative.
This reminds me of the woman in a story linked yesterday on Instapundit--of a woman who who seeks to learn the identity of her father but who is blocked by the apparent shame and guilt of her mother.
jr565,
No it is about a woman's physical body and her ability to control it. When the baby is outside your womb alive, then it is about organization and the woman's parental responsibilities to that child kicks in.
I know strange, but that is how it works.
"No. Government must have a legitimate interest for everything it does. Otherwise government may not act."
Hah.
Here's Ted Olson, responding to a question from Sotomayor about polygamy.
“Well, you've said -- you've said in the cases decided by this court that the polygamy issue, multiple marriages raises questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody, it is an entirely different thing,” Olson said. “And if you -- if a state prohibits polygamy, it's prohibiting conduct.
“If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status,”
There status being wholly defined by their conduct.
It's all horseshit, smoke and mirrors with you black robes.
chickelit,
The United Nations Convention of Children's Rights states that all children have a right to their identity and to be raised by both parents, even if separated.
"The Convention deals with the child-specific needs and rights. It requires that states act in the best interests of the child. This approach is different from the common law approach found in many countries that had previously treated children as possessions or chattels, ownership of which was sometimes argued over in family disputes.
In many jurisdictions, properly implementing the Convention requires an overhaul of child custody and guardianship laws, or, at the very least, a creative approach within the existing laws. The Convention acknowledges that every child has certain basic rights, including the right to life, his or her own name and identity, to be raised by his or her parents within a family or cultural grouping, and to have a relationship with both parents, even if they are separated."
As I tell my love ones, it isn't that I'm against homosexuals rather the rights of adults stop at the rights of children.
maybe one day we have a child via sperm or egg donation raised by a same-sex couple or any couple, file a human rights violation with the United Nations.
At the risk of being flippant, gay couples demanding their marriages be legally the same as hetero marriages reminds me of the scene in "Life of Brian" where Stan is demanding his right to have a baby.
(No offense intended, although I suspect someone somewhere won't approve of the analogy.)
I want you to call me "Loretta".
Lyssa said...
"Tank said (in response to Meade on No Fault) The fact that people don't always live up to their marriage vows does not mean they shouldn't try to, or that the vows themselves are devalued.
I would agree with this; however, I think that Meade's point would be that, not only do people fail to live up to it, but that our system has developed a means to excuse people for not living up to it, claiming that it is not anyone's fault and just something that happened."
Add to that politicians like Bill Clinton signing something called a "Defense of Marriage Act" - an act he surely didn't believe was constitutional even as he signed it, September 21, 1996 while, in addition, he was engaged in an extramarital affair with a White House intern. Incidentally, the intern, Miss Lewinsky, who he denied having sex with, was a woman - "that woman" - of opposite sex from Clinton - a distinction, in his initial denial, Clinton felt was important to make.
Okay, so I'm thinking about these arguments that were presented in Court, and I come up with these questions:
> Would the constitutional problems of Proposition 8 be resolved if all marriages between men and women were, henceforth, deemed "civil unions"? Now there's no difference in law, right?
> Another scenario, not necessarily flowing from the prior one: what prevents California from saying, as a matter of law, anyone can enter a civil union, but adoptions are restricted to male-female civil unions?
> And, if as Vermelli argued, it was the enactment of Prop 8--combined with all the other benefits flowing to same-sex unions law that creates the conditions for Prop 8 to be struck down, why doesn't it work the other way? Prop 8 is part of the California constitution; why aren't all those other laws struck down as inconsistent with Prop 8? Why must Prop 8 --the most recent expression of the people's will--fall?
Another question:
If the sole unfairness is the withholding of the term "marriage"--and it's deemed legitimate for one side to insist that it's all about the "word"...then why are those who oppose extending the term deemed unreasonable, when they say...it's all about word?
Sauce for the goose...
phx wrote: Gee. Must seem like you don't live in America anymore. (10:26 AM)
Gee. Do you think it's just me?
50+ million abortions.
Congress considering limitations on citizen gun ownership while federal civilian agencies buy a billion+ rounds of hollow point ammo which is illegal for international warfare.
Local law enforcement and the military conducting joint training exercises in inner city interdiction in Houston, L.A., etc. (See Posse Comitatus Act.)
Men marrying men. Women marrying women. SCOTUS considering same as if it's a serious constitutional question.
$750 million to Hamas and the Muslim Brotherhood terrorist organizations while Dems whine about "sequestration."
Biden spends more than a million for a couple of day's hotel stays in Paris and London while Dems whine about "sequestration."
Etc., etc.
Is this your America?
bagoh20 said...
It's simple aggression at this point.
Aridog said: Yes it is...and the issue of the word alone has always been aggression, and nothing else.
Someone wants what someone else has and is determined to take it by coercion.
Yesterday Justice Roberts said: 'If you tell a child that somebody has to be their friend, I suppose you can force the child to say "this is my friend," but it changes the definition of what it means to be a friend. And that's, it seems to me, what (supporters?) of Proposition 8 are saying here. All you’re interested in is the label, and you insist on changing the definition of the label.'"
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