October 12, 2014

Tony Perkins, of the Family Research Council, talks about "the Supreme Court's back alley type Roe v. Wade decision" and the "guardrails" of nature.

On "Fox News Sunday" today, Tony Perkins, president of the Family Research Council, attempted to match wits on the subject of marriage equality with former Solicitor General Ted Olson. Early on, the moderator, Chris Wallace, asked Perkins about the Supreme Court's recent denial of review in seven same-sex marriage cases from different lower courts:
TONY PERKINS: ... I think the effect of this is the court did a back alley type Roe v. Wade decision by letting the lower courts do their evil bidding. 
So... back alley abortions... we know what those are. A "back alley decision"...  would be... hmmm... as if judges who are not Supreme Court judges are doing something shadowy and illicit? And leaving a case unreviewed is somehow — working backwards in time, I guess — getting the lower courts to do what the Supreme Court has bidden? This is pretty insulting to the vast majority of judges in this country, the judges who are not Supreme Court justices. These people are all following a duty — whether you like how they do it or not — to apply constitutional law in the cases within their jurisdiction. If all the lower courts agree on an issue, it's not sneaky or arrogant or evil for the Supreme Court to fill its docket with other cases.

Olson ignores the "back alley" smear and concentrates on the comparison of same-sex marriage to abortion. The better analogy is to interracial marriage, he says. Perkins says that's "apples and oranges." Why?

PERKINS: Apples and oranges, because we're talking about an arbitrary boundary created by man between the races. That doesn't exist in nature. There is a boundary between people of the same sex getting married. They can't procreate. They can't -- there's nothing in nature to say that's normal.
It's not as though marriage exists in nature. Marriage is an "arbitrary boundary created by man." The only boundary in nature is between having sex or not. Nature puts up no boundaries about when or with who (or what) any given animal has sex.Nonprocreativity doesn't set up a boundary. The only boundary in nature is the different animals' will to act and capacity to fight off unwanted intrusions. That's terribly unappealing as a principle, even if it worked to get the line where he wants it, which it doesn't.

Wallace invites Perkins to state his "single, strongest argument against allowing same-sex marriage," and instead of answering, as if he doesn't even want his share of the time, he says: "Well, I'd like to ask Ted, what's the purpose of marriage?" Of course, Ted Olson, the great advocate, has an immediate answer:
OLSON: ... It's a fundamental right that involves privacy, association, liberty, and being with the person you love and forming a part of the community and being treated equally with the rest of society.
Perkins reponds:
PERKINS: First off, marriage is not to affirm adults. It's for the protection of children. And if love is the only factor, where you do you draw the boundary?
That question didn't lead straight to the usual hypothetical about marrying your dog, but to one of Olson's strongest points, that there are already "thousands and tens of thousands of children in same-sex households" who "deserve the right to equality and the same respect and decency that other people have...."

Perkins scampers back to the question "what are the boundaries?" and Chris Wallace insists on knowing whether this is the old marrying-your-pets quandary.
PERKINS: No, I didn't say that. If we remove the natural established boundaries for marriage, the union of a man and woman, we have removed those boundaries, those guardrails.
Natural established boundaries? Guardrails? Guardrails in nature? There are no guardrails in nature! (Read: "Why there are so few guardrails at the Grand Canyon.")

143 comments:

chickelit said...

It's a fundamental right that involves privacy, association, liberty, and being with the person you love and forming a part of the community and being treated equally with the rest of society.

If love were a prerequisite to marriage, the word would have been written into the Law. So why isn't it? It's in many vows, but not the Law.

If a word is to be defined legally, at least its metes and bounds should be carefully defined.

Anonymous said...

If re-elected, will Rebecca Kleefisch use the full powers of her office to make sure that clocks and tables aren't allowed to marry in our state?

chickelit said...

Natural established boundaries? Guardrails? Guardrails in nature? There are no guardrails in nature! (Read: "Why there are so few guardrails at the Grand Canyon.")

The answer is self-evident Althouse. Try asking and answering in the affirmative: "Why are there guardrails at the Grand Canyon."

RecChief said...

Shorter Althouse: "I'm right, it's over,and the spokesman for all opponents doesn't have an intelligent argument"


I hew more closely to Olson's argument, but don't resort to, "Marriage isn't in nature, what an odd statement." I think you know exactly what he meant by that. In most of nature, procreation happens because of a coupling of males and females of the species. And don't tell me about some South American tree frog that can spontaneously lay fertilized eggs or some other such oddity. Some of the arguemnts against have been made here in the comments threads of similar "spiking the football" posts of yours. I have a question, if it wasn't for a family member, would you act this way? I have two lesbian cousins, who both think that the US should go to Civil Unions for everyone through the state, and a marriage is between you and your church. You seem to have some animosity toward that view.

You also have some aversion to recognizing that a Civil Union for homosexuals opens the door to polygamous marriage via a few members of the judiciary who happen to find an emanation or penumbra (or Both!) that says it's ok. Why do you ignore that this second order effect will most likely happen?

Ann Althouse said...

@chickelit

The law provides structures that people use for their purposes. So if the question were: What is the purpose of a corporation? or What is the purpose of a contract? we wouldn't need to include in the definition of the structure the purpose people would have when they select that structure.

And look at all the rights we have, such as the right of free speech. There isn't a limit by purpose written into that right, but people might argue that the scope of that right should be determined by reference to the purpose behind making that a right. Some people would say it's only about participating in the political process, others will say it's only about the search for the truth. That's a never-ending puzzle, but I think it's useful to see that individuals decide HOW they want to use their rights and the legal structures that are available.

Ann Althouse said...

That is, I think Olson's frequent references to "love" are polemical, and marriage is not limited to love. Also, love does not require marriage.

The more solid point is that there is no legitimate reason for denying opposite sex couples access to the legal relationship that is marriage.

Zelsdorf Ragshaft III said...

I believe the founders and those that came afterward had no idea their words would be twisted into a justification for a non existant right. There is no right to marry. Society has always decided who and who could not marry. States license marriages, and you cannot license a right.

Ann Althouse said...

"I hew more closely to Olson's argument, but don't resort to, "Marriage isn't in nature, what an odd statement." I think you know exactly what he meant by that. In most of nature, procreation happens because of a coupling of males and females of the species."

No. I said marriage doesn't exist in nature. Perkins keeps talking about nature and boundaries, but there is no married and unmarried in nature. And sex is certainly not limited to that which produces offspring. Nature is also full of rape and murder and all sorts of things that don't present the pattern we want to reproduce in law. The argument from nature is inane.

Of course, procreation is something, but the place that it should have with respect to marriage would have to be argued. Obviously, people can procreate without being married.

Hagar said...

And dogs still have only four legs, though you and the Supremes insist we should also count their tails as legs.

Ann Althouse said...

Perkins also used the term "natural marriage": "You still have two circuits that have decisions coming up that look favorable toward natural marriage."

What is "natural marriage"?

RecChief said...

"States license marriages,"


Personally, I think governments shouldn't be in the marriage business. But it's mostly about government recognition and "benefits". I would say it's all about those things, but back when I did estate planning, I had a gay couple as clients, and when one of them was in the hospital after a car accident, the other couldn't get information, only 'family'.

Ann Althouse said...

I'm calling attention to this nature argument because it surprised me to hear him say it repeatedly. I'm not making an argument for marriage equality based on nature. I'm just rejecting his appeals to nature. It makes no sense.

Ann Althouse said...

"And dogs still have only four legs, though you and the Supremes insist we should also count their tails as legs."

Again with the dogs!

rhhardin said...

Romantic marriage is from Shakespeare's time.

Arranged marriage was before that. It had to do with heirs and inheritance and political alliances.

Shakespeare's Antony and Cleopatra was about the change. Or Romeo and Juliet for that matter.

Same sex marriage wasn't likely to make it as marriage.

With the proliferation of laws and taxes it makes it fine as civil union.

That's not good enough for activists. They want positive approval where there is indifference.

n.n said...

Marriage does exist in nature. It is often a monogamous, but frequently polygamous relationship between a male and one or more females. Nature does not favor dysfunctional, unproductive, or fetish behaviors.

Also, in nature, abortion is a matter of controlling competitor's fitness, grabbing their resources, and displacing/replacing them in the tribe, than about fiscal, sexual, and egoistic gratification.

Sorry, Olson. You need to address the creation of moral hazards through selective exclusion. You cannot arbitrarily normalize dysfunctional, unproductive, and fetish behaviors to suit your whims. You also need to address the moral ambiguity of womb banks and sperms banks, which are uniquely but not exclusively demanded by homosexual couplets.

Well, Olson is right about one thing: tolerate what can reasonably be tolerated. However, normalization has a higher bar, which is a redeeming value to society or humanity. He does not however mention the progression of libertinism, the corporate relationship, and generally the commoditization of human life.

rhhardin said...

Derrida did an essay on guardrails, that is to say in which guardrails played a large part as a judas term.

I'll see if I can find it. I think it had to do with what universities could concern themselves with...

Left Bank of the Charles said...

If social conservatives had wanted to preserve their idea of marriage as an immutable institution, they would have taken away the other side's best argument by creating civil unions with equal rights to marriage.

It wasn't a failure of imagination, they imagined the civil union pathway well enough to prohibit it in their ballot initiatives.

As for going through the trash in the Supreme Court's back alley, I think a point is being missed. The Court is not saying all states must recognize gay marriage, just that no state so far has put forward a sufficient reason for banning it.

Social conservatives in the remaining states can (a) come up with the magic argument, which will have to be a new one, (b) try the civil union route, or (c) lose. I think they would prefer to lose.

n.n said...

RecChief:

Normalization of homosexual couplets does not open the door to polygamous, incestuous, platonic, etc. marriages. It requires the normalization of those other arrangements.

In order to avoid the moral hazards created through selective exclusion. This cannot be done piecemeal. This cannot be done through a progressive/incremental process. The burden of reconciliation should not be left to future generations.

RecChief said...

"I said marriage doesn't exist in nature."

It's true that I'm guessing at his meaning solely from reading the transcript you posted. But I think it does make sense if I am right about what he is arguing. What I am getting from his argument is that society has a vested interest in promoting unions that further the society. He still probably believes that marriages should last 40-50 years and longer (even though this society has ditched both concepts). If a society sets to achieve its aim, then promoting an institution that is long lasting and produces offspring "naturally" makes sense. Again, I am guessing at his meaning, but it wasn't a terrible strain on my imagination to make sense of it, even if I articulated it poorly.

n.n said...

Left Bank of the Charles:

Civil unions were suggested and rejected. This is not about tolerance or even equal protection. This is about normalization. Notably selective normalization. Retributive change.

RecChief said...

"n.n said...
RecChief:

Normalization of homosexual couplets does not open the door to polygamous, incestuous, platonic, etc. marriages.
"

I disagree. See here. I'm not talking about normalization, I'm talking about legalization. And the Left's inability to see probably 2nd and 3rd order effects (see the conservative's predictions about the effects of obamacare, and the pushback from the left as just one example)

n.n said...

RecChief:

Society has not ditched the marriage institution. It is special interests, which have indoctrinated the population to accept another paradigm. This is about two order competing for a leading position in civilization. Unfortunately, libertinism coupled with a "secular" universal (e.g. spontaneous conception) and extra-universal (e.g. atheism) faith seems to be the preferred religion. So, the old order is winning.

Anonymous said...

Althouse quoting Olson:

"...one of Olson's strongest points, that there are already 'thousands and tens of thousands of children in same-sex households."

Guaranteeing hundreds of therapists a successful future dealing with them. Certainly gender confusion will be covered under Obolacare.

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

RecChief:

It requires the normalization of those other arrangements.

In order to avoid moral hazards created through selective exclusion.

I favor none-of-the-above, but the reconciliation of consequences stemming from selective exclusion are still haunting America, and mysteriously empowering the perpetrators today.

RecChief said...

"n.n said...
RecChief:

Society has not ditched the marriage institution.
"

I often agree with you, and while you may be right about one interest competing with another and so on, have you seen the percentage of children born out of wedlock? How abou the numbers of divorces? I have to disagree, this society has ditched marriage. At least a large chunk of it.

Anonymous said...

I thought this was over?

You'd think if it were over, Althouse would quit writing about it. Clearly, it isn't over.

"This is pretty insulting to the vast majority of judges in this country,"

Good. The vast majority of judges need insulting. At one time, judges were due our respect, because they tried to interpret the law and make the best decisions based off what the law said.

That is no longer the case. Now it's all a partisan game. Who can put the most ideological judges on the court?

Don't make appeals to respect for judges, Althouse, I think you won't like the mocking laughter that results.

cubanbob said...

TONY PERKINS: ... I think the effect of this is the court did a back alley type Roe v. Wade decision by letting the lower courts do their evil bidding.
So... back alley abortions... we know what those are. A "back alley decision"... would be... hmmm... as if judges who are not Supreme Court judges are doing something shadowy and illicit? And leaving a case unreviewed is somehow — working backwards in time, I guess — getting the lower courts to do what the Supreme Court has bidden? This is pretty insulting to the vast majority of judges in this country, the judges who are not Supreme Court justices. These people are all following a duty — whether you like how they do it or not — to apply constitutional law in the cases within their jurisdiction"

Considering the tortured logic used by the lower courts to come up with the logic used in the more contentious cases yes the lower courts do the dirty work. How does one find that Congress can't compel commerce but can tax those for not entering into commerce? Or a woman's right to kill her unborn child at anytime up to the moment of birth but after that the rights and needs of the child are paramount. So one hour can make a difference between being fully human and not even an animal.

That Perkins is hardly the sharpest knife in the drawer doesn't change the fact that marriage laws have existed for millennia and the concept of gay marriage barely a couple of decades and now we are supposed to take a concept and practice that has served civilization for several thousand years pretty well and force it to be something it was never intended to be at all. So why stop at two people of the same gender? That too is also arbitrary so why stop there? The Supreme Court could take the issue up even if there isn't a split in the circuits and settle the law for the whole nation and not just in some circuits, on this Perkins is right, they punted to avoid the issue.

Michael K said...

"back when I did estate planning, I had a gay couple as clients, and when one of them was in the hospital after a car accident, the other couldn't get information, only 'family'."

That is the argument for civil unions. "Marriage" got to be important to the gays so they could force the religious to, not inly tolerate, but to support their choice. I saw part of that debate today and Olson was positively creepy about "bakers and florists." There used to be a concept that your freedom ends at my nose.

I don't give a shit about gay marriage. I do care about rights to be let alone.

Paco Wové said...

"Olson was positively creepy about "bakers and florists.""

Can you elaborate?

RecChief said...

"That is the argument for civil unions. "Marriage" got to be important to the gays so they could force the religious to, not inly tolerate, but to support their choice"


I agree.

traditionalguy said...

The real question is whether or not there is divorce in nature. The gay couples will have to deal with that.

RecChief said...

"traditionalguy said...
The real question is whether or not there is divorce in nature.
"


More work for lawyers. And by extension, law professors.

Fernandinande said...

cubanbob said...
AAlthouse: "This is pretty insulting to the vast majority of judges in this country, the judges who are not Supreme Court justices. These people are all following a duty — whether you like how they do it or not — to apply constitutional law in the cases within their jurisdiction"


No they're not.

Considering the tortured logic used by the lower courts to come up with the logic used in the more contentious cases yes the lower courts do the dirty work. How does one find that Congress can't compel commerce but can tax those for not entering into commerce? Or a woman's right to kill her unborn child at anytime up to the moment of birth but after that the rights and needs of the child are paramount. So one hour can make a difference between being fully human and not even an animal.

I took "back alley decisions" to mean relying on the private penumbrae thrown by home-grown wheat to obtain desired political decisions, rather than relying on the written laws to obtain legal decisions.

That Perkins is hardly the sharpest knife in the drawer doesn't change the fact that marriage laws have existed for millennia ...

Well, not really. Much as I hate to rely on the NYT:

"Not until the 16th century did European states begin to require that marriages be performed under legal auspices. ... The American colonies officially required marriages to be registered, but until the mid-19th century, state supreme courts routinely ruled that public cohabitation was sufficient evidence of a valid marriage. By the later part of that century, however, the United States began to nullify common-law marriages and exert more control over who was allowed to marry."

Perhaps a "traditional marriage" is one not recognized by the state...

chickelit said...

So if the question were: What is the purpose of a corporation? or What is the purpose of a contract? we wouldn't need to include in the definition of the structure the purpose people would have when they select that structure.

Oh, I agree with you and thank you.

So why does Ted Olson get to drag it as a "fundamental right"? Why do you let him get away with it? It looks an awful lot like you just like the sound of his words rather than his legal reasoning.

rhhardin said...

Back alley would mean anal sex rather than abortion.

cubanbob said...

" The American colonies officially required marriages to be registered, but until the mid-19th century, state supreme courts routinely ruled that public cohabitation was sufficient evidence of a valid marriage. By the later part of that century, however, the United States began to nullify common-law marriages and exert more control over who was allowed to marry."

Fernandinande notwithstanding the NYT marriage as an institution has been around for thousands of years but as you noted up to the mid nineteenth century and indeed well in to the last century when most common law marriage was no longer legally binding the operative act was publicly cohabiting and otherwise acting as a married couple deem the marriage to be a legal marriage and long before the 16th century there were laws regarding inheritances and properties that resulted from marriage as understood at the time even if the actual marriage wasn't memorialized in a marriage registry or officiated by a public official.


Chuck said...

This was a terrible segment, on a good episode of Sunday morning's best interview show.

Ted Olson is a skilled Supreme Court litigator. Tony Perkins is... what is Tony Perkins?

Pitting Tony Perkins against Ted Olson and talking about the history and future of federal court decisions is a mismatch. And I suspect that perhaps Chris Wallace, like a lot of Manhattanites, is decidedly not a neutral about same sex marriage.

I would have had many better answers to Ted Olson.

I would have said, "Ted, you cite the overwhelming history of recent federal court decisions on this subject. It isn't so overwhelming. First, we are talking about federal court judges, who aren't exactly a representative sample of the American public. Second, we are talking about a series of very narrowly-divided courts. 2-to-1 at some Circuit Courts of Appeal. 5-to-4 at the U.S. Supreme Court."

With all of the good appellate court lawyers who could have competently answered Ted Olson, it was an awful editorial decision to put Tony Perkins (who's frankly a crummy advocate; maybe he's a good fundraiser, I don't know) on the air.

Unknown said...

It’s hard to imagine that a racist opponent of interracial marriage would deny that the union he opposed wasn’t in fact marriage as commonly understood; it was simply marriage he didn’t approve of. So the comparison of interracial with same-sex marriage really is an “apples to oranges” comparison. Regarding the Roe v. Wade comment, do you really think Mr. Perkins was comparing same-sex marriage to abortion? Are you sure he wasn’t commenting on the court’s tactics? (Full disclosure: I didn’t watch the segment) Or perhaps even making a prediction.—Roe v. Wade certainly didn’t settle the abortion issue. It incited a culture war.

Renee said...

Is hoping that the Catholic Church will rename the Sacrament of Matrimony, so it will no longer be compared to the massive cluster f*ck that western secular culture has made it to be.

We will keep the vocation and defend it, but give it a new name.

Phil 3:14 said...

Does it make any difference at this point whether the arguments are good or not?

Its now a battle between the brave and the bigots.

Chuck said...

I just want to once again point out for the umpteenth time that instead of listening to Tony Perkins, a really, really good defense of traditional marriage is offered by the brilliant Ryan T. Anderson in this speech before the Anscombe Society at Stanford University:

https://www.youtube.com/watch?v=YWIhZ5xJJaQ

Tony Perkins is such waste of time compared to a smart scholar and advocate like Ryan Anderson.

Basil said...

You completely avoid the legal argument that federal judges are intentionally amending the Constitution's meaning to fit their policy preferences without requiring their political allies to go through the amendment process. This is the same tyranny as the Ayatollahs in Iran, just a different extra legal committee. The federal courts are no longer legitimate. Their decisions should be both laughed at and fought against.

Jupiter said...

"OLSON: ... It's a fundamental right that involves privacy, association, liberty, and being with the person you love and forming a part of the community and being treated equally with the rest of society."

Well, sure. Ask anyone what marriage is, and they will give you a 32-word answer, not one of which is "children".

Why didn't he just say "Marriage is about anal sex", and be done with it? Isn't that what marriage is about? Only having anal sex privately with the one you love in your community? While having privacy, of course, and association and liberty too, naturally. Wouldn't be much of a marriage without a hefty helping of liberty, now would it?

What a canting little twit.

Chuck said...

Tony Perkins simply blew it on distinguishing Loving v. Virginia.

If he had studied Loving v. Virginia in laws school, he'd have known that it was rooted in actual, real Supreme Court construction of actual, existing Constitutional provisions.

The Warren Court determined that there was invidious racial discrimination in the anti-miscegenation marriage laws of Virginia, etc., which did not have a long history in America. There's actual constitutional law on racial discrimination and equal protection.

We've never had any such constitutional overview concerning homosexual conduct or same sex marriage. We had a constitution that for 200+ years was utterly silent on the subject, in a common law world that for 2000 years had not countenanced same sex marriage.

Fernandinande said...

"Why there are so few guardrails at the Grand Canyon."

Canyon de Chelle says:
"WARNING!
700 ft sheer cliff
Control children and pets."

This dog jumped up on top of the 3-foot guard walls, which were only in a few popular photo-spots, because it had never learned to read.

It's not as though marriage exists in nature.

As human "races" would be called "sub-species" for other animals, marriage is called "pair bonding" for other animals. It occurs in nature.

Michael K said...

""Olson was positively creepy about "bakers and florists.""

Can you elaborate?"

Olson started talking about how interracial marriages were banned in many states until the 1960s. He obviously has no interest in any small businessperson who has religious objections to participating in such a ceremony. He dismissed this as of no consequence at all. a $150,000 fine levied on a photographer is not a concern.

I can't understand why a gay couple would want a religious person who objected baking their wedding cake or doing the flowers. I would wonder if they spit in it or peed in it. That's what a gay would do.

Actually, and unfortunately, I do understand and it has nothing to do with rights. It's revenge on the religious community that they know does not approve.

I don't care about gay marriage but I would if I were forced by a court to participate. This will leave another trail of anger and resentment but the gay rights "activists" don't care. This is about vengeance.

Jupiter said...

That would be the liberty to bake cakes at gunpoint, I presume.

RecChief said...

"Phil 3:14 said...
Does it make any difference at this point whether the arguments are good or not?

Its now a battle between the brave and the bigots.
"


Which is which? Really, this is the problem I have with the "true believers" both sides of this. It's a thorny question. Just my opinion, but I arrived at that opinion after quite a bit of thought. throwing that "the brave and the bigots" line out there, you're setting the stage for a bigger fight, and writing off the (maybe) half of the country that disagrees with you. It definitely doesn't make someone who disagrees with you more amenable to your point of view. I guess that's the whole reason for the "in your face" tone from one side of this. meh. good luck and good night

Michael K said...

"Why didn't he just say "Marriage is about anal sex",

You forgot blow jobs and some other practices that don't belong on a family blog. I've sewn up a few recipients.

Renee said...

"What's the difference?
They're both sexual positions?"

I heard that argument, when I brought up an objective difference between the conjugal act and other sexual acts.

Renee said...

Sometimes you have to talk about sex and sexuals acts with family.

We talk openly about sex and relationships in my home.

Not sure how I will explain the casual nature of oral and anal sex.

Learning about how babies were made was a bit gross for them.

Stephen A. Meigs said...

At least here in North Carolina, the best reason for disallowing same sex marriage is that two years ago the citizens of this state voted 61% to 39% to make it unconstitutional for the state to recognize or perform same-sex marriages. It is a flouting of democracy to overturn something that so demonstrably had the support of the people without some pressing reason dictated by the constitution. So is there a pressing reason?

There is no good reason the state should license sodomizers marrying those they inflict sodomy upon. If, as seems most probable, the tendency to want to be sodomized is caused by addiction or fear (on account of semen containing likely addictive chemicals and chemicals that increase sensitivity to pain, the latter chemicals making torture more terrifying), the state performing marriages between sodomizers and their victims can only work to decrease the shame that might otherwise free the sodomized from he who would use sordidness to gain unjust power over him.

Of course, there are competing notions of what the significance of sodomy be. The new-fangled types in academia apparently tend to think of sodomy as perfectly harmless. Historically, in western society, sodomy has at most times been thought an abomination. For example, buggery was a capital offense in England from 1533 until 1861. There is a long and very established sacred tradition of western government being strongly opposed to sodomy. Such tradition should be respected by the court unless the people or the legislators they elect indicate democratically that they wish to overturn the law. In particular, it is a mistake to overturn laws discouraging sodomy just because elites in academia have decided it is appropriate. Elites are rarely as much against sodomy as they ought to be. Academics tend to want people to believe that lacking the arcane knowledge sold at $50,000/annum universities is what screws people up (as opposed to getting screwed in the ass); such belief may make their students study harder and might make themselves, replete with such knowledge, look more impressive. Similarly, the rich will want people to think it's lack of the high society that screws people up. To be concerned with sodomy is considered vulgar. And the people who have disproportionate influence tend to be people who are less shy. But people who have a clue that putting yourself out there can get you sodomized tend to be at least somewhat shy if they have anti-sodomy feelings.

The ordinary non-elite American is wiser about sodomy than the elites, including judges notwithstanding all their legal training, apparently. People should take a clue from Latin. Who better than the vulgus to understand the vulgar? Non-elite American, if he is respectable, is shaking his head and rolling his eyes at the extreme upper-class idiocy involved here. Meanwhile, disrespectable non-elite American is fantasizing about all the easy elite dumbfuck ass that he can corrupt to his advantage in power and influence.

Jupiter said...

Althouse is correct, that marriage does not occur "in nature", unless you somehow imagine that humans are natural. Like, they evolved, or something.

And that is precisely the point. Marriage is an institution that was created by humans, to serve a purpose, and it has served that purpose for longer than history can record. Now comes the 21st Century, with AIDS on its breath from that big, smoking-hot dick in its mouth, to tell everyone who ever lived that they got it all wrong; The purpose of marriage is to allow two chicks who like performing cunnilingus on each other to force a Christian to bake them a cake. Who knew? Marriage really is about enslaving women.

Althouse is to be forgiven, she is a Mother fighting for her child. But Ted Olson is another matter. He is saying what he knows is not so, while carefully avoiding saying what he knows is true. Lawyers do that, but in what sad cause? Homosexuals are broken. They don't work right. Saying that they are just like the rest of us doesn't make it so.

The Godfather said...

"Putting the wrong question is unlikely to yield the right answer, even in law."

The question isn't Why not recognize gay marriage? The question is What in the Constitution prohibits a State from defining marriage in the way that it has been understood for as long as we have records (that government regulation of marriage is more recent than the institution itself is irrelevant).

Equal protection doesn't do it, if the States allow everyone to marry, but "marry" means, under State law, to join with a single human of the opposite sex.* Domestic relations law under our system is the province of State law, and that includes defining "marriage".

* There is a good equal protection argument that committed gay couples ought to have the same benefits as married heterosexual couples.

I favor gay marriage, and have voted for it, but that's a different issues than whether the federal courts should override State laws and constitutions.

Fernandinande said...

eric said...
Good. The vast majority of judges need insulting.


Pudgy, pompous bureaucrats, barely able to grade their own papers, and generally kinda sleazy.

PeterK said...

"Why care, if one supports same-sex marriage? Apart from pollyannaish concern for the rule of law, and without repeating all that others have said about likely backlash, there is the fundamental problem … that courts cannot deliver what LGBT persons seem to want most –dignity. Court victories are hollow victories for the LGBT community, failing to deliver the societal respect they seek, and in fact removing the opportunity for collective expression of such respect through voluntary legislative reform or popular referendum. What they get is not acceptance by the people with whom they share a neighborhood, a political community, a State, and a nation. Rather, they get the power to force something on those people. They deserve better. "
http://www.nationalreview.com/bench-memos/389942/honest-pro-ssm-family-law-scholar-ed-whelan
this is what makes the whole issue problematic. the majority is being forced to accept something that they disagree with. this is what happened with Roe v Wade. Rather than letting the natural course of events (and many states were moving to liberalizing the rules around abortion) the court decided to go whole hog. this is what is happening with SSM and has been. I remember the governor of Iowa saying he was glad that the state supreme court declared for SSM because now the legislature did not have to address some 3000 laws.
State legislatures and state referenda passed laws that stated what marriage is. there was nothing that said the states could not create civil unions.
what we are seeing is the result of 20 years of propagandizing by Hollywood and the media to change people's minds without looking at what is actually being changed

sinz52 said...

There was a time in this country when many Americans believed that there really were natural boundaries between the races, and that God had intended those boundaries to prevent interracial marriages.

In the Loving v. Virginia case, the case had been appealed to the Supreme Court after a Virginia court upheld a statue barring racial intermarriage. That judge had stated:

"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

Back then, racial intermarriage was considered by some to be just as unnatural as same-sex marriage is today.

But what is "natural" where marriage is concerned? Nothing. It's an institution devised by human beings, and hence subject to the culture in which those human beings found themselves at any given time.

EDH said...

Wallace invites Perkins to state his "single, strongest argument against allowing same-sex marriage," and instead of answering, as if he doesn't even want his share of the time, he says: "Well, I'd like to ask Ted, what's the purpose of marriage?" Of course, Ted Olson, the great advocate, has an immediate answer: OLSON: ... It's a fundamental right that involves privacy, association, liberty, and being with the person you love and forming a part of the community and being treated equally with the rest of society.

I'll state the rational basis argument again, so, presumably, Althouse can ignore it once again:

The rational basis argument is that women and men are different and, as a result, heterosexual unions are fundamentally different than same-sex unions.

Further recognizing that the contours of what marriage means and confers is in large part determined by judges in it's termination through divorce and other proceedings, to combine same-sex couples under traditional marriage would likely result in a line of judge-made case law based on facts and values pertinent only to same-sex partner marriages (or vice-versa) that would in a material way disturb the beneficial effects for society of the institution conferred on one segment or the other.

I would think that "rational" legislative interest in curtailing the scope of activist trial court judges to, over time, adulterate marriage in that way would be sufficient to prevent activist appellate judges from, well, adulterating marriage in that way.

sinz52 said...

In MA where I live, gay adoption preceded same-sex marriage.

That is, before same-sex marriage was deemed legal by the courts, we already had gays adopting children and raising them. That had been decided by the courts years prior.

So in MA at least,
we have only two choices: Unmarried gay parents or married gay parents.

I have never understood the logic of social conservatives that marriage is a great institution for heterosexual parents but not for homosexual parents.

The unspoken subtext, of course, is that social conservatives would like to ban gays from raising children altogether.

But if they cannot do that, and gays raise children and lesbians even give birth to children by IVF, then what is the logic of insisting that those parents should remain unmarried?

bgates said...

Nature is also full of rape and murder

Hey law professor, what sorts of creatures other than human beings can kill human beings with malice aforethought?

Ann Althouse said...

"Althouse is correct, that marriage does not occur "in nature", unless you somehow imagine that humans are natural. Like, they evolved, or something."

If you're going to define nature to include everything human beings do, that includes all the gay stuff, so how do you get any leverage for Perkins's point?

Ann Althouse said...

"Marriage is an institution that was created by humans, to serve a purpose, and it has served that purpose for longer than history can record."

"A" purpose? You don't have one and only one purpose. Marriage serves many purposes.

But the question is not what purpose marriage was "created" to serve. It's what do rights mean in the United States. What is liberty? What is equality? Marriage is defined by the state, in whatever way it chooses, for whatever purpose it has now, and that can change with each passing majority. That is then subject to the Constitution, which prevents the majority from winning when rights supersede. And we are trying to say what rights are. Have you thought deeply and consistently about how to interpret rights? Pick a right you care about and check? Gun rights, free speech, the security of your home from police searches… something that matters to you.

EDH said...

There are no guardrails in nature!

Isn't natural selection perhaps the most cruelly neutral of guardrails?

Ann Althouse said...

"Althouse is to be forgiven, she is a Mother fighting for her child."

That is insulting and false, and you should correct yourself and apologize.

I have supported same-sex marriage since I first heard about it, in the mid-80s. My sons were born in 81 and 83. I have never once in my life asked that anyone agree with me based on my having a gay family member and, in fact, I've said many times that personal interest only undercuts one's arguments.

Ann Althouse said...

"Hey law professor, what sorts of creatures other than human beings can kill human beings with malice aforethought?"

Cats.

Jupiter said...

"But if they cannot do that, and gays raise children and lesbians even give birth to children by IVF, then what is the logic of insisting that those parents should remain unmarried?"

Not surprisingly, you've got the thing backwards. You are suggesting that children have a right to two parents who are married to each other. That being the case, unmarried couples should not have been allowed to adopt, now should they? And doctors who help unmarried lesbians get pregnant should lose their licenses.

Actually, we have long recognized that almost any parent is better than none, and single people are allowed to adopt. It is nonetheless true that the best environment for a child is being raised by his biological parents. Every child has them, by the way. One male, and one female. And yes, I know, that is a non-problem that some people are working hard to solve.

Renee said...

But what about a child's right not just to any two adults, but the right to know and be raised by both biological parents.

Even if biological parents are not married, they do not lose there rights and obligations to their children.

Logistics can be a pain though, if you live far apart and do not get along with the other parent.

My children have a right to their bio father, even if I want to new partner (male or female).

Chuck said...

Why does anybody care -- in a federal court constitutional case -- what 80% of people under the age of 30 think?

Olson tried to run that stat:

"People under the age of 30, it's like 80 percent of people agree...[that same sex marriage should be legal]"

Who cares? I might easily understand if somebody wanted to know what "the electorate" wanted. I would expect that "what the electorate wanted" would be paramount, in fact. And we do know that, in state after state on this very subject. Nobody ever said that states HAD to ban gay marriage. But where the hell does Ted Olson get off, claiming that polling results from one small demographic group ought to have a bearing on the law? I think I might like to know what white male landowners thought. At least there is a (now obsolete) constitutional basis for letting that group determine national policy. But if you think that letting white male landowners determine the future policy of the nation, then how do you justify any special condescension to what GenXers think?

Renee said...

But ask people under 30 if marriage be obsolete, is it passed 50% yet?

Renee said...

@Chuck

Why defend something, that no one wants?

Just got a call from my mom, that yet another person I know is going through a divorce.

Moved in with his mom and sees his own kids every other weekend.

Argh...

hombre said...

"Perkins says that's 'apples and oranges'. Why?"

Maybe it's because it is obvious that participants in interracial marriages are born into their race, while, despite folklore to the contrary, it has not been proven that homosexuals are born homosexual. (Although it is rumored that federal judges may establish it by judicial fiat - if they haven't already done so by implication.)

Renee said...

No hombre,


You can have parents of different heritages and ethnicities, but no one has two dads or moms.


There has been some recent but new research that gay youth that have engaged fathers have lower rates of high risk sexual behavior.

The high levels of risky behavior found in minority LGBT youth may not be solely homophobia, but really father absence.
http://www.sciencedaily.com/releases/2014/10/141008121950.htm

hombre said...

BTW, about the "It's over" thread of the other day:

"HuffPo Gay Voices Asks 'Should Incest Between Consenting Adults Be Legalized?'"

"HuffPo Gay Voices Asks ...." As I said then, it's just beginning

Renee said...

Can consenting adult siblings go to jail for having sex? Do they?

sunsong said...

Tony Perkins was out of his league debating Ted Olsen. He came across to me as angry and stupid. He wants his own way and it looks like that’s about as far as he has thought about it. Does he honestly think that his view and his view alone is the purpose of marriage? – lol

I wouldn’t be surprised to see ideologies and religions like Perkins begin to wane and lose followers. Humanity evolves. We learn and grow and change and love and care more. That is our nature. Philosophies based on damnation, exclusion and hell just won’t have much appeal for those who want to learn to be more loving and kind.

Jupiter said...

Ann Althouse said...
"Althouse is to be forgiven, she is a Mother fighting for her child."

That is insulting and false, and you should correct yourself and apologize.

Only Althouse can say what she finds insulting, and I will not insult her further with a "that you were offended" apology. My view is that in most matters she is fairly open-minded, even judicious, but on this issue, which is really fairly marginal, she is passionately committed to one side, appears to be unable even to consider arguments that a majority of Americans, together with everyone else who ever lived, find compelling. Perhaps she should recuse herself.

Renee said...

@sunsong

Yeah, but hell exists.

I don't like it either.

Loving is wonderful, that's not the way problem.

Denial of our sins and faults. No one is perfect. Our pride.

julia mottram said...

Since tony perkins was not given a chance to ask Ted Olsen this question, I will ask it of Ann Althouse:
Under the caselaw used to constitutionalize gay marriage, can you think of a single law that proscribes behavior between consenting that is constitutional.? If so, explain.

julia mottram said...

Sorry. i left out the word adults.

Jupiter said...

"And we are trying to say what rights are. Have you thought deeply and consistently about how to interpret rights? Pick a right you care about and check? Gun rights, free speech, the security of your home from police searches… something that matters to you."

Note that all of those are rights against the government. Indeed, they are all from the Bill of Rights. Are you finding the right to marry a member of your own sex in the Tenth Amendment? You surely won't find it in any of the others. I can think of lots of rights I wish were in there, but they ain't.

There is a larger, looser meaning of rights, but we are concerned here with legal rights. And it seems unlikely to me that the US Constitution contains either the right to kill babies, or the right to marry a member of your own sex. How could such rights have snuck into that document, when none of the men who wrote it regarded them as rights? Did they write it with their eyes closed?

The purpose of the Bill of Rights was precisely to restrict the range of what the government might compel the citizens to do. The government may not quarter soldiers in your home, but it can force you to bake a cake for a lesbian wedding?

(It's always the lesbians that want the cakes, the dresses and the photographs. The boys don't seem to care much about weddings).

n.n said...

Renee:

Ironically, homosexual couplets lack Liberals' conception of diversity. The war on individual dignity should return to haunt them.

n.n said...

Jupiter:

The right to kill babies was a recognized as a faith-based exemption under the First Amendment, which granted women an exclusive right to observe a sincerely-held faith in the privacy of an abortion clinic.

I don't think that the Founders foresaw the establishment of a state religion which engaged in ritualistic human sacrifice.

Jupiter said...

"Under the caselaw used to constitutionalize gay marriage, can you think of a single law that proscribes behavior between consenting [adults] that is constitutional? If so, explain."

Just off the top of my head, the guys in Germany who agreed to be killed and eaten. Agreeing to work for less than minimum wage.

n.n said...

Marriage is both an institution and a commitment. It is an arrangement engendered not only by the natural order, but also by the social order.

Still, as far as institutions are concerned, society and humanity have a compelling interest to normalize (i.e. promote) functional behaviors. Unfortunately, the progress of morally ambiguous womb banks and sperm depositors has complicated the situation.

I blame hope and dreams of money, sex, and ego gratification. As well as the government's interest to raise revenue, reduce the problem set, and manipulate democratic integrity.

Jupiter said...

"I don't think that the Founders foresaw the establishment of a state religion which engaged in ritualistic human sacrifice."

I would not be surprised to learn that one or more of the Founders had paid for an abortion. Certainly, the practice was not unknown to them. Nor was homosexuality, though both were illegal. Had they wished to make either one a right, they could have done so. Of course, they also could have outlawed slavery, but the Southern States would not have signed.

Jupiter said...

But slavery was not found to be unconstitutional by a bunch of judges. It was good and constitutional, right up until that Constitution was amended.

n.n said...

RecChief:

I am attempting to distinguish between cause and effect. The progressive number of bastard children is an effect. The progressive number of divorces is an effect. My hypothesis is that society did not undergo a voluntary transformation. Americans were corrupted, coerced, and offered perverse incentives to accept a new order.

For example, the alienation of men and women in a feminist ideology. Another example, the repurposing of dating during the sexual revolution. There are others, and my desire is to separate cause and effect, the normal from the exceptional, and the related dynamic.

Renee said...

n.n.

Yep we have to start over, ground up. Hard to be constructive, when no one else even cares.

chickelit said...

Althouse is to be forgiven, she is a Mother fighting for her child.

Those sorts of arguments do and should carry weight in public arguments. For example, a certain gay activist went after Sarah Palin and her son. That blogger lost a lot of credibility except for in certain blogging circles. But such sympathies have no place in judicial arguments.

n.n said...

Jupiter:

The point is that they recognized a difference between normal and exceptional behaviors. They classified behaviors for normalization, tolerance, and rejection. This is apart from their personal dysfunctional, unproductive, or fetish behaviors. This is evident in what they normalized or promoted for society to adopt.

As for slavery, the immoral nature of the institution was obviously not universally acknowledged, but the majority did distinguish it from a normal state. They tolerated it only for the sake of fighting a war against the British, various (but not all) native tribes and nations, and Spanish/Mexicans. They could not fight a defensive, civil, and revolutionary war simultaneously.

This compromise was corrected with the Civil War. The process of reconciling the consequences of selective exclusion is ongoing. It's unfortunate that a degenerate religion has delayed assimilation and integration.

Jupiter said...

Blogger chickelit said...
"Althouse is to be forgiven, she is a Mother fighting for her child.

Those sorts of arguments do and should carry weight in public arguments."

I don't really think it is an argument. Althouse took it as an ad hominem (ad feminem?) attempt to discount her views as special pleading. Which it was, at least in part.

Jupiter said...

"As for slavery, the immoral nature of the institution was obviously not universally acknowledged, but the majority did distinguish it from a normal state. They tolerated it only for the sake of fighting a war against the British, various (but not all) native tribes and nations, and Spanish/Mexicans."

Certainly they saw it as normal, even if they thought it immoral. Slavery was practiced by all civilized nations, and even some advanced tribes, up until the 18th century.

Prior to slavery, the practice was for victors in war to kill the men, boys and older women, and keep the girls. See the Old Testament, or ISIS. I suspect that this explains a lot of the differing attitudes of men and women to war. For men, losing a war is death, and the Y chromosome carries that knowledge. For women, losing a war may be a personal disaster, but not necessarily a genetic one, which is what concerns evolution, and the X chromosome.

buwaya puti said...

The only evolving humans are doing at the moment is that in advanced countries they are getting stupider. There are some interesting recent studies on that.
Otherwise, the classic view is that humans are humans, the same now as they were 100 or 2000 years ago, and to claim better "values" for the moderns is plain hubris. We are no better, we have just found different ways to misbehave. And our ability to deceive ourselves has also improved.

buwaya puti said...

The only evolving humans are doing at the moment is that in advanced countries they are getting stupider. There are some interesting recent studies on that.
Otherwise, the classic view is that humans are humans, the same now as they were 100 or 2000 years ago, and to claim better "values" for the moderns is plain hubris. We are no better, we have just found different ways to misbehave. And our ability to deceive ourselves has also improved.

Anonymous said...

Althouse took it as an ad hominem (ad feminem?) attempt to discount her views as special pleading. Which it was, at least in part.

In fact, it's just the sort of emotional motive which Althouse usually insists on seeing behind people's arguments when they're (per Althouse) pretending to be rational. Only behind other people's arguments, though.

somefeller said...

You know what the best part is about Althouse gay marriage posts? The way they bring out Chickie's obsessions and grudges about Sarah Palin and Renee's babbles about whatever is rattling around in her cranium. Good times, good times. Hard to see why the anti-GLBT marriage side is losing among the educated classes with such fine advocates on its side.

Renee said...

Sigh..

At least I got something rattling in there.

Titus said...

Alaska District Court Undermines The Sanctity Of Bristol Palin’s Marriage


Gay Marriage in Alaska!

somefeller said...

Snappy comeback, Renee! Good to see you're still firing on all cylinders.

somefeller said...

Titus, given recent history, one hopes the Palin family will not resort to violence to express their displeasure with that judge's ruling. But if they do, we know a stretch Hummer will be involved, for maximum dramatic effect.

RecChief said...

"Americans were corrupted, coerced, and offered perverse incentives to accept a new order."


Yes, I'd agree with that. Look on youtube for a series of interviews with a defector from teh Soviet Union in the 1980s. He talks about using the universities to subvert America. generational time frame

Michael K said...

"
Certainly they saw it as normal, even if they thought it immoral. Slavery was practiced by all civilized nations, and even some advanced tribes, up until the 18th century"

This is not true of the Constitutional Convention The matter of slavery was a matter of debate and the final compromise was made to accomplish the union. Certainly the compromise was consistent with existing law but it did not accept slavery without question. It is popular with certain revisionist groups to allege that slavery was not an issue but it was. Homosexual marriage was not as no one imagined such a thing.

AIDS and the consequences of homosexual behavior brought this up.

chickelit said...

Somefehler muses: The way they bring out Chickie's obsessions and grudges about Sarah Palin and Renee's babbles about whatever is rattling around in her cranium.

Here's the thing: guys like you -- the lot of you -- are in tacit agreement with Crack's ravings about injustices which predate most of our living memories. Yet you glom right on to them, nodding approval. But when it comes to the perverted ravings of a gay man beset with obvious misogyny who attacked a presidential candidate well with our collective memory, it's A-OK?

Think about what your advocacy of un-rebuked bigotry against straight women and mothers does for your side, pal.

julia mottram said...

"Agreeing to work for less than minimum wage."

People work for less than minimum wage all the time. I repeat my question for Ann: under the caselaw establishing gay marriage, is there any law proscribing behavior between two consenting adults that isconstitutional?

somefeller said...

And the ranting continues. Hate to break it to you Chickie, but no one outside of a few Wasilla dead-enders sees criticism of Sarah Palin as being anti-mom bigotry. But it is amusing to watch Andrew Sullivan see the movement he helped intellectually lead win victory after victory (including among the Ted Olsons of the world and many GOP judges) while the Palins are reduced to low-cable reality TV shows and drunken Jerry Springer brawls. Though maybe reduced isn't the right word in that context. Onward and upward!

Renee said...

Only if the Kennedy's had a reality show....

But they were rich enough to maintain their own compound, and keep their crazy private.

chickelit said...

Hate to break it to you Chickie, but no one outside of a few Wasilla dead-enders sees criticism of Sarah Palin as being anti-mom bigotry.

I accept that that is your opinion, and perhaps a majority of other gays' opinion.

somefeller said...

All one has to do is look at the scoreboard, Chickie, both politically and culturally, to see which side has credibility. And I'm not gay, so the "other gays opinion" implication is as factually-challenged as other things you say. But don't worry, your position as President of your local Palin fan club is secure. You have all the necessary credentials for leadership of such an august body!

The Godfather said...

The claim that Prof. Althouse supports gay marriage because she has (as I understand it) a gay son is stupid. She offers cogent reasons for her position, and if you think those arguments are wrong, say so. But it's a mere ad hominem attack to say that her family is reason enough to disregard her opinion.

When I was living in SE Florida, I had a lot of friends who were gay, or were straight parents of gays. I understand how having a gay child can open your mind and heart to something that, on theoretical grounds, might have seemed repellant to you. But Althouse argues for gay marriage on the merits, and if you disagree with her arguments (as I do in some respects), then tell us why they are wrong; her family has nothing to do with it.

chickelit said...

Ann Althouse said...

I have supported same-sex marriage since I first heard about it, in the mid-80s.

yet somefehler said:

But it is amusing to watch Andrew Sullivan see the movement he helped intellectually lead win victory after victory...yada yada

One of those things doesn't belong. At least Sullivan isn't going full Gore.

It would amusing to to point out, point-by-point, how wrong he has been on Obama over the years, if it weren't so damn tragic for the nation.

somefeller said...

Helped intellectually lead ≠ began or founded. Sullivan is someone who brought the already-existing discussion into the political mainstream, such as via his work at The New Republic. But nice try. And have you checked with your cable company to see if they carry whatever channel Sarah Palin's new show is on? Maybe they'll let you watch for free if you promise to keep the sound off.

Trần Văn Quảng said...

Civil unions were suggested and rejected. This is not about tolerance or even equal protection. This is about normalization. Notably selective normalization. Retributive change.
Kiem tra ten mien
Tao web mien phi
Mẹo vặt cuộc sống
Ten mien mien phi
Dien dan hoc seo
Làm đẹp

Renee said...

My problem is that I accepted homosexuality, prior to gay marriage.

Really.


Renee said...

My problem is that I accepted homosexuality, prior to gay marriage.

Really.


Anonymous said...

In the society of The Vagina as Fascist State women have rejected reproduction; the gay male has biologically been rejected by reproduction. While at first glance this would position the gay male as part of The Vagina as Fascist State, further analysis shows points of disconnect in this thinking.

Posit this: if the technology became available to identify homosexuality in the women it is not too risky to suggest that many women would choose to abort such a child: this would plainly put the gay male at odds with The Vagina as Fascist State. Now -- of course -- many gay males will succumb to The Vagina as Fascist State as a way to retain a place in 'acceptable' society; however, male gays may choose to reject the tokenism involved, refusing to being a symbolic chihuahua in a woman's handbag.

In The Vagina as Fascist State the gay male and the heterosexual male may find more in common than first thought: the rejection of a life lived under an order determined by those without their best interests at heart. As such, it is not hard to picture the Face of The Vagina as Fascist State covered in political semen, the non-reproductive money shot occurring at a point of a sexual act wherein the two partners are not even touching: this, indeed, may be the Face of the Future.

CStanley said...

Nature is also full of rape and murder and all sorts of things that don't present the pattern we want to reproduce in law. The argument from nature is inane.

Who is this "we" you speak of? Isn't that the crux of the problem, that different groups of "we's" see differing rationales for the legal construct of marriage?

And, as you come close to conceding with regards to Olsons arguments, the rationale of "love" is also inane, at least as inane as the appeal to nature.

It seems to me that Perkins is using "nature" as a stand in for "natural order." He's probably trying to frame the religious argument in a more universal (secular) manner, and it does involve sex as the natural means of procreation.

sinz52 said...

"unmarried couples should not have been allowed to adopt, now should they? And doctors who help unmarried lesbians get pregnant should lose their licenses."

And because that's now impossible--the courts have already ruled on it--all the arguments against same-sex marriage evaporate.

Gay parents exist. Today. It's a reality that is NOT going away.

And it's better for the parents of children to be married. Whether those parents are straight or gay.

CStanley said...

Marriage is defined by the state, in whatever way it chooses, for whatever purpose it has now, and that can change with each passing majority.

Um...bullshit.

The courts are now deciding that the people of states no longer have the right to define marriage around the purpose of legally binding two people who are of complementary sexes in a relationship that supports natural procreation.

Renee said...

Sinz52....

You can have gay parents, you just just can't have two moms.

A woman may be gay, but her rights as a gay woman END when she denies her children the right to their father.

Watch the show 'finding your roots', even gay people have roots. You can't deny a child the right to both sides of kin.

I totally accept and honor same-sex relationships, its the 'we can deny children their natural rights' I'm calling everyone on.

CStanley said...

But the question is not what purpose marriage was "created" to serve.

Completely disagree. Some definitions or legal constructions of marriage would be more inclusive than others. The way you define it is what creates the possibility of disparate treatment.

And, to be fair...the problem is that social conservatives themselves did not uphold the original intent of marriage. Accepting no fault divorce, artificial birth control, cohabitation, and IVF have made the legal challenges inevitable.

Renee said...

@CS

Exactly, gay marriage is a result. Not cause. There was enough research that our society just can't handle the levels of family disruption on children. We always need legal and social pathways, if a marriage truly needs to separate.... But really the high levels are straining the communities.

Not judging anyone's personal situation, rather our communities simply can't deal with the levels and concentrations of it.

sinz52 said...

"A woman may be gay, but her rights as a gay woman END when she denies her children the right to their father."

That is a problem with all adopted children, not just the adopted children of gay parents.

When a mom gives her child up for adoption, she often wants to maintain her privacy and anonymity.

As for lesbians getting pregnant by IVF: Typically the sperm donor signs an agreement in which the doctor pledges to maintain his anonymity. Again, that is the case whether we're talking about a lesbian trying to conceive by IVF or the heterosexual but sterile woman trying to conceive by IVF.

Renee said...

Sinz52,

Complete agreement, but the isnt the birth mom that wants anonymity but the adoption agency/adoptive patents.

Money....

If a birth mom can't raise her child, at least be raised by relatives.

So many abuses in adoption, that it has become human trafficking.

Renee said...

Sinz52,

Complete agreement, but the isnt the birth mom that wants anonymity but the adoption agency/adoptive patents.

Money....

If a birth mom can't raise her child, at least be raised by relatives.

So many abuses in adoption, that it has become human trafficking.

CStanley said...

Renee- on what basis do you conclude that relatives are always or even usually available to raise children of mothers who are unable to care for their biological children?

chillblaine said...

Why has Morris Dees been so ineffectual in shutting down Tony Perkins? Tony Perkins is engaging in hateful hatey hate speech and his privilge to do so should be revoked. I hope the educated elites at Salon Gamechange are on the case.

Renee said...

@CS,

We ask them.

That's what we do at DCF.

We do a home study, and if they're cleared. They get guardianship.

Easy.

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

Sunsong: "Humanity evolves. We learn and grow and change and love and care more. That is our nature. Philosophies based on damnation, exclusion and hell just won’t have much appeal for those who want to learn to be more loving and kind."

Clearly, you know even less about "our nature" than about Christianity. 20th century Russia and China taught some of us about the nature of atheists unchecked by Jesus's admonitions. 21st century N. Korea follows that tradition while in the Middle East we see the butchery and terror reflecting the "nature" of those following the false moon God, Allah.

You may prefer loving kindness, but without some transcendent grounding for morality besides human preference, the Stalins, Maos and OBLs will always outvote you. THAT is our nature.

BTW, where did you come up with the "love and kindness" bit? Evolved morality? ROTFL.

Real American said...

"I disagree, therefore your arguments are not legitimate" is the stupidest fucking argument I've ever seen. Even a law professor should know better.

damikesc said...

The more solid point is that there is no legitimate reason for denying opposite sex couples access to the legal relationship that is marriage.

Does a reason exist to ban polygamy? Incest? Because I'm not seeing it.

You forgot blow jobs and some other practices that don't belong on a family blog.

Married blow jobs? *snicker*

Women get married to avoid doing that any longer.

Revenant said...

Putting Tony Perkins up against Ted Olsen is somewhat unfair to opponents of gay marriage. It reminds me of when CNN used to use Pat Buchanan to represent "the right".

Brent said...

"Does a reason exist to ban polygamy? Incest? Because I'm not seeing it."

As a conservative, I have never understood this argument. Polygamy - there is a rational basis to prevent families from having more children than they can reasonably care for, prevent increased incidents of child abuse that are common to it, make it more likely for more men to find a mate, etc. Incest - to decrease the opportunity for birth defects (even someone with a vasectomy can impregnate a woman in rare cases). Sure, you could allow it for sterile couples, but it is a fairly easy bright line that doesn't take away significant rights. Someone who wants to marry his sister has a good chance of finding another female he is attracted to. Gay individuals, on the other hand, are told that they can never have the chance of marrying someone they are attracted to.

I have read every single comment here, and I still don't hear a rational basis for preventing two gay people for marrying. Absent a good reason, all I hear is fear (maybe of one's own desires) or lack of the ability to sympathize with another's desires to have the same rights as you. Have some compassion people. Society will not crumble because we allow 3% of the population, who are already living together and raising children, to have basic legal rights too.

Now, whether the Constitution has anything to say about the issue is entirely debatable. But, I have to admit that the 10th Circuit's argument is compelling - even to me - who generally sides with Scalia. The only thing that determines if couple A or couple B can get married is changing the gender of one person in that coupling. Sounds like gender discrimination to me - thus the need for a rational basis, which does not exist.

damikesc said...

Polygamy - there is a rational basis to prevent families from having more children than they can reasonably care for, prevent increased incidents of child abuse that are common to it, make it more likely for more men to find a mate, etc

...except society DOESN'T do that. Child abuse? If that was a huge concern, you wouldn't see moms who abuse their kids given their kids back repeatedly. And taking care of them? We SUBSIDIZE people who can't take care of their kids.

Incest - to decrease the opportunity for birth defects (even someone with a vasectomy can impregnate a woman in rare cases).

Odds of birth defects are not appreciably higher for incestuous couples as with, say, 35+ year old women giving birth. So that isn't really going to work, either.

And given that we are legalizing gay marriage, which cannot naturally produce kids at all as is, this seems like a spurious argument against.

Someone who wants to marry his sister has a good chance of finding another female he is attracted to. Gay individuals, on the other hand, are told that they can never have the chance of marrying someone they are attracted to.

Again, based on current law --- in what court would this argument ever hold any semblance of a chance of victory?

Since courts now hate "arbitrary" laws, then, well, flood gates tend to open in ways that aren't that hard to follow.

I have read every single comment here, and I still don't hear a rational basis for preventing two gay people for marrying. Absent a good reason, all I hear is fear (maybe of one's own desires) or lack of the ability to sympathize with another's desires to have the same rights as you. Have some compassion people. Society will not crumble because we allow 3% of the population, who are already living together and raising children, to have basic legal rights too.

Except you CLEARLY think it'd be bad for polygamy or incestuous marriage to be legal and provide no actual, valid reason for it.

It all boils down to "I don't like it".

I don't like it, either --- but let's be real. Using the IDENTICAL arguments of gay marriage advocates, no way laws against either of these stand any actual court scrutiny.

Polygamy is already being chipped away it in terms of illegality and cultural acceptance (same thing happened with gay marriage, mind you). Give it 10 years and people like you, who oppose it, will be the "bigots" standing in the way of "individuals exercising their rights".

The only thing that determines if couple A or couple B can get married is changing the gender of one person in that coupling. Sounds like gender discrimination to me - thus the need for a rational basis, which does not exist.

I'm not sure a more asinine argument for gay marriage could possibly be put forth than this.

Basil said...

SO many policy arguments for a legal blog. The issue is where in the Federal Constitution is the power for federal judges to do this, regardless of whether it is a good idea or not. The answer is that it is not there.

The Court is using the "no circuit split" to avoid writing a "penumbras and emanations" opinion to universal derision.

The Reconstruction Congress intended to eliminate the badges and indicia of slavery, over which a Civil War was fought. That is why this is different from Loving v. VA.

This Congress in 1868 and the people who voted on the Amendments did not (as a matter of historical fact) intend to address the legal status of homosexuals or to authorize polygamy, as all or virtually all of the members of that Congress would have agreed that homosexuality and polygamy were immoral, illegal and unnatural.

The Court has a duty to take one of these cases and write an opinion defending this judicial tyranny, to live alongside Dred Scott, Plessy and Roe (Casey) in infamy.

hombre said...
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hombre said...

Brent: "I have read every single comment here, and I still don't hear a rational basis for preventing two gay people for marrying."

Civil unions provides all the secular benefits of marriage and can be accomplished by a ceremony with all the trimmings.

Gay marriage is primarily intended to undermine three millenia of religious belief and tradition. Judeo-Christian morality and tradition hold that marriage is a sacred union of a man and a women. The courts, particularly federal courts, are in the process of shoving progressive amorality down our throats and eradicating the influence of Judeo-Christian ethics on our society.

The legal arguments they honor are recent constructs ignoring the will of the founders and based on the myth that "separation of church and state" has something to do with the Constitution. The factual arguments, like those in Roe, are bullshit. (E.g., "thousands of children will suffer because their gay parents are unmarried." This in an era when unmarried parents are common as dirt.")

The courts dishonor the will of the people which is expressed by voting, not by polling.

Regardless of whether you choose to find a "rational basis" for yourself, and there are some, as a conservative you should have a sense of what has happened in societies where public morality is tethered only to the latest polls, the news media and the preferences of libertines.

Brent said...
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Brent said...

Hombre, I get the points you are making. My preference would be civil unions for any couples who want it, including hetro-sexcual couples, with marraiges left to religion. But, conservatives rejected this option and left marriage as the only other avenue for avoiding gender discrimination.

Brent said...

"I don't like it, either --- but let's be real. Using the IDENTICAL arguments of gay marriage advocates, no way laws against either of these stand any actual court scrutiny."

But that is where you are wrong. Even Utah's attorney general could not come up with a single reputable study to show a rational basis for preferring a male and female parent (he withdrew the only study he briefed the night before oral argument due to its lack of credibility).

Look, I am a religious person with a conservative bent. But, polygamy and incest aside, you still have not articulated a basis for denying a person the same rights as someone else of a different gender. I prefer to error on the side of individual liberty over pushing my religious views on the masses.

Brent said...

"This Congress in 1868 and the people who voted on the Amendments did not (as a matter of historical fact) intend to address the legal status of homosexuals or to authorize polygamy, as all or virtually all of the members of that Congress would have agreed that homosexuality and polygamy were immoral, illegal and unnatural."

Admitted. But, where the text is not ambiguous, Scalia rightly argues that you don't look at the intent of the drafters. Here, a plain reading of equal protection of the laws seems to dictate that you don't get to deny one couple the same rights as another, based solely on the gender of one of the parties.

Admittedly, there is something unsettling about courts finding that an amendment written in the 1800's has anything to say about this modern issue. But, the amendment was broad in its statement of a general principle, and must be applied broadly. If we don't like the results, then I suggests we adopt amendments/laws that are more narrowly tailored.

Brent said...

"I'm not sure a more asinine argument for gay marriage could possibly be put forth than this."

I don't get it. You provide thoughtful and reasonable arguments against the other points in my post and end on that? Since when is calling an argument asinine a rebuttal, other then when you really don't have anything else to stand on? How weak.