In dozens of interviews, lawyers and law professors said the imbalance in legal firepower in the same-sex marriage cases resulted from a conviction among many lawyers that opposition to such unions is bigotry akin to racism. But there were economic calculations, too. Law firms that defend traditional marriage may lose clients and find themselves at a disadvantage in hiring new lawyers.
But some conservatives say lawyers and scholars who support religious liberty and oppose a constitutional right to same-sex marriage have been bullied into silence. “The level of sheer desire to crush dissent is pretty unprecedented,” said Michael W. McConnell, a former federal appeals court judge who teaches law at Stanford.
April 12, 2015
"[S]tanding up for traditional marriage has turned out to be too much for the elite bar."
Adam Liptak writes.
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136 comments:
“The level of sheer desire to crush dissent is pretty unprecedented..."
The level of sheer desire to crush dissent is pretty much normal for progressives.
The uniformity of the "you'd better support gay marriage or gay people in general or you might not be able to find good talent" meme is interesting. We heard that over and over in local arguments on RFRA here in Indiana.
I'm told there are no jobs to be had by new graduates, yet all of these companies and cities are worried about being able to find "good talent"
Something doesn't add up here ...
Many employers fire salaried employees who speak out against gay marriage. Do you want to ruin your career?
Remind me again, which side is the oppressive-and-conformist one?
I lost my notes.
On the one side, you have an old cultural movement that wants the freedom to say "this practice is morally wrong, even if it is not legally wrong."
And on the other side, you have lawyers who want to harm the business of other lawyers...because those lawyers represent unpopular views.
And activists who want to destroy businesses, because of the opnions of the business owner.
Not to change topics, but I'm intrigued by the author's use of the term "the bar" to encompass all of law much like the term "academy" embraces all of academia. I think Americans would be profoundly shocked to think through what's being stated here.
To most American, there's always the "other side" especially in law; it's unthinkable and downright un-American for "the Law" to behave in such a unilateral, monolithic way. The best analogy I can make is the way elite American science embraces AGW without dissent, best exemplified by the AAAS flagship publication Science. The Germans had a term for this called Gleichschaltung.
What happened to the side that says gay unions are not morally wrong but just not marriage?
Defending traditional marriage should be taken as defending the word marriage.
It has a repertoire of ways male female unions succeed and fail.
Gays can develop their own with their own word.
I suspect a male=female source for the need to conflate gay unions with marriage. A political move against the word marriage.
One can't help but notice that the lesbians of the bar are becoming increasingly lesbian in their appearance while other women, especially the younger ones, are becoming increasingly non-lesbian in their appearance, if you know what I'm trying to say, here, and I think that you do.
PROGRESS!!!!1!1!!!!!!!
The solidification of the Approved Correct Thinking is forming into an impervious Big Black Monolith, which will in turn make a Giant Space Baby.
Thus Spoke Zarathustra.
I am Laslo.
Marriage, whether gay or straight, is an affront to the rights of singles. In fact, acceptance of gay marriage has exacerbated the exploitation of singles by allowing more people to nuzzle in to feed at the gummint benefits trough at their expense.
The time has come for "progressives" to advance the cause of the singles and the childfree, another group heavily exploited by the current system of gummint taxation and special benefits.
A simple solution to the problem would be to abolish civil marriage and recognition of civil unions generally. It is right for each person to be taxed and granted rights and benefits as an individual. Let the churches continue to bless marital unions but get the gummint out of the business!
@rhhardin: Jurists can't wrap their heads around the word "equivalency" and must substitute the word "equality" instead. Thus they find unending conundra (conundrums?) in trying to equate this and that when what they mean is this is like that but literally not the same thing. Chemists figured out the equivalency vs. equality thing long ago.
I'm reading Fred Siegel's book The Revolt Against the Masses and his point about Obama's "top and bottom coalition" is pretty interesting and explains a lot. There seems to be a real push to join the "top" part.
"Defending traditional marriage should be taken as defending the word marriage."
In law, looking at constitutional rights, the question is what can government do to people, not what can government do to words. Words are involved, but the inquiry is into how people can be treated. No one is depriving you of the ability to think of marriage according to a tradition that is meaningful to you. That isn't the issue. The question is whether government, having established a legal status and attached numerous benefits to that status, can exclude same-sex couples from access to that status. Government must at least have a legitimate interest in that exclusion. To reframe your attempted argument, you'd need to say that government's legitimate interest in exclusion is that traditionally people have thought of the word marriage as referring only to opposite sex couples.
"Defending the word marriage" just doesn't read as a legal argument.
"The level of sheer desire to crush dissent is pretty much normal for progressives."
It's what they do. It's who they are.
But I do respect AA for putting up this post, knowing the likely reaction.
“It’s so clear that there are no good arguments against marriage equality,” said Evan Wolfson, the president of Freedom to Marry. “Lawyers can see the truth.”
This woman has good point.
What are the good arguments against? Most come down to either a religious objection which can't used to set national policy or speculative fears that can't be backed up because we're entering uncharted waters. There will almost certainly be negatives as well as positives for society as a result gay marriage, but know one knows what they are yet.
Its like the introduction of the Pill which has had huge societal ramifications, but nobody could foresee them at the time. But even if they could....
rhhardin said...
Defending traditional marriage should be taken as defending the word marriage.
That's pretty close to an intellectual property argument: traditional marriage had the word first by rite and should not yield it as a right.
Odd, because I've always read you through the years as being very anti-intellectual property.
I certainly think both sides should have excellent lawyers making the argument. When the decision comes in, it would be good if people can regard it as having been fully and fairly litigated.
"Thus they find unending conundra ... in trying to equate this and that when what they mean is, this is like that but literally not the same thing."
The inability to make this distinction seems to pop up more and more among those who, for whatever reason, have access to the public megaphone. You would think that after all those years of emphasis on "critical thinking" courses in higher ed., this would not be a problem – but in fact it seems to be getting worse.
“Lawyers can see the truth.”
Best not be arguing against The Truth.
Against The Truth, there is no defense.
Many employers fire salaried employees who speak out against gay marriage.
Can you provide some examples of this? This is really a very serious allegation.
Althouse wrote: In law, looking at constitutional rights, the question is what can government do to people, not what can government do to words....
That's all well and good but we're now in situation where governments are compelling people to do things against their wishes. The "choice" for some people is to close down their businesses. These situations are creating interesting standings in the legal sense. Surely some enterprising American lawyers will make something of it...or not?
I misread the first name.
I guess Evan Wolfson probably isn't a woman.
Keep liberal societies weird and equal, uniformly weird?
The bigotry (i.e. sanctimonious hypocrisy) of selective normalization, rather than principled tolerance, escapes their attention.
I certainly think both sides should have excellent lawyers making the argument. When the decision comes in, it would be good if people can regard it as having been fully and fairly litigated.
Must be the lawyer in you.
I would prefer to see the issue handled by legislation enacted by the will of the people.
Of course when I got my wish...you began to get your wish which overruled mine
"Defending the word marriage" just doesn't read as a legal argument.
It's a moral argument. Not that gay unions are immoral but that destroying the word marriage is immoral.
The argument is directed at the electorate, not the judges.
The judges should know better on their own. This is a political matter.
As to equal treatment, gays are free to marry opposite sex. That's equal.
As to benefits, it's a moral argument that civil unions ought to confer the same benefits. But let them develop their own word for the arrangement.
Which word, most likely, would be a resource by its distinction from marriage, on all sides.
Without a flat tax rate, by the way, you can't make the tax treatment of marrieds equal to the tax treatment of singles.
The tax benefits of unions and marriages and singles has a mathematics problem, not an equal protection problem.
Bob Boyd wrote: Its like the introduction of the Pill which has had huge societal ramifications, but nobody could foresee them at the time. But even if they could....
A co-inventor of The Pill, Carl Djerassi, did foresee the effects of his invention.
I've always thought it odd that that invention--profound as it was--was never recognized by the Swedes.
Why stand up for a dying tradition?
Traditional marriage is all about sex and procreation. Now any men or women can have sex without consequence. The man can skip out any time he wants, the woman can kill the inconvenient mess in her womb. Why bother to get married? To pay the marriage tax? Co-habiting takes away the divorce mess, saves tens of thousands spent on weddings.
Before the end of the century, same sex marriage becomes "traditional" marriage.
Gay marriage may even be one of the huge, unforeseeable ramifications of the Pill.
This woman has good point.
What are the good arguments against? Most come down to either a religious objection which can't used to set national policy or speculative fears that can't be backed up because we're entering uncharted waters. There will almost certainly be negatives as well as positives for society as a result gay marriage, but know one knows what they are yet....
That you cannot even imagine what the non-religious objections to SSM might be is the part of the problem. That you believe that the burden of proof falls on those resisting change to the status quo is the other part. Those unfamiliar with the arguments against SSM assume the silence of arguments from SSM opponents means that there are no arguments that are not based on religion or bigotry.
In fact, there are a host of economic and social science based reasons for objecting to SSM, yet those objections are seldom voiced because those who do are shouted down as bigots. Or, in the California case that overturned Prop. 8, the judge refused to allow those arguments to be made. Having excluded the pro-Prop. 8's expert witnesses, the judge was free to rule that the ONLY objection to SSM was based in bigotry. Shouting down and intimidating those who support traditional marriage causes many in the public to reach the same conclusion: opposition to SSM is bigotry.
The proponents of SSM have also shifted the burden of proof from those advocating change to those defending the status quo. They say, unless you can prove SSM will harm society, it must be allowed. That's the opposite of the way such things usually work (at least in textbooks). Usually it is the person wanting a change who has to prove the change is warranted.
Note: I'm NOT posting to argue for or against SSM. Your argument simply encapsulated how effective the gay lobby has been in setting the terms of the debate. So successful that the other side cannot even voice its argument without being thought a bigot by most listeners and without significant risk of economic harm. The gay lobby's tactics have not be fair, but they sure have been effective.
Does debate even exist?
And you wonder why some potential talented candidates do not apply to law school?
Today, even I said marriage was (in past tense) about children, SSM advocates will deny that claiming marriage is about property.
Is paternity still assumed by marriage in all 50 states?
Yes.
Not until DNA tests for a father are required at birth, marriage is still linked to procreation.
Children who are a product a third party reproduction (and adoption) are speaking up, we may not revert the old definition of marriage but birth certificates should represent the actual identity of the person.
Since sodomy was made legal in the 50 states, the result is that the Equal Protection clause of the Amendments has become supreme.
The simple solution, would be for the Supreme Court to declare all State Marriages as unconstitutional.
There is nothing in the Constitution that gives the States the right to marry people.
Jimbino- Doesn't the practice of the state recognizing marriage mostly have to do with children?
If the state eliminated civil marriage, would it be retroactive? Would I suddenly be eligible for housing assistance and food stamps? Could my husband 'rent' me our house so that I could pay the mortgage with section 8 vouchers?
While I agree that there's no reason for the state to recognize 'going steady and having sex' with special benefits, wouldn't abolishing civil marriage lead to all sorts of problems in terms of determining which children were indigent, and which were not?
Gay marriage is sort of DOA.
Since marriage itself is obsolete to those under 35, so for us marriage defenders we focus on child rights to be raised by their mom and dad.
It's such a mess, just start over.
@ DKWalser
I'm not calling anyone a bigot.
The question is whether government, having established a legal status and attached numerous benefits to that status, can exclude same-sex couples from access to that status. Government must at least have a legitimate interest in that exclusion.
So Ann, what is your argument in favor of excluding combinations like brother-brother, grandmother-grandson or even friend-friend from all those 1000+ special benefits granted by gummint?
rhhardin: Without a flat tax rate, by the way, you can't make the tax treatment of marrieds equal to the tax treatment of singles.
Not true. Treating every taxpayer as single, whether gay or straight, related or not, would be quite feasible and would simplify the tax code immensely.
It is my understanding that some countries, like Denmark, virtually do that very thing.
Regarding children, they would best be considered the sole property and responsibility of the bearer, subject to negotiation with other interested parties, like the father--a great Coasean solution, since the woman already bears almost all of the burden and has most of the rights, whether to carry to term or abort.
I'm no lawyer but this phrase seems to apply:
res ipsa loquitur
“It’s so clear that there are no good arguments against marriage equality,” said Evan Wolfson, the president of Freedom to Marry. “Lawyers can see the truth.”
So there is truth? Truth exists? And there is a truth regarding marriage?
So when something is presented as the contrary to that truth, then that would not be marriage, but something else? Or would that be marriage too?
Is the truth that X and Y are exactly the same? Or is it that X is X, while Y is Y?
Is it truth that one relationship that by its very nature has within that relationship the potential to be procreative, i.e. have children, is the same as another relationship which by its very nature is sterile and can never in a billion years produce children solely within that relationship?
Is that the truth? That fertility and sterility are the same? That sterility needs the same legal protections that fertility needs?
Whatever the hell you want to call the male-female conjugal relationship, whatever name you want to attach to it, it is inherently different from any male-male or female-female relationship, just as it is also different from any male-female nonconjugal relationship.
Apples and oranges may both be fruits, but they are quite different. That's what the truth is, if it is truth we are after.
jimbino,
Many Americans would agree, as would the Pope. Social supports are important, not every is heterosexual and even if they are or not, not everyone gets married. Legal recognition as (next of kin) isn't a bad thing.
But well marriage was different, because it connects to the two primary social supports (our mom & dad). Without marriage society still needs to support a mom and dad being a parent. How will help parents? Both of them.
This quote comes from the Howard Law Review's "Portrait of a Marriage." 2006
In a recent decision from New York’s appellate division, (which is not old) the court stated that: It is an undisputed fact that the vast majority of procreation still occurs as a result of sexual intercourse between a male and a female. In light of such a fact, “[t]he State could reasonably decide that by encouraging opposite-sex couples to marry, thereby assuming legal and financial obligations, the children born from such relationships will have better opportunities to be nurtured and raised by two parents within long-term, committed relationships, which society has traditionally viewed as advantageous for children.”65 The risk of a redefinition of marriage is that this social understanding and the goods it promotes are in danger of being lost in the new adultcentered version of marriage."
The justification for recognizing SSM in the Supreme Court last time was because some woman wanted to avoid the estate taxes on her partner's estate by claiming the 100 percent marital exemption.
If getting a 100 percent exemption for estate taxes is a right for a couple of women, why should it not be a right between a parent and a child? Or between two persons who are not having sex with each other? Just two housemates? Or two friends who live separately?
The whole cornucopia of "benefits" that same-sex couples say that they are entitled to as a matter of right, but are being denied because of marriage laws, why should not those benefits be extended to everyone? What the hell business is it of the government or you whether my friend and I are having sex or not? Everyone should get the benefits of marriage equally.
In a decade we went from a liberal court (New York State) defending marriage, to now no one knowing what marriage was about.
We all play dumb, mostly out of fear.
rhhardin: Without a flat tax rate, by the way, you can't make the tax treatment of marrieds equal to the tax treatment of singles.
Not true. Treating every taxpayer as single, whether gay or straight, related or not, would be quite feasible and would simplify the tax code immensely.
The trouble is that there are two requirements, and they conflict.
1. Families with the same total income should pay the same tax.
2. The tax code should neither favor nor disfavor marriage status.
You can't do both unless you have a flat tax.
You can of course ignore marriage status entirely, but that ruins (1).
The current climate, Professor McConnell of Stanford said, means that important distinctions are being lost. One is that it is possible to favor same-sex marriage as a policy matter without believing that the Constitution requires it.
Important distinctions don't get much more lost than this one has.
Deidre says:
Jimbino- Doesn't the practice of the state recognizing marriage mostly have to do with children?
That's kind of a crazy question, now that most Amerikan babies are born to unmarried women.
I'm only a physicist who is used to dealing with truth, evidence and logic, none of which pertain to our Byzantine system of laws regarding marriage.
So, I ask: What is the gummint interest in breeding and rearing children?
Thoughtless answer: Preservation of the human race.
So, I ask: What is the gummint interest and authority for preservation of the human race?
There is none in the Constitution. You'd have to go to the discredited Bible to come up with a "reason."
"Go forth and multiply" can be satisfied by married heteros and gays and by single women and men who pay for a surrogate.
There is no command in the Bible to marry Amerikan Style and, indeed, both Jesus and St Paul were confirmed bachelors who advised against marriage.
There is no Biblical model for Amerikan marriage, unless you consider the marriage of Job and his wife (super-bitch).
The Patriarchs had multiple wives, and David and Solomon famously screwed around, as did Lot.
Gays won; oldies lost.
Jimbino-- So yes, single moms get welfare. Married moms don't.
But doesn't recognizing when the father is contributing to the family satisfy a state interest of "reserving benefits for the truly destitute?"
Actually, without marriage, how would child support WORK?
I mean, we could just say "All mothers with children get x$ in food/housing/other aid for each child."
Apparently, the state seems to think it has an interest in making sure children are fed/clothed/educated. If you are serious about the whole 'children' thing being totally obsolete, does that mean we should ditch schools, welfare, daycare, etc?
So, I ask: What is the gummint interest in breeding and rearing children?
One answer is to preserve the National Parks and the carbon-sequestering trees which they contain. If we abandon childrearing wholesale and rely instead on imported workers, they may get the addled notion to just denude the forests like they do in Brazil.
Gays are the new oldies. They just don't realize yet.
“Lawyers can see the truth.”
They can see it. The problem is that the vast majority of the profession is dedicated to the obfuscation of truth.
Once upon a time, the profession of law was dedicated to and premised upon truth, upon right reason. No more. Now, as many schools of thought will tell you, law is nothing more than the acquisition of and application of POWER. Truth has nothing to do with it, except to be used as a tool against fools who are foolish enough to buy into the argument.
It is power that dictates that a sterile MM relationship is equal to a potentially procreative MF relationship. But in truth, treating different things differently is not a denial of equality, only a recognition of reality.
“It’s so clear that there are no good arguments against allowing murderers to go free [marriage equality],” said Evan Wolfson, the president of Moms Aghast At Murders [Freedom to Marry]. “Lawyers can see the truth.”
No, that slope isn't slippery at all, Evan.
“It’s so clear that there are no good arguments against marriage equality,” said Evan Wolfson, the president of Freedom to Marry. “Lawyers can see the truth.”
It's always amazing to me the times that liberals decide to abandon "nuance", "non-binary thinking", and the "genealogy of morals". When it comes time for their oxes to be gored, the dogmatism comes out of the closet, and they can go at it with all the fervor of a snake-handler out in the hollers.
When a lawyer tells me he knows with certainty "the moral truth", my instinct is to make sure the AR-15 is well oiled.
@Jimbino
True.
We are free to chose our ideals and our words, even free to redefine them.
The question isnt constitutional, but is it a good idea for public policy.
Both definitions I believe are constitutional. Adult centered or child centered is a choice, it doesn't matter if it is a bad idea or bad law.
rhhardin says,
The trouble is that there are two requirements, and they conflict.
1. Families with the same total income should pay the same tax.
2. The tax code should neither favor nor disfavor marriage status.
As to point 1: The need is to define family properly [are brother-brother a family?].
As to point 2: Where did you study the tax code?
When you shop at Walmart, you pay a tax on the purchase, and they don't ask you whether you are living like Job, Solomon, David, Jesus, St Paul or Lot.
Jesus and St Paul, in particular, would pay through the nose in Amerika in discriminatory income tax and Obamacare and Paul would be taxed big-time on his inheritance of the Church, which if Jesus had been deemed married to Mary Magdalene, would have passed to her estate and inheritance tax-free, to the extent that it were valued at under some $5M.
What a country!
If we are speaking of truth, as opposed to raw power, is it wrongful discrimination and a denial of equality to say that a MM relationship can never truly be called marriage? And for the law to recognize that truth of reality?
Is it wrongful discrimination and a denial of equality to say that a gay man can never give birth to a child? Should laws which ban gay men being mothers be struck down as a violation of their fundamental rights? Or is the question itself absurd because men, by their very nature, cannot bear children?
If you want someone to blame and slime as "bigoted" or "anti-gay" when it comes to SSM, then point your finger at nature, not those who recognize the truth of nature.
Then again, SSM is and never has been about truth. It is about power.
Lawyers can see the truth.
I suppose, in the same sense that hunters can see deer.
Mark, commenting on lawyers, says:
The problem is that the vast majority of the profession is dedicated to the obfuscation of truth.
Quite right. And that applies to doctors and insurance vendors as well. Docs don't even support publishing of all prices for procedures by ICD-10 or CPT code, for chrissake. Their income depends on hiding all information from the public.
I'm proud to be a physicist. Only the criminally incompetent among us consider hiding research results. You can find the keys to design of bombs and nuclear weapons on the web. Try searching for pricing for a routine colonoscopy or for defense against a routine traffic ticket.
"First do no harm" is a big-time joke."
"Gays are the new oldies. They just don't realize yet."
Because it all happened so fast.
I think that when the Boomer's cold, dead hands are pried off the springs of power we're likely to see a rebirth of open and vigorous debate about issues, social and otherwise.
Andrew Klavan is pretty funny on this "the debate is over" stuff.
If you haven't seen this, you will laugh. He's got the rap down to a verbal tap dance.
https://www.youtube.com/watch?v=1dqh2OfsIHQ
Fact: Marriage is a state industry that writes its own rules.
Why is the question, can the government exclude same sex couples?
Instead, the real question is, can the government favor traditional marriage.
Once you answer no to that question, the door is open for every conceivable alternative arrangement.
Its cute though, how Ann and other supporters of redefining marriage, want to pretend otherwise.
Oh, it'll go no further, trust us, your argument is just a slippery slope.
This isn't going to end well.
"Many employers fire salaried employees who speak out against gay marriage.
Can you provide some examples of this? This is really a very serious allegation."
Brandon Eich comes to mind, although you will object that he resigned.
The waitress at a Mexican restaurant in Los Angeles who was "outed" as having signed the Prop 8 petition is another. She was fired fired.
There are others.
"Docs don't even support publishing of all prices for procedures by ICD-10 or CPT code, for chrissake. Their income depends on hiding all information from the public."
I guess physicists don't sign contracts banning disclosure. Docs who have dropped insurance and Medicare are quite open about prices. Wonder why ?
The stunned political legalisms experts are waiting for votes against gay sin...where did they all go?
What they never saw was the traditional rules of marital faithfulness and reciprocal duties are not harmed by gay persons jumping into the trap with heterosexuals.
The joke is on the gays who now must marry or admit their untrustworthyness.
Michael K says:
I guess physicists don't sign contracts banning disclosure. Docs who have dropped insurance and Medicare are quite open about prices.
Where are the lists of docs who publish prices for procedures per ICD-10?
Answer: they're here where I am, in Rio de Janeiro, where I've just had bargain cataract surgery and consultations and "free meds" for diabetes and thrush, or in Buenos Aires, where I'll get bargain dental care next month.
Amerikans would do well to buy RT tickets to Havana for decent care.
Althouse: No one is depriving you of the ability to think of marriage according to a tradition that is meaningful to you.
That's very easy for you to say, again, sitting in the relative safety of a tenured professorship in academia. This a safety that no baker, florist, caterer, wedding photographer, printer, venue owner or musician enjoys. Nor do executives at Mozilla. Nor this guy:
https://www.lifesitenews.com/news/contractor-ford-motor-fired-me-because-i-oppose-gay-marriage
The liberals have become the Communists in the novel and movie "Unbearable Lightness of Being." They didn't kill the doctor, Tomas, played by Daniel Day Lewis in the movie. But when it emerges that he once penned an article criticizing the Czech communists, and he won't sign a retraction, they strip him of his medical practice and the next time we see him he's washing windows.
That's the left in this country right. Fucking. Now. They've infected the institutions and their tentacles are upon us and they are already destroying individuals. They are doing everything they can short of mind reading to deprive Americans of their ability to think freely and to express ideas freely. They are actively seeking out Christian-owned businesses right now to put them on the spot and either force them to cow or make examples of them.
When they finally come to purge the last of the small-"l" liberal academics, who will be left who can be bothered to speak for you?
That's the thing. Marriage isn't meaningful to me, I think marriage (as a man & woman, open to procreation and the child's wellbeing) is important to society and public policy.
I'm not allowed to think that.
Or else.
It would be nice if the people of Cuba could get decent care in Havana. They can't.
For the ordinary Cuban, they do everything they can to avoid their hospitals, which for anything but the most routine out-patient procedures are commonly regarded to be one-way tickets to the cemetery.
The strongest arguments against gay marriage are the same arguments against polygamous marriages. Bans against polygamous marriage also have the effect of discriminating against certain religions, which doesn't seem to really apply against gay marriage bans, except for Unitarians.
Tradition can be both good or bad, depending upon someone's views.
Anyway, in the last 50 years the illegitimacy rate keeps going up. No one really cares or has done anything about it. Traditional views of stigmatizing illegitimacy are all but gone, except among a few groups.
Marriage is pretty much becoming an upper class thing, like joining a country club.
Poor gays are the least visible people in society. Like kids born to single moms, no one really thinks about them. Gay marriage is largely a concern of the upper class, which is why lawyers don't give a shit. No money to be made on defending traditional marriage.
The upper class also doesn't join the military.
The legal system is set up for the upper class, just like the federal government and the media. What the upper class wants, the upper class gets.
Jason said:
It would be nice if the people of Cuba could get decent care in Havana. They can't.
According to Wikipedia, the life expectancy of the Cuban is almost equal to that of the Amerikan, who pays through the nose for simple care available cheaply in Mexico, Cuba, Costa Rica, Brazil, Argentina, Panama and Uruguay.
Polygamous marriages have this going for them -- they are real marriages. SSM is just pretend.
And because it is just pretend, it is misleading to assert that anyone wants to ban it. You can't ban something that is nonexistent. And it really is not helpful for those who recognize that there is a truth to marriage to use language like "ban."
If it was a real thing, something that could exist in and of itself without the power of government imposing its will, something that was not made up out of whole cloth, if two men or two women could as a matter of nature "marry," then it would be wrong to exclude them. But they can't, so it isn't.
In the big picture, this whole thing is not that hard to understand. And it isn't new. No matter what nonsense some "expert" wants to you to believe, the emperor is butt naked.
That is the truth Evan Wolfson. You can bow down and expect everyone else to marvel at the splendor of his wonderful "clothes," and you can even fine people and toss them in jail if they refuse to go along with the charade, but the truth is that he looks like an ass with his ass bare for all to see.
The life expectancy numbers are fraudulent.
But you're welcome to believe them jimbino, and I encourage you to use the system in Cuba.
For me, I'll take my medicine cockroach free.
Mark has a good point.
There was this thing called Marriage. It existed a very long time. Then government came along and said, let's recognize marriage as something beneficial and therefore, put forward laws and policies that encourage it.
Then some people with mental disorders came along and said, hey, we want what they have! We are tired of feeling bad because we have serious mental issues. Maybe our mental issues will go away if everyone will just pretend like we don't have these mental problems.
Like I said, it isn't going to end well.
Eric says:
For me, I'll take my medicine cockroach free.
see http://www.washingtonpost.com/news/morning-mix/wp/2015/02/03/gnc-target-wal-mart-walgreens-accused-of-selling-fake-herbals/
and tell me please, where do you shop?
When the law becomes a farce, then the things the law touches are corrupted too. When the law becomes a farce, there is no freedom for anyone. Without law grounded in objective truth, not "make it up as you go along and as you want things to be" truth, but genuine truth, real freedom is not possible.
The truth is that society - and particularly legal jurisprudence - jettisoned truth long ago. Now we're driving down the road without a map, without GPS, without road signs, driving around in complete ignorance, all the while patting ourselves on the back because we have freed ourselves from these things. So what if the bridge ahead is out and it is a long way down into the abyss. Full speed ahead.
"That's all well and good but we're now in situation where governments are compelling people to do things against their wishes. The "choice" for some people is to close down their businesses. These situations are creating interesting standings in the legal sense. Surely some enterprising American lawyers will make something of it...or not?"
Yes, and so that presents a question of rights, of whether this is something govt is permitted to do to people. If there is no right, then govt can require this. Sometimes some ways of doing business become illegal, because that's what the majority wants and there's no right trumping democratic choice.
Jimbino,
I shop at those places where watch dog groups and the government check to make sure they aren't selling fake stuff. And when they do, it gets reported and changed.
"It's a moral argument. Not that gay unions are immoral but that destroying the word marriage is immoral."
You're asserting a moral duty to protect words as opposed to people. That's not persuasive as morality.
Words don't have fixed, static meaning anyway, so even if you did put the protection of language first, you'd have a defective argument.
You should look more closely into your own psychology. Why is looking at it this way so compelling to you?
@jimbino: In a country where it is illegal for people to lend each other books, and where so many have died trying to escape on anything that will float, it just might be possible that the official government statistics are not quite on the up-and-up.
That's something that all the worker's paradises had in common--bogus stats on how awesome it was to live there, combined with large numbers of people killed for trying to leave.
There are no rights trumping democratic choice?
You and I understand rights differently, Ann Althouse.
If tomorrow the Democratic choice were for death to the Jews, they would still retain their right to life, even if this government refused to recognize it.
Ann Althouse said...
The question is whether government, having established a legal status and attached numerous benefits to that status, can exclude same-sex couples from access to that status.
I think the question is really whether the government can establish that legal status, and then attach benefits to it.
According to the constitution, the feds, at least, can't establish that status and also can't attach benefits to it, but perhaps you can point out which part(s) of the constitution allows the feds to do either.
Yo Gabriel,
Cuba sure has some strange rules, but their music is better than ours in Texas and you don't have to believe in a supreme being to serve on a jury there, as you do under the Texas Constitution.
I'll grant you that Texas, like Cuba, does allow us to walk down the street, open beer in hand--something that repressive states like CA, IL and NY don't yet allow.
@jimbino: When Helena Houdova was caught photographing slums and AIDS patients in Havana in 2006, she was able to leave with the photos because the Cuban officials who detained her did not know how a digital camera worked. They confiscated a roll of 35mm film, but she was able to hide the camera's flash drive.
Cuba routinely denies assistance from humanitarian organizations because they will not admit that anyone in Cuba might need them.
@jimbino:Cuba sure has some strange rules, but their music is better than ours in Texas and you don't have to believe in a supreme being to serve on a jury there, as you do under the Texas Constitution.
"Strange rules" is a strange euphemism for widespread denial of basic human rights.
I think I misread what you wrote, Ann Althouse.
I take back my response. I believe you meant, if there are no rights that trump democratic choice.
My mistake.
Gabriel says,
"Strange rules" is a strange euphemism for widespread denial of basic human rights.
What do you consider a proper euphemism to describe the provisions of the Texas Constitution and several others to deprive buddhists, humanists, atheists and agnostics of the right to serve as jurors, attorneys, judges, governors, and legislators?
Cuba should refuse to sign any agreements with nations that so abuse human rights!
@jimbino:What do you consider a proper euphemism to describe the provisions of the Texas Constitution and several others to deprive buddhists, humanists, atheists and agnostics of the right to serve as jurors, attorneys, judges, governors, and legislators?
I would say that when you write your state legislators, and send letter to the editor, and organize rallies and what-not to change that, you will not be imprisoned or forced to labor for doing that. If you get enough people to agree with you you can get it on the ballot and get it changed. Failing that, you can move to another state.
In Cuba, protesting the government is not tolerated. Oscar Biscet derived no benefit from the presence of atheist on his "jury trial", which he did not receive since they don't have Common Law in Cuba.
In fact all lawyers work for the government and they will give you only a pro forma defense. If they try to represent you for real, they will be punished.
In Cuba, leaving Cuba is illegal and you and your family will be punished for your attempt.
With your Ph. D. in physics you really cannot see the difference? I have one of those, and the difference is quite clear to me.
If there is no right, then govt can require this. Sometimes some ways of doing business become illegal, because that's what the majority wants and there's no right trumping democratic choice.
News flash: This is not a democracy, but a constitutional republic carefully and deliberately designed specifically to protect the rights of minorities, and specifically including religious minorities, against the possible tyranny imposed by Democratic choice. When it comes to the gays, this seems to be a blind spot for you that would make Stevie Wonder wonder how you make it through the day.
Here are a few questions for you, the newly minted loyal apparachtik:
Is there no natural right to economic freedom and freedom of association when it comes to the negotiation of private contracts for personal services to be provided at a private event?
If this isn't covered under commonly and historically recognized natural rights, under natural law - if this isn't covered under the concept of Liberty as expressed by the framers in the Declaration ("endowed by their creator with certain inalienable rights, and among these rights are Life, Liberty and the Pursuit of Happiness") and the Constitution ("secure the blessings of Liberty"), then where does it end?
And you have the nerve to call me "Orwellian?"
If extending into private contract negotiations such as these to trump longstanding and common religious convictions (not even talking about fringes, here) is not a government overreach, then what in the world is? If the proper exercise of government power does not stop here, then how DO we know when it goes to far?
What meaningful limits do you set on the government's trampling on liberty in service of gay and lesbian orgasm and the unerring libtard instinct to tyranny?
You posit the hypothetical - "if there is no right trumping Democratic choice:" Well, I'll give you one right off the bat: The right to practice one's religion freely, according to the dictates of his or her own conscience.
Look at the text of the First Amendment. Does it stutter?
@jimbino: Some things that go on in Cuba that are not going on in Texas:
Laws related to censorship include:
A provision regarding contempt for authority (desacato) penalizes anyone who "threatens, libels or slanders, defames, affronts (injuria) or in any other way insults (ultraje) or offends, with the spoken word or in writing, the dignity or decorum of an authority, public functionary, or his agents or auxiliaries." Penalties are from three months to one year in prison, plus a fine. If the person demonstrates contempt for the President of the Council of the State, the President of the National Assembly of Popular Power, the members of the Council of the State or the Council of Ministers, or the Deputies of the National Assembly of the Popular Power, the penalty is from one to three years in prison.
Anyone who "publicly defames, denigrates, or scorns the Republic's institutions, the political, mass, or social organizations of the country, or the heroes or martyrs of the nation" is subject to from three months to one year in prison. This sweeping provision potentially outlaws mere expressions of dissatisfaction or disagreement with government policies or practices.
Clandestine printing is a crime against public order and anyone who "produces, disseminates, or directs the circulation of publications without indicating the printer or the place where it was printed, or without following the established rules for the identification of the author or origin, or reproduces, stores, or transports" such publications, can be sentenced to from three months to one year in prison...
Migration and housing officials threaten activists with forced exile, the loss of their homes, or by imposing fines. Political fidelity is monitored at workplaces and in schools: academic and labor files (expedientes escolares y laborales) that record actions or statements that may bear on a person's loyalty are maintained for each citizen and an individual's record must be deemed acceptable before they can advance to a new school or position.
@jimbino: More Cuban liberty for atheists:
An article published on 19 November 1999 by Maria Elena Rodriguez, a journalist for the Cuba-Verdad Press, described the burning and burying of hundreds of books donated to Cuba by the government of Spain.[25] Unexplained at the time was why all of the books in the Spanish-donated shipment, even those on seemingly non-controversial topics such as children's literature and medical textbooks were destroyed. It was later revealed that some 8,000 pamphlets containing the text of the Universal Declaration of Human Rights were discovered in the shipment. Rather than risking overlooking any pamphlets that may have been inserted in the pages of even the "safe" books in the shipment, the Cuban authorities apparently thought the wisest course was to destroy every one of the books sent from Spain.
Not even the music you profess to love is free:
In 2002, “Following the Hip Hop Festival held in Havana in August, the Casa de Cultura in Alamar received an order from the Ministry of Culture to review the lyrics of rap songs before the start of any concert.” Cuban rappers responded by altering their music/lyric styles. “Underground’s beat slowed down its tempo and rappers started changing their lyrics. The strident notes coming from the barrios and caseríos that scared the State so much when they first came out started softening themselves to take advantage of the promotional opportunities offered by those same people who initiated the hunting spree.”
Jimbino's simple, childish faith in the integrity of Communist Cuba's public officials is touching. Stupid, but touching.
Here's the difference between me and Jimbo. My father grew up in Havana. My girlfriend's whole family is Cuban. I'm surrounded every day by Cuban Americans and immigrants from Cuba. I know them personally, by the hundreds. I know their stories.
The difference between me and you, Jimbino, is that my knowledge of Cuba is more than Wikipedia deep.
Gabriel says,
I would say that when you write your state legislators, and send letter to the editor, and organize rallies and what-not to change that, you will not be imprisoned or forced to labor for doing that. If you get enough people to agree with you you can get it on the ballot and get it changed. Failing that, you can move to another state.
You can't move to another state as an atheist criminal defendant facing a jury of your non-peers, as Dr Madalyn Murray O'Hair properly claimed.
If you are living while black, you won't even get to that point since you will be shot dead before arrest in Amerika, as opposed to Cuba.
You have no understanding of the law.
Your "common law" is a conceit in Amerika and the nations that were British colonies.
Like Louisiana, France, Germany and Latin America have no use for it at all, which does not render their legal systems inferior.
Newsflash, jimbino:
There's no right to a jury trial in Cuba at all. Period. Nada. Zero. Nilch.
Idiot.
"Sometimes some ways of doing business become illegal, because that's what the majority wants"
...or because that's what a sufficient number of judges want, regardless of the majority...
Gabriel – with your Ph. D. in physics you really cannot see that Jimbino is a crank, a loon, an Internet troll, someone with an axe to grind and impervious to logic and reason? My Ph. D. isn't in physics, but even I can see that.
Yo Jason,
The difference between me and you, Jimbino, is that my knowledge of Cuba is more than Wikipedia deep.
I'm just a poor Paraguayan who only knows all of Europe and South America.
That I don't know Cuba as well as your girlfriend does is directly attributable to our Amerikan fascist gummint, which--not Cuba--has denied me the right, under criminal penalty, to visit there for over 50 years.
Jason
There's no right to a jury trial in Cuba at all. Period. Nada. Zero. Nilch.
Is there a right to a jury trial in Germany, France or Brazil?
And so?
That I don't know Cuba as well as your girlfriend does is directly attributable to our Amerikan fascist gumming,
Well, the fact is, Jimbino, you're ignorant.
I'm not really concerned about why that is. That's your problem. Not mine and not the American government's.
it's also not our responsibility but yours.
If you didn't even realize that Cuba provides no right to a jury trial whatsoever, you should probably STFU before you become a Spanish-speaking version of Garage Mahal.
Jimbino: Is there a right to a jury trial in Germany, France or Brazil?
There is in Texas, fool.
Careful Jason,
with your bad-mouthing of us Hispanics.
We have almost taken back Texas and New Mexico, moving on to Colorado, Chicago and even Iowa, and one of us will soon be your Führer.
AA: Sometimes some ways of doing business become illegal, because that's what the majority wants and there's no right trumping democratic choice.
In other words, the majority may tyrannize over whom it pleases, as long as this pleases Certain People.
I mean, goodness gracious, you make it sound as if a defined set of "rights" exist prior to the majority expressing its views on ways of doing business. That isn't at all the way things are done here anymore. Rights are only willed into and out of existence when Certain People disagree with what the majority wants. (Turns out that obliterating what were thought to be rock-solid rights, and conjuring fantastic new ones out of thin air, is a piece of cake, once you get the hang of it.)
"Sometimes some ways of doing business become illegal, because that's what the majority wants and there's no right trumping democratic choice."
But "marriage equality" is a right implied by the 14th Amendment that trumps the democratic choice of voters who favored traditional marriage in their state constitutions, correct?
Althouse wrote: Sometimes some ways of doing business become illegal, because that's what the majority wants and there's no right trumping democratic choice.
And sometimes legal threats of illegality backfire: Case in point, Memories Pizza--which reopened to a packed house because that's what a majority preferred.
"The question is whether government, having established a legal status and attached numerous benefits to that status, can exclude same-sex couples from access to that status."
Don't each of two men (say) who may wish their same sex union to be recognized not have exactly the same right as any other man to marry a woman? If so, they have exactly the same rights (assuming benefits are rights) as anyone else.
According to Wiki, Cuba has eight National Parks.
I wonder how many gringos go there.
Chuffed or chafed, Jimbino?
Wrong analysis, Unknown.
Each of the men has the right to marry any man, as does any woman.
You think I'm bad-mouthing Hispanics?
You're dumber and more desperate and obtuse than I thought.
No, dumbass. Just you.
Yo Chickelickit:
According to Wiki, Cuba has eight National Parks.
I wonder how many gringos go there.
You must wonder about a lot of things. I'll wager that there are more Blacks, Hispanics and gringos there than Blacks, Hispanics and Native Amerikans in all of our national parks and forests put together. Maybe even more Chinese and Indians.
@jimbino: Is it legal to smoke pot in Cuban National Parks?
@jimbino:Each of the men has the right to marry any man, as does any woman.
Not in Cuba:
Article 36 of the Constitution of Cuba defines marriage as "the voluntarily established union between a man and a woman".[5] Under Article 2 of the Family Code, marriage is restricted to the voluntary union of a man and a woman.[6]
No alternative to marriage such as civil unions or domestic partnerships is available. Several measures favorable to the LGBT community, including the legalization of same-sex unions, have not passed the National Assembly of People's Power, Cuba's parliament.
If the brutal suppression of other human rights doesn't turn you against the Cuban government, I suppose it's too much to expect that the illegality of same-sex marriage will.
It's amazing what lawyers and will not defend.
Pedophiles deserve a defense. Traditional marriage does not. And to think some folks think lawyers are scummy.
The elite bar is made up of hypocritical pig fuckers.
The elite bar is made up of hypocritical pig fuckers.
@Unknown ...they have exactly the same rights...
This only became true after sodomy was legalized in the States.
20 years ago I was escorting individuals to a military prison, who were convicted of having sodomy with a woman. God forbid they did it with a man.
Althouse at 2:39,
You completely and totally jumped the shark with that comment. We get it. Gay marriage gotta happen. That's your thing. You're almost as obsessed with this as Mick is with the Usurper.
But please. Now really now, you're arguing majority rules? What evidence is there whatsoever that a majority of Memories Pizza's potential customers want them to go out of business. Plenty of evidence that majorities had voiced an objection to SSM but that didn't count. So rule of law to overturn the majority when it fits your preference, and rule of the mob when it doesn't.
The gays I know don't give a rats ass about being married ( in the sense of a monogamous relationship). They are more interested in "putting a thumb in the eye of the breeders", as they put it.
I had a little debate on Twitter with Prof. Coates at HLS about this. I tweeted, "The proponents of gay marriage have been very successful in bullying potential adversaries," and Prof. Coates's response was, "Bwahahaha😄, you funny man." I think that's pretty typical. The lefties think there is no reasonable, no moral, no plausible basis for opposing either gay marriage or the claim that the Constitution guarantees the right to gay marriage, and they are perfectly content to see anyone who holds such retrograde views ostracized and driven from polite society.
Which raises the following question for our hostess, Prof. Althouse: Would Wisconsin Law ever consider hiring, or even interview, a young con law prof. who had publicly and professionally argued against the constitutional right to gay marriage? Or would that place the young scholar beyond the pale?
But I know enough gays, who recognize that their mom & dad love them.
Even gay people are a product of breeding.
_
I see family law focused on relationships, not individuals. A law like DOMA focused the law on orientation, not a relationship.
Relationships are different, no wrong to say my husband could get me pregnant and the law should consider that.
This only became true after sodomy was legalized in the States.
You can plot the turn to destruction of our country.
It's all down hill from there.
Yes, perhaps that will be the case provided everything keeps (economy, peace, ability to print gobs of money, no crop failures, no epidemics, yadda, yadda, yadda) muddling along.
You see, we're sort of shielded from reality by our ability to sustain affluence or the appearance of it.
If/when serious shit starts to go down, things will revert to more traditional forms.
@Bob Boyd "I'm not calling anyone a bigot."
I didn't mean to suggest that you were. I was trying to use your complete ignorance of the non-religious and non-bigoted arguments against SSM to illustrate how effective the gay lobby's campaign has been. They have been so successful at silencing their opposition that only a small minority of the population can articulate any reason for opposing SSM.
That might mean that there are no arguments on the other side of SSM question, but it's not the case. Try these two:
1) We do not know why one man is gay and another is straight. It is common knowledge that gayness is an innate characteristic -- that people are just born one way or another. Like many things that everyone knows, this one is demonstrably false. If sexual orientation were purely genetic, identical twins would have the same sexual orientation. Studies of such twins show that is not the case. If one twin is gay, there is a less than 50% probability that the other is also gay. The probability is greater than for the population as a whole, showing that genetics may be involved, but genetics alone do not answer the question. It seems environment (which includes the possibility of personal choice) plays some not insignificant role. Given the current state of scientific knowledge, it is not unreasonable to fear that SSM will lead to an increased "risk" of a child born today becoming gay. Since most parents (including homosexual parents) do not want their children to be gay, it not bigoted to object to public policies that might lead to that undesired outcome.
2) Studies of marriage and fertility rates in countries (mostly in Europe) that have legalized SSM show a statistically significant reduction in these rates after SSM became legal. This is how SSM may undermine traditional marriage. SSM seems to devalue marriage in the culture, reducing the appetite of male and female couples to marry and have children. (Note: These studies do NOT prove that SSM reduces societal support for traditional marriage. Correlation is not the same as causation, etc. However, these studies do support this argument.)
Again, I'm not arguing for or against SSM. I'm simply sketching two of the several arguments that can be marshaled against SSM that do not resort to religion or bigotry. These arguments are not well known because the gay lobby has been so successful in declaring ANY argument against SSM a form of hate speech. They've tried to get social scientists kicked out of the profession if they study the effects of SSM on society. They've succeeded in all but blocking research into the causes of SSM. Even studying the question is considered bigoted and schools and foundations are pressured to withholding any funding for such research. This is an area that is all-but off limits for scientific research. As with questions of differences in male and female brains, even asking the question is branded as bigotry.
@DKWalser
"public policies that might lead to that undesired outcome."
" This is how SSM may undermine traditional marriage."
I'm not arguing for or against SSM here either.
We were talking about why lawyers may be reluctant to take the a case opposing SSM.
In that context I'm saying the arguments against SSM, like those you cite here, are about what opponents fear will happen in the future. I'm not saying they're wrong. There may indeed be more far more down side than upside for society going forward. We just don't know.
So that puts an advocate in the position of having to present evidence for something that hasn't happened yet. A lot of attorneys probably decide there are better ways to enhance a career.
Maybe that's unfortunate, but it is what it is.
I just don't get it, when people like Adam Liptak talk about the rapidly increasing number of "states" that have "legalized" same sex marriages.
Very few states have "legalized" same sex marriage. In most states where homosexual marriage is allowed, it is because large state electoral majorities have had their will foiled by a very, very few federal court judges who have substituted their view for the will of the people.
That is an odd formulation for thinking that "states" have "legalized" homosexual marriage.
btw: John Bursch is a damned good appellate lawyer who will acquit himself very well in oral argument. He's no rookie in the U.S. Supreme Court. Michigan will be very well represented.
"Since most parents (including homosexual parents) do not want their children to be gay,"
I don't know if this is true. I do know that lesbians infected quite a few of their cohort by choosing to have sperm donors who were male homosexuals and were HIV positive in the early days of the epidemic.
I haven't read an analysis if that decision but it suggests they prefer gay men as male children.
Michael K said...
I don't know if this is true. I do know that lesbians infected quite a few of their cohort by choosing to have sperm donors who were male homosexuals and were HIV positive in the early days of the epidemic.
But you're still talking about one quarter of whatever percentage of people are gay.
One the one hand I think it's wrong to wring hands over such small numbers. On the other hand it's ludicrous to applaud them.
I don't know why lawyers are such pussies that they won't fight to preserve the blessing of government for sexaul practices which haven't killed 650,000 Americans through AIDS.
The comment:
The whole cornucopia of "benefits" that same-sex couples say that they are entitled to as a matter of right, but are being denied because of marriage laws, why should not those benefits be extended to everyone?
Why should we have ANY laws giving rights to marriage? That's pretty much the heart of the matter; if the State has a vested interest in promoting marriage by giving it "rights," what is the interest and does it apply to anything other than traditional marriage?
I would dearly like to see an AA response.
""I don't know what you mean by 'glory,' " Alice said.
Humpty Dumpty smiled contemptuously. "Of course you don't—till I tell you. I meant 'there's a nice knock-down argument for you!' "
"But 'glory' doesn't mean 'a nice knock-down argument'," Alice objected.
"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean—neither more nor less."
"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master—that's all."
Ann Althouse said, "In law, looking at constitutional rights, the question is what can government do to people, not what can government do to words."
Lewis Carrolls's characters said,
"I don't know what you mean by 'glory,' " Alice said.
Humpty Dumpty smiled contemptuously. "Of course you don't—till I tell you. I meant 'there's a nice knock-down argument for you!' "
"But 'glory' doesn't mean 'a nice knock-down argument'," Alice objected.
"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean—neither more nor less."
"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master—that's all."
At least Lewis Carroll understood that defining what certain words mean is all about power, about "which is to be master." And what is law if it is not about power, about the authority of the state to compel?
The old communist states understood this, as their governments constantly made assertions which few rational persons could believe- and then insured that anyone who pointed this out was likely to be severely punished. Why would they have done this, if not to assert their absolute authority over the citizen?
Words are power and, as anyone can observe in the passing political scene, defining their meaning is the essence of political power.
Re: Bob Boyd:
So that puts an advocate in the position of having to present evidence for something that hasn't happened yet.
Ah yes. The "parade of horribles." No lawyer has ever used that. Haha.
Anyhow, whether gay marriage is constitutionally required should have little to nothing to do with whether or not it's (a) the best policy or (b) will open the door to human sacrifice, dogs and cats living together, mass hysteria and other horribles various and sundry.
The question is just what level of "scrutiny" is applicable, and whether marriage as it has existed for millennia passes the applicable level of scrutiny in the opinion of whatever judge happens to be hearing the case. As a legal question, the case for gay marriage as constitutionally mandatory is hardly overwhelming. In fact I think it risible. The great advantage gay marriage has had in the courts is the utter inability of advocates of traditional marriage to speak clearly and forthrightly about why governments have any interest in marriage at all. And this, in turn, is because they are unwilling or incapable of saying the word "bastardy" out loud.
The weakness of the arguments in favour of gay marriage, is probably why social pressure has been brought to bear to such a great extent, rather than just the legal arguments, such as they are. The lawyer-activists pursuing this strategy have given up on persuading the commoners they're right -- instead they want to leverage the courts and the legal establishment to take it out of the hands of the common people entirely.
And people who went to posh schools or work at posh firms are basically in agreement with them -- it's their vision of civilization, after all, that they are trying to impose on their uppity native subjects -- and this makes it easy to rig the game.
Why should we have ANY laws giving rights to marriage?
Since I'm the one who asked the original question, I'll answer.
It is because any relationship that by its nature has the potential for creating children, children being themselves vulnerable and defenseless, such a relationship needs special protections in law.
Get rid of the inherent potential for children, then the reason for special protections, privileges and immunities in marriage disappears.
Speaking of chickenshit lawyers, how about the guy who bailed on the Scott shooting in SC?
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