I know we have gone over this before, but given that some may not be clear on what is a critical issue I think it may be worth posting on this, since it has been the subject of lots of threadjacks.
Many here have pointed out that it is acceptable to ban gay marriage on moral grounds because all law is based on some morality. I disagree.
I am a positivist as far as the law is concerned. We arbitrarily make laws for all kinds of reasons. Most of these involve giving some economic or political advantage to one group over another. The law is a tool in the general competition in values. Its doesn’t have a lot to do with morality to favor the meat industry over the corn industry, for example.
However, morality and fairness come into play when we apply laws and infringe on critical human interests, and this is one of the bedrock moral foundations of American law. Laws should be fair and just when they protect and disadvantage interests. When it comes to critical human interests, privacy, expression, religion, liberty the law protects these against infringement by the majority.
American law protects marriage as a fundamental right. Chief Justice Earl Warren explained:
The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival.
Those of us who are married, or whose parents were married, or plan to be married take advantage of Constitutional protection to marry who we want and establish families. The right is certainly not a given, governments since the beginning of time have limited this interest for all kinds of reasons. Even in the U.S. it wasn’t until 1967 that this right was fully acknowledged as part of our Constitution.
Because Americans consider marriage to be a constitutional right, State’s can’t make laws to impose on these rights without absolutely compelling state interests. However, we don’t apply the same standard to same-sex Marriages. The state’s can deny marital rights to same-sex couples if they have any rational basis. I don’t think its fair and consistent with American civil rights to consider the interest in same-sex couples to be married and to establish families as deserving of far less protection than the right of hetero-sexual couples to marry and establish families. This is the majority imposing a different standard on the minority.
Of course some would say that we can distinguish the gay person’s interest in being married from a straight person’s interest. But it doesn’t fly to do this by pointing out that gay people are bigger sinners and therefore their interests are invalid. Its only fair to treat same-sex marriage the same because the individual interests are essentially the same.
And, i think the societal interest in promoting procreation is not harmed at all by protecting the individual interest of gays. Even if it was, there are far better ways to strengthen marriage and families than by banning gay marriage. So in a case where critical individual interests are involved, i.e. the interest in getting married, the government should take the route that least impacts these cherished interests. That is why banning gay marriage is not a justifiable method of protecting societal interest in families, even if you did believe that it would serve that end.
This sort of reasoning is the kind of morality that American law is based upon, fair application of protection of fundamental rights from the majority. Based on this morality, a morality that all of us desperately rely upon to protect our liberty from the majority interests that are not our own, I cannot see how it is justifiable to treat the gay interest in marriage differently, no matter how sinful we may think homosexuality is.
I think the Supreme Court’s reasoning when it overturned anti-miscegenation on constitutional grounds applies to same sex marriage:
“To deny this fundamental freedom [to marry] on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.” = Majority opinion in Loving v. Virginia
There are absolutely real differences between race and gender. Race is essentially a cultural construct while gender is a real physical difference. There may be justifiable reasons for treating men and women differently under the law, but I don’t know of many. However, it is equally clear that some human beings feel precisely the same about others of their same sex as the majority feel about those of the opposite sex and they have an equally compelling human interest in establishing families and protected life partnerships. So long as marriage is the life partnership that is Constitutionally protected in America, it should apply to this minority.
Therefore, as Christians and Americans we can confidently support same-sex marriage on the same basis that we support the right to privacy, freedom of association, or freedom of religion. Mormons, who were oppressed for their belief in a different type of marriage should be especially sensitive to this protecting others who have divergent views. The most religious among us will gladly fight and die for the right for our fellow citizens to believe and worship in a way that will send them to hell because we demand this same sort of protection for the government against those who think we believe and teach errant doctrine. Equally we can demand protection for gay people to marry, even if some of us believe it is odious to God and against our view of marriage, because we would fight and die for that right for ourselves. In my view this is what it means to be an American AND a Christian.
LDS & Evangelical Conversations 
Eh, at the end of the day, all grown-up moral reasoning is about weighing and deciding between competing values and moral obligations. You can make an argument for why one choice is the best moral choice, but nothing happens in a vacuum, and being a moral agent means ultimately having to weigh it for yourself.
A moral choice is no more than an evaluative statement. So yes, all law is based on morality (aka people’s priorities in particular area).
If a moral choice is merely an evaluative statement, then there is no such thing as a “moral choice” as opposed to any other choice. All choices are inherently evaluative.
If all laws are morality, then there could be no moral or immoral laws. Morality is completely independent of law. When we talk about legislating morals, we are talking about legislating one group’s moral position at the expense of the interests of a group that does not have that moral position.
In this sense, legislating morals is bad in the context of American values of equal protect of minority interests in critical areas.
Those who think that all law is based on Morality- I would recommend reading this article to clear your head on the complexities of using the term in relation to law.
http://plato.stanford.edu/entries/morality-definition/
I’m including this link so that it gets carried forward with this post.
http://www.nationalreview.com/articles/245649/case-marriage-editors
You’re sneaking in some loaded language that determines the outcome of your view.
Those of us who are married, or whose parents were married, or plan to be married take advantage of Constitutional protection to marry who we want and establish families.
That’s not true. We’re not allowed to marry anyone we want. You can not marry your sister, your dog, a woman currently married or an 8 year old boy.
In fact the same restrictions apply to gay men as apply to straight men. Both are allowed to marry any woman that is of consenting age and not too closely related by blood. That’s an equal application of the law.
Marriage as far as the state is concerned is not a question of how two people feel about each other. It is a question of does their sexual bonding naturally produce offspring; if “yes”, then we want to recognize that relationship as different than any other relationship.
Love is not a requirement for a marriage to be legal. Sex is.
Even if it was, there are far better ways to strengthen marriage and families than by banning gay marriage.
The argument isn’t whether or not same sex relationships should be banned. The argument is that there simply is no such thing as a same sex marriage. Two people of the same sex simply can not be married because they have no biological ability to procreate. It’s like saying that it’s unfair that we don’t allow cats and dogs to marry. They simply can’t. This is about redefining what the word “married” means. Doing so doesn’t change anything. Homosexual couples will still remain inferior to heterosexual couples in regards to procreation.
What compelling reason do we have to redefine a relationship that has been the bedrock of civilization for a relationship that doesn’t even exist. It’s a bit like saying “red will now be called blue, it won’t really affect blue since red and blue share so many similar properties”. It may make a number of people happy to share the term but red and blue will never really mean the same thing.
I agree that there are certain rights and privileges that married people enjoy that we may want to extend to other relationships (anyone you want should be able to make end of life decisions for you, etc). Those rights have been largely covered by civil unions laws in a number of states.
When I say that it is “moral” to support the right to gay marriage even when you think that gay marriage is immoral, I am referring to two systems of morality that American Christians believe in.
1. The morality of fairness and justice that underlies the American system of constitutional rights.
and
2. Biblical morality.
I don’t think there is a strong argument that these are at all equivalent but I think on this point they are not in conflict. I think you can support both moral systems without inconsistency.
American Christians consistently believe that legislation of the biblical moral system is not required by biblical morality. – The bible doesn’t require adherents to make laws that model Leviticus.
However, fairness and justice in law is required by (1).
Of course there are Americans that don’t believe in (1) but my bet is that they still rely on this fairness to support their minority view.
Tim,
The point you are making is that there are important differences between same-sex union and straight marriage.
I don’t see significant differences that would justify denying gay people the privilege of being married.
Gay marriages are functionally equivalent to marriage between infertile people. I think its pretty clear that it would be unconstitutional for us to deny this minority group the right to marry.
Of course numbers do come into play. Those who wish to marry a turtle may exist, but turtle relationships are not considered a fundamental right by the majority. Human sexual/familial relationships are.
You can not marry your sister, your dog, a woman currently married or an 8 year old boy.
In order to justify these restrictions, the government has always put forward compelling interests, i think that a gay marriage ban has to be justified by similarly compelling interests. I don’t see that the state interests are the same in the gay case.
And because gays are a significant minority, a big contributer to society, I this also factors into the fairness of denying them these rights.
You’re playing a baseline-shifting game. That’s like giving people the freedom to attend the Roman Catholic parish of their choice.
And “equal application of the law” is not a legal or constitutional principle at all. The 14th amendment provides for “equal protection” not “equal application.” How about a law requiring the koran and a crescent and the name of Allah to be openly displayed in every house of worship? That would be an equal application of the law. Would you be okay with that?
How about a law requiring everyone to renounce Jesus Christ and spit on a cross? That would be a law of equal applicability. All laws that apply to everyone and are not selectively enforced are of equal applicability. Equal applicability is not the threshold for constitutionality.
A law forbidding gay couples to marry draws a legal distinction–a legislative classification–between gay and straight couples. As such, it has to meet a specific constitutional burden or it is forbidden by the 14th Amedment. A law forbidding marriage between human and dog or between adult and child to marry has to meet the exact same burden: is the legislative classification rationally related to a legitimate government purpose?
Assuming, arguendo, that “promoting human procreation” is a legitimate government purpose, forbidding gay marriage is not rationally related to it at all. Gay marriages don’t stand in the way of human procreation, because gay people don’t have procreative sex, regardless of whether or not they are married. As a legislative scheme, it does nothing to increase human procreation or the number of human relationships that are potentially procreative.
That is absolutely unsupportable as a statement of public policy. Show me any authoritative source that articulates this viewpoint.
The argument that marriage is fundamentally about human procreation is completely bogus as a matter of legal history, modern law, and US state and federal public policy. Marriage is–and always has been–about property rights. It is about human procreation only to the extent that human procreation creates heirs that can inherit or not inherit property from their parents.
I’m with Tim.
Frankly, I’m shocked at your position, Jared C. Has the world and the liberal media ensnared you? You must be aware of the verses in Romans 1 about this. Do you reinterpret them? Do you believe the verses aren’t reliable? Jared C., you’re a man of faith. Please come to your senses!
I also think of Romans 13 where it indicates that the government’s responsibility is to know right from wrong. Proverbs says a nation with godly leadership [that knows right from wrong] is a blessed nation. Do you want even more curses to fall on our nation?
Evangelicals and Mormons agree on this issue.
I have to also add—because someone will probably accuse me of something I’m not guilty of—that God loves everybody equally. My view has nothing to do with not loving somebody or discrimination—well, actually it does have a lot to do with love. If you really love someone, you will do what’s best for them. You will encourage them to overcome, by the power of Christ, everything that’s not good for them. Why do you want to hurt gay people, Jared C.? I’m know your intentions are good, but PLEASE. . . .
I also need to add that I recognize that there are lots of gay Christians—at least two of them have been my friends. People don’t usually overcome their old natures in an instant when they come to Jesus.
Fortunately, Romans 13 is not in the Constitution.
Romans 13 has everything to do with Christians obeying the governing authorities, even Roman emperors.
Kullervo and Jared C – will you please give your definition of morality? You have both rejected the definition I gave, that morality is nothing more or less than the establishment of a system of conduct that identifies what is right and what is wrong, claiming that it is far too broad a definition. I would like to point out that this is not my definition. It is the definition accepted by those who write dictionaries, and the specific definition I am using was the Princeton University WordNet Search 3.0.
If we are to engage in a conversation about whether or not it is moral to pass laws relevant to marriage, then we need to know what we all mean when we speak of something being moral in the first place.
I’m an evangelical Christian. I believe in inerrancy and have a high view of Scripture. I affirm what the Bible teaches about homosexuality being a sin and have no desire to see, say, the ordination of sexually active homosexuals or tolerance of homosexual behavior within my own denomination. If you’re looking for someone to pat you on the arm and say, “there’s nothing wrong with a woman loving a woman as a woman loves a man,” I’m the wrong person to come to.
But I’m effectively in favor of legalizing same-sex unions.
To be more clear, my ideal would be for the government to get out of the “marriage” business altogether. I would rather the government offer civil unions to everyone regardless of the sexes of the parties involved. I would have no problem with my own marriage being legally recognized as a “civil union.” What was important about my wedding were the vows we made to each other before God, not the paperwork we signed with the state. The only reason we went down to the county courthouse and got a “marriage” license was so that we could obtain legal benefits for our union. What’s important to me is that same-sex couples are able to obtain the same legal benefits to their union that I have access to. I also think that their unions should be called the same thing as my union so that a “separate but equal” caste system does not develop.
I don’t think that the government will get out of the marriage business, though. So my voting priorities are:
(1) Civil unions for all
(2) Marriage for all
(3) Marriage for heterosexuals, civil unions for homosexuals
(3) is not optimal, but getting homosexuals those benefits in some form is still better than nothing.
It’s not because I’ve been deceived by “the world” or the “liberal media.” I’m a Republican and, for the most part, I hate the DNC and the “liberal media.” I can count the number of Democrats I’ve ever voted for on one hand (I began voting in 2000 when I turned 18). I voted for Bush in 2000, Bush in 2004, McCain in 2008. In 2004, I voted in favor of Utah Constitutional Amendment 3 defining marriage as a union between a man and a woman.
But in the six years since I cast that vote, I’ve been listening very carefully to the arguments on this issue and considered how I feel about the separation of church and state and what the Bible says on the subject, and I’ve realized that most of the arguments against gay marriage just don’t work. The only reason I would ever oppose gay marriage is because the Bible says homosexuality is wrong and I don’t want to encourage that behavior–but I think that’s a bad rationale for making laws in a non-theocracy.
There’s a lot of things that the gay rights movement has done that I’m not happy with, the wholesale demonization of Mormons and evangelical Christians being at the top of my list. Trust me, they didn’t win my support with their good behavior. I may vote in favor of this if I get the chance, but I’m not attending a rally or waving a rainbow flag around or anything like that.
I have to wonder what a testimony it would be to the gay rights movement if most evangelicals took my position, if they were to say, “Look, we disagree with what you’re doing, we think it’s a sin, but we love you and we know that giving you access to these rights is the fair thing to do. We want you to be free to choose and don’t want to use the government to try and influence your choice for you. Please choose wisely.” I wonder how many of them would be impressed and give our message a second chance and freely choose to live a celibate lifestyle or turn away from homosexuality. As things stand, I suspect that the more we tighten our fists, the more will slip through our fingers.
Tim and I have talked about this before, and I apologize in advance to Tim, Gundek, and Cal if I come off as the traitor in all this. I can’t be opposed to gay rights any more than I can say homosexuality is not a sin, which I know is an incredibly odd position to have, but it’s who I am and where my convictions lie.
I always seem to get impossibly caught between two worlds. Guess I really am a glutton for punishment.
How pissed would you be at gay people if a massive gay coalition effectively lobbied to have Christianity outlawed?
Mormons and evangelical Christians fought hard to keep gay people from being able to get married, and won. It was a massive, personal attack at gay people as human beings. If the tables were turned, you, me, and everyone else would be frothing at the mouth. Acting wounded about backlash when you do something that is that evil and brutal is 100% bullshit.
This argument sounds a bit familiar Kullervo. I think you and I already had it out about a year ago.
And I don’t think that “well you would act the same way” constitutes a valid argument in favor of acting like a dick.
And you can can the “100% evil” hyperbole. That stuff might fly well over at the Daily Kos, but I doubt it’s going to get much mileage here.
Oh blow it out your butt, Kullervo. Christianity is outlawed in some 52 countries with a lot more than just civil rights being taken away, and the Christians in those countries are bearing it with grace, not “frothing at the mouths” or throwing tantrums like whiny little babies.
I have a mixture of thoughts on this. I could easily argue both sides and (as long as I get to pick which arguments I use) believe what I’m arguing. But ultimately, it’s an issue I can’t get too worked up about, partly because I think the fight against recognition of same-sex marriage has already been lost. One of the things I learned way back when during high school debate is that the victory often goes to the one who defines the terms — and the gay rights movement, for better or worse, has successfully set the terms of debate, framing the issue as one of civil rights and discrimination, and I don’t see anything changing that.
While I would prefer to see civil unions be the government’s business and marriage be the churches’ business (or the business of anyone who wants to make it such), for political reasons that just isn’t going to happen. The growing recognition of same-sex marriage causes me some concern for various reasons, but basically I see it as inevitable.
I have half a dozen points I could make, but for now I’ll just comment on something Jack said, because it relates to one of my points:
I’m not inclined to go that far, but I do think it’s true that evangelicals, Mormons, Catholics and others who believe in the sacredness of man-woman marriage have basically zero credibility with gays, and its our fault as much as anybody’s. We have often been more judgmental (and not in a good way) of homosexual behavior while engaging in many of the same types of heterosexual sin as everyone else. We have set a lousy example of what a marriage should be, to the point where it makes sense to ask, what’s there left to the institution of marriage that’s worth protecting?
Look at divorce rates, abuse rates and such, and it’s often hard to tell the difference between marriage in the general population and marriage among evangelicals/Mormons/Catholics. We haven’t done nearly enough to set a positive marriage example; in my own denomination, we spend a lot of time teaching unmarried people what they shouldn’t do but relatively little time teaching them how to have a successful long-term relationship. Until we can clean up our own act, whatever judgment we direct at gays is going to be seen as hypocritical at best, hateful at worst. Why then should they listen to us?
I appreciate all of the responses. Its good to hear the points of view.
Alex,
Morality is a term without a single clear definition, its used in many ways. I think the SEP article referenced above (http://plato.stanford.edu/entries/morality-definition/) did a good job of fleshing out the complexities. Because it is complex and ambiguous, “morality” may not be the best term, but In the sense I am using it, I define morality as a distinct normative system.
In this sense, biblical morality is quite different than utilitarian morality, or hedonistic morality, or even the liberal morality that was the basis of the Constitution. So when people object to “legislating morality” it is generally an objection to imposing one system of right conduct on people who don’t believe in the basis of that system, or imposing a system of morality that a significant minority disagrees with.
American law of “rights” is based on protection of certain liberties regardless of what the sovereign wants, and the sovereign is the majority. Because this system is based on pluralism, the respect for more than one “morality” fairness requires that the government remain neutral on certain issues and allow people liberty to shape their lives. Fairness, another system of morality, would require that all citizens should have similar protections. When you look at the human motivations for Gay marriage, I simply cannot see them as significantly distinct from the human motivations that motivate straight couples.
Cal,
I don’t think I am ensnared in the liberal media, but I am certainly outside the snare of the reactionary propaganda of the right.
As a devout religious person i think you can understand that ultimately you can’t expect government protection for your increasingly minority lifestyle if the system of law and rights does not also protect other minority lifestyles.
I’ll be the first to recognize that there is a secular argument and a Christian argument. I don’t think the Christian argument is without merit in our government, but I do think it’s disregarded too easily to be made to non-Christians.
As for why Christians should not endorse same-sex marriage; we don’t endorse it for the same reason we don’t endorse alcohol as a driving aid. We might allow the freedom to engage in homosexuality but we don’t set up a system that encourages people to participate in it. Just as we allow the freedom to drink alcohol but we don’t tell people it will help them drive better.
I would not want to meet a gay convert to Christianity who is struggling through a costly and messy divorce in an effort to pull herself out of that lifestyle and have to confess that I was part of the cultural effort that encouraged her to view same sex marriage as a positive and healthy thing.
As for the idea that the government should just be involved in civil unions and not marriages. I think that’s just a shell game with words. At worst it will have the opposite effect of what we want, fewer people will be legally bound to one another. People want to me “married”, the homosexual community has made that clear. If the state were only performing civil unions people would be less inclined to take the state up on the offer and therefore less inclined to offer their children the natural protections that come when their parents are legally joined. It’s effectively embracing the dissolution of marriage. Cohabitation is already on the rise, it would probably double.
Jack said
I have to wonder what a testimony it would be to the gay rights movement if most evangelicals took my position, if they were to say, “Look, we disagree with what you’re doing, we think it’s a sin, but we love you and we know that giving you access to these rights is the fair thing to do.
Sorry Jack. The road to compromise is always sold with the prospect of new converts. The more we look just like the world, the less we offer it something different. Why would I join something that I’ve already got?
I’m not calling you compromised, back-slidden, liberal or unChristian. I know you well enough to know what you’re getting at, but sinners do not love you and convert because you tell them to sin responsibly; they go on sinning.
That being said, I’m appalled at some of the ways Christians oppose same-sex marriage; more appalled than I am at homosexuality. Eric is right that the best thing we can do is clean our own house and show people what sexual purity and a strong marriage look like.
Eric said
The growing recognition of same-sex marriage causes me some concern for various reasons, but basically I see it as inevitable.
I agree it’s all but inevitable. The battle was lost 40 years ago. That’s one thing I appreciated about the article from National Review. It recognized that it was too little too late.
Kullervo said
Marriage is–and always has been–about property rights.
And WHY does the state think it’s important to make property shared between spouses?
I think the answer to that question is because the state recognizes that an enmeshed mother and father are more likely to stay together and raise their children.
Jared C:
There’s a difference between protecting a lifestyle — even outspoken gay-marriage foes aren’t advocating criminal prosecution for consensual homosexual behavior, and even the LDS church has endorsed an anti-discrimination ordinance in Salt Lake City — and institutionalizing or even honoring it. It’s possible to take a firm stand against harassment, job and housing discrimination and that sort of thing, and in favor of personal privacy with regard to sexual matters, without endorsing SSM.
Tim said:
What happened 40 years ago?
Tim also said:
Historically, another reason property rights have been a big part of the marriage contract is to give the woman some economic security in a culture where she wasn’t typically the breadwinner (partly because of lack of opportunity, but also because she traditionally was the one raising the kids).
Tim also said:
You’re probably right there. But that’s mostly what the political battle is about anyway, is words. In California, when Proposition 8 passed, same-sex couples didn’t lose any traditional legal rights — they still have the same rights as married couples do to property inheritance, end-of-life decisions, joint income taxes and all those things. Legally, as far as the California government is concerned, the only thing they don’t have that married couples have is the right to call their relationship a lawful marriage. That’s it. The difference is a label. Millions of dollars were spent on both sides over a label.
Is the label important? I don’t know. But apparently the gay activists think so — Judge Vaughn’s basically agreed with them when he ruled that the social status that comes with the label is a constitutionally protected right. And apparently the various churches opposing Prop 8 think the label matters too — in California, their only legal fight was against the label, and they’ve done nothing to prevent same-sex couples from having civil unions with all the legal rights and responsibilities of marriage.
As for me, if I were told tomorrow that my legal relationship with my wife is suddenly a civil union rather than a marriage, I don’t think I’d really care.
What happened 40 years ago?
The CIA unintentionally released LSD to the public and kicked off the sexual revolution.
Is that a joke, or your version of the history. It’s all before my birth anyhow…
Eric, “As for me, if I were told tomorrow that my legal relationship with my wife is suddenly a civil union rather than a marriage, I don’t think I’d really care.”
I call BS on this. If you were all of a sudden relegated to a second class citizen in terms of your marriage, to being told that your relationship isn’t as valid as someone else’s, you would be upset.
I am refraining from saying more on this topic at all because I feel so strongly about it that I’m afraid that I only will not be able to communicate eloquently at all and will likely manage to offend most of you.
Eric ~ On top of what you said, it should be very disturbing to conservative Christian types that atheists have the best marriage satisfaction rates in the country and the lowest rates of divorce.
Tim ~ I don’t see how anything that I said can be seen as “looking like the world.” The religion I’m offering still opposes the homosexual lifestyle and calls people away from it. All I really want is to rely on evangelism to discourage homosexuality instead of government.
I do appreciate that you don’t see me as compromised, backslidden, liberal or unChristian.
@ this thread in general ~ Same-sex marriage is going to happen. Don’t believe me? See for yourself.
Be opposed to it all you want. You’re not stopping it, you’re only delaying it.
History is going to remember how different religious groups treated this issue. It remembers where they stood on slavery, women’s suffrage, the civil rights movement, Roe v. Wade, etc.
So wherever you stand, just make sure that you’re ready to be remembered.
I said:
To which Katyjane said:
To clarify, when I wrote what I wrote I wasn’t talking about a situation where I was “singled out” and had my marriage label demoted while others got to keep theirs. When I wrote it, I was thinking of a situation where all two-sex marriages, including mine, got the “civil union” label. State recognition of my marriage isn’t all that important to me; but, yeah, if someone else’s were recognized and mine weren’t, I wouldn’t like it.
Look, I can understand the emotions behind why the marriage label is important to gays. I really can. If I felt I was born a certain way and felt I wasn’t getting equal treatment because of that — whether it’s just a label for my relationships or the ability to get a job or whatever — I’d be upset too. I wouldn’t want to be treated in a way that I felt gave me second-class-citizen status.
I hope this clarifies where I’m coming from in that regard.
Kullervo
[ ” Marriage as far as the state is concerned is not a question of how two people feel about each other. It is a question of does their sexual bonding naturally produce offspring; if “yes”, then we want to recognize that relationship as different than any other relationship.”
That is absolutely unsupportable as a statement of public policy. Show me any authoritative source that articulates this viewpoint.
The argument that marriage is fundamentally about human procreation is completely bogus as a matter of legal history, modern law, and US state and federal public policy. Marriage is–and always has been–about property rights. It is about human procreation only to the extent that human procreation creates heirs that can inherit or not inherit property from their parents.]
You should read the closing arguments of the Prop 8 trial. The atty for Prop 8 cites extensive case law on this matter showing the traditional definition of marriage has a long legal history, is grounded in modern law and US state & federal public policy. Here is a link.
http://lezgetreal.com/2010/06/official-transcript-prop-8-closing-argument/
In biology function follows form so the State has wisely limited it’s interest in procreation in marriage to requiring that the two gender forms male/female be present, then lets Nature take it’s course.
The State is then unconcerned about function, orientation, or motive. Thus, Marriage licenses don’t ask if you are “In love” or will have children. I thought we all recognized it was a good thing to keep the govt out of our bedrooms?!
SSM advocates come to the wrong conclusions about the arc of history as it relates to civil rights. Since racial segregationists “lost ” few people remember their central defense against the advocacy of integrationists.
It was a simple appeal of equality! They wanted the same equal right of association that integrationists had. They simply wanted to apply that right to associate with only their own race while integrationists applied it to associate with all races. They felt a denial of their right to associate with only their own race made them second class citizens.
Most segregationists were quite tolerant quickly affirming that others had the right to associate with other races if they wished, they couldn’t understand why the tolerance wasn’t mutual, where was the “live & let live”?
Of course segregationists were so caught up in their own “rights” they forgot to ask the basic question, “Does the unfettered exercise of this right harm others?” It did which is why it was severely limited.
In the same way SSM harms a significant portion of our society by depriving them, not through tragic circumstance, but through deliberate social policy of a mother & a father.
For multiple generations “Jim Crow” laws held sway through a significant portion of the country. During that time those who believed in such laws believed they were on the right side of history. History though keeps her own counsel.
I agree exactly with Jack’s stand, and I know I’ve mentioned it a couple of times elsewhere, including other posts here, so I don’t want to be the guy constantly banging the same drum.
But I believe the ideal would be a situation in which all unions were called just that: unions. The government should step out of the business of issuing marriage certificates. They should simply acknowledge civil unions. And I would go beyond same-sex unions. I think that any kind of union should be accepted as being a legally-binding union. But I don’t see that happening.
And I think that if the US government continues to hold control of making marriage a legal thing, then SSM is inevitable.
I also agree with what Eric said. The only thing that Prop 8 would have kept back from gay couples was the title of marriage. The civil union laws in California grant the exact same rights and privileges to gay couples as they do to heterosexual couples. Except for the right to call their union a marriage.
Of course, making civil unions for all the norm would essentially make civil unions the equivalent of marriage. With one key exception: religious organisations would not be authorised to validate these unions, which means they wouldn’t need to worry about being forced to grant unions to those who did not meet the organisation’s criteria (one of the key arguments of Prop 8, if I recall).
That’s an unreasonable fear. No church is forced by the state today to marry anyone it doesn’t want to marry, and that’s not going to change regardless of whether SSM is legalized. It’s known as the First Amendment.
That’s a stupid argument that denies history, Eric. It is known by anyone who has studied anything about Polygamy that the Supreme Court has ruled that the First Amendment only protects the right to freedom of belief, not action. While recent judges have claimed that action is also protected, the current precedent is that the federal government does have the right to remove a religious bodies actions. Read about the Edmunds, and Edmunds-Tucker acts in congress and how they were supported by the supreme court in reynolds vs United States. Those who place their faith in the government protecting their expression of religious faith in light of this history are fools.
Jack, God’s also going to remember where we stood. And just because something is inevitable doesn’t mean we should bow to it, or stand idly by. Remember there were some other things that have happened.
On demand abortion.
I don’t think I could imagine anyone being stupid enough to say to God, “Well, I felt it was inevitable, so I thought I should be remembered by human history as having been on the right side!” I can’t imagine that argument working for those early Christians who gave in to the Apostasy. I can’t imagine it working for those Catholics who gave in to indulgences, I can’t imagine it working for the priests who allowed child molestation. I can’t imagine it working for those who support gay marriage, Nambla, necrophilia, or abortion. “Wanting to be liked” just isn’t a valid excuse.
i think the fear or religious intervention is not as great a threat as others do. . . . but, the removal of the priesthood ban seems to have been partial motivated by federal intervention. So it’s not like the LDS church is without history in this matter.
Jared, how much of your viewpoint do you think is determined by being a positivist?
I am not a positivist. I think rights can only be taken away, never granted.
I don’t see any federal motivation in removing the Priesthood ban.
As far as I can tell, it was removed because the darn thing was impossible to enforce in booming places like Brazil, and the idea had a rather poor scriptural argument. Not to mention the general scruples of the LDS leadership.
I’ll admit that there were a number of reasons to remove it. If the LDS church is what it says it is, “God said so” would be the only one that matters.
But I saw some evidence, somewhere, (and I’m not going to look it up again) that there were some tax-exempt status threats going on. Even if tax-exempt status was removed, the church could behave any way they like, but it’s an example of government pressuring a religion one way or another.
If that’s what you are looking for, the federal abuses of the Mormon people over polygamy would be a far stronger example.
psychochemiker ~ Jack, God’s also going to remember where we stood.
I think that goes without saying.
And just because something is inevitable doesn’t mean we should bow to it, or stand idly by. [SNIP] I don’t think I could imagine anyone being stupid enough to say to God, “Well, I felt it was inevitable, so I thought I should be remembered by human history as having been on the right side!”
Nothing in my paragraph about the inevitability of SSM was meant as an argument in favor of it, only that people should be very wary of the issue because history is in the making. I’m very proud to look back through history and see that there were evangelicals who worked for abolition, suffrage, and civil rights. I’m proud that evangelicals have always been opposed to abortion. If I had my way with SSM, history would remember that evangelicals felt that SSM should be opposed through the Gospel, not through government. But obviously I’m going to convince very few of my brothers and sisters of that.
Remember there were some other things that have happened.
On demand abortion.
I believe I’m the one who pointed this out in the very paragraph you’re responding to.
I can’t imagine that argument working for those early Christians who gave in to the Apostasy.
Well, that’s because “the Apostasy” never happened. Duh. 😛
Tim said: Jared, how much of your viewpoint do you think is determined by being a positivist?
I am not a positivist. I think rights can only be taken away, never granted
I find it very difficult not to be a positivist.
I am interested in your theory with regard to the right to marry. Is there a right to marry, and if so, where does it come from?
Denying same sex marriage is similar to denying polygamous marriage, and I think in fairness the law should protect both as well as standard marriage.
I.e. if we protect marriage by way of rights, rather than statute, other things that look nearly identical to marriage should be treated similarly. I think this is similar to the content-neutral stance the government must take in order to properly protect free speech.
It certainly strikes me, and i hope all of you, as unfair for the government to protect the right to a good marriage, or only one where a person is sufficiently compatible physically and psychologically to rear strong, well balanced children. Likewise, it would seem extremely unfair to deny marriage to those who are proven not to be able to have children. The fact that we feel this way shows that marriage means something far more than procreation, or simply a tool to develop strong societies. It is sacred in some way to the individual. Now I am not in favor of protecting everything that is sacred to every individual, but if we are going too single out an certain institution as something that everybody has a right to, I think it must be fairly administered.
I think its equally unfair to deny marriage to those who want to have sex with the same sex rather than the opposite sex, I think that the evidence demonstrates that those sorts of relationships generally bear the meaning and importance to gay couples as they do to straight couples, and for the same human reasons.
So, Cal, PC, and others who feel like God is judging those who don’t stand up and stop the bad people from having rights like these, unless you don’t believe in the right to marriage or some similar relationship regardless of whether you can bear children, i think its somewhat inconsistent to fight against applying that right to protect gay people.
Indeed,why, if we fear God and love our neighbor, do we so vehemently protect the right for people to condemn themselves to hell by being satan worshipers (or for some evangelicals Mormons)?
I think the answer to this question also should lead us to support same sex marriage.
Jared,
How wide does your circle of permissiveness go? Why do you stop at SSM and polygamous marriage? I mean there are brothers and sisters who wish to marry one another and fulfill your criteria: I think that the evidence demonstrates that those sorts of relationships generally bear the meaning and importance to [the couples] as they do to [non incestuous couples], and for the same human reasons. You would be hard pressed to deny the truthfulness of the preceding statement.
Here is the problem as I see it. Your criteria isn’t incorrect it is incomplete. There are other equally compelling factors that are involved you exclude from consideration. For example, Age of consent? I suspect you agree with the current “age of consent” rules on the books so the circle gets smaller.
Is SSM harmful or burdensome to any other social group? The evidence is that it is harmful and burdensome to children who will deprived of either a mother or a father and grow up with a social policy that promotes such an arraignment as a social good rather than a tragic circumstance.
What do you want for your children? Would you want them to grow up without their mother? Do you consider the influence of a mother to be irrelevant to her children’s well-being? I suspect not.
For decades “Jim Crow” laws flourished because the larger society bought into the segregationist reasoning that they had an “equal” right to associate with only their own race and were indifferent to the burden and harm this caused to blacks. For that larger white society blacks were invisible, “out of sight, out of mind.” When blacks found their political voice and began to impress upon society at large the burdens and harms they endured under segregation “Jim Crow” died.
In regards to race society held that the segregationist right to, “swing their “association” arm ended at the noses of minorities. In regards to marriage society holds that the right of Same sex couples to swing their “marriage” arm ends at the noses of children.
Are you talking about divorce or are you talking about same-sex marriage? No court has ever recognized a child’s right to have a mother and a father. If that is the goal maybe we should prevent those who have children from serving in the military, rather than gays.
Gay marriage is far less “burdensome” than divorce.
I also doubt that same sex marriage would have any significant burden on children, if anything it would provide more stable families in society.
Maybe you should explain to me the evidence here. I can’t see how same sex marriage deprives any child of their mother or father.
I am willing to believe sound studies but I just don’t see where the evidence backs you up. I did research on this issue in law school and I didn’t see this. If you can point to what I am missing I would appreciate it.
I think your explanation of “Jim Crow” laws is flat wrong given the history. I think you have the rights explanation backwards as well.
You may have a point when it comes to incest. I suppose in principle incestuous relationships could take the same form as non-incestuous ones, but I think that society has a stronger interest preventing the children from those relationships, for the children’s sake.
Jared C — Would you permit legalization of marriage between close blood relatives — say, between parent and child or between two siblings?
Here’s the reason I ask (and I’m not trying to trap you or use the slippery-slope argument; I’m just trying to get a better argument of where you’re coming from): I understand the argument that the state interest in marriage is for the benefit of children (stability and all that), and I agree that there is some logic on that basis, along with societal tradition, of having marriage for two-sex couples only. Not excluding infertile two-sex couples becomes a matter of pragmatism; if the justification for having a state interest in marriage in for children, then it follows that there’s no state interest in authorizing marriage for infertile couples, but it’s simply easier to include them.
However, while I have a hard time accepting your argument that the state has an interest in institutionalizing relationships primarily because people find some meaning in them, a meaning that’s similar to what two-sex couples have, which seems to be what you’re arguing (correct me if I misunderstand you), one could plausibly argue that the state has an interest in institutionalizing relationships to encourage societal stability and in providing a uniform means of providing for the transfer of property and that sort of thing among people that are close to each other. If this, then, is the rationale for the state interest in marriage, then it’s hard to come up with a reason for excluding same-sex couples.
But wouldn’t the same argument apply to, say, two siblings or an aunt and a niece, whatever, where (for example) one is taking care of another, or where they wish to live together and share property ownership and that sort of thing? I think most of us find something distasteful and/or immoral about sexual relationships between such people, but does marriage have to be about sex?
I guess my question is, what do you see as the essence of a legal marriage? Why should the state get involved in marrying anybody at all?
Good questions, Eric. I look forward to Jared’s response.
I would also be interested to hear from Kullervo on those questions.
And like Eric, I have NO desire to trap anyone into any kind of slippery slope argument — I support gay marriage — I just think they are great questions and would love to hear from those guys ‘cuz they’re smarter than me when it comes to this kind of stuff.
Jared C said,
“Maybe you should explain to me the evidence here. I can’t see how same sex marriage deprives any child of their mother or father.”
I was looking up studies, around Prop 8 time, and found an interesting conclusion made by a pro-SSM site. The study focused on a lesbian couple raising a boy and a girl. In essence, the study concluded that the girl had sexual experience earlier and with more frequency then girls in her demographic and the boy had sexual experiences later and with less frequency than boys in his demographic. They praised these findings, saying how good it was that a man would be brought up to have more respect for women and how the girl was unshackled from societies morals. I think its a testament to the influence that mothers have on a child. How would two kids to a gay couple turn out?
Same sex marriage will either deprive the child of the mother or the father. It’s self proclaiming. No matter how ‘feminine’ I become, I’m not gonna be a mom.
Why is marriage so important to God? Why is sex outside of marriage an abomination? We try to pick out studies (none of which, at least unbiased, will be conducted against SSM for fear of political incorrectness) and site the welfare of children or a slippery slope but, to me, none of these carry the weight to tip the scales.
We see Adam and Eve married, by God, to each other, while they were in an immortal and everlasting state. LDS teach that marriage is ordained of God and that man and woman are not found apart in the Lord. Marriage (can be) for eternity…and that’s why it was ordained of God…and to ‘marry’ the same sex defeats the eternal purposes for which we have marriage and pro-creative powers…because we cannot procreate with the same sex.
Ms. Jack … I think the revealed truth on this matter would aid the success of your evangelism…to be truly effective, you need the entire truth. The doctrine of eternal marriage is vital as it reaches beyond this brief existence and casts our eyes into the eternities, which is Gods’ perspective …..yea, I think that perspective would hold the most sway if swaying were even possible.
to be truly effective, you need the entire truth.
Isaac, good luck, as a human being, ever grasping the “entire truth.”
If THAT’S the requirement for effective evangelism, it’s no wonder we all suck at it.
And sleepovers are abominations because they turn girls into lesbians and boys into porn addicts. Or so some would have you believe.
Latter-day Saints teach, through the Family Proclamation, “that marriage between a man and a woman is ordained of God.” Many of us seem to have inferred that this means that Latter-day Saints believe that marriage is ordained of God, and, since God has ordained that marriage be between a man and a woman, that there should not be any other kinds of marriage.
I realised something for the first time this weekend that this statement really just tells us that the normative heterosexual marriage is the only kind of marriage ordained by God. So gay marriage is not ordained of God. But neither are all sorts of things that are legal and even acceptable. For example, I don’t think that God has ever officially ordained teaching certificates, medical licenses, or passing the bar exam. But these are all good and acceptable for the preservation of the cohesiveness of our society.
Eric,
I am not saying the state has an interest in institutionalizing marriage because people find meaning in them, I am saying that we have established a right to marry, i.e. a sort of law that protects marriage from state control, because of the great individual interest in marriage.
Rights are those things that are protected in spite of what the state/majority wants. This is why the state cannot legally prevent marriages between races regardless of how much the majority may value racial purity.
The essence of a right is a line where the majority and its government are not allowed to cross.
I think these questions make a good point, but it is somewhat beside mine. I don’t see that there is an an essence in legal marriage. Marriage is certainly a different institution now then it was 100 years ago, and I would say that most of the changes are positive. I would think few American women would fight to protect the truly traditional marriage.
My point is that if the state does establish a right to marry it should do so fairly. I think there are strong reasons to protect marriage as a right because marriage is not something I like the government messing with, and I think there is a strong consensus that we want a marriage based society. What I see as unfair is only to allow same sex couples this right, and to fail to extend the benefits of marriage as far as possible in a society where same-sex couples are a substantial minority that do raise children and contribute greatly to society.
Ultimately, when defining a right to marry there will have to be some lines, however, my point would be that it is not fair to a substantial minority in society to draw the line on this side of same sex marriage. There is a traditional expression that “The law is an ass” and here is why, it always divides people and behaviors into classes and it does so arbitrarily. It is a blunt instrument in governing the complexities of human behavior and relationships and will always err on one side or the other. However, the law is what we have to work with and we can make it as fair as possible.
The right to vote is an example. I am sure I can find some 10 year olds that would make better voting decisions than a whole lot of middle aged adults, but it would be far harder and ultimately less fair to make suffrage based on competence rather than age.
On incestuous relationships between consenting adults – although some may resemble non-incestuous ones, these are extremely rare and come with serious threats to the health of the children from those marriages. I don’t think there is a justification to extend the marriage right wholesale to this group. With all of their similarities, there is something different about this type of relationship. Probably because incest is generally correlated with deep and harmful pathology. I think it would be hard to find a healthy case. Ultimately some of these relationships that may be nearly identical to non-incestuous ones, the fact that these are so rare justifies the line being drawn leaving them out of the right to marry.
Now some would consider homosexuality of a similar class,i.e. a deep pathology. However, I think the evidence shows that same sex relationships between consenting adults are as different from incest as traditional marriages are. I also think the evidence suggests, and society has acknowledged that homosexuality is not a pathology, or at least one that justifies differential treatment. Incest is still illegal, homosexuality cannot be illegal by right.
Isaac,
How would two kids to a gay couple turn out?
the fact that you put this as a hypothetical makes it seem like you are out of touch with reality. The same sex marriage debate is not about whether or not children can be raised by same sex couples, its about whether children that are being raised in same sex families have the benefit of marriage to stabilize the relationships, its about whether or not they have claim for support on the entire couple or only the one they are related to by blood. If you are advocating laws that somehow limit whether we prevent homosexuals from having children you have definitively lost that fight. The right to bear children is a right that we extend to nearly everybody. This, of course, is a powerful reason why marriage should be extended, so those children will be raised within that institution.
What is the purpose of denying marriage to those families, if marriage is so good for the children in hetero-sexual families why will it not be equally good for children in same-sex families for the same sorts of reasons?
Jared, why does the state demand that a marriage be consummated to be legal?
I’m recognizing the positive rights conversation is going to be an elaborate thread Jack.
Most states do not require sexual relations to make a marriage legal.
In some a marriage is voidable if not consummated but will still be a legal marriage until annulled by legal action.
However, consummation is not a biblical requirement (Jewish law does not require it, you could be legally married by paying for your wife) and is born out of the western tradition that sex in order to generate an heir is part of the marital contract.
Jared C — Thank you for your thoughtful answer to my questions. I appreciate it.
If the government’s interest in regulating marriage is solely in order to legally establish procreative marriages, then a legislative regime that allows infertile heterosexual couples to marry but not gay couples is an incredibly bad fit. It might be close enough to pass the rational basis test (after all, it does exclude some nonprocreative couples), but the fit is so bad, it borders on arbitrary and capricious. Why single out homosexual couples to exclude them from marriage and not all of the other couples who are childless for various reasons (infertility, physical handicap, age, or voluntary childlessness).
It’s hard to see why, even if the state’s interest in marriage is for promoting procreation and protecting procreative relationships, the state would need to forbid just one kind of nonprocreative marriage and not all the others. Or rather, it is easy to see why, but the reason is not a good reason. Such a scheme in fact looks almost identical to Moreno, where a legislative scheme intended to serve the state’s interest in fighting welfare fraud limited eligible households to those where all occupants are related. Not only was it ludicrously bad fir to the state’s interest, but the real motivation, documented in the legislative record, was to discourage Hippie communes. It’s unclear form an analytical standpoint to what extent group animus makes a law fail the rational basis test, but as a basic matter of stare decisis, cases with similar facts are supposed ot be decided similarly.
In any case, the whole argument is ridiculkous anyway. Clearly legal marriage is not just baout procreative relationships, or all of the people who can’t procreate wouldn’t care one way or another. You may not like that marriage is about legally privileging a romantic commitment, but that is plainly what it is in American culture.
Bingo. But your biggest problem is in assuming that the government has to have only one interest in regulating marriage. There is no one legitmate state interest at stake. There are a bunch.
Historically, in our legal system, the premier consideration was property, specifically under what conditions property was inherited by a legitimate heir. Although that specific consideration has largely been legislated out of our property system (I know of no U.S. jurisdiction where a child born out of wedlock doesn’t have the same rights to inheritance as a child born in), nevertheless a large number of other legal property rights have attached themselves to the institution of mariage as a result, and a lot of them are still hanging on. Take a look at the tax code, if you dare. Marriage matters.
So why privilege the married relationship legally and not any other relationship? Lots of answers, lots of history, but at the very least, it makes sense because we attach great cultural significance to marriage.
Maybe your religion is hostile to the prevailing culture, but in a Democratic society, the government should not be. It makes no sense to regulate purely cultural artifacts like marriage in a way that is firmly at odds with the culture. A legislative scheme that does that always grates and irritates because the regulation does not actually fit the regulated. And over time, the Democratic process is self-correcting.
I’m just saying, it’s nonsense to argue a cultural reason for marriage to be regulated in a way that is at odds with prevailing cultural attitudes and conceptions about marriage. The justification is nothing more than a bare assertion that the cultural notion you are trying to enforce is normatively better than the one that actually prevails.
Hawaii allows for this kind of legal arrangement. I think it makes sense to allow it on a legal basis but not to call it marriage, because it simply does not fit anyone’s cultural notion of marriage: most importantly, the people involved in these legal relationships do not claim to be married or hold themselves out as married, or–importantly–want to have their property arrangement recognized as marriage.
While the idea of incestuous relationships are icky to most people, and I think that most incestuous relationships likely have abuse and other very harmful behaviors (ditto for polygamy, btw), I think that it is possible that you could have a brother and a sister, for example, who somehow fall in love and want to get married.
I would say that it should be allowed–but only after a series of counseling for the individuals and the couple, and approval from the courts on a case by case basis. Additionally, I think it should be impressed upon the couple the dangers of child bearing from that relationship. (You can’t really stop them–they could get pregnant without a marriage license.)
Because of the increased potential for abusive situations in those instances (and others), I think that it wouldn’t be unreasonable to have the law say that those people have to jump through additional hoops to get legally married, if they want to. And then it’s up to those people to deal with the ick factor that their neighbors might feel when they learn of their unusual relationship.
But it’s different for gay people–estimates say that at least 3% of the population is gay. That’s more than the number of Native Americans and Alaska Natives in the US. We’re not talking about an insignificant minority here. And preventing them from getting married if they want to because it doesn’t fit with your religion’s moral code… well, it’s not fair and downright wrong. Why should your god’s rules legislate for other people? Aside from degree, how is that different than the extremist religions that go around killing people for believing in the wrong god?
Do you really think that God is more concerned with you getting other people to follow the rules… or with how you treat those people? Was His commandment to “make sure that the rules get followed and legislated”, or to love your neighbor as yourself?
You’re right, pc–God is paying attention. And I think that with regards to any individual, He’s going to be much more concerned with our treatment of others, with how much love we showed to people who were different (even *gasp* GAY PEOPLE) than with whether or not we allowed people to get married to people they loved and wanted to be committed to.
I feel like the idea that we need to legislate right-wing Christian morality makes about as much sense as “if you don’t forward this email on, you’re not standing up for Jesus”.
I feel closest to God when I have authentic relationships with people. When I accept people for who they are, no matter how different from me. When I am less concerned about the sins that other people may or may not be committing, and more concerned with creating something beautiful with another person through love and compassion. And when I’m doing that stuff right–my Christianity shines through so much brighter.
I was attracted to Christianity by a Mormon girl in high school who did all that for me. She is still one of the most amazing people I have ever met. Her acceptance of me with all of my flaws and with all of the hard stuff I had in my life back then made me think that maybe I could be better. And that maybe Jesus was more than just some mean guy who wanted to send me to hell for situations that were beyond my control.
The definition of marriage is not in flux as far as American case law goes. Marriage as a union of a man and woman goes back to the founding of the country. Read the closing arguments by the Prop 8 side to see some the citations.
The right to marry has always had the foundational parameter of male/female. To speak of a right to marry independent of that parameter is to ignore the legal foundation upon which the “right” rests.
Over the centuries many things have changed about marriage but one thing that has not is the requirement the two gender forms be present. Again the case law cites the interest of the state in regulating procreative sex and also the State’s self-regulation of it’s expression of that interest in simply requiring the two gender forms be present.
Mothers & Fathers have gender bound roles that even the LGBT community acknowledges. Same sex partners with children don’t refer to one partner as “Mom” and the other as “Dad”. It is always, “Heather has two mommies”
Children are often deprived of a mother or father through tragic circumstances but we are talking about creating a social policy that will promote as a social good depriving children of either a mother or father. That is a very different thing.
Kullervo and Katy, that is why I like you. 🙂
Gerry,
The issue here is not the right or interest of the state, but the rights and interests of gay citizens.
The interest in the state in regulating “procreative sex” has been reduced to almost nothing, and for good reason. Nobody wants the government overly involved in the bedroom. The right of privacy has pushed the interest of the state aside.
There was recently a study done that showed the kids raised by “two mommies” were better adjusted, better behaved, did better in school, and fared better in the business world than kids raised by other types of parents (including a mommy and a daddy).
Gerry, Jared is right. The government’s legitimate interest in regulating procreative sex is a ship that has long since sailed. We are well past the point where the state can tell you what to do in the bedroom. But even if there was a constitutionally permitted interest in regulating procreative sex, telling people who can and can not get married does not do anything at all about who is having what kind of sex with whom. It bears no rational relationship to the policy, even if that was a permissible policy.
As far as the right to marry being defined as man and woman since time immemorial, let’s get a couple of things straight:
1) Once again, we are not actually talking about the right to marry. We are talking about whether a state can pass a law saying that some people can get married and some people can’t. The right involved is the right to equal protection under state law, not the right to marry.
2) I am skeptical about your case law defining marriage as between a man and a woman. In order for case law to be completely binding, it has to not only come from a jurisdiction that is binding on the present court, but the proposition has to be essential in reaching the holding of the case. And you would be amazed at how many things judges say in legal opinions that are not essential to the holding. What I am saying is that for case law defining marriage as man-and-woman to be binding on everyone everywhere, it would have to be a case decided by the Supreme Court of the United States where the legal question at issue was the definition of marriage, and the court held that marriage is a legal union between a man and a woman. I am extremely skeptical that such a case exists.
3) Case law is trumped by Constituional law. Every single time. You could have every case from the beginning of time standing for a given principle, but if that principle is unconstitutional, the case law is irrelevant.
4) You are arguing for some kind of essentialism to a cultural artifact. I’m going to let you know right now, that’s a fool’s game. At best, it devolves into a baseline-shifting argument.
5) I agree that tradition is valuable and that tradition should not be thrown out lightly. That said, not every tradition is a good tradition. Slavery went also back to the founding of the country. Women not being able to vote–that also went back to the founding of the country.
6) As a legal matter, the fact that a legal principle has held for a long time does not mean it is going to hold forever. Any first-year law student can probably name off twenty traditional legal principles in tort law, property law and contract law that have faded out or been deliberately done away with over time. The law changes. Legal principles change and shift, and new legal principles replace them. That’s just reality. There’s even a legal name for when laws and legal principles fade into disuse until they are no longer law. So the fact that the law has defined marriage as between a man and a woman for a really long time is significant, but it is no more dispositive than the fact that the law assumed trusts were irrevocable for a really long time: in every jurisdiction I know of, the opposite is now the rule.
7) The argument that children need a mother and a father is irrelevant to who can marry and not marry. Anyone can have a baby already, married or single. Lesbians can have babies. And just about anyone can adopt kids. Letting gay people get married has no effect whatsoever on whether Heather has two mommies. So even if the state has a legitimate interest in who raises kids, regulating who can get married or not does not affect that interest at all. Heather’s still going to have two mommies, whether her mommies are married or not.
Come on katyjane, you aren’t even being as progressive as the ancient Egyptians on this one, they knew that you were supposed to marry your sister. And the fact that you think such marriages would probably be abusive only shows your backwards and discriminatory sensibilities.
And I think first cousin marriages should not only be legal, but positively encouraged. In the ancient Mediterranean they were the preferred form of marriage. I mean, how much more paleolithic can we get as a society?
As for gay marriage, I think the classical Athenians had the solution that would please everyone. Every man with gay tendencies got married, to a woman. They then did the respectable thing and had gay love affairs on the side, preferably with someone younger than they were. And, there were plenty of pick up spots at the nude gymnasia, which were of course superior to the modern gay bar because not only was the merchandise always on display, it was well oiled as well. We’ve got it all wrong.
End snark.
It couldn’t possibly be the case that God wants both? Nah, couldn’t possibly be that, God always prefers a false dichotomy over reading what Jesus actually taught.
End rant.
Jesus taught that we should legislate the Christian religion into the law of the state?
That’s bullsh!t and you know it.
Kullervo said:
Of course, that’s partly what opponents of same-sex marriage have been saying ever since the courts started facing that issue. In some states, particularly in the Mormon Corridor and the Bible Belt, same-sex marriage is still firmly at odds with the culture. And it’s a fact that same-sex marriage have never been upheld by a statewide popular vote in the U.S., never. And in less than a handful of states has same-sex marriage been enacted by popularly elected officials.
I’m not so much making an argument here against same-sex marriage (because cultural views are changing and because one reason we have courts and a constitution is in some cases to prevent the popular will from being enacted) as I am pointing out that hinging legal or constitutional arguments on cultural views can cut both ways. That’s not necessarily bad — I’m thankful, for example, that our views of what constitutes “cruel and unusual punishment” have changed over the years. But I’m also hesitant to say that something is the right thing to do simply because it has become the cultural norm.
I don’t disagree with you, Eric. The cultural norms argument definitely cuts both ways. And I think the gay marriage battle would be a lot easier in, say, twenty years if I can read the winds of changing cultural norms right.
But on the other hand, we have Constitutional law, which says that even some cultural norms get trumped by Constitutional principles. If the Equal Protection Clause means what the court says it means, then it doesn’t matter what the culture says, a law that violates Equal Protection is out. “Separate but Equal” was mighty popular throughout half if not more of the United States, but when it was found to violate the 13th (legacy of slavery) and 14th (equal protection) amendments, those cultural norms were rendered utterly impotent, from a legal standpoint.
Honestly it’s a matter of conflicting cultural norms. It would be easy if that never happened, but it would also not be reality. In this case, at least, when cultural norms that are not enshrined in Constitutional law (like marriage is between a man and a woman) conflict with cultural norms that are enshrined in Constitutional law (like Equal Protection), the Constitutional ones trump. That’s like, rule one of our legal system.
If we had something like a Constitutional amendment that defined marriage as between a man and a woman, then we would be playing a whole different legal ballgame. But we don’t.
Norms are absolutely how we define right and wrong. The issue is just picking which norms prevail when they conflict. And having to pick and choose and weigh the demands of conflicting moral values is in my opinion the essence of mature moral judgment.
Jesus taught that we should legislate the Christian religion into the law of the state?
That’s bullsh!t and you know it.
Pretty sure that Jesus didn’t tell us to encourage people to enter into sinful and legally-binding lifestyles by enticing them with government perks either.
There is a big difference between being opposed to same-sex marriage and outlawing homosexuality.
What did Jesus say about passing Christian laws?
A quick question for you, Kullervo:
Assuming that the Proposition 8 case makes its way to the Supreme Court (and I assume it’s likely, unless a different case raising the same issues makes it there first), how do you think the Supreme Court will rule, and what do you think the vote will be?
Well, it’s going to have to be heard in the Ninth Circuit first. Then, assuming the Supreme Court grants certiorari and does not find a convenient way to dismiss the case on other grounds (standing, political question, etc.), I don’t really know. I have to admit that I’m not much of a SCOTUS-predictor.
The fact-finding record is a problem for the pro-8 side. Appeals courts don’t get to go back and re-hear the evidence–for the most part they are stuck with the factual determinations made by the trial court. They can only evaluate and affirm or overturn the legal conclusions reached.
So, the 9th circuit and SCOTUS will be revisiting the following:
1) Is the rational basis test the correct test for evaluating a claim of discrimination based on sexual orientation under the Equal Protection clause? The answer to that is doubtless going to be yes: rational basis is the absolute minimum, and I certainly don’t see the court elevating sexual orientation to a protected class, because of the public opinion shitstorm that would follow.
2) Is a ban on gay marriage rationally related to a legitimate government purpose? Since public animus against gay people unquestionably underlies Prop 8, that means the court will have to grapple with Moreno, which will be interesting.
Moreno aside, I think that if the court can find a legitimate government purpose that Prop 8 is rationally related to, it will find one. It get a bad rap from people who don’t know what theya re talking about, but the truth is, the supreme court almost always chooses to act conservatively. Not conservative as in GOP vs Democrat, but conservative as in, the court will avoid making waves and handing down huge landmark decisions that change everything whenever it can. Its part of how the court maintains its legitimacy.
But Moreno is a sticky wicket.
Tim said:
The legal/political fight isn’t about government perks anyway. In several states (including California after Prop 8 passed), same-sex couples can get all the state-level government perks of marriage without getting married, through a civil union. And even in states that don’t have civil unions, same-sex couples can contract to receive many if not most of the legal benefits and responsibilities of marriage.
What the legal/political fight is about — and this is true for both sides — is whether we as a society should view legally committed same-sex sexual relationships as having the same societal standing as legally committed two-sex sexual relationships (aka marriage).
Kullervo said:
I agree with that assessment, and I think we saw that recently in the court’s decisions on the Second Amendment. Roe v. Wade is a big exception, though.
And whether the Constitution permits us to label and categorize them differently.
Not really. Roe didn’t come out of nowhere: Griswold and Eisenstadt, which are good cases (unless your name is “gerry” I guess), pretty much set up the ball for Roe. I think you can argue that, even given the other cases, Roe was decided wrong, but it shouldn’t have come as a big surprise.
On the other hand, Roe is a good example of the court doing something dramatic and taking a lot of heat and losing some legitimacy for it.
Yeah, that too.
That’s what I meant. It was still a “conservative” ruling in the sense that the legal groundwork had already been laid. (It would be interesting, though, to see what the court would rule today if the precedent hadn’t already been set.)
As to the issue of legitimacy, I suspect that’s why the California Supreme Court upheld Prop 8 even though the sympathies of the court were clearly with SSM. Overruling voters on such a high-profile issue would have put it in a very tough position, to say the least.
Since Jesus was a powerless Jewish peasant living in subjugation to the Roman Empire, not a damn thing. More to the point why would Jesus talk about passing laws when such a thing was completely beyond the reach of someone in his position? And why would you expect him to talk about this?
Here are some other things that Jesus never talks about: bestiality, cigarette smoking, human trafficking, shooting up with dirty heroin needles, picking your nose, and the merits of wiping with your right vs. your left hand.
Now before anyone utters the non-thought that I am establishing moral equivalence between those actions and homosexuality, please, get a life. I am merely saying that just because Jesus did not directly address an issue, it does not mean that he automatically accepted the prevailing sentiments of his day, nor the prevailing sentiments of ours.
Supreme court prediction-
My guess is that the Supreme Court would either decline to hear the case, find some narrow way to overturn prop 8 that does not create a equal protection right to same sex marriage, or uphold prop 8.
Here is my speculative breakdown.
Antonin Scalia- For Prop 8
Anthony Kennedy – Probably Against prop 8, considering his opinion in Lawerence v. Texas, and Romer v. Evans. However Kennedy is a big states rights supporter. If he can see animus i think he will shoot it down on those narrow grounds.
Clarence Thomas- For Prop 8
Ruth Bader Ginsburg – Against prop 8
Stephen Breyer- Against prop 8
Samuel Alito – For prop 8
Sonia Sotomayor – Against prop 8
Elena Kagan – ? probably against prop 8
Roberts- For prop 8
So a close 5-4 against prop 8. But its really a coin toss.
I think it is conceivable that the Court could strike down prop 8 as violating equal protection in an ironic way. i.e. California protects same-sex domestic partnerships on the same basis as it does marriages but refuses to allow same sex couples to be “married” this seems close to simple animus against a particular class. As Kullervo alluded to, I think the Court could shoot down prop 8 the same way it did Amendment 2 in Colorado in Romer v. Evans and not create a national right to same sex marriage.
The irony would be that Prop 8 would be shot down in part because California’s laws were so equal when it came to same-sex partnerships and marriage.
I don’t know that the same reasoning would apply in Utah where the reason for the difference between same sex partnerships (which don’t exist) and marriage is stark.
For all you non-lawyers, welcome to the mixed up crazy world of legal thinking and precedent. Throw your intuitions aside prior to entering.
I’d predict a 6-3 vote supporting Prop 8 on states’ rights grounds. And while it might seem contradictory, I could also see it striking the Defense of Marriage Act for the same reason.
I’m not sure what you mean by that, because Equal Protection is the right not to be discriminated against by the state. It’s not really a collection of substantive right.
I mean, that’s pretty much just a breakdown of who’s conservative and who’s liberal on the court. You could use that rubric to predict every case based on the ideology surrounding the underlying legal/policy issue, and sometimes you would be right, but a lot of times you would be dead wrong. I’m not as sold as some people are by the liberal/conservative designation given to the justices. With some it’s true: you can count on Thomas to just rubber -stamp the GOP’s election platform every single time. But the justices aren’t beholden to the political parties the way elected officials are, which means their motivations, reasoning, and conclusions often don’t fit what we assume they should be. It’s not like predicting a senate vote.
I could see this kind of result as well. In any case, you can generally bank on SCOTUS crafting a ruling that is as narrow as possible. They’re certainly not going to hand down a ruling that ends the debate nationwide once and for all.
David,
We all know that Jesus would be all for legalizing gay marriage, to pave the way for a full-scale legalization of His own polygamy.
Kullervo,
I guess what i meant was that we are going to see something like Lawrence v. Texas or Romer v. Evans but not Loving v. Virginia which essentially created/acknowledged the right to marry under equal protection.
Not a snowball’s chance in hell. You misunderstand the Constitutional question.
“States rights” is not a “grounds” that the Court can use to get around the 14th amendment. “States rights” means the 10th Amendment (powers reserved to the states), and it’s inapplicable here where the question is Constitutional. The question in Perry is a 14th Amendment one: does Prop 8 violate the Equal Protection clause? The 14th Amendment is a Constitutional provision, so the 10th Amendment does not apply.
The 10th Amendment reserves to the states “The powers not delegated to the United States by the Constitution.” But the 14th Amendment is part of the Constitution, explicitly stating things the states can not do (along with the 13th and 15th amendments, all passed together after the Civil War).
Article 6 of the Constitution, the Supremacy Clause, means that as long as there’s a 14th Amendment, equal protection questions can’t be left to the states.
Oh, agreed. The court is not going to create a fundamental right to gay marriage. No way.
Oh, agreed. The court is not going to create a fundamental right to gay marriage. No way.
but the voters will in 20 years or so.
Eh, probably not. By that time, I imagine that the court will simply have read gay marriage into the existing fundamental right to marriage via the 5th amendment. And the law will be solid although the result will be controversial, but mostly just controversial among an increasingly small but vocal minority. As usual.
The only way “the voters” could create a fundamental right to gay marriage would be with a Constitutional amendment, which I do not see happening any time soon either.
Not nationally, because amending the U.S. Constitution is extremely difficult (and rightfully so). But voters at the state level could, and gay-marriage advocates in California will probably petition for a state constitutional amendment if Prop 8 is upheld. And there’s no question that if a state wants to recognize/establish same-sex marriage it can (although currently it doesn’t have to be recognized elsewhere).
States already decide what people can get married and what people can’t. Every state has age of consent laws and familial association laws.
You should read the closing arguments on the Prop 8 trial.
What Walker did was ignore Supreme Ct rulings in his decision As Edwin Meese wrote:
“Regardless of whether one agrees with the result, structurally sound opinions always confront binding legal precedent. Walker’s is a clear exception because the U.S. Supreme Court has spoken on whether a state’s refusal to authorize same-sex marriage violates the equal protection and due process clauses of the 14th Amendment. In 1972, Baker v. Nelson, a case over whether Minnesota violated the Constitution by issuing marriage licenses only to opposite-sex couples, was unanimously thrown out on the merits, for lack of a substantial federal question. The Supreme Court’s action establishes a binding precedent in favor of Proposition 8. But Judge Walker’s ruling doesn’t mention Baker, much less attempt to distinguish it or accept its findings. ”
I proceed from the self evident proposition that some basic civil rights are an endowment from a loving and just Creator. You proceed from the proposition that all civil rights proceed from the culture. A values clash.
What does slavery and women voting rights have to do with marriage? Answer: “Nothing” a classic non sequitur. You are smarter than this. The statement, “Marriage as a union of a man and woman goes back to the founding of the country.” is a statement of fact it is either true or false. You believe it is?
“As a legal matter, the fact that a legal principle has held for a long time does not mean it is going to hold forever. ”
So? The fact that a legal principle has held for a long time doesn’t mean it is going to fade away either. A meaningless statement.
“Children are irrelevant to marriage.” The value system of the LGBT community, since they don’t engage in procreative sex. It is not the value system of the larger heterosexual society, hence the values clash.
We know the outcomes for children when they are raised outside a stable loving marriage of their mother & father. So let me ask another question, “Is marriage of their mother & father irrelevant to children?” Yes? No? You don’t know?
“The government’s legitimate interest in regulating procreative sex is a ship that has long since sailed. ”
Really?! Father a child and see how far that ship has sailed. You’ll be in court lickety-split and paying child support for the next 18 years and if you don’t pay, jail time! Oh yeah THAT ship has sailed!
Wishing that ship has sailed doesn’t make it so.
You misunderstand: “fundamental right” means something specific in Constitutional law.
Under the 14th amendment, the strict scrutiny/heightened scrutiny test is applied to 1) laws that discriminate based on a suspect class (i.e. race) and 2) laws that regulate a fundamental right.
In that context, “fundamental rights” include the rights set out in the Bill of Rights as well as unenumerated rights alluded to in the 9th amendment.
The supreme court has found very few of these unenumerated fundamental rights, but those they have agreed to recognize include the right to privacy, the right to procreation, the right to interstate travel, and the right to marriage. But up to this point, “the right to marriage” only has been interpreted to include heterosexual marriage.
It’s a murky area of law, and there have been a lot of attempts to get the supreme court to acknowledge other fundamental rights, such as a right to education. But as a general rule, the court is extremely reluctant to expand the list of unenumerated fundamental rights.
So when Jared and I talk about whether gay marriage will be made a “fundamental right,” we are talking about fundamental rights under the US Constitution.
Individual states are free to recognize whatever rights they want, but those rights would not carry the same weight as a fundamental constitutional right.
Right, but those laws are subject to the Constitution. If they are analyzed under the 14th Amendment’s Equal Protection clause and they fail the relevant legal test, they are void as law because they are unconstitutional. States can definitely regulate marriage, but not in a way that violates the Constitution.
This quote is nonsense. A ruling that the parties failed to present a substantial federal question explicitly is not a ruling that same-sex-only marriage laws violate Equal Protection or not. The federal courts are courts of limited jurisdiction: they can only hear cases that fit into specific categories (as opposed to state courts, which are courts of general jurisdiction that can hear cases about anything). In Baker, the court did not rule that same-sex-only marriage laws are Constitutional. The court ruled only that federal courts could not hear the case because the parties did not present a question that Article 3 permits federal courts to try. It was a jurisdictional dismissal, binding on the parties but not as a matter of Equal protection jurisprudence.
A question of whether a state law is Constitutional or not is basically the definition of “a federal question” (i.e., a question decided based on federal statutory or constitutional law).
No, I proceed from the proposition that the Constitution is the supreme law of the United States. PS, it says so in the Constitution.
You miss the point entirely, so I am going to spell it out for you: the fact that a principle is old and traditional does not mean it is good and should be kept forever.
Age and tradition are relevant in deciding whether a principle should be kept, but not dispositive. We do not keep every old traditional principle simply because they are old. Examples include slavery, which was old, traditional, and had a lot of legal precedent to back it up, but was nevertheless a bad tradition, and getting rid of it was a good thing. Another example is not letting women vote. That was also a tradition that went back to the founding of our country. nevertheless, it was not a good tradition. It was a bad tradition. Getting rid of it was a good thing.
My point is: not all traditions are good. So the fact that marriage has traditionally been betwen a man and a woman is relevant and important, but it does not simply decide the issue.
Furthermore, it does not matter how old and traditional a principle is, if the principle violates the Constitution. The Constitution is the supreme law of the land. It is even supreme over very old traditions. If you don’t like it, amend the Constitution.
Again, you miss the point. Whether or not being raised by a male mother and a female father has nothing to do with whether or not gay people should be allowed to get married because:
Letting gay people get married will not increase or decrease the number of children being raised in households by married male and female natural parents.
Heather will have two mommies whether or not you let her mommies get married.
What part about that don’t you understand? Gay couples can already raise their kids or adopt new ones. Whether or not gay couples can be legally married will not affect that. Gay couples can already raise children.
Again, you misunderstand.
Yes, the state has a legitimate interest in protecting and providing for children. The state can regulate that all it wants.
But sexual acts between consenting adults, the state can not constitutionally regulate. The state can not, for example, forbid anal sex because it does not create children. The state can not forbit contraception because they prevent procreative sex. The state is forbidden from interfering in sexual acts between consenting adults.
This is already the law. Permitting or forbidding gay marriage won’t change it.
The state cannot regulate sexual behavior in order to promote procreation. That’s the ship that sailed, and it was called Griswold v. Connecticut, followed by Eisenstadt v. Baird.
The state is not Constitutionally permitted to regulate sexual acts between consenting adults. It does not have a permissible interest in regulating procreative sex.
Gerry,
Just to know where you stand, do you consider the right to marry to be a fundamental right protected by the constitution?
Should a state legislature be able to make lots of rules about who should marry whom?
Jared,
I stand by what I wrote earlier:
“The right to marry has always had the foundational parameter of male/female. To speak of a right to marry independent of that parameter is to ignore the legal foundation upon which the “right” rests.”
Let me answer your second question by rephrasing it.
“Does a state legislature have the ability to make rules about who should marry whom?” Yes, in accordance with the constitution and our Judeo-Christian values.
After centuries of lawmaking I believe all the central issues regarding the regulation of marriage have been addressed so I don’t believe there is a lot more that needs to be done.
As I wrote earlier the State was correct in initially limiting it’s interest in marriage by simply requiring the two gender forms be present. It reached too far when it sought to regulate some aspects of the functioning of those forms and the court has correctly pulled the govt back to it’s proper disinterest in functioning, motive, and orientation in regards to marriage.
On this I agree with Kullervo, it is improper for the govt to seek to regulate the private sexual behavior of it’s citizens through intrusive laws that breech a citizens expectation of privacy. More about that in a post to him later today.
I am about as far from being a lawyer or law-maker as one can be, and even I know this last part is totally beside the point. Local, state, and federal laws are not created in accordance with I am guessing you meant to) Judeo-Christian values. They are made according to constitutional law and the will of the people, with the understanding that state constitution’s trump locally, and the federal constitution trumps all.
That being said, I believe that it is clear that legislatures have the ability to make rules regarding which individuals are qualified to marry. But these rules are mostly limited to ages of consent and familial relations. There are also requirements in many states for potential marriage partners to be screened for health concerns (such as HIV), and to record employment status. I don’t think they require employment to wed, but they at least record it on the marriage license application. At least, my limited experience has been that Illinois does. Which is why my marriage license application has my occupation listed as “Teacher” and my wife’s occupation as “Student” – pretty awesome, in an amusingly horrible way.
A ‘right’…something you have, a freedom to act without incurring a punishment or negative consequence. Laws are established to protect our rights. Our driving laws are designed to put in order a possibly hazardous situation. We do not have the right to place a man in bondage without just cause. We don’t have the right to kill another. We have no right to steal. We are free to choose, but no matter what, we have no right to commit evil of any sort. Even if the law were to take away the punishment, or even justify it, we would still not have that right…for when you appear before God you will be held accountable for your choices. Where there is no Law, there is no condemnation. But oh how sorry the state when you can be condemned for following the a Law! The law of any society ought not support an evil. How many will freely act in accordance with a law that supports the wrong? We may not punish certain action, and we may permit their occurance, but we must not support it’s institutionization.
Now if you’re going to say, there is no evil, then there is no good. If there is no right, there is no wrong. What constitutes evil…what constitutes good? God is good. We look to him, in our variuos cultures, to establish our basic laws.
The establishment of a law will not change everybody…that is, SSM say they have a right to marry because their attraction to the same sex is not a choice and they deserve to be happy. Weither that is true or not, there are many who do have a choice and are sitting on the fence…the SSM crowd will tell us, “WHY would we choose this lifestyle?”…but I know there are many who do have a choice and I do not think it’s in our best interest to support a poor decision. Can you find happiness? Sure..you can be happy and love that person…but you can never create a child together…that literally half you and half them. That joy will never be. Do I love my sister? Yes…if we were romantically in love what would we do? We have to realize that our children would be at severe risk…and I would hope that my love would over rule my lust and I would want her to marry and bear her own healthy child…and be a mother….and to experience that joy without all the ramifications of incest. Or we could be selfish…and insist on a childless relationship.
That love ought to extend to a child…in wanting the best for it. Not having a mother or a father screws you up…I don’t care what one study says. Do other studies show that children adapt without one or the other? Yes they can, thank God! But it’s not optimal…neither are bad parents, but we’ll always have room to improve…but lets not take a societal step backward.
Kullervo,
You wrote: “Yes, the state has a legitimate interest in protecting and providing for children. The state can regulate that all it wants.”
You realize you have just conceded the central argument for retaining the traditional def of marriage?
As atty Cooper stated in his Prop 8 closing argument,
pg 3028
“So the first question, your Honor, that has to be
3 asked is: Why has marriage been so universally defined by
4 virtually all societies at all times in human history as an
5 exclusively opposite-sex institution? It is because marriage
6 serves a societal purpose that is equally ubiquitous. Indeed,
7 a purpose that makes marriage, in the often repeated
8 formulation of the Supreme Court of the United States,
9 fundamental to the very existence and survival of the human
10 race.
11 The Court said that in Loving. It said it in
12 Zablocki and several other places, Skinner.
13 And the historical record leaves no doubt, your
14 Honor, none whatever, that the central purpose of marriage in
15 virtually all societies and at all times has been to channel
16 potentially procreative sexual relationships into enduring
17 stable unions to increase the likelihood that any offspring
18 will be raised by the man and woman who brought them into the
19 world.”
When you read Coopers closing arguments he continues to cite the overwhelming number of legal citations that support this view. Citations Judge Walker simply ignored in his ruling.
It was this case law, citations from recognized legal authorities, and the Precedent set by Baker v Nelson that prompted Cooper to originally ask for a Summary Judgment and dismissal of the case.
As Atty General Meese indicated Baker v Nelson was right on point and since the case came to SCOTUS through mandatory appellate review the Courts summary dismissal constituted a decision on the merits and established Baker v. Nelson as a precedent that lower courts have acknowledged, such as,
Citizens for Equal Protection v. Bruning, U.S. Court of Appeals, 8th Circuit (2006)
In Citizens for Equal Protection v. Bruning the U.S. Court of Appeals for the Eighth Circuit rejected claims by Nebraska citizen organizations that the state constitutional amendment banning same-sex marriage offended the U.S. Constitution’s Equal Protection Clause, among other provisions. While Baker did not appear in the court’s Fourteenth Amendment analysis, the court’s opinion did note in its concluding passage:
Indeed, in Baker v. Nelson, when faced with a Fourteenth Amendment challenge to a decision by the Supreme Court of Minnesota denying a marriage license to a same-sex couple, the United States Supreme Court dismissed “for want of a substantial federal question.” There is good reason for this restraint.”
Wilson v. Ake, U.S. District Court (2005)
Two Florida women who married in Massachusetts claimed that Florida’s marriage statutes and the federal Defense of Marriage Act (DOMA) violated the due process and equal protection guarantees of the Fourteenth Amendment (and implicitly the Fifth Amendment), among other claims. The judge dismissed the claims against the U.S. Attorney General, in part, because Baker controlled; “The Supreme Court has not explicitly or implicitly overturned its holding in Baker or provided the lower courts, including this Court, with any reason to believe that the holding is invalid today.”
This judgment was denied and was the last time Judge Walker dealt with Baker v Nelson. We will see what the Appeals Court and SCOTUS has to say about the relevance of Baker v. Nelson, I doubt it will be “Nonsense.”
Gerry — I don’t really want to put myself in the position of defending Judge Vaughn Walker, as I think his ruling has serious flaws, but I’ll do it anyway in the interests of fairness.
It’s just flat not true that Walker ignored Baker. True, he didn’t mention it in his final written decision, but the fact is that he didn’t need to. He addressed the issue fully in rejecting a motion for summary judgment, and once he ruled that a trial could proceed it became unnecessary to address Baker further.
And while, technically (Kullervo can correct me if I’m wrong) Baker was precedent, it’s a precedent that doesn’t mean a whole lot as it came without any written opinion of rationale. Certainly one could argue that society has changed substantially since then, and those changes significantly could affect the body of law surrounding the issue.
Once Prop 8 (or some other case on the broader issue) makes it to the Supreme Court, I’d be shocked if the court spends much time discussing Baker.
Eric,
We will see what the 9th circuit and SCOTUS has to say about Walker’s reasoning. I get the impression that SCOTUS thinks it’s precedents mean something, again we will see in awhile.
gerry, you continue to miss this point: people have children without being married all the time! The traditional definition of marriage has no bearing whatsoever on the conceiving, carrying, delivering, and raising of a child.
The traditional definition of marriage has no effect one way or the other on the state’s interest in protecting and providing children. If marriage was all about procreation, then there are hundreds of thousands of marriages that should not be allowed, such as my wife’s grandmother’s recent marriage. She and her husband are both in their 80s, and neither one will be conceiving children. The children they have from previous marriages are all grown, so there is no way that one could claim that their marriage has any effect on protecting or providing for children.
Gerry,
On this I agree with Kullervo, it is improper for the govt to seek to regulate the private sexual behavior of it’s citizens through intrusive laws that breech a citizens expectation of privacy.
The right to marry is not in the constitution, neither is the right to privacy, it was created/acknowledged by so-called activist judges. The same reasoning that brought these rights into existence will probably bring the right to marry someone of your same sex, and potentially polygamy.
The reasoning is going to be substantially similar to that of Walker’s decision, i.e. that the state does not have a rational basis to prohibit same-sex marriage outside of sexual morality.
Once the court in Lawrence v. Texas fully recognized a right to sexual privacy, and prevented Texas from regulating behavior simply based on sexual morality I think Scalia was right that it is doubtful that prohibitions on same-sex marriage will withstand rational-basis scrutiny. :
Scalia’s dissent.
http://www.law.cornell.edu/supct/html/02-102.ZD.html
I think Scalia is essentially right also that these decisions are hard to square with strict text of the constitution. But i also agree with the “activism” of the judges, and i believe that equal protection does require a movement toward the fairness that I advocate above.
The irony, Gerry, is that you too seem to be on my side. Your position on sexual privacy is the precise reason why laws against same-sex marriage will eventually be invalidated.
Jared wrote,
“The irony, Gerry, is that you too seem to be on my side. Your position on sexual privacy is the precise reason why laws against same-sex marriage will eventually be invalidated.”
Actually my position is that there will eventually be an amendment to the Constitution that defines marriage as between a man & a woman which no court will be able to invalidate.
Alex,
We agree someone is missing the point!
Alex, Jared, and Kullervo have commented on a position that isn’t mine. They would like for it to be mine, but it isn’t. From the first I have declared that the govt limited itself in marriage & sex by only requiring the two gender forms be present. I said that the govt is not concerned about function, orientation, or motive as they pertain to marriage. The govt doesn’t care if you have sex, what kind of sex, if you have kids, if you don’t, whether you are in “love” or not, even what your orientation is.
Following it’s mandate to express it’s compelling interest in the least intrusive way possible govt simply asks the two gender forms be present. It underwrites a social institution that shapes social behavior, not personal sexual behavior.
Govt intrusion into private sexual behavior was an error that has been corrected. It is not an error I am making and that needs to be noted in future dialog.
What is the purpose of having two gender forms present if “function, orientation, or motive” don’t matter?
Now your position seems to be dissolving into nothing.
It seems that that is only a subtext for discriminating against homosexuals because you can’t stand the fact that two men can be married. If you can support the Sado-masochist, sterile, open marriage, why can’t you accept a gay marriage?
Govt intrusion into private sexual behavior was an error that has been corrected. It is not an error I am making and that needs to be noted in future dialog.
My point is that when there is no legitmate government interest in private consensual adult sexual behavior (which Lawrence seems to say) then the state interest in
That is what Scalia said, and that is partly why he strongly opposed extending the right to privacy as far as the Supreme Court did. It seems you disagree with Scalia on one point but not on the natural consequences of his legal reasoning.
The point of my post is that government’s regulation of the right to marry should be as content-neutral as the right to expression or religion. Its simply not fair to allow the government to regulate one group’s sexual freedom (homosexuals’) but not allow it to regulate another’s (heterosexuals’).
My point is that a Christian can be fully in support of this content neutral stance without having to believe or support anything that happens within particular marriages. You can still believe homosexuality is an abomination and support the right to gay marriage, just as you can believe that satan worship is an abomination but support the right of satan worshipers to hold services and practice their religion.
Jared,
You are brighter than this! “function, orientation, or motive” don’t matter TO THE GOVT, not that they don’t matter at all!
That they don’t matter to the govt is self-evident. In it’s capacity to “license” marriage the govt asks nothing regarding function, orientation, or motive, correct?
This isn’t rocket science, it just damn inconvenient to your position because it speaks of a govt interest that is based upon something other than private consensual adult sexual behavior.
Scalia was wrong in that he believes, like you, the govt’s interest in marriage was SOLELY grounded in private consensual adult sexual behavior, it isn’t, it is grounded in social behavior, not personal sexual behavior. Social behavior that provides the best institution for raising children. That is marriage’s universal and historical definition until 30 years ago.
I understand Scalia’s position, it is correct as far as it goes, he is in the end a jurist constrained by the Law. Citizens though can change the law, can write new law, and amend the Constitution. Prop 8 did just that and the CA Supreme Court was so constrained by the law that they could only judge the method by which Prop 8 was enacted not whether it was valid, for the people had spoken.
A position is dissolving here, but it isn’t mine. It’s easy to tell whose, the ad hominem attacks replace reasoning. Attacks like this:
“It seems that that is only a subtext for discriminating against homosexuals because you can’t stand the fact that two men can be married. If you can support the Sado-masochist, sterile, open marriage, why can’t you accept a gay marriage?”
I TOLERATE the Sado-masochist, sterile, open marriage, because I am not a fascist and do not believe the govt should be in our bedrooms. I do not accept SSM for the same reason I opposed social institutions that promoted racial segregation, it burdens and harms another social group. In the case of SSM that group is children.
But I am repeating myself on these points, so now I am wondering who is exactly missing the point here? You know dismissing or ignoring an argument isn’t the same as refuting it.
Sometimes you can get something wrong not because what you hold to be true is false but because you overlooked an important element and what you believe to be true is incomplete.
I TOLERATE the Sado-masochist, sterile, open marriage, because I am not a fascist and do not believe the govt should be in our bedrooms.
Then why can’t you tolerate same sex marriage, I don’t get it. What is the difference in your view, except that one involves gay sex?
This is the point that I simply do not understand. Studies have found that children raised by same-sex parents are as well-adjusted as, if not better adjusted than, their peers. They perform as well or better academically, socially, emotionally. They grow up in a stable home, with parental figures and extended family who love and support them. Where is the harm?
Is the harm because when Heather has two mommies, she doesn’t have a daddy? How is this any different from my friend whose parents divorced when he was still a baby and he was raised by his mother, with no father figure in his life? Or how about the flip side, in which another friend’s mother passed away in childbirth and she was raised by her single father, who for whatever reasons of his own chose not to remarry. If the absence of two-gender parents is burdensome and harmful, then shouldn’t single parents being banned from raising children?
Why not talk about the alcoholics and drug abusers? Why don’t we ban anyone who drinks alcohol or smokes tobacco from raising children? After all, there is a tremendous amount of research to confirm that second-hand and third-hand smoke are incredibly harmful, especially to children. So if a man or woman is a smoker, then that person should not be allowed to marry. But wait: marriage has nothing to do with conceiving, delivering, or raising babies.
I just don’t understand how you have drawn the conclusion that SSM is a burden and harmful to children. So, please, help us out here. What about SSM is so harmful and burdensome to children that you feel the government needs to step in and ban it?
Jared,
Because even a Sado-masochist, sterile, open marriage heterosexual couple can be a good MOTHER and a good FATHER, something no same sex couple can ever achieve.
Still on the, “personal sexual behavior” is the only foundation for marriage theme I see.
Alex, you just pulled a bait-and-switch.
Marriage is not about LIMITING how people raise children. Marriage is about PROMOTING the environment in which they are best raised in the relationships where they are naturally created. For a same-sex couple to become parents they’ve got to find either a mother or a father who is willing to be excluded from the child’s life. To bring a child into their family they’ve got to be quite intentional about purposefully excluding one of the child’s natural parents.
The research every one is excited to quote is one study of lesbian couples. Most sociologist will tell you that more research needs to be done. If the research happened to show that children do not do well with gay couples I doubt many people would really care. There would always be the opportunity to compare themselves to dysfunctional marriages or divorce. (not really comparing best to best and worst to worst).
I personally don’t argue that children can’t be raised well by same sex couples. (Children who have one parent die are often just as well adjusted as children with two living parents, that doesn’t mean I think we should kill one parent rather than allow a divorce). Instead I prefer to point out that SSM has the unintended consequence of causing the culture as a whole to devalue marriage. Fewer heterosexual marriages take place in countries where SSM is available and cohabitation and illegitimacy rates increase. Perhaps children being raised by SS couples are better off with SSM in place. But children as a whole are more at risk to the effects of the instability of relationships where baby-making actually occurs.
Marriage isn’t about creating an environment for raising children. At least, that isn’t the only reason. If marriage were only about creative the best environment for raising children, then yes, I would say that anything other than the normative heterosexual marriage should be barred.
But marriage is about a lot more than raising children. The purpose of marriage has changed many times over the history of mankind. There was a time when marriage was nothing more than a financial transaction. There was a time when marriage was a means of forging political alliances. In our day and age, marriage is often looked at as being an official pronouncement of two individuals commitment to one another. Part of this commitment is to share in creating and raising children. But if something happens and we are never able to have children, we will still be married, and our commitment to one another will continue. And yes, as Latter-day Saints, part of the reason we married was because we believe that marriage is a sacred ordinance that is an essential element to our eternal progression.
However, my reasons for marrying my wife have absolutely nothing to do with why others wish to marry. And while I continue to maintain my belief that the best situation would be for the government to remove itself from the business of endorsing marriages altogether, I think the second-best situation is to accept that there is no fundamental reason to keep any two individuals from marrying.
Gerry has proposed that a good reason to oppose SSM is because it is harmful and burdensome to children. I would like to know how SSM is any more harmful or burdensome than a multitude of other situations that are allowed. Alcoholics are able to marry, despite wealth of information to show that growing up in a home with alcoholics is incredibly damaging. So, other than the opposition to homosexuality that is based on the morality of the Abrahamic religions, and the spiritual damage that is associated to being raised in a sinful environmental, what is the harm and burden placed upon children being raised in a same-sex marriage environment?
Jared, your “freedom of religion” argument is interesting but it’s not quite analogous. People already have the freedom to enter into homosexual relationships.
This situation is more like Italy declaring that Satanism will now stand along side Catholicism as the National religion. It’s a state endorsement.
Alex,
In my earlier posts I explained why SSM is burdensome & harmful to children and Tim did a great job explaining it as well.
You have to ask yourself if you don’t understand because you lack information or you don’t understand because you disagreed with my conclusion from the beginning and “not understanding” enables you to avoid dealing with a point that puts at risk your whole position.
Ask yourself, “If I accept the idea that SSM is burdensome & harmful to children will it cause me to change my position? Why or Why not? If I accept that idea does that mean I am a bigot or hate filled?
As to alcoholics, drug abusers, and tobacco smokers. I am not a fascist so I am happy the govt limits it’s interest and the govt clerk doesn’t give me a 5 page questionnaire asking about my personal behavior when I apply for a marriage license, aren’t you?!
What is this about progressives that every social ill requires govt involvement at a level that would make a fascist proud? In CA where I live two men or two women walk up to a clerk to get a marriage license the clerk looks at them and says, “No”. Pretty limited and not intrusive, I like it, don’t you?
As to “studies” I believe it is a word, not a magic incantation that shuts people’s mouths and renders all opposition void. I like my studies like I like my wine, well aged and well reviewed. Citation of studies whose ink isn’t even dry yet doesn’t impress me. I lived long enough to have seen hundreds of “studies” and “polls” hailed as definitive when they were published and demolished in less than a year or two. “Eggs are bad, Eggs are good” Coffee is bad, Coffee is good”, etc, etc.
We aren’t even talking about the source of the study like; Big Oil, Big Business, Big Labor, Big Tobacco, you get the idea.
You know what I like? I like common sense reinforced with diligent study, I like experience, both personal and group like the 5,000 year universal human experience of marriage as between a man & a woman, I like stuff like that and when a “study” is published that contradicts or confirms those things I don’t jump to embrace it.
If you seek to persuade your opposition, arguments like that aren’t going to be very effective.
Ahahahahahahahahaha…. Sorry, I find the idea of someone labeling me as a progressive closet-fascist absolutely hilarious! Much akin to the time I was called a terrorist-supporting communist.
Thanks for brightening my day!
And by the by, I just read through all of the comments again. At no point, gerry, have you actually explained how SSM is harmful or burdensome, except by stating that SSM naturally removes from the child a parent of one gender or the other.
I will gladly acknowledge that the idea situation for a child to be raised is by a mother and a father. However, this has nothing to do with marriage. Marriage is not about raising children, despite Tim’s assertion at the very beginning of this discussion. It may be a main reason for some, and it may even be the only reason for some, but in terms of being legally capable to marry, the government only requires that the individuals be of the age of consent and (in some states) free of some communicable diseases. And, yes, currently, there is the requirement that one partner be male and the other partner be female. But that last point is what is being challenged.
In California, especially, same-sex couples are granted all the rights and privileges of a married couple, except for the right to refer to their union as a legal marriage. Same-sex partners are already able to (and do) adopt and raise children. So, clearly, the government has established that there is no undue harm upon a child by being raised by individuals of only one gender. If the government was so determined to make sure that every child born in the United States was raised by one man and one woman, then we would not have children being raised by single parents. And yet we do, all the time. Very few people are actively seeking to end single-parent homes by removing children from the custody of their single parents. (There are a few on the fringe, but nobody really listens to them.)
So, again, how is it actually harmful or burdensome to be raised by only women or only men? Where is the actual evidence that Heather has been harmed or burdened by having two mommies?
Alex,
“And by the by, I just read through all of the comments again. At no point, gerry, have you actually explained how SSM is harmful or burdensome, except by stating that SSM naturally removes from the child a parent of one gender or the other.”
At no point, EXCEPT THIS POINT, SSM naturally removes from the child a parent of one gender or the other. This is a huge point! what else do you need?!
“I will gladly acknowledge that the idea situation for a child to be raised is by a mother and a father. However, this has nothing to do with marriage. Marriage is not about raising children”
If you ignore 4,000 years of human history, every major religion, centuries of Western Common Law, Federal court decisions, state court decisions, etc, then you can make that statement I guess.
We have long studied the effects of single gender parenting through the tragic circumstances of divorce or single parenting. We know the outcomes and they aren’t good. This isn’t rocket science.
Just look at your own life. If you are like 90% of people as you grew up you thought about marriage & children. They were inseparable. I mean did you ever think about raising your children apart from their mother as a single dad? You wanted the ideal, marriage and children raised by their mother & father who loved one another. Do you have children? Which parent do you think they could do without? Which one would they think is irrelevant? Hell man, you can’t even ask your kids these question without causing them pain & anxiety, right?!
The real question here is are you going to give other children a voice to ask for what you give to your children, a mother & a father who loves them and each other?
Segregation ended when we stopped fixating on the segregationists demand for “equal rights” and started asking blacks what they wanted.
Just be clear here, simply declare that children don’t want to be raised by a mother & father that loves them and each other.
Can’t do it can you?
Tim,
Perhaps, its the difference between the freedom of exercise clause argument and the establishment clause.
I don’t think there is a problem supporting straight marriage or even enshrining it, I just don’t think that it is fair to deny the rights to same-sex marriage.
i suppose my opinion my be different if there was no constitutional right to marriage. . . its not just a policy.
There are all kinds of ways to actively promote families with children within marriage. Most of which governments in the U.S. have nothing to do with, providing wholesale pre-natal and post-natal health care to children for example.
Gerry,
Just be clear here, simply declare that children don’t want to be raised by a mother & father that loves them and each other.
Can’t do it can you?
I think kids would rather have married parents than unmarried parents. Don't you?
So all those kids being raised by same sex couples deserve to have the stability of the marriage, even if they can't have have parents of both sexes.
Are you saying they don't want a more stable home life?
This is simply not true. We have long studied the effects of single parent parenting through the tragic circumstances of divorce and death. As you yourself have pointed out, the number of studies on single gender parenting are still quite few.
Why on earth would I declare that? I have neither implied nor explicitly stated that this was my opinion, and it is so far removed from the discussion that I am pretty certain that we are not even talking about the same thing. We probably haven’t been for some time.
However, I hereby declare for all the world to know that children want to be raised by parents who love them and love each other.
But once again, I find myself returning to this point: children wanting to be raised by parents who love them and love each other really has neither this nor that to do with two consenting adults being able to marry and share property rights. Interject as much 20th and 21st Century interpretation as you wish, but 4,000 years of human history has not shown us that marriage is all about love and child-rearing. Those are sometimes aspects, and they were important reasons for me, but I am not seeking to impose my reasons for marriage upon the rest of the nation.
Alex,
Word games, hair splitting foolish word games.
You won’t declare the obvious, because to do so ends the argument so you seek to substitute the word, “parents” for Mother & Father not realizing that the primary definition of “parents” refers directly to a Mother & a Father!
Merriam Webster : Parent, one that begets or brings forth offspring.
So you advocate for other children what you do not wish for your own, to have something much less than the ideal you say you believe in. I get it. It explains a lot.
Single parenting = one parent = one gender. The studies correctly focus on outcomes, not originating circumstances. Check the titles of the studies: Absent Father or Absent Mother.
Here is a link of one of many studies, note the source: http://www.childwelfare.gov/pubs/usermanuals/fatherhood/
Jared,
Kids want their Mothers & Fathers married, absolutely! If the welfare and well-being of children is such a concern to gays then they should do what gays have done for centuries, marry the mother/father of their children! Up until a few years ago it was done all the time, sometimes happily, sometimes not, but that’s true for any marriage.