Gay Marriage by Executive Fiat in Empire State?
Given my opposition to courts mandating gay marriage (as recently happened in my adopted home state), it would seem I would oppose the imposing this alteration of the institution by executive fiat, something which seems to have taken place in the Empire State. New York Governor David Paterson recently signed a directive making the Empire State “the only state that did not itself allow gay marriage but fully recognized same-sex unions entered into elsewhere.“
Opponents of gay marriage have faulted the Governor for unilaterally enacting gay marriage, with Bill Duncan of the Marriage Law Foundation, calling the move “outrageous:”
The legislature has had the opportunity to act and has not; the state’s highest court rejected any claim that the state constitution requires it and now the governor has made an end run around these decisions by broadcasting that New York couples can go to California and get married, then return home and have those marriages recognized.
While the Governor’s action does appear to be an end-run around his state Court of Appeals (its highest court) 2006 decision refusal to mandate gay marriage in the Empire State, the New York Governor is on firmer legal ground than the California Supreme Court.
As Dale Carpenter points out:
The executive memo [providing the legal rationale for the decision] implements on a state-wide basis the legal principles in longstanding state law about recognizing foreign marriages and in reported judicial decisions on this very matter. In theory, the state’s high court could hold that same-sex marriages are repugnant to public policy in the state, and thus refuse recognition to such marriages from out of state. But that would be a very unusual decision. As in other states, the presumption in New York is to recognize marriages validly performed out of state even if not otherwise recognized in the state itself. Gay marriages should be no exception since New York is one of five states that does not have a statute or constitutional amendment banning recognition of such marriages.
(H/t; Instapundit.) I added emphasis to the last sentence because the failure of the Empire State to enact such a statute or amendment distinguishes this case.
In the wake of the Hawaii Supreme Court 1993 ruling opening the door to state recognition of same-sex unions (overturned by a 1998 popular initiative), most states enacted laws stipulating that their jurisdictions did not have to recognize same-sex marriages performed out-of-state. Indeed in 1996, Congress passed and President Clinton signed “the federal Defense of Marriage Act (DOMA), which upholds states’ rights to ban same-sex marriages and to refuse to recognize such marriages performed elsewhere.“
Legislators and lawyers believed that in the absence of such legislation, states would have to recognize same-sex marriages performed in other states. Neither New York’s legislature nor its citizens succeeded in enacting such statutes.
In the absence of a statute, it seems then that as a matter of law, the Empire State must recognize same-sex marriages as it would recognize any marriage peformed in a “foreign” jurisdiction (in accordance with its laws even if dubiously mandated).
The Governor appears to be right on this one.
Contrary to what Bill Duncan says, the situation in New York State is not one where the legislature has not acted. It has acted by not passing a law to change the current practice of recognizing out-of-state marriages. Failure to pass a bill (or to choose not to even try to pass one) is an action.
As you conclude GPW, there is no end run by the Governor around the legislature since by not acting, it left in place the state policy whereby legally performed out-of-state marriages are recognized.
Comment by Brian in Brooklyn — May 30, 2008 @ 3:25 pm - May 30, 2008
You make a good point, Dan.
Persons who get upset when so-called “activist” judges get involved should remember one other thing about the New York governor’s action: depending on how long he wants to serve as governor, he may have to someday face voters. At that time, every New Yorker of voting age will have an opportunity to approve or disapprove of his performance as governor.
BTW, did you happen to be watching Bill O’Reilly’s FoxNews show the other night when an advocate of the California amendment to ban same-sex marriage fell flat on his face? O’Reilly asked the guy, an attorney, to make a case (excluding one’s religious feelings) why same sex marriage should be banned. The guy just hemmed and hawed and O’Reilly pressed him several times to make his case and the guy just squirmed.
Later, Dennis Miller spoke kindly of gay friends who are bringing up children. He said he’s not bothered by gays who marry, noting that on his list of things that concern him, same sex marriage ranks about one-billionth.
Comment by Trace Phelps — May 30, 2008 @ 3:37 pm - May 30, 2008
#2 - Trace, I saw the BOR interview too, and it was the fairest and most accurate analysis of this issue.
Unfortunately, the intolerant leftist moonbat brickthrowers (yes, I’m talking about you, Kevin) will not give Bill the credit he is due.
Regards,
Peter H.
Comment by Peter Hughes — May 30, 2008 @ 3:48 pm - May 30, 2008
Excuse the “parsing” here, but same sex marriage is not “banned.” Marriage has been defined. Any marriage must meet the qualifying terms of the definition.
Banning is an overt action. If one where to take the position that same sex marriage is “banned,” one would have to accept equivalence with man and goat marriage which is also “banned” (using the same logic.)
On another point, I am curious how New York’s governor intends to apply the full faith and credit clause to same sex marriages performed outside the state and deny the marriage “benefits” to same sex New York couples (who are unable to wed in New York.) The “Reno divorces” caused mayhem throughout the states and it would seem likely that a “Hilo marriage” might cause the same problems.
Just wondering.
Comment by heliotrope — May 31, 2008 @ 9:14 am - May 31, 2008
It’s going to happen nationwide. It’s just going to take some time. When the Massachusetts State Supreme Court ruled to legalize gay marriage in 2003 the towns & cities were given a few months until May 17, 2004 when gay marriage would go into effect. Of course Romney & his cronies tried everything to stop it but failed. Even after gay marriages were performed they tried to get an amendment on to the ballot until June 14th, 2007 when it was finally defeated in the State House. For those who are still uncomfortable with this check out our short produced to educate & defuse the controversy. It has a way of opening closed minds & provides some sanity on the issue: http://www.OUTTAKEonline.com
Comment by Charlotte — May 31, 2008 @ 9:31 am - May 31, 2008
Hi Charlotte:
Thanks for the video.
I’m gay and am opposed to gay marriage for many reasons. But beyond the issue of *if* there should be gay marriage is *how* should it be enacted.
I am absolutely opposed to any court action that seeks to enact a change in a policy because it bypasses the poltical/democratic processes that is the foundation of our Republic.
I watched a few minutes of the film before stopping it because the lady’s reasoning had turned me off from wanting to hear any more.. I live in a fact/logic based world. I’m a computer programmer. I normally don’t cut off something just because it differs but from the things she said in her intro I really didnt want to hear any more.
First she starts off comparing the number of goodies a civil union brings vs the number of goodies marriage brings. Since it wasn’t stated, I’m assuming she was referring to MA. In the case of CA it’s my understanding that Civil Unions brought with them the full equal number of goodies.
So I felt not only did she display an appaling sense of entitlement, she’s offering an argument that has no meaning to anyone outside of MA.
Then she moved onto blaming straight people for destroying marriage. So i guess we should destroy it even more!
Wow.. such logic!
If this video is actually meant to pursuade people who are against gay marriage I thikn you’re in for a hard sell.
If the video is to self-congratulate your movement for imposing something that the people do not want, then enjoy the fruit ofy our hard word.. the increasing amount of opposition that gay people will find from the general population.
Comment by Vince P — May 31, 2008 @ 9:45 am - May 31, 2008
So does NY have to recongnize polygamous middle east marriages?
Comment by Vince P — May 31, 2008 @ 10:08 am - May 31, 2008
If you are talking “civil union” I would give a 51% agreement. If you are talking same sex marriage I would give you a 75% disagreement.
Society can be convinced to let homosexuals have the legal “benefits” of marriage through the “civil union” process. That would be the bestowing of a special right on homosexuals. It would shut out polygamists and cause them to make their own case for special rights consideration.
No argument for same sex marriage has made any logical impact on why the marriage definition should change. The arguments all revolve around individual happiness and an amorphous claim to “fairness.”
As to O’Reilly and Miller, being a famous hetero who just doesn’t care if there is same sex marriage is not a winning trump card either.
This is a grassroots issue if there ever was one and homosexuals have a lot of stables to clean before they can even see first base.
The militant gays have done more to damage the conversation than many gays will ever understand. (Starting with incessant attacks on religion.)
Comment by heliotrope — May 31, 2008 @ 10:40 am - May 31, 2008
heliotrope, no they don’t - But this is one issue where I’m not going to change your mind.
Comment by ILoveCapitalism — May 31, 2008 @ 12:11 pm - May 31, 2008
Heliotrope:
Anything that does meet a definition of marriage is — by definition — banned. Banning can occur passively or actively.
As for New York, any same-sex couple who was legally wed out-of-state is granted full recognition. Same-sex couples within the state who do not get married receive no recognition, just as opposite sex couple who do not wed receive no recognition.
Vince:
As for plural marriage, New York State law explicitly bans it.
Also, as a gay man who is happily married to his husband, I am curious about another gay man’s objections to same-sex marriage. What are they?
Heliotrope again:
Allowing same-sex marriage does nothing to help to plural marriage, so there is no worry there. Those who advocate for plural marriage have to travel a different path.
Also, what stables do I have to clean out? Being a born and raised city boy, the farm metaphor is lost on me.
As for attacking religion: if religion is used as a weapon against you, should a person just take the beating in silence? Should Jews be silent when Nazi ideology is used to attack them? If people use religion to attack other people, then they themselves have validated contestations against religion.
I think people should be free to practice religion as they see fit, but they have no right to demand that others go along with their personal religious beliefs. As the great American thinker William James said, religion is the quintessential private matter. The genius of American society is that we have created a culture of liberty by keeping religion out of the social compact. I am against theocracy in any and every manifestation whether it be Islamic, Christian, Jewish, Hindi or Baha’i. If we say that religious objections to same-sex marriage are valid concerns, how do we object to Sharia when Muslims seek to have it enacted here?
Comment by Brian in Brooklyn — May 31, 2008 @ 6:26 pm - May 31, 2008
Brian: i give some reasons here:
http://www.gaypatriot.net/2008/05/28/on-homophobia-gay-marriage-debate/#comment-200109
I don’t share your perception of what is happening. Marriage being between a man and a woman is not a weapon against people who don’t qualify.
And I think it’s very selfish for the very small number of gays to create such a controversy. I’m an American and i’m so sick of group politics. I’m sick of group A complaing about how unfair things for them and group B complaining about some other thing.
Whining about marriage .. it just seems to me that that is something to complain about when you have nothing else to complain about.
perhaps if we had a time machine you could go back 1,000s of years and , what? , prevent society from encouraging couples? send gay people to settle frontiers.. oh wait, no kids. .
I dont agree with changing with the foundations of the country. If that hurts people’s feelings, I dont care. I say get over it. If you want to get married, get married, it just wont get recongized. I never put my own self-value into the hands of how other people viewed me.. if i wanted to get married i dont need the State’s approval.. being married is a state of mind anyway.
The liberty we have here is based on the social contract of a Christian people.. values that included freedom of belief.. but at the core liberty only works with people who have self-restraint and who are moral.
Liberty works because people policed themselves.
I dont believe you can decouple Western liberty from its Christian roots. Maybe it sounds good in teh abstract, but I just point to the disintergration of the European countries.
A people have to affirm thier values.. especially in times like this when we’re under assault from many groups who do not believe in liberty.. be it the Muslims or the neo-Marxists and other socialists.
Comment by Vince P — May 31, 2008 @ 7:18 pm - May 31, 2008
The Augean stables (also called the Stygian stables) were the fifth test of Hercules. His task involved moving mountains of horse manure. Hence, the metaphor. The horse manure producing horses’ anal pores being both gay and anti-gay.
My reference to attacking religion is not subject to revision by reference to William James or any other minor philosopher whose candle has long since waned.
Traditional marriage did not stem from the state or the musing of philosophers. The marriage tradition arose from religion(s) and became a part of common law. The unsettled claims about the separation of church and state have not come anywhere close to requiring a state marriage, although the marriage license is a state document.
I accept gay civil unions. I accept brothers or sisters having a civil union. I accept a father and son or a mother and daughter having a civil union. I accept six men or six women having a civil union. I do not look upon any of those associations as marriages. I see them merely as loophole plugs that make the participants happy and assure they can exercise certain legal rights. (I do shudder at how the civil courts would handle the property division in a six partner civil union that shattered into three couples.)
Any gay who is set on marriage will have to give up his same sex choice and opt for an opposite sex mate. There is no bar against a gay person marrying.
Comment by heliotrope — May 31, 2008 @ 8:59 pm - May 31, 2008
I am also curious if NY State has a statute that specifically forbids polygamy. Your logic is sound, GPW, but it also means NY must, in theory, recognize all marriages that are not specifically banned by statute.
It is an end-run around the democratic process; its gay marriage by technicality. Do the people of NY support gay marraige? That is the only pertinent question.
Comment by American Elephant — May 31, 2008 @ 9:40 pm - May 31, 2008
And therein lies the greatest flaw of representative government. That legislators, bureaucrats and even the executive can change society in ways of which the people do not approve, yet tolerate because the change in question is low on their priority list. And in time, incrementally, they can change society drastically. Liberals figured this out long ago, they employ such tactics regularly while simyltaneously scoffing at “slippery slope” arguments. Conservatives, on the other hand, are reluctant to employ such tactics and do a piss poor job of resisting them.
Comment by American Elephant — May 31, 2008 @ 10:25 pm - May 31, 2008
For which there is ample historical precedent, according to the NYS Appellate Division Court in its February 2008 Martinez decision. All the the governor did was comply with the Court’s ruling, which is his duty as chief executive. Feel free to take issue with the Court’s reasoning all you wish but your real fight is with the Legislature, not the Court or the Governor. It is the Legislature whom you need to press to pass a law favorable to restricting marriage to opposite sex couples and good luck with that. The divided legislature can’t seem to get a law passed in favor or opposed to same-sex marriage at the moment so I suppose this will have to wait until one side or the other wins control of enough seats.
Here’s the key portion of the Martinez decision:
Comment by John — May 31, 2008 @ 10:27 pm - May 31, 2008
Brian,
Which is it? You cannot have it both ways.
Comment by American Elephant — May 31, 2008 @ 10:28 pm - May 31, 2008
It can’t? Upon what do they base that conclusion? In law there needs to be basis for such findings. And their interpretation of natural law is redonkulous, it is natural law that has limited marriage to the coupling of the two sexes required to procreate in the first place.
But you sure seem correct that the Governor was simply following court orders.
Once again, it all boils down to judicial activism. Thanks for clearing thet up.
Comment by American Elephant — May 31, 2008 @ 10:51 pm - May 31, 2008
A Federal Court in CA has jsut ordered the CA prisons to release tens of thousands of prisoners.
Keep going US Courts! The US Courts and Obama will do what John McCain cannot… motivate voters for John McCain
Comment by Vince P — May 31, 2008 @ 11:11 pm - May 31, 2008
By the same token then traditional understanding of natural law also permits the State to criminalize sexual relations between persons of the same sex. Not exactly a pleasant prospect. Nevertheless, if the Appellate Division Court’s reasoning is suspect in this case the NYS Court of Appeals is free to overturn it or the Legislature can do its duty and close the loophole. Both of course would remove the basis for the Guv’s order and restore the previous situation. It’s possible with regards to the former but unlikely as the latter at this time. Of course, this is even assuming that NYS has a traditional understanding of natural law on the books or not. I have no idea one way or the other.
Comment by John — June 1, 2008 @ 11:45 am - June 1, 2008
To Ince P. in #11– Regarding your reference to Western liberty, isn’t it more appropriate to say “Judeo-Christian roots” instead of just “Christian roots”? Many of our values that are a foundation of our freedom loving culture come from the Old Testament.
Comment by Trace Phelps — June 1, 2008 @ 3:49 pm - June 1, 2008
Sorry, Vince, addressing you as Ince was strictly a typo.
Comment by Trace Phelps — June 1, 2008 @ 3:50 pm - June 1, 2008
Trace: Judeo-Christian is fine with me. We’re also influenced by Hellanistic culture and even Sumerian.
I heard from Dennis Prager that in Europe they dont use terms like Judeo-Christian.. that that notion is almost exclusively an American one.
He didn’t realy explain the reasons for that but I have my theory… and I will copy and paste something I wrote somewhere else in a few minutes
Comment by Vince P — June 1, 2008 @ 4:16 pm - June 1, 2008
I found it.
You can see from here that the American brand of Christianity was heavily influened by the view that this was a Promised Land of sorts.
Comment by Vince P — June 1, 2008 @ 4:20 pm - June 1, 2008
Heliotrope:
William James and pragmatism are anything but minor. Pragmatism is the quintessential American philosphy expressing how Americans live. We are not a nation of ideologues. We are problem solvers, constantly adapting and changing as we move ahead.
Ralph Walso Emerson, an important precursor to James, wrote: “The universe is fluid and volatile. Permanence is but a word of degrees. Our globe seen by God is a transparent law, not a mass of facts. The law dissolves the fact and holds it fluid. Our culture is the predominance of an idea which draws after it this train of cities and institutions. Let us rise into another idea: they will disappear.”
Emerson understood that to be an American and possess an American spirit is always to be facing new frontiers. This understanding passes down through Thoreau, Pierce, Mead, James and their inheritors up to the present day. Europeanist and Islamist ideologies of stasis and tradition are anathema to the American spirit. We are always solving problems, making things better, moving forward.
I know it is fashionable nowadays to bend the knee to Continental thought and adore deconstruction and existentialism, but America is a pragmatic and pluralistic nation and James is a vital source about what American thought is and what it means to be an American (the two Library of America volumes of James’ writings are invaluable). Despite claims to the contrary, the candle is far from extinguished on pragmatism with the neo-pragmatists continuing to adapt and carry forward American thinking.
As for separation of church and state, America is not a theocracy and does have separation of church and state (despite the efforts of some to reverse that reality and help pave the way for Sharia).
AE: It is not judicial activism when the court clarifies an issue of law. The legislature has chosen not to act, so the court said that New York State acknowledges legal out-of-state marriages than are neither polygamous nor incestuous. The legislature had the chance to act and did not. Questions of law need to be settled so society can function and if the legislature does not act, other branches must do so to prevent stasis.
Comment by Brian in Brooklyn — June 2, 2008 @ 8:30 am - June 2, 2008
Brian, you said this:
I responded rather obliquely that William James is hardly the philosophical equivalent of the Bible. His writings, nor the writings of any other Western philosopher have neither displaced or replaced the theology that undergirds our Western culture.
I can not grasp how you separate the culture of American society from its entirely entangled, everyday roots in the Judeo-Christian ethic. Can you not understand the difference between the Judeo-Christian based common law and Sharia? Can you not understand that “liberty” does not require “keeping religion out of the social compact?” Can you not understand that the “social compact” is fluid and subject to change?
You apparently have jumped a few steps forward and believe that the “social compact” has divorced itself from religion and only a few struggling zealots are still trying to force their theology on the rest of us. Sorry, but repeatedly, statistics show that we are an nation of believers in religion. Ergo, religion is a part of the current version of the “social compact.”
Perhaps the day will come when the Penguin version of William James will outsell the Bible, but not in my lifetime.
Comment by heliotrope — June 2, 2008 @ 8:51 am - June 2, 2008
Our social contract was predicated on the premise that the people in the social were in possession of a living religious faith. That the people were aware of thier responsiblities to live lives in accordance to Christian ideas like the Golden Rule. Faith would be required for the morality to be sustained and the morality would be required for people to have liberty , order and the constrained govt the constitution established.
Religion as an instiution was not to be established by the federal govt so as to not entangle church matters with political matters and there by pollute both.
Many of the founders believed this.
And I think it’s true.. It’s been decades now since religion was decoupled from morality.
And now I think we’re seeing morality becoming decoupled from the people.
And it wont be too long before people become decouped from being able to live in liberty with small govt.
If I look at colleges today i can’t help but observe that far too many schools are pumping out left-wing brainwashed people who have absolutely no clue what the Constitution was meant to protect.
Comment by Vince P — June 2, 2008 @ 9:06 am - June 2, 2008
No, its judicial activism when judges insert their policy preferences into a decision and call it clarifying the law.
Comment by American Elephant — June 3, 2008 @ 3:13 am - June 3, 2008
Heliotrope:
Christian theology may undergird Western culture, but Western culture has adapted and transformed that undergirding over the centuries. I think that Greek and Roman culture are part of the undergirding as well and should not be ignored.
I think a fundamental difference exists between people who want tradition to remain unchanged and those who use it as a foundation that is amenable to adaptation and transformation as circumstances alter. I often wonder if an individual’s personality plays a role in determining where he falls along this continuum, e.g., people uncomfortable with change becoming traditionalists since it plays well with their personality.
I do understand that the social compact is fluid and subject to change. What I find distressing are arguments that propose tradition as a barrier to change. My quoting of Emerson was to point out that I think fluidity and change are the only realities a person can depend on.
What I am scared of is when people argue that God/Allah/Yahweh decree that things should be this way, and then demand laws reflecting their personal religious revelation. My religious beliefs are mine and I do not try to get others to agree with them. They play an important role in shaping my understanding about how society should function, but I realize that demanding that society conform to my religious beliefs will lead to strife. I think it enormously valuable when the people involved in creating and maintaining the social compact are inspired by their religious beliefs, but simply to import them whole cloth into social structures is to defeat the goal of “domestic tranquility” that the founders announced in the Constitution.
A Christian who does not believe in same-sex marriage is not a Christian in my tradition. That we disagree is fine. But while we are inspired by our religious beliefs, we must discover common ground outside of them in order to decide the issue. For me to say that same-sex marriage is fine with God is no reason to make it so legally. By the same token, for someone to assert that same-sex marriage is not fine with God and, therefore, should be banned is equally suspect. How can one determine with a decisive degree of certainty which religious position is the correct one? For me, the challenge is to find the middle ground between theocracy where religious beliefs are made law and a relativistic society where anything goes.
Vince:
I agree that in prior times people understood one of their responsibilities as living their lives in accord with their Christian faith. But what was meant by the term “Christian faith” hundreds of years ago is not necessarily what is meant today. As I said in response to Heliotrope, my Christian faith might be unrecognizable to a person from the 17th century just as their faith is unrecognizable to me. I think that we may agree upon the fact that human behavior and the work of building societies should be based on an ethical foundation. My problem is while I want to keep the ethical foundation, I believe that it is vital that the rules generated from this ground be regularly assessed to see if they are responsive to the changing needs, understandings, and circumstances of people.
I am frustrated both by the contention that ethics should be abandoned and people allowed to do as they please as well as by the one that maintains that centuries-old rules should be adhered to without question or revision. The belief of the founders that ethical considerations need to be part of society-making is vital. But religion (and specifically Christianity) is not monolithic in its beliefs and tenets. The reason that religion has become decoupled from morality is that in some cases religion has failed to evolve as times changed. The ethical impulse is constant: what changes is the definition of what is ethical. What needs to be encouraged is rational, logical discussion in this area.
AE:
I do not see how an application of law is judicial activism. The court merely noted that the legislature had not forbidden recognition of legal out-of-state same-sex marriages. Since such recognition had not been forbidden, then it must be okay to recognize them. Why is the drawing of logical conclusions judicial activism? It would have been activism to deny such recognition in the face of the legislature’s silence, thereby speaking for the legislature. The legislature spoke when it decided not to act and permitted recognition of these marriages. If it wants to close the door, all it has to do is pass a law.
Comment by Brian in Brooklyn — June 3, 2008 @ 12:32 pm - June 3, 2008
You are only citing half the equation.
They applied the test established apparently by Moore, 92 NY at 524:
But then the court falsely claimed that the only marriages natural law prohibited were those of incest or polygamy. It has always been natural law that has limited marriage to the two sexes necessary to procreate in the first place. And therein lies the judicial activism.
Comment by American Elephant — June 4, 2008 @ 1:40 am - June 4, 2008
AE:
Got it. Thanks for the explanation.
How does natural law deal with sterile couples and couples where the woman is post-menopausal? If marriage in these instances is allowed under natural law, then procreation could not be considered a reason for marriage since it cannot occur.
Comment by Brian in Brooklyn — June 4, 2008 @ 11:32 am - June 4, 2008
Because, Brian, simply put, not all straight couples are incapable of producing children that are biologically theirs, but all gay couples are. It is impossible to predict whether or not a straight couple could produce children, but it is a certainty that no same-sex couple can produce children that are the offspring of both its members.
Furthermore, given that the primary reasons underlying the bans on polygamy and incest are based on the effect on the children both types of unions could produce, consistency would require you to eliminate the bans on both.
Comment by North Dallas Thirty — June 4, 2008 @ 5:27 pm - June 4, 2008
As NDT says, it is enough that the couples are male/female. That’s the test. The government doesn’t need to pry into medical information or the intentions of the couple. It is enough that the couple is made up of one member of each sex. That alone furthers the state interest.
Comment by American Elephant — June 5, 2008 @ 5:10 am - June 5, 2008
Vince P (#6):
With all due respect, I’m going to recommend that you participate in a course in remedial civics. Judicial review has been an established principle of American law since Marbury vs. Madison (1803). Marriage is recognized as a fundamental right (Loving vs. Virginia (1967)) and not only does the government not have the right to interfere in personal relationships, but it may not decree that some of those relationships are criminal or invalid because of “animus” (Lawrence and Garner vs. Texas (2003)). (Justice Kennedy was quite eloquent in saying that same-sex relationships deserve the same respect under the law as opposite-sex relationships.) The Constitution trumps the popular whim (that is called “the limited sovereignty of the people,” and on that note, if the anti-marriage amendment passes in California, it will be equally easy to repeal it in a couple of years), and that is exactly the reason we have a Bill of Rights. The courts decide if laws enacted by whatever means pass constitutional muster, particularly those dealing with civil rights: that is the process that is the foundation of our Republic. The alternative is mob rule. (You won’t hear about this from the far right because, I suspect, they don’t really like the American system. Or at the very least, you can’t generate a lot of outrage by acceding to the fact that the system is working the way it was meant to. And what better way to forestall public dialogue on an inssue than to ram through a constitutional amendment?)
Yes, of course in a perfect world the people should enact marriage equality — but in a perfect world, they wouldn’t have to, because it would already exist in the law. Oh, wait . . . that’s why all those legislatures had to pass DOMAs.
I’m curious as to why you oppose same-sex marriage. If you don’t want to get married yourself, that’s all fine and good — don’t. If you’re against others having the right to get married, I’d like to see some reasons.
I take issue with GPW’s opening statement for the same reasons, as well as the fact that I see it as a complete misframing of the question: the courts have not mandated gay marriage; the courts have found, in most cases, that the various constitutions mandate equal treatment under the law, including marriage. (And against New York and Washington State, both of which opinions are pretty sad from a reasoning point of view, I would pose Hawai’i, Alaska, Vermont, New Jersey, Massachusetts and California.)
I wouldn’t rely on quotes from the likes of Bill Duncan or Matt Staver, since you can count on getting only half the story. Re: Duncan’s comment, for example, in point of fact the court found that the New York constitution does not mandate same-sex marriage, but neither does it forbid it, and not only has New York not enacted a DOMA, the New York House has passed an inclusive marriage bill (which will probably die in the Republican-dominated Senate, but that says nothing about the merits of the bill and a great deal about the merits of the Senate). You tell me, which more reflects the will of the people, the representatives who serve shorter terms and are more subject to the reactions of their constituents, or the senators who form a patrician house that can count on the furor dying down before they have to stand for re-election?
Gov. Paterson seems to be on solid ground; we’ll see what the activist judges have to say about it.
(Oh, and about the comparisons of “goodies” in the video — I’ve been through this with GPW before. At some point, you have to deal with tangibles, particularly in a court of law, but also in general discourse. My own feeling is that the intangibles are of overwhelming importance in this issue, and I’m gratified that both the California and Massachusetts courts attempted to addressed them, but for a lot of people, they don’t register. You have to be able to point to some real, visible, apprehendible “damage” before people will consider that you have a point. And when it gets right down to it, what have gay people done to destroy marriage? And please don’t point to Stanley Kurtz’ made-up “studies” of the desperate plight of marriage in Scandinavia. That’s straight out of the Paul Cameron school of social science.)
Heliotrope (#12):
I accept gay civil unions. I accept brothers or sisters having a civil union. I accept a father and son or a mother and daughter having a civil union. I accept six men or six women having a civil union. I do not look upon any of those associations as marriages. I see them merely as loophole plugs that make the participants happy and assure they can exercise certain legal rights.
You’ve obviously missed the whole point of the exercise, and the reason both the California and Massachusetts courts found for granting full marriage, and yet you’ve stated the reason yourself: you don’t see civil unions as equal. That’s because they’re not. And the issue here is equality.
I really wish I’d run across this thread sooner.
Comment by Hunter — June 5, 2008 @ 8:26 am - June 5, 2008
I dont need your condescending lecture that I need a civics lesson.
I am not talking about Judicial Review by which an existing law is evualated against the Constitution, other law, or other precedent.
I am talking about the courts producing new law. Claiming that same-sex marriage was the intent of any California legal document is to invent new law.
Plus I like to say that in the Constitution it could be argued that the Framers have given Congress the final say about a (Federal) law’s reviewability.
Article III Section 2
Congres has never invoked this right.
Comment by Vince P — June 5, 2008 @ 8:43 am - June 5, 2008
Wow! I love that you call it an “exercise.” I could not have used any better term.
No, civil unions and marriage are not equal. Civil Unions, like common law marriage have the effect of marriage.
But Hunter, what is all this stuff about “equality?” Grab the hand of a person of the opposite sex who is not too closely related to you, who is not retarded, who is of age and legally single and get married. You are acting on your status as an equal to everyone else in the society.
Hunter, you want to “happy” which means you want to marry someone of the same sex. Or an animal. Or your sibling. Or many people. Or a child. Or yourself. Or whatever. By forcing the state to permit you to be “happy” you see your choice as the “equal” of the traditional marriage formula. By “equal” you are actually saying that you want society at large to “respect” you and your life style.
The “exercise” you have identified is an end run through the courts to try to force society to respect homosexuality as the biological equivalent to heterosexual unions.
Does the above still look like I have “obviously missed the whole point of the exercise…”?
I could care less what you and your beloved do in private. You deserve the respect of the law to borrow money, take guardianship, inherit, etc. A civil union would take care of that and would be a small change to the understandings of common law. But, your barren partnership defies the very meaning that underlies societies’ interest in regulating the institution of marriage.
(Now you need to throw the old canard at me that if same sex marriage isn’t allowed, then barren heterosexuals should be barred as well. It is not about whether the plumbing works; it is about whether the plumbing is able to work.)
Comment by heliotrope — June 5, 2008 @ 9:20 am - June 5, 2008
The Constitution requires states to recognize marriages from the other states. My Governor is right on this issue and the courts would have to back them up. If the states start picking and choosing which marriages they will recognize we will have legal chaos.
Comment by Houndentenor — June 5, 2008 @ 3:30 pm - June 5, 2008
Then, in theory, all the polygamists, incest practitioners, or pedophiles need to do is get their marriages legalized in one state, and every other state will be forced to recognize it.
But, since the leftist courts and governor in New York have argued that New York must respect all marriages contracted outside its borders, including in other countries like Canada, New York should now be forced to recognize child marriages from India, polygamous marriages from Saudi Arabia, and incestuous marriages from any number of countries in Africa.
Comment by North Dallas Thirty — June 5, 2008 @ 6:31 pm - June 5, 2008
Dennis Prager talked about this issue on his radio show
http://www.townhall.com/MediaPlayer/AudioPlayer.aspx?ContentGuid=7e3d155b-99e3-4916-bc11-f9a43393480c
Like with most issues, I agree with him completely.
This is excerpt from an article he wrote a few weeks ago.
http://dennisprager.townhall.com/columnists/DennisPrager/2008/05/20/california_decision_will_radically_change_society
Americans seem mesmerized by the word “change.” And, by golly, they sure got it last week from the California Supreme Court. It is difficult to imagine a single social change greater than redefining marriage from opposite sex to include members of the same sex.
Nothing imaginable — leftward or rightward — would constitute as radical a change in the way society is structured as this redefining of marriage for the first time in history: Not another Prohibition, not government taking over all health care, not changing all public education to private schools, not America leaving the United Nations, not rescinding the income tax and replacing it with a consumption tax. Nothing.
…
Which leads to a third reason such a sea change could be so cavalierly imposed by four individuals — the modern supplanting of wisdom with compassion as the supreme guide in forming society’s values and laws. Just as for religious fundamentalists, “the Bible says” ends discussion, for liberal fundamentalists, “compassion says” ends discussion.
If this verdict stands, society as we have known it will change. The California Supreme Court and its millions of supporters are playing with fire. And it will eventually burn future generations in ways we can only begin to imagine.
Outside of the privacy of their homes, young girls will be discouraged from imagining one day marrying their prince charming — to do so would be declared “heterosexist,” morally equivalent to racist. Rather, they will be told to imagine a prince or a princess. Schoolbooks will not be allowed to describe marriage in male-female ways alone. Little girls will be asked by other girls and by teachers if they want one day to marry a man or a woman.
The sexual confusion that same-sex marriage will create among young people is not fully measurable. Suffice it to say that, contrary to the sexual know-nothings who believe that sexual orientation is fixed from birth and permanent, the fact is that sexual orientation is more of a continuum that ranges from exclusive heterosexuality to exclusive homosexuality. Much of humanity — especially females — can enjoy homosexual sex. It is up to society to channel polymorphous human sexuality into an exclusively heterosexual direction — until now, accomplished through marriage. But that of course is “heterosexism,” a bigoted preference for man-woman erotic love, and therefore to be extirpated from society.
Any advocacy of man-woman marriage alone will be regarded morally as hate speech, and shortly thereafter it will be deemed so in law
…
Traditional Jews and Christians — i.e. those who believe in a divine scripture — will be marginalized. Already Catholic groups in Massachusetts have abandoned adoption work since they will only allow a child to be adopted by a married couple as the Bible defines it — a man and a woman.
Anyone who advocates marriage between a man and a woman will be morally regarded the same as racist. And soon it will be a hate crime.
Indeed — and this is the ultimate goal of many of the same-sex marriage activists — the terms “male” and “female,” “man” and “woman” will gradually lose their significance. They already are. On the intellectual and cultural left, “male” and “female” are deemed social constructs that have little meaning. That is why same-sex marriage advocates argue that children have no need for both a mother and a father — the sexes are interchangeable. Whatever a father can do a second mother can do. Whatever a mother can do, a second father can do. Genitalia are the only real differences between the sexes, and even they can be switched at will.
And what will happen after divorce — which presumably will occur at the same rates as heterosexual divorce? A boy raised by two lesbian mothers who divorce and remarry will then have four mothers and no father.
We have entered something beyond Huxley’s “Brave New World.” All thanks to the hubris of four individuals. But such hubris never goes unanswered. Our children and their children will pay the price.
Anticipating reactions to this column — as to all defenses of man-woman marriage — that it or its author are “homophobic,” i.e., bigoted and unworthy of respectful rejoinder, it is important to reaffirm that nothing written here is implicitly, let alone explicitly, anti-gay. I take it as axiomatic that a gay man or woman is created in God’s image and as precious as any other human being. And I readily acknowledge that it is unfair when an adult is not allowed to marry the love of his or her choice. But social policy cannot be made solely on the basis of eradicating all of life’s unfairness. Thus, we must love the gay person — and his and or her partner as well. But we must never change the definition of marriage. The price to society and succeeding generations will be too great.
That is why Californians must amend their state’s Constitution.
Comment by Vince P — June 5, 2008 @ 7:17 pm - June 5, 2008
Vince P (#33):
With apologies for your bruised ego, you seem to have very carefully avoided the point of my comments, which is simply that the people do not have the final say on issues of civil rights, which this is.
Comment by Hunter — June 6, 2008 @ 9:31 am - June 6, 2008
Sorry — messed up the code on that one.
Comment by Hunter — June 6, 2008 @ 9:34 am - June 6, 2008
Well, certainly not when you draw the snap opinion of me that you have. What exactly proves to you that I have an “obvious contempt for gays” and an obvious contempt for “their (gay) relationships”?
I would suggest that you find no room for dialog if you are up against someone who does not agree with you.
Your issue is that you want society to accept same sex marriage. I am unaware of any compelling reason you can put forth that would cause society to change the age old traditions of marriage.
If your nose is not too out of joint, come back and have a dialog.
Comment by heliotrope — June 6, 2008 @ 9:26 pm - June 6, 2008
Heliotrope, #40:
Heliotrope, #34:
I rest my case.
I think you answered your own question.
I don’t understand why you need to reduce human relationships to the “biological” when there is so much more involved. From your ridiculous statement that we’re free to marry someone of the opposite sex, just like anyone else, I draw the conclusion that you don’t really have much respect for marriage: are you proposing we lie to our potential spouses, or that everyone enter into it tongue-in-cheek, as a charade? Not a lot of respect for the institution demonstrated there.
Our “lifestyle” includes such degenerate and disgusting things as going to work, paying the bills, cleaning house, running errands, and caring for the kids (for those of us who have them), and for each other. There’s not a whole lot of biology involved, but you don’t seem to be able to see beyond that.
And our relationships, if they are good ones, grow from mutual trust, respect, affection, caring, and yes, sex — just like anyone else’s. And as both the California and United States Supreme Courts have said, they are as deserving of respect as anyone’s relationships. (Which would seem to be a no-brainer.)
So, yes, based on your comments, I can confidently say that you have nothing but contempt for gay people and that as far as the issues are concerned, You. Just. Don’t. Get. It.
Comment by Hunter — June 8, 2008 @ 8:32 am - June 8, 2008
As for Gov. Paterson’s “end run” around the courts and legislature, the Alliance Defense Fund has filed suit in the Bronx asking the courts to instruct the governor to ignore their own recent rulings on the issue.
And don’t forget that the bill legalizing same-sex marriage in New York has passed the NY house and is waiting for action from the senate.
Paterson’s position starts to look more and more solid.
Comment by Hunter — June 8, 2008 @ 8:41 am - June 8, 2008
I rest my case.
And I present the counter, from the same post (#34).
I could care less what you and your beloved do in private. You deserve the respect of the law to borrow money, take guardianship, inherit, etc. A civil union would take care of that and would be a small change to the understandings of common law. But, your barren partnership defies the very meaning that underlies societies’ interest in regulating the institution of marriage.
Now, Hunter, you have established that, according to you, anyone who supports civil unions rather than marriage has an “obvious contempt for gays” and an obvious contempt for “their (gay) relationships”.
Now let’s see if you’ll apply that to Barack Obama and Hillary Clinton.
I don’t understand why you need to reduce human relationships to the “biological” when there is so much more involved.
Then you should support incestuous and bestial marriages, since the ban on those is based primarily on biology.
Our “lifestyle” includes such degenerate and disgusting things as going to work, paying the bills, cleaning house, running errands, and caring for the kids (for those of us who have them), and for each other. There’s not a whole lot of biology involved, but you don’t seem to be able to see beyond that.
Polygamous groups do all of the above too; therefore, in order to be consistent, you should legitimize those marriages as well.
And our relationships, if they are good ones, grow from mutual trust, respect, affection, caring, and yes, sex — just like anyone else’s.
Therefore, you should be allowed to marry anyone who makes you “happy” — which, as Heliotrope pointed out, can be applied to incestuous, child, bestial, and polygamous relationships as well.
The problem here is that you are unwilling to acknowledge the fact that an opposite-sex couple in the vast majority of cases is capable of producing and raising their own children — while no same-sex couple is capable of doing so. This is why, over thousands of years, the human race has experimented with, and largely tossed aside, other permutations like polygamy, child marriage, incestuous marriage, bestial marriage, and same-sex marriage; none of these provide the same combination of present stabilization and future perpetuation for society that our current definition of marriage does.
The problem is, Hunter, that you apparently believe that accepting your difference from heterosexuals means that you accept yourself as being inferior — and therefore, you demand that the definit