Judicial resolution of gay marriage is not good for the GOP (nor is it good for America)*
A reader alerted me to a strange piece on David Frum’s site in which Jeb Golilnkin said that the GOP will thank conservative lawyer Ted Olson for, together with liberal attorney David Boies, appealing “the constitutionality of California’s ban on gay marriage“:
If they were to succeed in showing the California ban to be what it is, an unconstitutional law that is, in Olson’s words, “utterly without justification” and that brands gays and lesbians as “second-class and unworthy” in the eyes of the law, Republicans will owe the two a debt of gratitude for saving the party from twenty years of supporting a position that 20 years from now men and women will view as utterly abominable.
Um, not so fast, Jeb. Before you instruct our fellow Republicans on being “on the wrong side of history” (while borrowing a liberal talking point to say as much), take heed to the results of a little 1973 Supreme Court decisions, Roe v. Wade. There, the court removed the issue of abortion from elected legislatures and overturned their bans on the practice. And as a result, for the past thirty-six years, abortion has become a divisive social issue.
And back then, some states were already moving to legalize the practice (just as some are moving today to recognize gay marriage). If federal courts mandate state recognition of gay marriage, gay marriage will become a political football like abortion, forever dividing us. Mr. Frum should recall that gay marriage first became a political football in the 1990s shortly after the Hawai’i Supreme Court ruled that its state “statute limiting marriage to opposite-sex couples is presumed to be unconstitutional“, remanding the case to lower courts to see if there were compelling “state interests” which justified the ban. Three years later, a trial court found that there were none.
The same year, Congress enacted the Defense of Marriage Act (DOMA). Two years after that, Hawai’i voters amended their state’s constitution to limit marriage to opposite sex couples. A raft of state referenda with goals similar to the Aloha State initiative followed. In this century, the Goodridge decision in Massachusetts mandating that the Bay State legislature recognize same-sex marriages led to a similar flood of state initiatives limiting state recognized marriage to its traditional definition.
In short, court-mandated recognition of same-sex marriage only serves to further social divisions. To avoid such divisions, gay marriage advocates should first convince the people of the merits of expanding the definition of marriage to include same-sex couples. That is why it is better to move this issue through legislatures. And given last month’s election returns, it would be better to move incrementally, first pushing civil unions for which there seems to be significant support (at least in the nation’s coastal regions).
It is not in the GOP’s interest to see federal courts resolve the gay marriage issue. Nor is it in the national interest, that is, unless you believe it’s a good idea to make gay marriage an even more divisive issue than it already (and unfortunately) is.
—–
*NB: I changed the post to reflect the fact that while it appeared on David Frum’s site, it was penned by Jeb Golinkin
FROM THE COMMENTS: Throbert corrects me on a point about the Aloha State legislation:
Well, technically — bless their hula-dancing hearts — what they actually did was to amend the constitution more or less like so:
“The gender-equality clause of our state constitution notwithstanding, the Hawaiian legislature shall have the authority to define ‘marriage’ under state law.”
And then the legislature used this newly-specified authority to limit marriage to opposite-sex couples.
I don’t think it’s a merely pedantic point, since every other state that has amended its constitution over the SSM issue has gone the route of explicitly adding “one man, one woman” to the constitution, while Hawaii avoided doing that. (Which means that if public opinion in Hawaii shifts in favor of SSM, they can simply enact it through the legislature without having to first repeal any “one man, one woman” amendment.)
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Dan, that hits it out of the park.
As I never tire of saying: A State license for marriage, driving, fishing, professional practice or anything is a privilege not a right. People can argue over whether licensing scheme X should exist. But we should never forget that part of any licensing scheme’s purpose is to create a certain kind of inequality: people who qualify for the license will get it, and others won’t. The qualifications for the license must be legislated democratically, bearing some rational relationship to the good of society. We had something called the American Revolution to establish that (among several other points). Getting gay marriage by the courts is cheating, and can only breed division and discord regarding institutions where we need society to come together instead.
Comment by ILoveCapitalism — December 3, 2009 @ 6:17 pm - December 3, 2009
(continued) Much as I personally favor gay marriage.
Comment by ILoveCapitalism — December 3, 2009 @ 6:21 pm - December 3, 2009
Two questions:
1) Do you really think homosexuality will *ever* become a non-divisive issue?
2) How do you think the divisiveness surrounding abortion would have played out had the outcome of Roe been different?
Comment by DRH — December 3, 2009 @ 6:36 pm - December 3, 2009
David Frum = supposedly Republican writer
I think that says it all.
Comment by Classical Liberal Dave — December 3, 2009 @ 6:44 pm - December 3, 2009
@DRH:
#1 will take time, but you can take heart at the relative speed of Civil Rights expansion.
#2 How would abortion work out sans Roe? The way it has around the world in even staunchly Catholic countries: restricted to local norms with very little political distortion.
I’m convinced that Roe v. Wade will be overturned in the next decade and… the skies won’t fall and we’ll all wonder what all the fuss was about.
Best wishes,
-MFS
Comment by MFS — December 3, 2009 @ 6:54 pm - December 3, 2009
DRH, those are great questions, really good questions.
To the first, I’ll say I don’t know.
And the second, well, I’ll just say the issue would be less divisive in the absence of Roe.
Comment by B. Daniel Blatt — December 3, 2009 @ 6:55 pm - December 3, 2009
1) Do you really think homosexuality will *ever* become a non-divisive issue?
- Yes, over time. Look at the progress of just the last 17 years.
2) How do you think the divisiveness surrounding abortion would have played out had the outcome of Roe been different?
- The American judiciary would have been less politicized (or possibly not politicized). Abortion was one of the major factors in the American judiciary becoming politicized, these last 35 years.
Comment by ILoveCapitalism — December 3, 2009 @ 6:55 pm - December 3, 2009
MFS, ditto your point about Roe being overturned. Looks like DRH “hijacked” this thread–but to good end, very good questions. May have to do a separate post on them alone.
Comment by B. Daniel Blatt — December 3, 2009 @ 6:55 pm - December 3, 2009
I think it will add gasoline to the fires that are already burning. Remember—borrowed from “Obama’s priorities are not America’s priorities” below, Rasmussen’s “latest telephone poll found that 71 percent of those surveyed are at least somewhat angry at the current policies being pursued in Washington, with fully 46 percent ‘Very Angry.’” It may not be economic; however, it will and to the growing frustration with the Federal Government.
Comment by Steven E. Kalbach — December 3, 2009 @ 6:56 pm - December 3, 2009
why, do you think, the parallel to roe v. wade is more appropriate than the the parallel to loving v. virginia? i think you’re cherry-picking.
Comment by Chad — December 3, 2009 @ 7:47 pm - December 3, 2009
Because Loving has no bearing on the gay marriage issue?
Comment by The_Livewire — December 3, 2009 @ 8:29 pm - December 3, 2009
When it can no longer be used as a cudgel by folks to get their way.
I think you’re lacking in sincerity and reality.
Comment by ThatGayConservative — December 3, 2009 @ 8:34 pm - December 3, 2009
TL, indeed, Loving would appear not to. It spoke of heterosexual couples having an important “freedom to marry” which could not be infringed upon racially, more than it spoke of a “right” to a State license. The following is often cited from Loving (e.g., in Wiki) as a key quote:
Note that Loving puts the word “rights” in quotes, there. In context, it’s not scare quotes exactly, but showing that Loving is quoting someone else’s voice… whereas in its own voice, Loving seems to prefer terms like the “freedom” or “liberty” to marry. I expect there are sentences from Loving where it talks in its own voice of marriage as a “right”, but they (the Loving court) seem to have used the other language more, perhaps in order to avoid establishing a State marriage license as a “right” in the sense I would mean in all of my comments – i.e., something too fundamental to be a privilege with qualifications that the People would get to legislate. The bottom line is that under U.S. case law, the People do get to set the qualifications for marriage – excepting blatantly invidious ones, such as racial ones. As Wiki puts it,
That has not been overridden by other case law, as far as I know. In short, a strong argument could be made that the key holding of Loving was only this:
and nothing more, as far as the topic of gay marriage would be concerned.
Comment by ILoveCapitalism — December 3, 2009 @ 8:53 pm - December 3, 2009
Not until either
A) gays realize that they dont have a right to be approved of ,or
B) government destroys the constitutionally protected freedoms of association and religious expression.
A few states would have no-limits on abortion whatsoever, a few might have bans on it, and the majority would be somewhere in the middle, probably closer to the latter than the former.
very good question. Because Loving was about physical attributes and Roe was about a behavior.
Comment by American Elephant — December 3, 2009 @ 8:58 pm - December 3, 2009
TL,
Fortunately Loving never established or tried to establish that you have a right to marry but not a right to a marriage license. That is a silly fabrication. Courts deal with what the government can and cannot prohibit you from doing. Loving established that everyone in America has a right to a government marriage license, that the government cannot deny a license to anyone. And subsequent law established that the people get to decide what marriage IS.
Many in the gay community are still trying to fight the decision over who gets to define what the purpose of the institution is.
Comment by American Elephant — December 3, 2009 @ 9:10 pm - December 3, 2009
While I respect your opinions, I disagree. I believe Loving comes closer to the mark than does Roe, yet Roe certainly laid some important foundations. Both cases are important. However, even if all 50 states were to legislatively approve same-sex marriage it would not guarantee to all gay citizens the various rights (benefits if you choose) federally afforded to straight citizens, to which I’m confident ILC and others who argue for the legislative path will agree. What the state affords or recognizes to one should be available to all citizens. It’s a constitutional issue. ILC argues marriage is not a right. Again I disagree. I believe our common law argues it is indeed a right. Just because the states record and administer matrimony and licenses those permitted to conduct the officiating doesn’t mean they can constitutionally deny to some citizens equal access. Surely you can’t argue fishing or hunting licenses are equal to marriage. Anyone able to pay the fees or to participate in a hunting lottery has access to hunting/fishing licenses. As a stanch republican I dislike any attempt to attempt to discredit my convservatism or party standing because we may disagree on this important issue. I believe equal access for all citizens, including gay citizens, is indeed a conservative issue.
PS; I’d enjoy this blog much more if folks could somehow refrain from personal attacks when they disagree.
Comment by Man — December 3, 2009 @ 9:21 pm - December 3, 2009
Sorry – I did not intend to hijack the thread. I was trying to stay on point. Particularly the point about judicial resolution to these issues and how good they are for the country.
The answer about politicizing the judiciary is intriguing. But hasn’t it always been so? Brown vs the Board of Education comes to mind, and I believe it predates Roe. And then there’s Dred Scott…. Talk about social divisions!
Comment by DRH — December 3, 2009 @ 9:21 pm - December 3, 2009
i got Man in my corner; on a gay blog that should be the final word….
Comment by Chad — December 3, 2009 @ 9:26 pm - December 3, 2009
AE,
I really don’t understand the logic behind the “right to be approved of” that you mention, though I’ve read it in many other places. Marriage and/or civil unions don’t include some sort of universal (or national) approval. Just because the gov’t allows something doesn’t mean every citizen approves!
Comment by DRH — December 3, 2009 @ 9:28 pm - December 3, 2009
Man, two problems I find with your using Loving.
1) Baker V Nelson shows that Loving doesn’t apply, as the court upheld.
It is a state issue (and I’m on record saying that the states constructing a same sex construct is fine by me, call it Fred) and Baker V Nelson is the ruling precident.
Second, on the issue of access. You have access to the institution of marriage same as any single person, subject to the rules and regulations of the state of residence.
Comment by The_Livewire — December 3, 2009 @ 9:48 pm - December 3, 2009
Man, thanks for the example of civility and directness. What I really argue is that the concepts involved have become confused in many people’s thinking.
A “right” in the constitutional / fundamental sense, is an attribute of the individual. Morally and logically, it precedes government. You don’t need a government license to have it. Examples: The rights to life, liberty, property, freedom of speech, freedom of association, self-defense, etc. In short: all of the liberty rights of a free individual. You can do what you want with your liberty, as long as you don’t criminally violate another’s.
A State license for something, OTOH, is legislated. It doesn’t exist without government. It gives legal recognition, privileges and/or obligations to some (those having the license) and not to others (those lacking the license). In that fundamental sense, yes, all licenses are the same. (More on this below.)
Now, marriage is an odd hybrid case, because it’s both. The two individuals have a -right- to make commitments to each other. Making promises, and carrying them out, resides in each individual’s private freedom of action. On the other hand, legal recognition – the license that serves to incorporate a new legal unit, “The Marriage of John and Sally”, which the law recognizes as having its own interests distinct from the interests of the legal units “John” and/or “Sally” – does not reside in the two individual’s freedom of action. It is a legislative creation. It is something that the People do (via their agent, the State).
You bring up common law marriage. Common law marriage says that after N years together, the State will recognize a given couple as married even if they never went down for the ol’ license. But that is only another form of the license. A substitute, if you will, created again by the State (or People) and subject to qualifications and restrictions they set.
If the State marriage *license* were something that everyone has a fundamental right to, then indeed we would be on a slippery slope. Indeed there would no justifiable basis for discriminating against gay couples, and gay marraige should be fought and won in the court system. But, there would also be no justifiable basis for the restriction that discriminates against, say, incest couples. Fortunately, that situation does not apply (and I would oppose it applying).
Because *those fees* are the qualifications that the People have legislated for that kind of license. For professional practice X, the People legislate a different set of qualifications having to do with your education, Board standing, etc. And for a marriage license, the People legislate a different set of qualifications having to do with your existing family status or lack thereof, your gender, etc.
I argue that the People get to do that. Plus, what The Livewire said.
As a simple empirical matter, U.S. courts in fact have not (or not yet) found that Loving created any right to marriage, of a kind so fundamental that it would cover the case of gay marriage.
Comment by ILoveCapitalism — December 3, 2009 @ 10:26 pm - December 3, 2009
(continued) TL cites Baker v. Nelson. As the precedents go, that’s an interesting one because it emphasizes child-rearing as the central, constitutionally protected purpose of marriage. Apparently it never envisioned that gay/lesbian couples would procreate (in the manner of infertile straight couples) and/or rear children – which, we now know, they do. I think it’s a weak precedent and will eventually fall. I give more weight to lines of argument that I mentioned in #13, in connection with Hernandez v. Robles.
Comment by ILoveCapitalism — December 3, 2009 @ 10:34 pm - December 3, 2009
(continued) In other words, that Loving simply didn’t do that much. Loving did less than many people think.
Comment by ILoveCapitalism — December 3, 2009 @ 10:35 pm - December 3, 2009
ILC I respect your well reasoned comments. In this case I continue to disagree on these points:
Although it is true states use the term “license”, and over time have elected to license marriage within their states, marriage has existed eons before any governmental approval/disapproval. The usurpation by individual states to “license” marriages does not in fact negate the fact that humans have joined themselves into a marriage of some sort . . . sometimes with a ceremony. Other times without.
You mention common law marriage. Interesting point. Some states, especially in the american south have common law statutes which seek to protect one if the other after some time she/he is abandoned. But their choice to “marry” outside the licensure of an individual state does not mean they are not in some way married.
But I digress. What I was referring to was our English Common Law, not statutary common law. Ours is a Common Law system, it is my view that Common Law does indeed reflect a couple’s “right” to choose one’s own spouse. Granted there have always been exceptions, such as the Lord of the manor allowing/disallowing the joining of a tenant couple.
Brown, which I did not mention, did lay judicial groundwork. Before Brown, there was little judicial precedent, yet almost no one agrees it was not constitutionally correct. Likewise, while the Loving case revolved around the “right” of persons of different race to marry, it is generally agreed to be constitutionally sound. Some cases do appear before the Court which have scant precedent.Some cases, and indeed some rulings do not and cannot envision the future consequences and extensions of logic which follow. I believe our case may fall into this category.
Baker, while limited to a specific situation, does contain some precedent as well. My purpose here is not to parse judicial rulings upon which to make my case. It is to step back and to appeal to fundamental Rights and equality under our constitutional and Common Law system.
ILC, perhaps you hold a stronger preference for the rule of majority, with confidence in the “people” always to do the right thing. I also want, but do not always expect, the majority to excercise good judgement (electing Mr. Obama comes to mind). However, perhaps you can also agree our forefathers understood the majority sometimes trample upon the rights of the minority. Isn’t that what Brown and Loving are all about?
So we can agree to disagree with civility. I think we both want to have the opportunity, should we choose, to marry one of the same sex. Our goal is the same; the paths diverge.
Kind wishes
Comment by Man — December 3, 2009 @ 11:21 pm - December 3, 2009
ILC, I believe we agree upon your definitation of a Right, as you so ably put forward: “A “right” in the constitutional / fundamental sense, is an attribute of the individual. Morally and logically, it precedes government. You don’t need a government license to have it. Examples: The rights to life, liberty, property, freedom of speech, freedom of association, self-defense, etc. In short: all of the liberty rights of a free individual. You can do what you want with your liberty, as long as you don’t criminally violate another’s”
It is my view that the Right to marry is such a fundamental right, as I mentioned in my earlier post.
Before Brown, blacks were denied their God-given and constitutionally guaranteed rights.
Before Loving, persons of different races were denied their God-given and constitutionally guaranteed rights, in this case to marry.
In each case were it left to the majority within most states, these rights would have been neither affirmed nor guaranteed.
Yet they were fundamental rights.
Proposition 8 shows the will of the majority is sometimes wrong. Our constitution guarantees against any and all government foreclosure of the fundamental citizens’ rights. That includes protection of the rights of the minority. Prop 8 did not and could not take from us the right to marry persons of the same sex. It merely made it administratively much more difficult. Our rights remain intrensic to us as humans.
And going back to your definition of fundamental rights. Merely because states require licenses, one’s fundamental right remains intact . . . with or without the approval of the state or the majority.
Comment by Man — December 3, 2009 @ 11:56 pm - December 3, 2009
AE,
Allowing gay marriage to happen will NOT destroy freedom of religion. However, trying to legislate religious beliefs WILL.
In California, for instance, while same-sex marriage was still legal, churches were NOT forced to marry a same-sex couple. For a few months, the compromise was fair. Unfortunately, religious fundamentalists did not want to compromise at all. The rest is history.
On the other hand, take the Bible out of the equation, and you lose any argument AGAINST same-sex marriage. People have tried, but all of those arguments were based on asinine logical fallacies that had no basis in reality, or distorted truths and paranoia. So what we have here is a law that only serves to legislate a religious belief. Whose right to freedom of religious expression is hurt? Anyone who does NOT adhere to that particular belief.
Who does same-sex marriage hurt? No one.
There’s a big problem when, in the year 2009 (almost 2010), Civil Rights is still an unresolved issue. We need to get with the program. It doesn’t matter whether or not you approve of any “behavior”. It all comes down to how good you are at minding your own business.
Comment by Chris — December 4, 2009 @ 12:09 am - December 4, 2009
I find Man’s argument interesting, inasmuch as it completely ignores the most basic and fundamental right of the voters written into the Constitution — the fact that they created it, they affirm it, and they can change it.
Indeed, it makes this argument particularly amusing:
Before Brown, blacks were denied their God-given and constitutionally guaranteed rights.
Brown is based on the Fourteenth Amendment — which means even as Man is claiming that it is always wrong to amend a constitution, he is invoking as precedent for his argument a constitutional amendment.
Comment by North Dallas Thirty — December 4, 2009 @ 12:21 am - December 4, 2009
North Dallas Thirty:
I don’t think his argument was against “amending the Constitution” in general, but more against “amending the Constitution based on a mob mentality against a minority”. He should have specified, but there’s a big difference.
Comment by Chris — December 4, 2009 @ 12:25 am - December 4, 2009
North Dallas, where in my post do you see any reference I may have made to amendments of the constitution? I try not to imply when I have no confidence in the reader to infer.
In fact, I oppose do changing our constitution. Thank God the proposal by our fellow Republicans to constitutionally define marriage failed.
Without our 14th Amendment, Brown and Loving would not have fared so well.
In addition my confidence in our Constitution argues that I also am glad for the protections provided against usurpation of the rights of the minority by the majority. We are a people under the rule of law, not man. Basic civics I believe.
Comment by Man — December 4, 2009 @ 12:39 am - December 4, 2009
You infer I am claiming it is always wrong to amend our Constitution. Wrong on two counts . . .
1. My post does not even touch on that argument, although I do in fact oppose amendments; and,
2. My hope is in the present arguments put forth by the Olsen team that denial of same sex marriage is unconstitutional under our Constitution.
Comment by Man — December 4, 2009 @ 12:54 am - December 4, 2009
Let me see if I can clarify myself this way: Yes, marriage is approval of a behavior. Men and women entering into legally binding contracts is a behavior. We approve of and encourage that behavior with laws, customs and subsidies that make the process easier, cheaper and give couples incentives to engage in this behavior, which is arguably not in their own self interest.
We encourage and approve of it because we have seen the clear benefits to children and thus to society. For example its a lot harder for your dad to skip out on you if he is bound legally to your mother. Kids who grow up outside of wedlock are FAR more likely to be poor, uneducated, unhealthy, illiterate, criminal, etc…
Sure, maybe some individuals dont approve of it, but when I say “we” I mean society as a whole. We said, “sure, this is demonstrably beneficial enough that I’m willing to cough over my tax dollars to encourage it”
Many gays are under the wrong-headed impression that because they have also formed couples, that they are entitled to have society approve of their coupling behavior the same way. Except they aren’t. We are talking two very different behaviors with very different repercussions to society. And they have yet to convince society, or me, that there is a net benefit to society, for the government to get involved in relationships for the sake of ADULTS as opposed to for the sake of children.
So far, we have maintained a “conservative” definition of marriage where government is only involved because children are a natural by product of heterosexuality.
Liberals want to redefine the institution into one that exists just as another entitlement program for the benefit of adults whether they have children or not. Shifting the focus of the institution from children to adults in that way would, IMHO, be a continuation of the liberalization of the institution that has caused so much damage to society already.
I am still waiting for a cogent argument for why that would be better for society as a whole. I haven’t heard one that stands up to scrutiny.
Livewire is exactly right. Every American can get married. The court cannot deny a marriage license to anyone. Loving established that directly and emphatically.
The problem comes when people try to redefine what the purpose of marriage is without asking anyone else.
They see straight couples who dont have children and wrongly assume from that, that the purpose of marriage to society is something other than the welfare of children. It isn’t. The legislatures have been very clear on that, the courts have upheld their reasoning as sound and lawful, and the constitution is very clear that the authority to define institutions and determine what their purpose is rests with the people.
The question remains, is there actually some tangible net benefit to getting government into marriage for the sake of adults, instead of for the sake of children. And how does that change the paradigm between government and the individual. Some argue that it is of financial benefit to society to subsidize couples for their own sake. Which seems to me much like Joe Bidens “we have to spend money to save the economy.” its the entire idea that goverment exists to save adults from themselves. Which conservatives used to oppose and most, I think, still do.
Comment by American Elephant — December 4, 2009 @ 12:57 am - December 4, 2009
The liberalization of marriage also strikes me as one of those instances where everyone says government is too big, but when it is suggested that the area government does not have a proper role in is the one you want the government to have a role in they are suddenly very much in favor of bigger government.
Comment by American Elephant — December 4, 2009 @ 1:11 am - December 4, 2009
AE:
Yes, people should have the right to define the purpose of marriage. By that, I mean the married should be able to decide what the purpose of THEIR own marriage is.
To you, marriage may be for the welfare of children. It does not necessarily mean that to anyone else. As a matter of fact, you’ll find many people who disagree with you on that. When you enter a marriage, you are entering a contract with your spouse. Nothing more, nothing less. Children are not a requirement in that equation.
Also, by law, it considers you immediate family to one another, so you get little perks like Hospital visitation rights… It’s tragic when someone can’t be at their lover’s death-bed because the fact that they are of the same sex prevented them from being married to one-another.
You’re also making marriage sound like something that exists to serve the collective or something… which is far more liberal than most liberals are willing to take it. Most marriages today are all self-serving, even if they intend to form families. You may not agree with that, but you don’t have to. Have your marriage your way, but let others have theirs, too.
Comment by Chris — December 4, 2009 @ 1:39 am - December 4, 2009
Chris, that’s not the question I was responding to. I was responding to this:
My point being that people have a right to disapprove of homosexuality, so the issue of homosexuality will divide us as long as people remain free to believe it is sinful.
But in terms of gay marriage, the evidence is already against you. Catholics express their religious beliefs by adopting needy children to mothers and fathers. Massachusetts told them that if they wanted to continue doing so, they would have to also adopt children to gay couples as well, which would force them to violate the tenants of their faith. So they were given the choice to violate the tenants of their faith or stop practicing that element of their faith.
Which is clearly an infringement of their religious freedom.
And there are plenty of other examples as well.
Comment by American Elephant — December 4, 2009 @ 1:41 am - December 4, 2009
In fact, I oppose do changing our constitution. Thank God the proposal by our fellow Republicans to constitutionally define marriage failed.
Without our 14th Amendment, Brown and Loving would not have fared so well.
You do realize that the Fourteenth Amendment is in fact one of those changes to a constitution that you oppose, right?
Yes, people should have the right to define the purpose of marriage. By that, I mean the married should be able to decide what the purpose of THEIR own marriage is.
Which they already can do.
Your problem is that you are demanding that OTHER people automatically agree with you as well.
But I’m willing to go with that, as long as you’re consistent; please state that, since marriage is a “fundamental right” guaranteed to everyone, which you insist that the government has no power to restrict, that you would abolish any laws that do restrict marriage — say, by age, blood relationship, number of people involved, and so forth — and demand that the government recognize all relationships.
Why not? After all, you have stated that the relationship between other people does not affect you in the least, and therefore, you have no right to oppose it, block it, or deny it full benefits.
Comment by North Dallas Thirty — December 4, 2009 @ 1:49 am - December 4, 2009
AE:
Like I said, asinine logical fallacies. You just brought up a Red Herring.
What you’re referring to isn’t even the right issue. It IS a religious expression issue that needs to be addressed, but it is a completely separate issue from gay marriage.
We can have a legalization of gay marriage WITHOUT forcing Catholics to go against their beliefs. Gay people don’t HAVE to adopt children from the Catholic church – they can go to a non-religious institution. But that doesn’t mean they should lose their right to be married. Just because it’s taken a step too far doesn’t mean it should be eliminated altogether.
Comment by Chris — December 4, 2009 @ 2:03 am - December 4, 2009
You already have that right.
You are confusing the REASON individuals decide to marry with the states vested interest in the institution.
Yes, I know. Many of them right here on this blog. Fortunately we have a Constitution which establishes that the power to make law and define institutions rests with the people and their elected representatives.
But you dont have to take my word for it, there is a whole bevy of judicial decisions, including at the Supreme Court level, establishing just that, and confirming that the people have defined marriage as a legal arrangement between 1 man and 1 woman for the sake of children.
Otherwise I could show up at the courthouse tomorrow with my toaster and demand to be “married” because that’s how I define marriage.
No, but being one of each of the sexes necessary to make children is a requirement. WHich is good because heterosexuality has a tendency to produce children nonetheless.
Fortunately there are other legal arrangements that can be made to prevent that from ever happening.
To serve society, yes. Thats the only valid reason for ANY government to exist. But I reject the idea that that makes us a collective.
Fortunately, married couples forming families is good for society whether the family is aware they are benefiting society or not.
No thank you. There is no telling what some people would claim were a marriage if it were left up to them. Fortunately the Constitution makes it clear that the power to make laws and define institutions rests with the people. And the people have decided that marriage shall be the legal union of one man and one woman, and that the institution exists for the benefit of children, not adults.
Comment by American Elephant — December 4, 2009 @ 2:09 am - December 4, 2009
Not in Massachusetts, to use the same example, unless you have a time-machine hidden somewhere. It has already been done.
Comment by American Elephant — December 4, 2009 @ 2:13 am - December 4, 2009
I made several points and you dont say which ones you are referring to so I have no way of responding.
Comment by American Elephant — December 4, 2009 @ 2:36 am - December 4, 2009
AE:
I’ve addressed all of this already. You simply ignored my points and reiterated your statements.
And what about couples who can’t reproduce? How is their marriage going to better society? Should that be made illegal simply because it’s not going to increase our population? Sure, they can adopt, and they can raise a healthy child that way.
Oh, wait. So can gay people. A gay couple can raise a normal, healthy child just as easily as a heterosexual couple. It has happened. I’d like to see your toaster do that. Except a toaster is not a consenting adult.
Like I said, you can address that adoption issue WITHOUT eliminating same-sex marriage.
It seems you missed that part of my post. It’s very important.
North Dallas Thirty:
You KNEW what I meant, yet you used other types of marriages that actually DO have logical reasoning against them. A type of slippery-slope fallacy, which suggests that one type of marriage which involves two perfectly sane adults who wish to enjoy the same rights that YOU do is the same as some crazy 30-year-old who wants to marry a 12-year-old (who I should point out is NOT a consenting adult). Or a guy who wants to marry his sister (which could lead to birth defects in the offspring). Or a guy who wants to marry multiple women (which devalues women and also brings up child support issues, unless that man is incredibly wealthy).
Kudos for not using the “marry an animal” argument, though.
Comment by Chris — December 4, 2009 @ 2:42 am - December 4, 2009
AE:
The red herring to which I was referring was your adoption argument.
Comment by Chris — December 4, 2009 @ 2:44 am - December 4, 2009
how is it a red herring?
Comment by American Elephant — December 4, 2009 @ 2:46 am - December 4, 2009
AE:
It’s being used as an argument against gay marriage. But, as I’ve already mentioned TWICE, it’s an issue that can be addressed without even TOUCHING the issue of marriage.
Comment by Chris — December 4, 2009 @ 2:48 am - December 4, 2009
i didnt ignore them, I suspect you started writing before I told you I didnt know what you were referring to
No one said that it is. What the legislatures have said is that children being raised by a mother and a father benefits society. And to encourage that, we encourage all men and women to marry without getting all up in their gynecological bidness because heterosexuality has a way of producing children even when the parents didnt intend them, want them, or even think it was possible.
No, of course not! For several reasons.
1. it is not government’s place to tell people they must have children
2. If marriage is limited to people who intend to or believe they can have children, then millions of children will be born outside of wedlock which is self defeating, and
3. It is not necessary to weed out heterosexuals who cant or dont want to have children in order to make the institution fair to couples who are of the wrong gender to procreate in the first place.
They can only because the same populace that defines marriage allows them to adopt. But what gays cannot do that heterosexuals can is produce children as a result of having sex together. Just like my toaster and I.
But all of that is neither here nor there because they are arguments made from the assumption that the people dont get to define their own institutions, or that it is unconstitutional to develop institutions that recognize that heterosexuality is different from homosexuality. Both of which are false assumptions.
please read Baker v Nelson, Andersen v King County, Hernandez v. Robles, etc…they explain the arguments much more clinically than I can, and Im not any good at arguing with people’s emotions.
Comment by American Elephant — December 4, 2009 @ 3:23 am - December 4, 2009
Im sorry, I really dont think we are connecting on this point. You are saying it can be addressed, which I suppose it can be addressed, the problem is that it has already happened. The violations have already happened. Catholics have been forced to stop their charitable work. And that it happened AT ALL, refutes the argument that gay marriage will not harm the inherent, Constitutionally protected right to freedom of religious expression. It already has.
Comment by American Elephant — December 4, 2009 @ 3:29 am - December 4, 2009
As it has already done elsewhere.
Comment by American Elephant — December 4, 2009 @ 3:30 am - December 4, 2009
Dan wrote:
Well, technically — bless their hula-dancing hearts — what they actually did was to amend the constitution more or less like so:
“The gender-equality clause of our state constitution notwithstanding, the Hawaiian legislature shall have the authority to define ‘marriage’ under state law.”
And then the legislature used this newly-specified authority to limit marriage to opposite-sex couples.
I don’t think it’s a merely pedantic point, since every other state that has amended its constitution over the SSM issue has gone the route of explicitly adding “one man, one woman” to the constitution, while Hawaii avoided doing that. (Which means that if public opinion in Hawaii shifts in favor of SSM, they can simply enact it through the legislature without having to first repeal any “one man, one woman” amendment.)
Comment by Throbert McGee — December 4, 2009 @ 5:43 am - December 4, 2009
And how was the 14th Amendment ratified?
Comment by ThatGayConservative — December 4, 2009 @ 5:50 am - December 4, 2009
AE. mmmm toasters.
Man,
You say that Prop 8 shows ‘the people got it wrong’. This is your belief. Some folks believe that the people got it right. Part of being a society that is ruled by law is that the law isn’t good or evil, it just is.
One can argue that the right to be with the one you love can be found in The First Ammendment under the “or the right of the people peaceably to assemble”. It doesn’t mean that the government needs to recognize it, anymore than the government needs to provide you a newspaper to give you free speech.
Ok, more later.
Comment by The_Livewire — December 4, 2009 @ 6:12 am - December 4, 2009
Man, your points in #24 strike me as ones which my points already answer.
- Two people can decide between themselves that they are married. That is their right; their choice.
- Public recognition of their marriage is something else – something to be decided, i.e., legislated, by the State/public.
- Common law marriage is not a refutation of that, common law is a validation of that, i.e., another form of it.
- Thus, public/legal recognition of one’s marriage is not a right for any and all couples that decide among themselves that they are married, and Loving did not find that it was. Loving only found that race cannot be used to deny access to that recognition, as later case law has indicated.
Not quite, no.
First, what I prefer is a clear understanding and delineation of what is a right and what is not. A just government is subservient to rights; a tyranny tramples rights. In our system of checks and balances, it is right for the courts to step in and enforce rights. I am all in favor of that. Many government actions that are commonly accepted today are, in fact, unconstitutional and should be swept away – by the courts. I am simply compelled to admit, by logic and reality, that a State license for X (whatever) is not a right – not for anybody. It is up to the People to legislate who qualifies for it and who does not. Equal protection enters on the questions of (1) whether the qualifications are rational as opposed to invidious, and (2) whether the qualifications, once they have been determined, are administered impartially.
Second, no, I don’t have confidence in the People to always do the right thing. Gay marriage is a great example. I think that excluding gays from marriage is dumb, i.e., poor policy. So I support gay marriage and I state my support for it out loud, even if it bothers some people. But if the People do not agree with me – yet – well then, that’s how the cookie crumbles. That’s democracy: even when the People make mistakes, following the process is better than not following it. (I mean that for when we’re talking policy, not the trampling of fundamental rights.)
On to #25:
In my view, “that depends”.
First, since rights are an attribute of the individual, they are not attributes of couples. Groups don’t have rights (in the fundamental sense we mean here). The couple, as a couple, does not hold a fundamental right to a State license recognizing them.
So then, what kind of right to a State license would the individuals hold? As I’ve been saying, the People get to set the qualifications for the license – whatever kind of license it is. The individual’s right is, -the right to enter the qualifying process-. Nothing more. The individual (or the couple) may, in the end, fail to qualify. And sometimes they do fail to qualify: as, for example, bigamists and incest couples failing to qualify for the State marriage license.
Again, case law finds that the key holding of Loving was this: that because of the 14th Amendment, race cannot be part of the qualifications for the State marriage license. That doesn’t mean the other qualifications for a State marriage license are invalidated by Loving.
I agree on all those points, Man. The point where we disagree is on whether State recognition of a given marriage – the end result, not merely the opportunity to enter the qualifying process set by the People – is a fundamental right. It isn’t.
Comment by ILoveCapitalism — December 4, 2009 @ 11:33 am - December 4, 2009
Chris: That is an interesting way to put it. I think I’m basically on the same page as you, but I would put it differently. In America today, State-licensed marriage is how a couple make themselves “a family” in the eyes of the law. Children may or may not be involved. Childless married couples are recognized by the law as families. So are sterile couples. So are anti-child (abortion-practicing couples). My dad’s retirement community is a hotbed of new marriages where children are not and cannot be involved, and the couple’s welfare is the only purpose of the marriage.
Given all that, I see no reason why modern American marriage shouldn’t be extended to gays. So, gay marriage is what I support. (I just happen to think we should get there democratically, taking our defeats or compromises along the way – because of all the other stuff in my comment exchange with Man, yadda yadda.)
Comment by ILoveCapitalism — December 4, 2009 @ 11:45 am - December 4, 2009
I would like to correct a slight overstatement at #50. I should have said, “The individual’s right is, -the right to enter the qualifying process, and to have that process be administered impartially-”, omitting the overstated “Nothing more” bit.
Comment by ILoveCapitalism — December 4, 2009 @ 12:06 pm - December 4, 2009
[...] often than not, a reader pens a comment which deserves a post of its own. And so it is with the questions DRH posed in response to my piece opposing the judicial resolution of gay marriage: 1) Do you really think homosexuality will *ever* become a non-divisive [...]
Pingback by GayPatriot » A reader’s questions on attitudes toward homosexuality and abortion — December 4, 2009 @ 3:18 pm - December 4, 2009
Livewire,
I’m sorry, i dont watch BG, so I dont get the reference unless toasters is a euphamism for cylons, but the ones in your link are girls. So I’m just lost.
Comment by American Elephant — December 4, 2009 @ 6:30 pm - December 4, 2009
You KNEW what I meant, yet you used other types of marriages that actually DO have logical reasoning against them. A type of slippery-slope fallacy, which suggests that one type of marriage which involves two perfectly sane adults who wish to enjoy the same rights that YOU do is the same as some crazy 30-year-old who wants to marry a 12-year-old (who I should point out is NOT a consenting adult). Or a guy who wants to marry his sister (which could lead to birth defects in the offspring). Or a guy who wants to marry multiple women (which devalues women and also brings up child support issues, unless that man is incredibly wealthy).
I repeat what you previously said, Chris:
Most marriages today are all self-serving, even if they intend to form families. You may not agree with that, but you don’t have to. Have your marriage your way, but let others have theirs, too.
In short, you have argued that your relationship is no one else’s business but yours, and that therefore they should let you have your marriage. Therefore, these relationships are no one’s business except theirs, and you should let them have their marriage.
Meanwhile, your logical argument becomes contradictory. You have previously stated that childbearing and reproduction are irrelevant to whether or not people should be allowed to get married, but you then argue against incestuous marriages because of the effect it could have on childbearing and reproduction. You have previously stated that marriage is only a contract and that people should be allowed to enter into any kind of contract they want, but argue that they should be barred from entering into contracts that you feel are demeaning.
In short, you want to have a say on everyone else’s relationship while adamantly insisting that no one else should have a say on yours.
Comment by North Dallas Thirty — December 4, 2009 @ 8:59 pm - December 4, 2009
AE, yeah, they call the Cylons “Toasters” And I break a commandment or three when it comes to Grace Park.
*she’s married IRL*
Aside: I was disappointed they didn’t discuss sexuality more on the show. Both D’anna and Caprica Six (two of the ‘named’ Cylons) were bi, and actually in a 3 way with Gaius Baltar. But the only male/male pairing was made known in one of the webisodes (and it was clear that Felix may have been bi as well)
Comment by The_Livewire — December 5, 2009 @ 7:16 am - December 5, 2009
>>”If they were to succeed in showing the California ban to be what it is, an unconstitutional law that is, in Olson’s words, “utterly without justification””
I assume that Jeb’s purpose on that site is make Frum look like a conservative by contrast. if so, he’s doing a heckuva job!
Comment by SteveM — January 4, 2010 @ 9:52 am - January 4, 2010
>>”It’s a constitutional issue. ILC argues marriage is not a right. Again I disagree. I believe our common law argues it is indeed a right.”
We don’t have a common law system. At least, we’re not supposed to have one. Law is supposed to be made by the people via their democratically elected legislature(s), not by judges.
Comment by SteveM — January 4, 2010 @ 9:58 am - January 4, 2010
>>”You’re also making marriage sound like something that exists to serve the collective or something”
Marriage does exist to serve the collective. That’s why it’s a thing which the collective recognizes. Gay couplings do not serve the collective, which is why the collective has no reason to given them its sanction and good reason not to.
Comment by SteveM — January 4, 2010 @ 10:05 am - January 4, 2010
>>”I believe equal access for all citizens, including gay citizens, is indeed a conservative issue.”
Giving people “equal access” to marriage regardless of such things as their sex is not a conservative issue. It’s a Marxist issue, a Rousseauian issue, a Frankfurt School issue, an issue driven by people who want to atomize the social order in order to usher in tyranny. And they’ve even been forthright about why they do what they do, so there is no justification for ignorance.
Comment by SteveM — January 4, 2010 @ 10:13 am - January 4, 2010
Meaning.
The problem with Roe vs Wade is that the law never defined the meaning of “Fetus”.
“Fetus” cannot be simultaneously be just a clump of cells and a human being.
Likewise, “Marriage” cannot be simultaneously a union between opposite sex and a union between same-sex.
Imagine, if the meaning of “Gay” is sex between people then there would be no such thng a homoseuxal.
Meaning, it is the beginning and end to everything.
No human being has the knowledge, intellect or wisdom to alter meaning; to forget this natural law is how oppressive tyranny imposes their power.
Comment by syn — January 4, 2010 @ 11:35 am - January 4, 2010
[...] on the GLBT movement to redefine marriage in the past (most recently HERE). In the comments to this post by Gay Patriot, there are more good arguments made reasoning why it is wrong to re-define marriage in our [...]
Pingback by More Good Arguments Against Arbitrarily Re-Defining Marriage « AmeriCAN-DO Attitude — January 4, 2010 @ 5:02 pm - January 4, 2010