I confess, I didn't see this coming: California votes yes on Proposition 8. I do think, though, that the success of anti-gay-marriage initiatives reinforces something I strongly believe: the issue was pressed too quickly, and in the wrong venue. Using the courts to establish a right to gay marriage made opponents feel threatened, and railroaded. If socially conservative voters hadn't felt they needed to protect themselves from activist judges, we wouldn't be seeing these provisions written into state constitutions. Few of them would probably have bothered to vote out legislators who voted for gay marriage five years from now. But with it on the ballot, in front of them, and worries that judges would make the decision unless they did, they shot it down even in California.
In general, courts are the wrong place to press these sorts of claims. The courts were appropriate for civil rights because blacks were literally denied the right to participate in the legislative democratic process. And on a practical level, they worked becaus a majority of people in the country were more than happy to force civil rights on an unhappy white southern minority. Unfortunately, too many groups have decided that the success of civil rights can be widely applied to circumvent the electorate on issues where there is no public consensus. Now widespread gay marriage seems quite a bit less likely for the near term than it would have been had we attacked the issue legislatively.
Copyright © 2010 by The Atlantic Monthly Group. All rights reserved.
worries that judges would make the decision unless they did
The judges in CA already had made the decision, and this was overturned it. The same thing happened in Hawaii in (I think) 1996.
It is seriously damaging to the integrity of the process to make every damn issue into a constitutional issue. Constitutions are supposed to give us a democratic and pre-arranged mechanism to settle our differences, not actually do the settling for us.
Also, there needs to be healthy religious-freedom exemptions for it to work. Otherwise, gay marriage appears to be just a way to sue the hated Catholic Church into submission.
For the first grade teachers in Sacramento, let's just call this a teachable moment.
In general, courts are the wrong place to press these sorts of claims
You know what struck me when I read this, was that thisa is exactly Barack Obama's position. Less courts, more Legislatures. That was the content of the 'spread the wealth' talk the M-P team made such a bit deal of; it was mostly a commentary about civil rights and the strategies for getting there, and the conclusion was that legislatures are superior to courts.
Consensus? I'm gay, I'm equal, deal with it. I'm not going to negotiate my equality with you. I may grit my teeth and put up with this for a little while, but don't tell me my equality is less important than that of blacks or any other group. (And what irony that blacks, who have achieved new liberation with Obama, have chosen to disproportionately vote with the haters against gays.)
PS You don't need gay marriage to sue the Catholic Church, if past pedophilia cases around the world are any guide.
Okay, Mike, you win: no negotiation, and no gay marriage! Much better than working through the legislature, I agree.
50% + 1 vote is no way to run a constitution.
You're right about courts. That Renquist retrospective The Atlantic ran a while back had some wise words about what courts can and cannot do.
I agree with Mike's assessment. The gay community is in exactly the same position regarding full participation in society as blacks were prior to the civil rights movement. They're protected to some extent in the workplace, but civil rights goes beyond that. I'm straight, and straight people need to recognize we are using our majority position to limit the choices of a minority. And the sole reason we do so is because someone else's choice sounds "yucky" to us. As long as we give people who are against gay rights the benefit of the doubt, always giving them room so they don't feel threatened, nothing will ever advance. There's nothing to maximize for ourselves; we need to do it simply from the recognition that other people who aren't like us need to be treated like human beings and not parasites.
Consensus? I'm gay, I'm equal, deal with it. I'm not going to negotiate my equality with you.
Fine -- I voted against Prop 2 in Michigan and would have voted against Prop 8 if I lived in California.
But it's obviously not working well for judges to suddenly find a right to gay marriage that never existed before. The end result is constitutional discrimination against gays that never existed before (and would never have existed without the activist judges). It's backfiring -- the cause of gay marriage is being set back rather than advanced.
Deciding this through a direct ballot measure is an order of magnitude worse than allowing the courts to decide. Seriously, that's the job of the state supreme court -- to draw on its collective expertise and interpret the constitution with minimal influence by the electorate. Better appointed + retained judges making these types of decisions than the guys carrying sacks of money from Utah.
I haven't lived in CA for a while, so someone please report if there are any limitations for another ballot initiative to undo this one. My understanding is that the black vote carried the day for Prop 8. What's to prevent a pro-gay marriage amendment from being advanced in a lower-turnout year (ie anything but Nov. 2012)?
What's funny is that Prop 8 is going to be legally challenged on the grounds that taking away a right (since judges decided marriage is a right) requires a constituional revision, not an amendment, and revisions require a 2/3 majority.
So the same court that ruled earlier this year could just throw Prop 8 out anyway (potentially). That would be poetic justice, if not good precedent. The people don't always know what's good for them.
what irony that blacks, who have achieved new liberation with Obama, have chosen to disproportionately vote with the haters against gays.
Yes, well, until the firehoses and police dogs come out at gay pride parades and people star putting Matthew Shepard on postcards surrounded by smiling lynchers, blacks will continue to resent the comparison.
"What's to prevent a pro-gay marriage amendment from being advanced in a lower-turnout year (ie anything but Nov. 2012)?"
Nothing. They can run it as often as they like. The only risk is voter backlash due to the issue being constantly pressed. It will be overturned by vote at some point in the next 5-10 years.
Mike, I proudly voted AGAINST Prop 8, but seriously, is the point to shout at people that we're angry, or is the point to allow more happy couples to marry within the next few years? Stubborness will get us nowhere. Even the civil rights movement, where people were literally denied the right to vote, was done through peaceful demonstration, and unifying, rather than angry speeches. I agree with Meghan. You can yell about how you will not "negotiate" your equality, but now the majority Democratic legislature in Sacramento, which could have theoretically added a constitutional amendment PERMITTING gay marriage, is now unable to do so. The only people who win from our stubborness is the opposition.
The gay community is in exactly the same position regarding full participation in society as blacks were prior to the civil rights movement.
Keep saying that and see how the black community turns out.
Hey, I'm all for gay marriage, have been for years. But gays have it a teensy-weensy bit better than blacks in 1952 and if they would do well to remember that.
"So the same court that ruled earlier this year could just throw Prop 8 out anyway (potentially). That would be poetic justice, if not good precedent. The people don't always know what's good for them."
Man, isn't rule by judicial tyranny just super-awesome?
Yeah I'm sorry, this is not a teaching moment about the perils of pursuing a civil rights agenda through the courts.
This is a teaching moment about how much it sucks to be a minority.
Mike,
"Consensus? I'm gay, I'm equal, deal with it."
If it's a consensus, no one needs to "deal with it". I'm all for your (anyone's) right marry, but you'll catch more flies with honey, man. Just look at this as yet another lesson on why we need to get rid of government altogether. It doesn't protect rights - it merely steals your money in the name of "defending them".
For those that think this should only be decided by judges, do you see any role in this country for the electorate?
There's a problem with this just-so story. Propositions can and do overturn legislative decisions, too.
California did pass gay marriage bills twice. The last time, Arnold Schwarzenegger declined to sign it because he thought "the courts should decide." The real reason was, he was a Republican, and didn't want to sign it.
Now imagine that if he had signed it or a hypothetical Democratic governor had signed it. What would the LDS Church and other gay marriage opponents done then? Do you believe they wouldn't have tried to overturn the law the same way, through a proposition they felt they could win?
The fact is that minority rights often run ahead of majority opinion, and there are tools in western states to privilege majority opinion through direct legislation that people will use if it makes sense to do so. It may be gratifying to say that gays brought this on ourselves, but as long as constitutions are this easy to modify, there was essentially no way to make progress without ending up at the same result. We could have chosen not to pursue the court battle, and we would have ended up exactly where we are now in California: civil unions, no gay marriage until 50% of the people are willing to vote "yes."
The real problem here is government by referendum on minority rights. This is something that opponents of gay marriage may consider a feature right now, but many of them didn't like it when it was their ox getting gored.
Man, isn't rule by judicial tyranny just super-awesome?
Rule by constitutional principles that are enforced against contradictions is super-awesome, in my opinion. Unless you'd have the same reaction to 50.1% of people in a certain state voting that the other 49.1% shouldn't have the right to sue in courts of law or vote...
Megan - As a resident of California, let me give you a little ground-level insight into the Prop 8 campaign. No on Prop 8 was actually up by ten points until the very successful "Gavin Newsom Ad" started airing and the proponents of Prop 8 re-contextualized the debate around the school curriculum. No on 8 was very slow to respond and this was coupled with a lot of non-productive grassroots level histrionics that dissolved the debate into the realm of pure emotion. Reason went out the door. By the time No on 8 got back on track with some very effective ads, it was too late. On a grassroots level, with much of the organization run through churches, No on 8 was out-hustled. This should not be seen as a rebuke on the courts, but rather, as an example of effective, successful political organization. For example: I live in an area of Sacramento that should be heavily against prop 8 (close to our "gay district"). At the only polling place in a ten block radius of a densely populated area, at close to 6pm (2hrs before close) there were only 270 ballots cast.
Man, isn't rule by judicial tyranny just super-awesome?
Stop right there. Did the courts give gay couples the right to tax you, search your belongings, quarter soldiers in your home, keep you from the polls, take away your printing press (or blogspot accounts), or lock church doors?
Didn't think so. Please stop wasting our time with talk of judicial tyranny.
The real problem here is government by referendum on minority rights.
The real problem is calling marriage a "right" and comparing it to voting or free speech. Legal rights aren't the real issue.
What the gay community seeks--and what it deserves, in my opinion--is more the acceptance of society at large than the specific legal regime that marriage brings with it (most of which is available contractually or through civil unions.) I doubt California's gays would be happy with Ramesh Ponnuru's proposal that everyone of any orientation be permitted to designate a legal next-of-kin, with most of the rights of marriage or blood relationship, who could be anyone at all.
But if legitimacy and acceptance in society is what you seek, you can only get it by persuasion, not by force.
Do you see any role for constitutionally protected rights? If being able to marry the person you love is not a constitutionally protected right, what is?
Was the court wrong to overturn miscegenation laws in Loving v. Virginia?
Consensus? I'm gay, I'm equal, deal with it. I'm not going to negotiate my equality with you.
I hope you have the same standard for polygamy.
or this guy
Japanese man petitions to marry comic-book character
You can't have your cake and eat it, too. You want democracy, you get democracy - two wolves and a sheep voting on what's for dinner. It isn't pretty, but there it is.
Speaking of dinner, I heard someone yesterday in a restaurant going on and on about "gay rights" and how important they were to her in this election.
Color me confused...
Rights are ours by nature - We have them by virtue of being born. They exist outside of government, they're not dependent on skin color or other factors, and in fact their existence predates not only the federal constitution, but all state constitutions as well.
So when it comes to "gay rights" what specific rights do homosexuals believe they have that a straight person doesn't? In other words, what rights are protected by law for straight people yet aren't protected by law for gays?
What makes no sense to me is how the word 'marriage' makes peoples' brains melt.
If gay people can set up households (including shared mortgages and other property), raise kids etc, then why not call the legal protections they should be entitled to 'marriage'?
If you're against gay 'marriage' you should be working to legislatively prevent gay people from setting up households together.
The fact that same sex couples can, in numbers, set up publicly shared lives is new and an innovation and the place to target if your against same sex relationships on principle.
Denying gay people in longterm relationships the right to 'marriage' is far worse for marriage than just letting them in and getting on with life.
"Was the court wrong to overturn miscegenation laws in Loving v. Virginia?"
Oh, but that was very different (just don't ask how unless you're a big fan of tortured logic - especially since the arguments against allowing interracial marriage were so close to arguments against same sex marriage).
"So when it comes to "gay rights" what specific rights do homosexuals believe they have that a straight person doesn't? In other words, what rights are protected by law for straight people yet aren't protected by law for gays?"
I don't know if you're being disingenuous or just dumb, but those two sentences don't mean anywhere near the same thing.
And I think you know exactly what right is protected by law for straight people but not gays.
That's why democracy shouldn't apply when it comes to rights. They're inherent, like you said. In no circumstance should 50.1% of the population be able to take them away.
"Consensus? I'm gay, I'm equal, deal with it."
Perhaps California should recognize Islamic polygamous marriages too? Perhaps we should allow the unrestricted immigration of these people because their "human rights" are being violated abroad? I'm sure that would work out great for your demographic.
The voters have spoken, and it's back to the bathhouse and the glory hole for you, Bruno. Move to another state that shares your values, or "deal with it".
If being able to marry the person you love is not a constitutionally protected right, what is?
Just toss us the cite to the constitutional provision you're relying on anytime.
The confusion between what we wish our constitutions say and what they actually say continues unabated...
"The voters have spoken, and it's back to the bathhouse and the glory hole for you, Bruno. Move to another state that shares your values, or "deal with it"."
The voters were subject to a $50 million Mormon-funded propaganda campaign. You are a disgusting human being and I'm very glad you're on the wrong side of history. People become more tolerant every year and this will be reversed at some point. It's not a question of if, it's a question of when.
Now go crawl away, you piece of filth.
Rob, there are over 1,100 distinct rights and responsibilities mentioned in Federal law alone. This disparity in economic potential between heterosexual and homosexual families goes far beyond who you name in your will. And those 1,100+ distinct legal mentions are at the Federal level only, not the individual states.
Social Security and ERISA-based plan benefits are specifically restricted to those who carry the term "spouse." Spouses are primary beneficiaries for those who die intestate. Spouses have de facto power of attorney and medical power of attorney for each other. Single-earner same-sex couples simply do not have the same provisions in terms of financial security for the non-earner that married couples do.
Children being raised by same-sex couples who are not adopted by the non-biological parent (and there are states where that isn't allowed) run into problems acting as a parent in relation to schools. There have been multiple custody cases won by relatives of deceased biological parents taking children away from their "real" but not "legal" surviving same-sex parent.
These are very real day-to-day ways in which families headed by same-sex partnerships are treated inequitably under the law. Until the legal / civil definition of the word marriage is changed, same-sex headed families are second-class, both de facto and de jure.
You could just as easily argue that the only reason we have gay marriage at all is because courts in Massachusetts and before that Hawaii got the ball rolling. Without those court decisions, legislatures would have never acted.
Indeed, I would argue that much the same is true in the case of black civil rights. Legislators were way too timid to take on the Jim Crow South. Only once the Supreme Court did it were the hands of politicians forced.
Ninth Amendment + Privileges or Immunities Clause of the 14th Amendment = right to marry.
If the right to marry is not a natural right, then what is? Don't tell me you're one of those "inkblot" guys--we don't know exactly what the Ninth Amendment protects so it protects nothing. That is weak.
Oh yeah, as far as denying same sex couples the right to marry, there is that Equal Protection Clause thingy in the 14th Amendment as well...
Can anyone point me towards an intelligent argument for why it is an enormous civil rights and equality issue that same-sex marriage be allowed but not an equally enormous civil rights and equality issue that polygamous marriage be allowed?
Is there something magical about the number 2 or are we arguing that polygamous unions should also be accorded equal rights?
GU, thanks for the prompt answer to my question.
Rob, there are over 1,100 distinct rights and responsibilities mentioned in Federal law alone.
And all of them--all--are under the umbrella of the DOMA, which makes what CA does irrelevant.
But realize, I'm on your side here, broadly speaking. I just think that the legal issues aren't the real issues. Ponnuru proposes allowing anyone to designate a legal next-of-kin who will have most of the rights of a spouse or blood relation, but with no requirement that this person be sexually involved with you. Thus, a straight single man could deny his parents the right to make medical decisions and grant it instead to on of his college buddies. Or, a gay man could designate his partner. This is, in his mind, a way to eliminate the legal argument without letting gays marry.
Would that be good enough? I don't think it would be, because what gay people want isn't so much the right to make heartbreaking medical decisions as it is to have people stop looking at them funny. I think they should get both, but I think they'll get them both faster if they stop with the litigation.
"Can anyone point me towards an intelligent argument for why it is an enormous civil rights and equality issue that same-sex marriage be allowed but not an equally enormous civil rights and equality issue that polygamous marriage be allowed?"
You're being incredibly disingenuous, but sure. It's an inherent right for anyone to enter into a binding relationship with *the person* of their choice. It is not an inherent right for you to be able to do so with a child, a box turtle, or ten people.
You're essentially arguing that since someone can't marry a box turtle or a toddler, that an entire fairly large class of citizens should lack rights such as inheritances, hospital visitation, parental status because the *one person* they've chosen to spend their life with and raise a family with is of the same sex. Read Jay C @ 2:09 for more situations where it has actual harmful effects.
The only way your argument makes logical sense is if you want to say that marriage should not be a governmental issue at all and there should be some other construct (civil unions) that bestow all the rights heterosexual couples have to homosexual couples. I accept that argument, though I would point to "separate but equal" as an example of how it works out in practice. Either that, or you're just a bigot who thinks homosexual couples shouldn't have the same rights. In which case I have no respect for you.
I think that the reason the two are different from a legalistic standpoint is that it is incredibly easy to map a same-sex couple into the civil concept of marriage, and much harder to map a polyamorous collective.
As seen in California, from a purely legal standpoint, it is a matter of changing husband and/or wife to spouse. In terms of inheritence, acting by proxy, etc., there's no real legal difference.
When you start talking about poly- constructs, you can't just do that sort of substitution. If there are three or four people with legally equal voices, which one(s) have medical power of attorney? Which one(s) have de facto inheritence? Which one(s) have the primary responsibility to act in an emergency or be the parent that can advocate with schools? How do you determine who has the primary legal standing from a statute/relulatory/procedural standpoint?
"The voters were subject to a $50 million Mormon-funded propaganda campaign."
Yeah well voters were subjected to a $650 million propaganda campaign from 'the One'. That's ignoring all the free propaganda from the media. You don't see us white Americans, who voted for McCain, bitching about it.
Don't tell me you're one of those "inkblot" guys--we don't know exactly what the Ninth Amendment protects so it protects nothing.
You appear to be an inkblot guy yourself: the Ninth Amendment protects whatever you happen to see in it. But that way lies madness; there is therefore nothing it doesn't protect.
In any case, your proposed reading of the Ninth Amendment (and the EPC) is every bit as much of a constitutional amendment as Prop. 8 is to CA's constitution. The fact that it doesn't have to get the approval of 3/4 of the states is a strike against it, not a point in its favor.
Dilan's got a good point, although one that is controversial with respect to the civil rights movement.
It's an inherent right for anyone to enter into a binding relationship with *the person* of their choice. It is not an inherent right for you to be able to do so with a child, a box turtle, or ten people.
Why? What's magical about 2 that makes it an "inherent right"? Is it something about the 9th Amendment?
And all of them--all--are under the umbrella of the DOMA, which makes what CA does irrelevant.
Today, yes. But not five years or ten years from now, or however long it takes to complete the process towards marriage equality. That comes through repeal of DOMA, and a lot of work on the state level.
CA is/was one piece of the puzzle, just MA and CT. The amazing thing, to me, is that I think there are now many people who know what the puzzle is going to look like once it is all put together. It's just a matter of how long it will take to assemble.
I honestly believe that in 30 years, kids will ask their parents why gay marriage was ever a big deal, out of disbelief.
"You are a disgusting human being and I'm very glad you're on the wrong side of history. People become more tolerant every year and this will be reversed at some point. It's not a question of if, it's a question of when."
Have you been paying attention to world population demographics? Secular liberalism is dying; it's not a question of if, it's a question of when. Gay marriage, birth control, abortion, and childless couples are just speeding up the process.
Make no mistake about it: I wish our society could indulge itself in whatever libertine debauchery one could imagine and remain sustainable, but history shows this prospect to be dubious at best. Certain behaviors are taboo for a reason: the societies that had the taboo survived, while those that did not died out. Even the institutionalized homosexuality of the Japanese and the Greeks was in addition to, rather than a substitute for, heterosexual relationships.
"Now go crawl away, you piece of filth."
If you think I'm bad, wait until you meet your mullah. You spit at social conservatives while they are the ones keeping this country populated, viable, and moderate.
If only more decent, responsible adults had bothered to make sure they were registered to vote. It isn't really that hard, and it's important. AFAIK, a lot of coddled, well off people just don't bother because they've never really been directly affected by elections' outcomes. Sure, they can yak it up at cocktail parties about how libertarian (or whatever) they are, but they still can't be bothered to make sure they can vote. Because even over-educated, overly pampered, self-proclaimed "libertarians" would have voted against Prop h8. What a shame.
"Yeah well voters were subjected to a $650 million propaganda campaign from 'the One'. That's ignoring all the free propaganda from the media. You don't see us white Americans, who voted for McCain, bitching about it."
I wasn't talking about political advertising as an inherent negative. I was talking about the Mormon Yes on 8 campaign which was almost entirely smears and distortions: churches will be forced to perform same-sex marriages, 6-year-olds will be taught about gay orgies (bit of an exaggeration but you know exactly what I'm talking about). The No campaign was milquetoast and ineffective at countering these and the lies were very persuasive.
So don't give me the "voters have spoken" bullshit line. The Mormons ran a dirty, shameful campaign that worked. And the Prop *still* got 10 points less support than the one 8 years before it, and it'll get another 10 fewer points in another 8 years.
Oh, and more white Americans voted for Obama than Kerry. Suck it "real America". You're now a minority.
'Gay marriage' always reminds me of the scene from 1984 where O'Brien holds up four fingers to Winston Smith and makes him count them. Smith says four, O'Brien says five. Smith tries to believe, believe the party can rearrange fundamentals. But it can't, and though he says five, he doesn't believe it. Because it is simply untrue.
"Have you been paying attention to world population demographics? Secular liberalism is dying; it's not a question of if, it's a question of when. Gay marriage, birth control, abortion, and childless couples are just speeding up the process."
Take a look at the 18-29 year old positions on liberal issues compared to the 18-29 year old positions from ten years ago. Hell, take a look at the full American positions on liberal issues. You might find a trend that greatly disturbs you.
"You spit at social conservatives while they are the ones keeping this country populated, viable, and moderate."
That's hilarious. Someone should post the "which states get more tax dollars than they give" which is almost unanimously red. America would do juuuuust fine without the South and Midwest. Hopefully we'll have the chance.
Oh, and I forgot to mention the anti-abortion props falling flat on their faces yesterday (even in *South Dakota*). Marijuana was legalized in two more states. Social conservative nation? Are you kidding me?
I hope Andrew Sullivan cried.
"If socially conservative voters hadn't felt they needed to protect themselves from activist judges, we wouldn't be seeing these provisions written into state constitutions ... Using the courts to establish a right to gay marriage made opponents feel threatened, and railroaded."
I'm calling BS.
You're telling me the only reason the Mormon Church was so fired up about this was because of the judicial process, that if it had been brought up in the legislature they'd have approached it much more favorably? Baloney.
You are just like the Jim Crow apologists of years past who tried to explain how racists were actually upset over States Rights. Go suck an egg.
Marijuana was legalized in two more states. Social conservative nation? Are you kidding me?
Marijuana is not a liberal/conservative isssue. Alaska has the most liberal MJ laws in the US.
Adam writes: "Either that, or you're just a bigot who thinks homosexual couples shouldn't have the same rights. In which case I have no respect for you."
Did it not occur to you that I might be a practicer of polygamy who feels that their rights are being trampled on? And that you might be a horrible bigot for assuming that polygamous unions are the same as marrying a "box turtle or a toddler"?
If I were prone to jumping to unwarranted and insulting conclusions like you, I'd probably point out that you sound decidely like the bigots of yesteryear who compared blacks and other minorities to animals but I like to think I'm above that.
But let's take a moment to consider your reply: "It's an inherent right for anyone to enter into a binding relationship with *the person* of their choice."
Aside from my continued puzzlement over what rationale limits that fundamental right to a single person as opposed to persons (yes, yes, excluding children, animals and inanimate objects, let's keep the discussion to the world of consenting adult humans, shall we?), what in your definition would justify prohibitions against incestous marriages?
Or how about a-sexual people. If two people who are not very sexual but are very close friends and love each other very much want to form a life-partnership, should they not have all the rights you would accord? After all, they are just excercising their "inherent right for anyone to enter into a binding relationship with *the person* of their choice." But I suppose if they meet a third who fits with them like peanut butter and jelly, then they've gone quite beyond the pale and should be denied any further right to entering into binding relationships.
Jay C. -- I can see your point and thank you for taking the question seriously without jumping to ad-hominem attacks.
Here's my question for your argument: you seem to be conceding that there is as much of a fundamental right to polygamous unions as there is to any other kind but the transition to recognizing that right would be more legally challenging due to the built up body of law regarding two-person unions. My question is, since when is it morally okay to deny a minority group what you agree are their rights just because you feel it would be difficult to grant them?
Adam,
I'm for gay marriage, but I don't see any firewall from the 'rights' angle that delineates adult polygamous (polyandry or polygyny) relationships from monogamous ones. I know this is often hand-waived away like you just did, but that doesn't make the issue go away.
Now, of course, the move from N=2 to N=2+ makes the legal ramifications complicated, but paperwork isn't a reason to deny anyone a 'right.'
I just think we need to be upfront about the ramifications of these actions, so that we can make informed decisions.
"Marijuana is not a liberal/conservative isssue"
Of course it is. It's a libertarian issue; libertarians are socially liberal/fiscally conservative. There's a very clear parallel between rejecting government intervention in personal use of drugs and rejecting government intervention in issues like abortion, marriage, etc. Also note the marijuana states: California, Oregon, Massachusetts, etc. Notice anything...liberal about them? Alaska is just a straight goofy place.
Anyway, the demographic breakdown on Prop 8:
Yes No
18-29 (20%) 39 61
30-44 (28%) 55 45
45-64 (36%) 54 46
65+ (15%) 61 39
Guess what happens in four or eight years? Anyone?
"Take a look at the 18-29 year old positions on liberal issues compared to the 18-29 year old positions from ten years ago. Hell, take a look at the full American positions on liberal issues. You might find a trend that greatly disturbs you."
Take a look at the demographic breakdown of the proposition 8 voting, and rank those groups in terms of fecundity.
At the top: Mormons, blacks, latinos.
At the bottom: White liberals.
Q.E.D.
Michael Farris,
If gay people can set up households (including shared mortgages and other property), raise kids etc, then why not call the legal protections they should be entitled to 'marriage'?
If a brother and sister, or a woman and her aunt, or three childhood friends, were to do the same sharing title in property, cooperating in child-raising, &c. what would we call that?
It's not only the opponents of same-sex marriage whose brains seem to melt in contact with the word. "The word" is, after all, what the opponents of Prop. 8 were fighting for, as much as the supporters were. (I voted against, but am not terribly surprised to see it evidently passing.)
Rob Lyman, I hadn't heard that Ramesh Ponnuru had proposed the scheme you describe. Did he get it from Levada? (When he was Archbishop of San Francisco, Levada arranged something similar for employees of the Catholic Church and associated charities, so as to allow the Church to comply with SF law requiring organizations contracting with the city to provide domestic-partner benefits wherever they provided spousal benefits; the Church allowed each employee to designate some one person living at the same address as the recipient of spousal-equivalent benefits, whether that person was a spouse, a domestic partner, a relative, or just a roommate.)
"At the top: Mormons, blacks, latinos.
At the bottom: White liberals."
This is true; minorities and the heavily religious do have a lot of kids. Your argument would be relevant if it explained why the youth now are so much more liberal/tolerant than they previously were. After all, latinos and Mormons have *always* been heavy breeders, haven't they?
The correct answer is that no matter what people's parents views are, kids are just increasingly tolerant. It's not like the Mormon percentage of the population is going up. Latinos are though, and they were 52% No on 8, with young Latinos massively against it.
The future demographics are most certainly not in your favor.
I honestly believe that in 30 years, kids will ask their parents why gay marriage was ever a big deal, out of disbelief.
I think that's probably right. But then again, in 1973, pro-choice liberals might well have expected that in 35 years children would be asking their parents why abortion was such a big deal back in the day.
I agree with the practical arguments that people are making--denying gays the right to marry (or civil unions, or whatever) is unfair, and should be overturned on that practical basis. But "unfair" and "violation of rights" are not the same.
I also think that trying to appropriate the language of rights is backfiring on the movement. Saying "hey, this is unfair!" is going to garner more sympathy than the absurd comparisons of gays to blacks 50 years ago, which merely plays in to histrionic stereotypes.
"You're being incredibly disingenuous, but sure. It's an inherent right for anyone to enter into a binding relationship with *the person* of their choice. It is not an inherent right for you to be able to do so with a child, a box turtle, or ten people."
If you can go around saying that it's an inherent right betwen two person, why can't someone else go around saying it's an inherent right for three people?
Or just between people of opposing genders? It's all the same, isn't it?
You think it's obvious that it has to be couples, other people think it's obvious that it has to be straight couples. It's the same argument either way.
That's a really good question, and I don't know that I have a sufficient answer.
I think that because the civil codification of marriage is based on a binary construct, that poly- constructs would have to be set up on an individual basis, since no two constructs would likely have the same set of parameters.
Take, for example, survivor benefits for Social Security. From a pure economic standpoint, unless someone was willing to have additional amounts deducted on the front end to make up for payouts to two (or more) survivors instead of one survivor on the back end, they'd have to pick their survivor.
I'm not saying that I'm opposed. I just really don't know what it would look like.
"Mormons have *always* been heavy breeders, haven't they?"
They're heavy breeders because they're Mormons, not the other way around.
The more liberal/tolerant a society becomes, the less inclined the members are to reproduce. History proves this, and I don't see it changing anytime soon.
Be careful what you wish for, you just might get it.
I see a lot of good arguments here for allowing gay marriage and the best way to try and get that implemented, but most of them ignore the central problem in America for gay rights -- religion. Until the christian leaders of this country actually stop and read their own religious texts (Jesus said nothing bad about gays. Zippo.), we will continue to have this ridiculous discussion when anyone who has an IQ over 6 can see that discrimination against gays is one of the most egregious anti-american things about America.
My guess/hope is that the younger generation of christians will slowly come to realize that if Jesus lived in California, he'd damn sure be voting no on prop. 8.
Rob you're pretty much straight on. I've been a bit..irrational today, but that's the argument I should have made.
And yeah, the civil rights comparison is a bit silly. It is a really good comparison though to compare the arguments for/against same sex marriage to the ones for/against interracial marriage back then, because it's scary how close they are. It's probably not the best politically convincing argument to make, but it is valid.
I don't know where Ponnuru got his idea, but he's a pretty serious Catholic, so it might have been from a Bishop.
For my part, I endorse it independent of the gay-marriage debate; it's quite possible that there is someone in the world you'd prefer to have in that role other than your actual family, and no reason not to allow you to do it.
"Did it not occur to you that I might be a practicer of polygamy who feels that their rights are being trampled on? And that you might be a horrible bigot for assuming that polygamous unions are the same as marrying a "box turtle or a toddler"?"
I better example than practicer of polygamy is incestual marriage. Why must I be denied to marry my brother or sister if I so choose?
Staah, you fail to distinguish between young and old. And regardless, what do you think, gays are going to recede back into the closet? We are a part of America and we aren't going anywhere. Resorting to crude put-downs will not change that (though it might make you feel better).
In fact, when Obama fills the Supreme Court with liberal appointees, count on a federal decision that ends this discriminatory nonsense once and for all. Which is something that soothes my bruised heart right now.
"They're heavy breeders because they're Mormons, not the other way around."
Well, right. The Mormon kids who realize their religion is goofy and grow up and leave the church probably don't have eight kids of their own. So I guess it comes down to the percentage of kids who grow up Mormon and stay Mormon and have eight kids of their own versus the percentage that don't stay Mormon. I can't imagine they have too many converts. I have no idea what that percentage is but based on the number of Mormons over time I'd guess they roughly balance out.
"The more liberal/tolerant a society becomes, the less inclined the members are to reproduce. History proves this, and I don't see it changing anytime soon."
You're right of course, but it's arguable that what this means in principle is just that Southern/Midwestern conservative states get bigger. Which is pretty irrelevant for stuff like Prop 8: you'd just get to a point where 25 states have abortion and gay marriage and legal marijuana and 25 have none of those.
Which makes me wonder whether the practical effect of a liberal society is just to make more kids growing up in conservative households liberal. I have no idea whether that trend outweighs the more babies from conservatives trend; it's similar to the Mormon argument. But you're right on the basic points.
Because homosexuality, while formerly considered yucky by almost everyone, is not any longer. At least, by all the best people. Educated people, famous actors, rock stars -- they're all cool with it. And yet some stupid and evil old people do continue to oppose it. Now, who do you want to impress: hip young people, or evil old people? Do you want to be considered a uptight homophobe by hot young women? Do you want to have any friends? Well then.
There are only so many ways to be cool simply by expressing an opinion. So you can see why it's such a big issue. Everyone wants to be cool.
Whereas, "polygamy" means polygyny, and polygyny is yucky. It exploits women, who cannot be expected to always make the right decision on something like that. Don't you remember those FLDS people? Really yucky. People don't have the right to marry their own 14-year old nieces, what are you, a barbarian?
"Why must I be denied to marry my brother or sister if I so choose?"
Yeah, that is actually a better argument than polygamy. I guess the logic is that you're really likely to have a kid with genetic issues. As I recall this is actually an issue with regards to whether you can marry your first cousin, second cousin, etc where there has to be a line drawn somewhere. My guess would be the larger the percentage that want to do something the more likely the line gets drawn to include that.
To follow some others down a different, but related path, I would be all for getting government out of the business of the word "marriage" entirely, and leaving that soley to religion / society.
In its place, perhaps a construct where households could create legally binding documents that outlined their financial / medical / inheritance rights and responsibilities after being in existence for amount of time (12 months? 24 months?).
I had a platonic female roommate for most of my twenties. We were essentially a financially intertwined household. I think it would make sense for people in long-term non-romantic household situations to be able to provide for each other.
This was never about "marriage". Where are the propositions banning divorce or drive-thru quickie weddings? I haven't seen any.
If you religious types truly care about marriage, you'd be trying to abolish all the ways we (and you) casually exit the institution.
What is it really about? Preventing gays from being a full and equal part of American society.
So when you can't win by playing fair, ligigate?
I just hope that homosexuals don't really think that by litigating themselves into gay "marriage" they'll get the social acceptance they crave. The whole point of demanding the word "marriage" is really just about renormalizing the culture, right? Do you really think you can defeat bigotry by essentially disenfranchising it?
Win the culture war so you can win the legal war. Doing it in the opposite order just makes people angry and probably won't work.
So when you can't win by playing fair, li[t]igate?
It's the American Way!
"Win the culture war so you can win the legal war. Doing it in the opposite order just makes people angry and probably won't work."
While this is a good sentiment, I think the counterpoint is that really only people *in California* care about gay marriage being thrust upon them by the courts. Does it really matter to people in whatever the next battleground is whether it was established by vote or by courts in a different state years earlier? I rather doubt this. Plus, like other people have said, if not for the courts starting things it might not be legal anywhere now. Same with interracial marriage.
Megan, may I salute you for putting your finger on a large part of, not only the resistance to gay marriage, but to abortion as well?
There are topics that desperately need community dialog. We can no longer have meaningful dialog about abortion, because the rulings have already been made. Anything said is sound and fury, signifying nothing. Gay marriage hasn't reached that point yet, and we all have an interest in making certain that it does not.
For myself, I object to the state being in the marriage business at all. Set up a legal framework for a joint-ownership limited partnership (call it an M corp if you must) and get out of the way.
Marriage was a religious relationship long before state governments got in the way. Religions that recognize same-sex relationship have the right to allow them (or should). Religions that find same-sex relationship problematic (for whatever reason) should have that right.
Getting the state involved puts everyone in everyone else's pocket. Sorry, don't need it.
While I understand Mike's frustrations, I will offer that he'd get a lot more support for acceptance if he didn't also demand approval. I note that the point has been mentioned in this thread already, and merely wish to reinforce the concept.
For the polygamy people.
One big argument for same sex marriage vs polygamy is that SSM doesn't require much (if any) rewriting of marriage laws, basically references to gender are eliminated (and in some cases aren't there anyway). The trend over the last 100 years is toward interchangeability and equality between marriage partners (which most people mostly think is A Very Good Thing) same sex marriage is a natural extension of that.
Polygamy is a much thornier legal issue. First, it's assymetrical in the classical polygynous format - the man might be married to two women but the women weren't married to each other and it's not clear what kind of legal status co-wives have. And a whole bunch of other issues have to be dealt with like: format for adding partners to a marriage (can a man marry wife number two without informing wife number one? does the first marriage have to be terminated and the new marriage with the extra partner started from scratch? in traditional societies older wives have a kind of seniority but I don't see NAmerican law enshrining senior wife priority. Basically polygamy is about inequality (between the genders and the co-spouses) and that goes against the western trends in marriage.
Even if the laws are gender neutral there's a legal mess in one person being married to two people one of which is married to someone else.
And all this is less important than the fact that by and large people aren't practicing simultaneous polygamy in numbers. If polygamists want to raise these issues they need to start setting up households so we can build up some case law on the ways that polygamous unions can go wrong and what courts of law can do to try to minimize the damage (considering the messes that two people can get into I'd say it'll take a long time for the various legal issues to be settled enough for legally recognized polygamy).
As for marrying a box turtle or whatever, I don't think it's possible to marry a person in a coma because they can't express consent. Find yourself a box turtle with human linguistic capabilities and a desire to marry a human and we'll talk specifics, until then stop wasting people's time with fatuous arguments.
I should point out, by the way, that Loving was a criminal case. That is, the state did not assert that an interracial marriage was a legal nullity (as a gay marriage is in most places) but rather that it was a prosecutable crime.
Ah, I think Ugly Truth has nailed it precisely. I'm just not cool enough. Maybe once gay marriage is ordinary and the cool youngsters are looking for some new way to demonstrate their progressive bona-fides my rights will be considered important enough to recognize.
Here's a question for you, though, Ugly (can I call you Ugly? Or should I go with Mr./Ms. Truth?) all of those cool people tend to also think that foreign cultures are cool. So say I'm from a country with a long cultural tradition of polygamy, (yes, polygyny of course, who would ever want more than one husband?) isn't it cool and rock-star-esque to accord me equal rights and talk about how awful it is that the evil American culture is branding me an outcast merely because I have many wives?
I mean, come on, I'm already from a cool, under-developed country, I have authentic foods and dress and cultural norms, what else do I have to do to be cool enough for the hip youngsters in California to want to recognize my rights?
I note that Adam decided to ignore me once I pointed out how bigoted his rant directed at me was. You know, Adam, just because you decide to ignore the people you are bigoted against, doesn't make you any less of a bigot.
In fact, it kind of makes you more of one.
@Adam...
Yes, the two sentences mean the same thing essentially. Government exists for one reason: Preservation of rights. It stands to reason that everyone therefore has the same rights and they should be protected equally.
Therefore, I repeat the question: What rights do gay people have that aren't protected the same as for straights?
And no, I don't know - Otherwise I wouldn't have asked.
I suspect based on other comments after yours that it may be the "right to marry."
If this is the case, I agree wholeheartedly - You have the right to marry whomever you choose and the government has no business interfering. In fact, go right ahead and I guarantee you they won't stop you. You can buy your rings, print your own certificate, hold your own services, tell everyone you're married, live in the same house,etc..., and I'm pretty certain you won't be raided by the FBI or the ATF or any other three-letter organization. In fact, I doubt anyone including the local police or prosecutors office would show any interest at all in interfering.
However, I sense that what you and others are demanding isn't the right to marry, you want the associated "perks" that married couples get by virtue of their status being sanctioned by government.
Well, if you wish government to sanction that marraige it's easy. First, you have to get a license.
Oh, wait.
Now we have a problem.
You see, things that require a license from the state aren't rights, they're privileges. As such, the state gets to define the requirements thereof.
It's the same thing we gun owners have been screaming about for nearly a hundred years. However, I doubt many concerned about gay marraige are very concerned about my right to own and/or carry a weapon to protect myself. In fact, I'd bet most of them are not just apathetic about it, they will actively campaign for heavy licensing restrictions even though the right to protect one's self is a fundamental right of existence that far outweighs any right to marraige.
This is called being hoist with one's own petard.
It's also why I said you can't have your cake and eat it too.
Welcome to our world - Hope you enjoy the view.
"Which makes me wonder whether the practical effect of a liberal society is just to make more kids growing up in conservative households liberal. I have no idea whether that trend outweighs the more babies from conservatives trend; it's similar to the Mormon argument."
The Wikipedia article on the LDS cites two different annual growth rates: one source had it at 1.6%, the other had it at 0%. Considering that the LDS has 13 million members, 1.6%, if true, it is a pretty significant number of people. Of course, not all of them are in the U.S., and the state residency distribution of those that are is obviously pretty heavy tailed.
You might be on to something with your quote above. If true, then it would seem inevitable that more authoritarian, patriarchal societies have much higher growth rates -- troubling stuff.
Adam, large parts of the country struck down laws banning interracial marriage before Loving V Virginia. Try harder.
That doesn't ring true at all, look at all the other states who have similiar ballot initatives. California is hardly alone. If California couldn't quash this, that shouldn't give you high hopes for other states.
This battle really isn't even over rights, it's over the word "marriage." The question "Why does a word matter so much" can be posed to both sides, and while the answer from the evangelicals and the traditionalists is clear, it's usually more murky from the other side.
Usually you just hear "Marriage" conflated into "fully equivalent civil union" when that's not really what the anti-gay marriage folks even oppose (just look at what the NAE, the biggest evangelical organization, has to say about the issue).
I also find it hard to believe loving, in 1967, was the catalyst for the vast change in racial relations in this country. I think it's clear that loving was more the result of it. The civil rights movement had already made massive progress.
"You see, things that require a license from the state aren't rights, they're privileges. As such, the state gets to define the requirements thereof."
I would call this a petty semantic argument, but you do have a point. The government can (and did) define the requirements as people of the same race. Or only people born within six months of each other. Or whatever. The question, of course, is whether or not that's fair. I think it's clear to most people at this point that it wasn't fair to limit marriage to people of the same race.
The crux of the argument is that denying this privilege also denies a whole bunch of other privileges (see the 2:09 post). If you just want to argue that gay people shouldn't have any of those privileges, then argue that honestly. If you do support them having those privileges but feel it should be done while holding religious marriages to religious standards, then we have common ground to work with. I'd be interested to know which one it is.
"However, I doubt many concerned about gay marraige are very concerned about my right to own and/or carry a weapon to protect myself."
Although you aren't exactly part of a well-regulated militia, my view is that if you're in Montana you should be able to have pretty much anything you please, and if you live in downtown Detroit it probably makes sense to have more regulations, just from a practical standpoint. The "liberals will take our guns" is really overplayed, most of us just really don't care whether you have guns or not.
Blighter,
Sorry, I scrolled past a long post and didn't realize it was directed at me. I'll see if I can get to it.
Michael Farris,
One big argument for same sex marriage vs polygamy is that SSM doesn't require much (if any) rewriting of marriage laws, basically references to gender are eliminated (and in some cases aren't there anyway).
Is this really an "argument for same sex marriage vs. polygamy"? It's a reason that one might be easier to incorporate into existing legal structures than the other, sure. But if the right to marry whom you choose (presumed adult, consenting) is fundamental, you don't get to exclude certain cases because they're legally messy.
I don't think it's true, anyway, that "by and large people aren't practicing simultaneous polygamy in numbers." Not in this country, maybe, but we're talking about a tradition involving vast numbers of people and reams of elaborately worked out legal rules elsewhere in the world. If people say we have no legal precedents in place here, they're right; but if they say that no one on earth has ever dealt with issues of inheritance, child custody, and the like in a polygamous marriage, they're dreaming.
Can someone answer this: What is going to happen to the same-sex couples in California who have already married? Does the passage of Proposition 8 apply retroactively, meaning that these marriages are now invalid, or does it apply only to prospective same-sex marriages?
Hearing straights demanding that gays manage their expectations and put up with discrimination is making this homo sick to his stomach. I'm not an angry or vicious person, but I really do wish gay children on the lot of you. Maybe then you might understand the torment we're feeling right now.
Jay C - I wonder, though, if you would limit your contractual relationship idea solely to those residing together under one roof.
What if a polyamist couple has several households with different wives or husbands or other groupings? Would they not be able to create thier own relationship contract or should they have to find one huge house for all before they can have their rights recognized?
To Michael Farris, thanks to you too for actually engaging the issue and not just ignoring it or attempting to wish it away with vicious ad-hominem attacks.
A few things, though. First, you seem to be also raising the "yes, it's a right but a damned inconvenient one so best to let it lie" argument which seems morally dubious to me at best. Just because recognizing a minority's rights is difficult, it can be ignored?
Your second argument seems to be that polygamists unions are inherently un-equal and Western legal tradition is all about equality. I might point out that many traditional 2-person marriages work out to be very unequal as well. What if a gay marriage results in the one person staying home and thus sacrificing his career while the other works? Unequal. What if one makes all the financial decisions and the other all the food decisions? Unequal.
In short, this seems to be a mix of prejudice with a rehash of your "too tricky legally to worry about". I don't buy it.
Lastly, you seem to argue that being concerned with polygamist rights is unnecessary because they are such a small minority. So it's okay to deny rights to minorities so long as there are only a few of them? Where is the cut-off, just so I know? After all, there are vastly fewer gays than straight people in the world, perhaps there are few enough that we may safely disregard what they claim as their rights? Or perhaps Montana may safely disregard the rights of minorities seeing as it's so very white?
I think this argument fails as well.
"we're talking about a tradition involving vast numbers of people and reams of elaborately worked out legal rules elsewhere in the world. if they say that no one on earth has ever dealt with issues of inheritance, child custody, and the like in a polygamous marriage, they're dreaming."
I don't think those rules were all that elaborate. If I'm not mistaken in such cultures the women essentially have no rights and are treated as baby-making machines who don't inherit or get custody or anything else. Isn't this how the Mormons/FLDS polygamy worked anyway?
I'm not sure the complicated issues etc have actually ever been worked out with regards to polygamy assuming that women have the rights they currently do in America.
I have to agree with Michelle Dulak Thomson, saying that SSM is constitutional and Polygamy isn't because with SSM the clerks won't have to type as much is just, well, silly.
Megan said: "Okay, Mike, you win: no negotiation, and no gay marriage!"
OK Megan, since you want to negotiate, let's negotiate.
Since it is your idea, you go first.
As part of this negotiation, which of your basic human and civil rights are you willing to give up?
I'm not sure the complicated issues etc have actually ever been worked out with regards to polygamy assuming that women have the rights they currently do in America.
And if you've ever been in family court you might realize that even plain-jane traditional marriages can be complicated and messy in dissolution.
We already have a special court, specialized lawyers (both for custody and divorce), laws, etc...
Like I said, saying that technical issues can forbid constitutional protections is just, well, silly.
Blighter,
I think the argument against polygamy comes more from the standpoint that it creates a really bad culture for women and takes a utilitarian perspective that the rights of would-be polygamists are outweighed by the rights of the people who would be exploited under it (often, all the wives). I don't think this standard applies for gay marriage: who's rights are at risk if it's enacted? The rights of heterosexual couples to feel special? That's all I can think of, and that's pretty weak.
There are folks who are arguing if gay marriage, then why not polygamy, incest, bestiality, etc. Aside from the fact that the comparison is deeply insulting to gay people, as a practical matter aren't all those activities illegal? Last time I checked being gay wasn't illegal (even in Utah). It is kind of silly to say that we are comfortable with gay relationships, gay sex, gay designers, gay TV shows, etc. However, gay folks can't marry under civil law because that would bring down society. Think about the children!
Canada allows gay marriage where interestingly the change (I think) was started by a favorable court decision. Their society seems to be doing fine - hasn't quite devolved to Sodom and Gomorrah yet. Who knows – maybe the wrath of God might be just around the corner.
"And if you've ever been in family court you might realize that even plain-jane traditional marriages can be complicated and messy in dissolution."
Well, yes, but you've dodged the point. You said all these issues have presumably already been worked out since polygamy has a long history in many cultures. I really don't think they have, at all. That's also completely irrelevant to whether it should be legal, as you correctly said. I was just responding to your assertion.
Hahahhahahahah.... California voted proposition 8 into being. Can somebody explain to me how banning Gay marriage accomplishes anything other than a chorus of "Boooo!" Legalizing it doesn't seem much better, the gay jokes won't go away with a ring on a finger. I'm sick I guess, I don't think it matters either way, would you call that Bi?
drlivipr is instightful in two ways:
1. If Roe v. Wade had never been decided - or had been decided differently - abortion would not be an issue in most elections. Several states including California had legalized abortion in the years prior to Roe, and many more were moving that way. By forcing the states to address the issue before they were ready - and in some cases to make rules that they would not have made on their own - Roe made abortion an enduring issue and created the religious right. The attempt to obtain gay marriage in the courts is doing exactly the same thing.
2. It's true that gays would get more support for acceptance if they didn't demand approval. But they have acceptance - a civil union is the functional equivalent of marriage in California in every respect. Asking for the union to be called a marriage is essentially to seek approval. And you can't switch that desire for approval off - maybe Adam won't demand that churches recognize gay marriage, but somebody will. Catholic bishops have been sued for hate speech in Canada for opposing gay marriage post-legalization.
Gay sex disgusts me and lots of other people, but you don't see us beating gays up or mocking them in public or asking the cops to close down their bars. We tolerate them. Maybe in time we could be persuaded to do more than that. Forcing us to do so through the courts will just cause us to get our backs up. Which is what just happened in California and has happened in dozens of states now.
Does anyone know how easy it is for one to legally change their gender? If it is trivial to legally change one's gender, couldn't a gay couple get married anyway by having one partner officially change their gender. Obviously not the most desirable way to do it, but is it a legal possibility?
I suppose the question here is: why shouldn't 3 or more people in love be allowed to contractually bind themselves in marriage?
There really isn't any reason not to let them as far as I can see. Since the government is in the business of marriage, and marriage provides a large number of privileges that civil unions do not.
But the question I would pose is: What IS wrong with polygamous marriages? Can someone come up with a good reason at all? The people who brought it up in the first place seem to think polygamy is bad, but why?
As for the arguments about fecundity, the culture wars in America over gays ended once gays stopped staying in the closet. It's not like Iran where the President can claim they don't exist.
The more people realized that gay people are all around them and are normal people with the same hopes and dreams of anyone else, the more the youth believe that. It doesn't matter if the population of people breeding rises, they will still produce gay children. And then what?
In larger families, there WILL be a gay brother or sister, and denying family and friends the ability to marry the one they love generally ends up as a nonstarter, which is probably why the youth trend is towards pro-gay marriage.
In black communities, gays are still to this day ostracized and feel a need to stay in the closet. There is a very strong threat of violence to gay blacks, which is why the visibility level is low in their communities.
I would argue part of this is associated with levels of education and poverty, as the areas with higher levels of poverty tend to vote against gay marriage.
"maybe Adam won't demand that churches recognize gay marriage, but somebody will."
Well, you're right, I really don't think churches should have anything to do with it. I'm sure others will, and they're wrong for doing so. That doesn't make equal status wrong. Also, and more importantly, most of the people who really don't like gay marriage aren't civil union supporters. They just don't support gays having equal rights. You're apparently not one of those people, so that's cool. All I can say is that if civil unions actually did give the exact same rights, there'd be a lot less to complain about. Again, see the 2:09 post.
"Gay sex disgusts me and lots of other people, but you don't see us beating gays up or mocking them in public or asking the cops to close down their bars. We tolerate them."
Who's us? All non-gay people? Because where I live all those things certainly do happen on a regular basis.
Does anyone know how easy it is for one to legally change their gender?
It's extremely hard, involving surgery, and in some states it's impossible. There has been at least one legally-recognized lesbian wedding in Texas (!) which involved a transsexual ex-man and a born woman. One of the family values organizations even endorsed it on the grounds that what they do in the bedroom is their own business as long as their chromosomes are correct.
No, really, look it up.
"you don't get to exclude certain cases because they're legally messy."
Of course not, you also don't necessarily deal with certain messy cases until there's a proven need. There are enough same sex households in marriage-like arrangements that their status really should be defined. Voting in favor of a ban on SSM is punting on the underlying issue.
"we're talking about a tradition involving vast numbers of people and reams of elaborately worked out legal rules elsewhere in the world. If people say we have no legal precedents in place here, they're right; but if they say that no one on earth has ever dealt with issues of inheritance, child custody, and the like in a polygamous marriage, they're dreaming."
Yeah, I agree, but, there are two problems:
1. 'which polygamy'? Chinese polygamy differed from Islamic polygamy which differs from traditional African polygamy (which differs from ....)
2. I bet that the laws governing polygamy in societies where it's regulated can't be transferred to the US. They'd have to be either be gender neutral (not husband and wife but spouse and spouse and spouse and ...) which would open up all sorts of new cans of worms or they'd institutionalize kinds of equality that Americans find distasteful and which would be easily challengeable (in cases I have any knowledge of senior wives have more rights than junior wives, but try to encode that into US law at any level and count the micro-seconds until it's challenged by junior wife who wants to know why senior wife inherited more when their shared husband croaked).
Again, trying to legally codify any kind of polygamy in the US would be very tough, even if the polygamous section of society grows large enough.
The polyamory movement (such as it is) might grow enough in some years that these issues will have to be addressed (at which point we'll have to figure out how to deal with people in such households) but it differs enough from most traditional kinds of polygamy (mostly by being gender neutral) that traditional legal approaches to polygamy won't really apply.
"By forcing the states to address the issue before they were ready - and in some cases to make rules that they would not have made on their own - Roe made abortion an enduring issue and created the religious right."
Well, kind of. You nailed the relevant part: they wouldn't have made the rules on their own. This area includes basically every state that went red yesterday. So what you get is large parts of the country where the options for abortion are: driving hundreds and hundreds of miles (something poor single pregnant women can't afford), unsafe backalley abortions, or a coathanger. One of those is *going* to happen if someone really doesn't want a baby.
So, would it be worth a third or half being in that situation for years or decades to try to limit the culture war effect? At some point the good done by a court decision outweighs that I think, but you might conclude differently.
"Does anyone know how easy it is for one to legally change their gender?"
I don't know, but this thread is making me wonder about the legal ramifications of a sex change operations on one's selective service registration status. If a male federal employee is about to lose his job because it was suddenly discovered that he never registered for the selective service, will having a sex change operation get him off the hook?
Gay sex disgusts me and lots of other people, but you don't see us beating gays up or mocking them in public or asking the cops to close down their bars.
No, what you find disgusting is the aesthetics of a penis pushing up another man's rectum, which is why you privately think of gay men as filthy sodomites. I'm pretty sure you have no objection to the other side of the coin: seeing two beautiful women locked in passionate cunniliungus with one another.
The next time you masturbate to hawt lesbians, think about how you made a decision to deny them the right to marry each other based solely on your personal disgust with male gay sex.
Dick.
the prop 8 result really sucks - especially given that it was California. Really surprising.
Well, at least hens will be able to turn around now. They will not be able to pick a partner, friend, of their liking or have any babies (they are constantly "pregnant" but can never take care of their young). They will not see daylight and will not breath fresh air. They will all die young, and on antibiotics. But.. they will be able to turn around. Success!
I swear to god - the day that gay partners can use the legal term "married" - them chickens will be able to breath fresh air for the first time in their lives? I can envision a day were homophobe is the real "bad" word and not homosexual. It's sometimes tough to envision a world where intelligent, innocent, emotional beings are not imprisoned and treated as objects only because they belong to the wrong... specie?
"In short, this seems to be a mix of prejudice with a rehash of your "too tricky legally to worry about". I don't buy it."
No, I have no theoretical objections to polygamy* as long as all the parties are of legal age and willing. I'm just saying there's no need to work out the legal protocals (which will be hellaciously complicated) until there's a visible need, which there isn't at present.
The SSM issue is different. 50 years ago gay couples living openly as household partners was a rarity (if legal at all). Given the small number of gay people it's still not visible everywhere but it's an option that more and more gay people follow. I'd say enough gay people want to get married or are living in marriage-like arrangements that the legal protocals need to be worked out for the protection of all concerned.
*I have some practical objections in that polygamy could be used for extended immigration and it's generally not compatible with full womens' rights and getting young men off the street into a family but those shouldn't necessarily be used as legal arguments against it.
because they belong to the wrong... specie?
I must have misunderstood what was meant by the "Golden Goose." :)
Adam,
I think, you know, that you underrate non-Western legal systems a bit. I hold no brief for the traditional Muslim legal treatment of women, but I believe that even under Islamic law women can and do inherit, and there is such a thing as a woman divorcing her husband (and not just the reverse).
In any case, though, that something presents legal complications ought not to prevent our addressing it if it really implicates a fundamental right. I imagine we could have avoided the various legal messes attending, say, the breakup of a lesbian couple where one is a natural and the other an adoptive parent, and custody is fought, simply by assigning custody automatically to the natural parent. Right answer?
But you go on to argue that it's not really the complication that bothers you, but the institution:
I think the argument against polygamy comes more from the standpoint that it creates a really bad culture for women and takes a utilitarian perspective that the rights of would-be polygamists are outweighed by the rights of the people who would be exploited under it (often, all the wives).
So the rights of "would-be polygamists" that is, all who would be married this way if we were to legalize polygamy are outweighed by the rights of those "who would be exploited under it," who include, interestingly, a large majority of the same "would-be polygamists."
No harm in being a paternalist, I suppose, as long as you realize that's what you're doing. For myself, I can't imagine being in a plural marriage, but I can see a difference between counseling a friend against entering one and legally forbidding her marrying whom she likes, "for her own good."
(For what it's worth, I'm not actually keen to legalize polygamy; I'm trying more to articulate internally why I'm not. And neither the "It's just too complicated" argument nor the "We must protect the women from themselves!" one really cuts it for me.)
There are lots of states without civil unions.
Once you've known someone whose had the family of his recently deceased longtime partner (who he couldn't even stay in the hospital with) ransack his home for belongings like heathens regardless of the will, it's difficult not to get behind civil unions or gay marriage.
However, once you find out that civil unions do not give the same protections of marriage on a federal level (e.g. it causes a whole mess of problems if you have to worry about moving out of state or problems if a partner died out of state, problems which a marriage that truly gave equal rights already address).
Is this saying an American should never leave the state he lives in because of fear of losing this?
Doesn't this affect the ability of one to get a job out of state immensely?
The problem is that a lot of people here don't realize is that there are immense legal problems in day-to-day life that gay people in civil unions or contractual unions have to deal with that aren't covered.
And allowing marriage to a group of people who will always remain a minority? How does this truly affect marriage? Marriage has shifted in conception greatly over the last 200 years. The moment that the concept of the individual was conceived was a deathblow for the old feudal forms of marriage in binding families together for monetary reasons.
Rob Lyman--as late as the 1950s, castration and clitorodectomies were considered treatments for being homosexual. Yes, in America. People didn't know many gay people because of involuntary institutionalization.
Admittedly if you gave me a choice between being murdered by a mob and being genitally mutilated and thrown into a mental home, I would not think much of those choices.
But you are comparing apples and oranges. Yesterday's homosexual generation couldn't get married or be out; today's still can't get married. That's still a civil rights issue.
However, once you find out that civil unions do not give the same protections of marriage on a federal level
Neither will "marriage" at the state level, until DOMA is repealed. And once it is, civil unions will likely work just fine. Social Security, for instance, gives benefits to a common-law spouse if that person has the right to inherit from an intestate decedent, even if there is no formal marriage. So if civil unions give inheritance rights, then the repeal of DOMA solves the problem for SS.
"I believe that even under Islamic law women can and do inherit, and there is such a thing as a woman divorcing her husband (and not just the reverse)."
My bad, I was unaware of this. My cultural ignorance is showing, I suppose.
"No harm in being a paternalist, I suppose, as long as you realize that's what you're doing."
Yeah, I'm making that argument under a paternalist viewpoint. If the historical polygamous relationships we had to go on were all hippy commune type stuff where everyone lived in peace and harmony with nature and each other in one giant marriage, I'd have a hard time not justifying allowing that kind of thing. Whatever makes them happy.
But, what we have to go on is that in areas where this has happened it's virtually always one man/many wives, the wives are generally kept uneducated and treated poorly, and young men are often tossed out of the community so as to not compete with the people who like adding another 15-year-old wife.
So, while I'm not convinced it's inherently wrong, based on what we have to go on it's safe to say having it legal leads to bad things. So it shouldn't be legal. The argument against gay marriage can work the same way I think: if it really *did* lead to the destruction of moral society and a large blow to the nuclear family, yeah it probably wouldn't be a good idea to have it. And in fact that's a big part of the arguments made by Yes on 8 commercials. But it's clearly not true, whereas polygamy is much more likely to have bad results. I liken it to laws requiring seatbelts: sometimes you *do* have to save people from themselves because the consequences of not doing so can be bad. Megan and some posters here may not agree with seatbelt laws, of course, so normal caveats apply.
Rob Lyman--as late as the 1950s, castration and clitorodectomies were considered treatments for being homosexual.
So? What's your point? Comparing not being able to get "married," especially if you can get a civil union, to getting bitten by police dogs while peacefully demanding the right to vote is 1) ridiculous, and 2) likely to piss off black people. Likewise the comparison to being prosecuted for getting married vs. not being able to call yourself "married."
Feel free to do it if you like, but if you stop, you'll win more often.
Yeah, you're right Rob. The correct persuasive argument isn't "we're gay and proud and we demand equal rights" but rather "look, we just want to settle down with our chosen person and buy a house and raise kids, is that so bad?" People who actually know gay couples are much, much less resistant to the idea. Make it about actual people instead of concepts like rights.
My point is that if you're going to compare those two, you're going to have to look at the big picture. What, do I need to bring up the Spaniards literally throwing homosexual Native Americans to the dogs, now?
It's true nobody wins in atrocity contest, but at the same time, your pretending this is just about a slice of cake is *not* reflective of the truth. This is about equality.
What am I winning, a pony? :D
Whoever argued that marriage is a privilege and not a right early should consider taking that privilege away from some of the people who have it, particularly if they're post-menopausal or infertile.
Just saying.
Dale Carpenter, a Civil Rights law professor at the libertarian Volokh Conspiracy, disagrees with you:
"Despite the ads by the Yes on 8 campaign trying to stoke populist resentment of activist judges, I doubt that many people who otherwise supported gay marriage voted for Prop 8 just to smite the arrogant tyrants in black robes."
I think he's right in his analysis. People are still hostile to homosexuality in general and homosexual marriage in particular. Arguing otherwise is like arguing that opposition to the Civil Rights movement in Alabama really was driven by a principled notion of constitutional nullification.
Adam - you just put your finger on the standard argument against gay marriage - "it creates a really bad culture for" children, from a utilitarian standpoint. Because it's part of an overall trend of treating marriage as a contract for the sake of spouses, rather than a contract for the children. Note that this argument applies also to incest and polygamy - both cases make it much more likely for any children involved to have a difficult life.
Now, I think the battle for marriage as a contract for the sake of the children is a lost cause, when no fault divorces became common. And from the perspective of a contract for the sake of the spouses, there's no reason to exclude gays (or polygamists, or incest).
But really, if there's no children involved, the state's interest in being involved in marriage evaporates, too, since everyone involved is a consenting, capable independent adult who can take care of himself, presumably.
On a unrelated note, Megan's pointing out that Prop 8 and the like has the side issue of finding out what happens when government changes the rules arbitrarily. If I were in CA, I would have considered voting for Prop 8 just to constrain the judges, similarly to voting for divided government or against a tax measure that would fund something valuable - not because of the issue itself, but to set the precedent that the government needs to back off. Frankly, I think an unconstrained government is a much greater evil than a lack of marriage for gays, which is what that ad campaign you were complaining about is tapping into. And this is why Megan's suggesting the change in tactics to legislatures - that would let people like me look at the single issue of gay marriage rather than the package deal of gay marriage plus judicial changes in the law.
Megan: " the issue was pressed too quickly, and in the wrong venue."
The old "not here, not now, it's too soon" argument for gaining equality that, as I recall, was on the lips of every racist and fundmentalist Christian in my home state of Oklahoma before, during and after the Civil Rights Era.
Why is it that when the In-group doesn't want to acknowledge the Out-group, it's always too "early" or in the wrong place?
Sorry, Megan, but you might as well be the spokesperson for the Rev. Fred Phelps and his GodHateFags.com bashers.
"blacks will continue to resent the comparison"
"Homophobia is like racism and anti-Semitism and other forms of bigotry" - Coretta Scott King
I agree with Rob: As far as I can see, the repeal of DOMA would make CA civil unions basically identical to marriage so far as state and federal law goes, which is all to the good. (I'm assuming that under Prop. 8 the gay marriages that took place in the last few months will be reclassified as civil unions, but that's not an outright given, unfortunately there's a good post on volokh.com about the possibilities.)
Michael Farris: Yeah, there are different polygamous traditions out there, and the associated legal systems are different. Would it be so impossible to allow the marrying parties to draw up their own contract, or at least specify under which rules they wanted their marriage to be treated? All I meant was that the potentially hairy legal situations involving polygamy have nearly all been dealt with somewhere; it's not like law has to be made up out of whole cloth.
The SSM issue is different. 50 years ago gay couples living openly as household partners was a rarity (if legal at all). Given the small number of gay people it's still not visible everywhere but it's an option that more and more gay people follow. I'd say enough gay people want to get married or are living in marriage-like arrangements that the legal protocals need to be worked out for the protection of all concerned.
But the legal protocols for this situation are already there. At least, they were in CA before June; what wasn't was the word "marriage."
And I wasn't on this earth 50 years ago, but I'd bet anything that a lot of gay couples setting up households together already were thinly disguised as "sisters" or "cousins" or "old friends" or the like. Whether that counts as "openly" I don't know, but I doubt that their neighbors were actively deceived.
this is a typically incompetent libertarian argument. Gays were dened access to the political and legal system in Romer v. Evans. Furthermore, since Prop 8 takes established rights away, it can't successfully amend the CA constitution by a simple popular majority.
So, Adam, as long as they agree with you about the proper role of men and women in a relationship, polygamy is fine, but if they have different opinions, then we should forbid the institution because it's bad for them, and probably bad for us? Pardon, but isn't that the argument against gay marriage?
Mike, etc: I'm not interested in getting rid of gay marriage, so I don't know what I should negotiate. I just think this is the wrong way to achieve it.
I don't understand all the fuss. Nobody has ever taken away the legal right of homosexuals to marry. The law treats homosexuals and heterosexuals exactly the same way: Just find a willing person of the opposite sex and get hitched. Marriage does not, and never has, come with a guaranty of happiness or sexual satisfaction. Obviously, homosexuals don't want equality, they want new laws that give them special treatment to accommodate and mandate respect for their abnormal personality characteristics.
Rob Lyman, not being able to get married, for me, means not being able to live in the United States, my native country, with the woman I have loved for the past 26 years.
Megan McArdle, you wrote this:
Okay, Mike, you win: no negotiation, and no gay marriage! Much better than working through the legislature, I agree.
Posted by Megan McArdle | November 5, 2008 1:20 PM
Here's a thought: Good luck enforcing your bigoted views at the expense of other people's basic civil rights (and their children's!) with a 2 percent mandate.
Here's another thought: You're even stupider than I thought you were the last time I came here, about nine months ago.
Here's Cheney's thought: Go f*ck yourself.
"Adam, large parts of the country struck down laws banning interracial marriage before Loving V Virginia."
But Virginia didn't. Don't forget that Loving was a US Supreme Court case, whereas the California case was a state Supreme Court. Generally, you can't overturn a SCOTUS decision with a state referendum. Not that that stopped states from trying. Some states closed their public schools in order to avoid desegregation.
The polling of the time had an overwhelming majority of Americans, nationwide, against interracial marriage - 72% in the year Loving was decided. (If Prop 8 loses, it will lose by 51-49, right?) It wasn't until the 1990's that interracial marriage was supported by a majority of those polled.
If Loving were a Virginia supreme court decision instead of a SCOTUS decision, do you really think they'd have had a problem getting 51% of the electorate to vote to reinstate the ban?
Compare the polling done in Massachusetts about gay marriage. It appears clear that the decision there pulled popular opinion with it as Massachusetts residents became comfortable with gay marriage. What's the difference between Massachusetts' experience, Loving and California's? It's much more difficult to amend the Massachusetts constitution than California's. It's almost infinitely more difficult to amend the US Constitution.
The best conclusion that can be drawn here is that this is the wrong way to approach civil rights if you have an embarrassingly easy to amend constitution. Ask yourself how likely Brown v. Board of education or Loving would have faired if a simple majority of the electorate could have overturned those rulings.
Just read on Volokh that gay marriage initiatives are 0 for 30. So I question whether going through the legislatures is the best approach. One day the Supreme Court will rule on this, it'll be just as unpopular as Brown v. Board was when it was decided, but eventually people will get over it.
Sorry Megan, you are wrong on this one. Separate but equal isn't equality at all.
When Lincoln freed the slaves, the majority of Americans thought that Africans were inferior. Just because a majority thinks discrimination is wrong doesn't make it right.
This is exactly the kind of case a Supreme Court should require equality. That is why you Megan, are wrong on this one.
Megan, as Eugene Volokh points out, Prop. 22 entails that the California legislature can't just pass same-sex marriage (though they tried to). After 2000, any enactment of same-sex marriage would have to be either through the courts or by referendum.
"Just find a willing person of the opposite sex and get hitched. Marriage does not, and never has, come with a guaranty of happiness or sexual satisfaction."
Glib, poorly reasoned, and bigoted! Well done!
This is like telling people they are free to worship, so long as they worship in the manner the state proscribes, rather than in the manner their conscience demands.
First, begin surprised that it passed seems a little naive. Prop 22 passed with 61% of the vote only 8 years ago (only 37% against it). Second, the implication that it passing was in part due to judicial activism rather than animus against or discomfort with gay people is silly. Finally, constitutional amendments against gay marriage pass in states with or without court cases. Without court cases, we would have no civil unions (spurred by the VT court decision) and no gay marriage anywhere.
Rob Lyman, not being able to get married, for me, means not being able to live in the United States, my native country, with the woman I have loved for the past 26 years.
kate? I'm on your side here. As I've said above, I support gay marriage. And I'm offering strategic and tactical advice from the perspective of a straight conservative to make it more likely to come about. If you tell your sad story, people might change their minds (or they might wonder why your partner couldn't immigrate through some other means, as millions do). If you huff and puff about how your situation is as bad as being a black guy in 1958, people will think (for good reason) you're a loon.
"So, Adam, as long as they agree with you about the proper role of men and women in a relationship, polygamy is fine, but if they have different opinions, then we should forbid the institution because it's bad for them, and probably bad for us? Pardon, but isn't that the argument against gay marriage?"
I think you're misreading it a bit, Megan. I wasn't arguing that "having the proper role of men and women" in a traditional family values sense is the key, but that the actual roles of men and women in polygamy are clearly harmful to some of the people involved (all the women). If whatever the roles happened to be weren't harmful, I'd have a harder case to make opposing it.
And yes, that argument or something close to it is used somewhat to oppose gay marriage. The difference is that there *isn't* anything harmful to the people involved in it. The harm, if any, is argued to be that the traditional husband/wife/children household isn't the only model anymore. I see this as a feature, not a bug.
People keep talking about Prop 8 as though it were a rebuke to the courts. Prop 8 was on the ballot before the court ruled. Yes, everyone was expecting a decision, but the folks behind prop 8 expected to win. I was standing right behind their legal team when the decision was released. They were surprised, very surprised.
The point of Prop 8 was to remove the issue from the Legislature and the Governor (cowardly Ahnuld) because they had already passed same-sex marriage TWICE.
What's so "democratic" about removing an issue from consideration by enshrining bigotry in a constitution?
Re: The gay community is in exactly the same position regarding full participation in society as blacks were prior to the civil rights movement.
Here I have to agree with Megan: this is a false analogy. Blacks under Jim Crow were actually disenfranhised, with rare exceptions. Gays most definitely are not. We can (and should) vote for candidates that favor our interests and proposals. We have an open path to change the system via the usual and normal means. Blacks did not-- the Courts were their only recourse. IMO, marriage advocates in CA should have waited until a Democrat held office in Sacramento again, then pressed the legislature to repeat its pro-gay marriage bill. The efect of a legislature enacting anmd a overnor signing such a bill would be a tremendous boost to teh cause, stripping the "judicial activism" argument from the Right's arsenal.
Re: . 50 years ago gay couples living openly as household partners was a rarity
A lot of homosexual partners did live together, but didn't bother to explain the situation, although in many cases their neighbors knew darn well what was up with those "maiden ladies" or "confirmed bachelors" down the street, but as long as no one mentioned it, it was acceptable.
DEAR MEGAN:
It is not the courts' job to uphold the precise will of the majority of the people. That's what elections are for. The job of the courts is to uphold the Constitution, regardless of whether the necessary decisions fall in line with the will of the majority. It is up to the judges to determine, without bias from the rest of the population, what constitutes equality under the law, or equal protection. It seems more than obvious to me that to exclude Gays from the institution of marriage is a clear violation of any notion of "equality," and I have yet to see anyone dispute that on a rational level. Therefore, it is not "activism" on the part of judges to declare that Gay and Straight couples should be treated equally under the law, rather it is an example of judges performing their rightful duty.
What would you have Gay Americans like myself DO? We are just as much law-abiding, taxpaying citizens as our Straight counterparts. Are we supposed to happily go along with the status quo, contentedly contributing to the system of financial and legal incentives that marriage provides for couples, while those incentives are forever out of reach for US? Shall we just hope that the "democratic legislative process" might eventually see fit to even the playing field between Gay and Straight Americans? In West Virginia where I live, lawmakers are reluctant to even ban job discrimination against Gay people for fear of the political backlash from religious conservatives.
Let's face it, Megan: Sometimes the courts have to be FORCED to take a stand, since what's popular and traditional is not always constitutional. I fail to see how equal protection under the law is some sort of radical, "activist" notion.
Just find a willing person of the opposite sex and get hitched.
In fact, no county will grant a marriage license to a couple if they have reason to believe that one of them is concealing homosexual orientation, since that's grounds for annulment. It's certainly a type of fraud.
So, in fact, as a gay person you can't simply marry someone of the opposite sex.
And, really, isn't this just "any color you want as long as its black"? Only more like "any marriage you want as long as its straight."
Tony writes:
"This is like telling people they are free to worship, so long as they worship in the manner the state proscribes, rather than in the manner their conscience demands."
This doesn't help you much with the arguments belittling gay marriage as no different than polygamous marriage or incestuous marriage.
So which one is it: are you asking for the special right to marry a member of the same sex, or you asking that _any_ voluntary association among a group of persons be construed as marriage?
"are you asking for the special right to marry a member of the same sex, or you asking that _any_ voluntary association among a group of persons be construed as marriage?"
Nobody's asking for the second. You know that. It is purely about extending the definition of marriage (the governmental, not religious institution), just as it was previously restricted to one man and one woman from earlier polygamous times and then recently extended to allow spouses of different races. You seem to think its definition has never changed.
And yes, it is very similar to being told certain forms of worship are acceptable. People can wish to change theocracies to places where one can worship freely but not wish to change worship to include child sacrifice. One of those changes should be allowed; one should not, because one is harmful. Same here.
Blacks under Jim Crow were actually disenfranhised
Jim Crow laws were struck down in 1964, but Kansas never had ballot access restrictions. Blacks had as much access to the Kansas legislative process as anyone else, yet in 1954, they resorted to the courts to strike down educational segregation. It's Brown v. Topeka Board of Education. The fact of the matter is that no amount of ballot access could make up for the fact that the majority of the people in Topeka were white and if that majority wanted to segregate the elementary schools, it could do so.
Regarding the polygamy canard, I recommend Rock Salting the Slippery Slope: Why same sex marriage is not a commitment to polygamous marriage.
Staash has the right idea here. Not just any contract between two people can be considered "marriage". It has to be between the right kinds of people, and it has to be the right kind of contract.
This is why I think it should be illegal for Jews to marry. For one, it's obvious that Jewish "marriage" is bad for children. Any children raised by Jews are going to have a higher likelihood of growing up Jewish themselves. Plus, I, like Staash, find Judaism yucky. Clearly, for the children, we must preserve traditional marriage between a Christian man and a Christian woman.
Quick note regarding incestuous marriages: consent is murky because one is in a position of authority over the other. If it's an adult/child relationship, it's inherently abusive. The majority of sibling incest cases have an age disparity where one is much older and an equal question of coercion or consent issues.
The textbook case, where two siblings separated at birth meet and fall in love, is 1. tragic! but 2. rare to the vanishing point.
Gay relationships are no different than straight relationships in power construction, so they're not inherently abusive. Incestuous relationships are.
Yeah, I'm making that argument under a paternalist viewpoint. If the historical polygamous relationships we had to go on were all hippy commune type stuff where everyone lived in peace and harmony with nature and each other in one giant marriage, I'd have a hard time not justifying allowing that kind of thing. Whatever makes them happy.
Doesn't the fact that the arguments against polygamy are based something like "the common good" grounds really undercut the idea of marriage as a basic right? I mean if marriage is a basic right (and I tend to think it is, though I don't think access to all the federal and state goodies that come with marriage are necessarily rights), isn't it wrong to deny it to anyone?
Sharky: Heteronormative marriages also create scenarios in which one party is in a position of authority over the other. I posit that we ban all marriages BUT homosexual ones!
Megan writes:
"So, Adam, as long as they agree with you about the proper role of men and women in a relationship, polygamy is fine, but if they have different opinions, then we should forbid the institution because it's bad for them, and probably bad for us? Pardon, but isn't that the argument against gay marriage?"
Adam responds:
"And yes, that argument or something close to it is used somewhat to oppose gay marriage. The difference is that there *isn't* anything harmful to the people involved in it."
How is "anything harmful to the people involved" (which you wrote) any different for "bad for them" (which Megan wrote)?
If "marriage" and "spouse" can be redefined by politicians or by judicial fiat to please a small minority of people who have abnormal sexual feelings, why can't we redefine sex itself? True social justice will never really exist until everyone is truly equal. We could legislate mandatory genital surgery to eradicate gender differences to guarantee true equality. Personally I would like to see the CA Supreme Court rule that multiple orgasms are unfair and unconstitutional. To end prejudice and promote social respect for all sexual variants, public schools should give students instruction on anal penetration, foot fetishes, and intercourse with animals.
Adam writes:
"One of those changes should be allowed; one should not, because one is harmful. Same here."
The problem here is that there's not a universal consensus on whether it is harmful or not. I'm sure gay marriage opponents could produce a number of statistics that could paint long-term gay partnerships as leading to shorter and unhappier lives. That's what makes it not as straightforward civil rights issue as gay advocates suggest.
blighter, certainly you can call me Ugly. Or Mr/Ms Truth, whatever you like.
Is it now? No, we both know it is not. But in future, I see no reason why it won't be.
My theory of progressive ideology says, generally, that things currently countercultural, but not too countercultural, are cool. Cool things tend to be adopted first by far-left snobs, who use them as social leverage over the squares. But because this tactic for gaining social superiority is copyable, eventually it is copied widely, and any particular progressive meme gets mainstreamed so much that it is no longer the exclusive ideology of the left. And then the progressive must move on to something else, if he is to continue to think himself better than his neighbor.
It is useful in this context to note a fillup to the general theory of progressive ideological ratcheting. Although in the long run progressive ideology might mainstream anything, it will always mainstream the least unpopular groups first. This makes sense within democracy, as practical politics. So, y'all polygynists (~0.5%?) who want social acceptance will have to wait for homosexuals (3%), at least. And the people wanting to marry box turtles (0.00001%) will have to wait even longer.
But in this particular case, well, it's not clear to me that polygyny will ever be cool. As you say, it's got some things going for it. Foreigners are countercultural almost by definition, which is cool. And they are also populous in a sense (and even more populous if we let in everyone on Earth who wants to immigrate, as progressives know we should). So if they are into polygyny, why not mainstream it?
But polygyny also has the unmistakable whiff of inequality to it, because a single man married to many wives is not equal to them. If you draw the relations as a graph, you get a single node which the others are connected through. Unequal, in progressivist thought, is inherently unfair, and cannot be tolerated. (In this analysis, a group marriage could be cool, whereas the actual form polygyny takes in traditional societies (concurrent one-to-one marriages) cannot.)
Furthermore, any kind of inequality where a man is superior to women (even a trivial sort of superiority, as this arguably is), is even more verboten than a man superior to men. It's patriarchy, and that's just plain evil. I'm not sure even rebranding polygyny as group marriage would overcome this.
Rob is right--as long as the gay community continues to equate their 'struggle' with the civil rights movement (over 300 years after the first African slaves arrived in America), they will continue to overwhemling lose our community. There is NO comparison--period.
@James McParland:
You're totally right. Any concept that can be "redefined by politicians or by judicial fiat to please a small minority of people who have abnormal... feelings" is a concept worthy of nothing but contempt. I'm glad you agree with me that the women shouldn't be allowed to vote. If the words "eligible" and "citizen" can be redefined by politicians in the 1920s to please a small minority of people who abnormally feel that women are intelligent enough to deserve suffrage, then why not just redefine gender itself?
"Doesn't the fact that the arguments against polygamy are based something like "the common good" grounds really undercut the idea of marriage as a basic right? I mean if marriage is a basic right (and I tend to think it is, though I don't think access to all the federal and state goodies that come with marriage are necessarily rights), isn't it wrong to deny it to anyone?"
Interesting point. Here's the thing: was it a basic right in polygamous societies for a man to have multiple wives? I mean, that's how marriage was defined then. If so, why doesn't he have that same basic right if he moves to a different country that isn't polygamous? It would be a lot easier to answer that question if marriage actually had a single definition that had never changed, because as is you can have several different definitions of marriage. Are they all basic rights? I really don't know, but I'm leaning towards saying it's not a basic right at all. I may just have gotten wrapped up in twisted logic so help me out.
Staash,
There isn't really a difference. The point I was making (or trying to) was that based on the roles that commonly occur in polygamy it's often harmful while gay marriage is not at all, and that's the reason for the difference, not anything about what the "proper role of men and women" are. Like I said, if whatever role men and women have in a relationship doesn't appear inherently harmful I'd have a harder time arguing against that relationship. It's just that polygamy falls into the category I think of being inherently harmful often enough. And no, I can't think of a hard and fast line for that, but I ink there is a very clear difference where the two situations are clearly on different sides of it.
"If "marriage" and "spouse" can be redefined by politicians or by judicial fiat to please a small minority of people who have abnormal sexual feelings"
Yeah, how dare judges and politicians try to redefine marriage to please those small minority of white women who have abnormal sexual feelings for black men!
as long as the gay community continues to equate their 'struggle' with the civil rights movement ... they will continue to overwhemling lose our community. There is NO comparison--period.
Not all African-Americans agree:
When my late husband, Richard, and I got married in Washington, DC in 1958, it wasn’t to make a political statement or start a fight. We were in love, and we wanted to be married.
We didn’t get married in Washington because we wanted to marry there. We did it there because the government wouldn’t allow us to marry back home in Virginia where we grew up, where we met, where we fell in love, and where we wanted to be together and build our family. You see, I am a woman of color and Richard was white, and at that time people believed it was okay to keep us from marrying because of their ideas of who should marry whom.
...
Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.
I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.
"The problem here is that there's not a universal consensus on whether it is harmful or not. I'm sure gay marriage opponents could produce a number of statistics that could paint long-term gay partnerships as leading to shorter and unhappier lives."
Well, then they need to produce those statistics so we can have an honest debate about them. Because to me it looks damn near like a consensus.
Forgive me, Adam, but you seem to me to be saying that you know that *their* relationships are bad for *them*, so it's okay to ban you, but they're wrong for thinking that your relationships are bad for you, so it's not okay . . .
How do you know that being in a consensual polygamous relationship, even one with typical patriarchal roles, will be bad for the women involved? What is your definition of "harm", and how are you more qualified to evaluate it than they are?
How do you know that being in a consensual polygamous relationship, even one with typical patriarchal roles, will be bad for the women involved?
Apropos of that, is it better to be retained as the first wife (with appropriate seniority) or cast aside when your husband meets a young bimbo?
And, should we deny women that choice?
Megan,
"How do you know that being in a consensual polygamous relationship, even one with typical patriarchal roles, will be bad for the women involved?"
I don't *know* per se. But I have a pretty good guess, based on what's historically happened to women in polygamous societies with typical patriarchal roles. I also don't *know* that leaving a child in the care of a crack addict mother will necessarily lead to bad things for the child, but it very likely will, so it's the government's responsibility to intrude on her freedom to raise a child to prevent harm. And I don't know if giving a driver's license to a 12-year-old will lead to someone getting hurt, but odds favor it. So he doesn't get freedom either.
"What is your definition of "harm", and how are you more qualified to evaluate it than they are?"
Obviously there's a very slippery slope about legislating harm, which is why I put in the caveat that if polygamy had historically been far less harmful than it has been the argument I make against it doesn't hold nearly as much weight. I would say that being involved in a relationship where you're treated effectively as property with little to no rights and are expected to do nothing but make babies counts as a sufficient level of harm to warrant intervention. I don't know what else qualifies. Someone else can draw the line instead of me who's more qualified, but I think the key point is that no matter where you draw it polygamy falls on the wrong side of it.
Yes, you can argue some women are treated like that in traditional marriages. All I can say is that the *level* to which this occurs in polygamy far outweighs any benefits of having it legal, which is not the same of either traditional or gay marriages. And yes, that means polygamous marriages that wouldn't have anything harmful happen in them get outlawed. Blame the Mormons for screwing it up.
I think you could have put the words you're saying in the mouth of a psychiatrist defining homosexuality as a disease in 1973. You have a pretty good idea it's harmful because it's weird and icky and people like us don't do it, just nasty foreigners with horrible religions who hate women. And women who believe in those religions are in the grip of a strange and twisted cultural force, from which they must be liberated by those who have superior cultural values.
@blighter: Can anyone point me towards an intelligent argument for why it is an enormous civil rights and equality issue that same-sex marriage be allowed but not an equally enormous civil rights and equality issue that polygamous marriage be allowed?
There are two main public policy reasons for not allowing polygamy. In every society I'm aware of, the rule is/was recognition of polygyny - one man, multiple women. In all those societies, the result was two bad results from a public policy POV:
- women were/are legally inferior to men and were, in many cases, no more than chattels. This is against the Western tradition where assymetry of rights is seen as bad. This is certainly true in many/most/all? of the Islamic societies where polygamy is allowed.
- it creates a pool of men that are sexually frustrated and unable to fully participate in society. There have been two approaches to solving this problem in the past: fight your neighbor to get more women and/or kill the surplus males (most tribal societies did this, also made polygny an adaptation to frequent warfare); or expel the surplus males from society (the current FLDS polygamists are said to do this). It will be interesting to see what China does as the generation born under the "one child per family" laws does - due to abortion for gender selection and out-country adoption of females they have an imbalance in their population.
Others have mentioned the problems in working out how to adapt our legal regime to handle polygamy - and relying on Islamic law to
I missed the first paragraph, as it contains an interesting point.
"you seem to me to be saying that you know that *their* relationships are bad for *them*, so it's okay to ban you, but they're wrong for thinking that your relationships are bad for you, so it's not okay . . ."
Yes, this is actually what I'm saying. Or rather, saying that 95% of their relationships are bad for some people involved while 1% of my relationships are bad for people involved. Or whatever numbers you want to insert. Just because both sides can claim the same thing about a type of relationship doesn't make both claims hold the same weight: one can be true and one false. I think this applies here. If it turns out both are actually true, then that I think should enter into the discussion.
"I think you could have put the words you're saying in the mouth of a psychiatrist defining homosexuality as a disease in 1973. You have a pretty good idea it's harmful because it's weird and icky and people like us don't do it, just nasty foreigners with horrible religions who hate women."
Sorry, I must have come off wrongly. I don't think polygamy is *inherently* harmful to the people involved. What I'm saying is that it's been tried many times in history and it almost always ends up harmful. It can be weird and icky and foreign and not hurt anyone. Or it can be weird and icky and foreign and consistently hurt people.
I think the homosexuality psychologists you refer to are just stuck on the weird and icky part as *making* it an inherently wrong behavior, instead of saying, as I am, that a weird and icky behavior isn't actually bad unless it consistently harms the people involved in it. They had no evidence that homosexuality was such a behavior then and they don't have evidence that gay marriage is now.
Got cut off in a paste:
Others have mentioned the problems in working out how to adapt our legal regime to handle polygamy and relying on Islamic law for guidance is problematic due to different legal foundations.
Oh - one other point. There have been a few societies with polyandry, mostly in isolated areas. Apparently it is not legal anywhere in the world right now, according to Wikipedia.
according to Wikipedia
The three most trusted words in information!
Look, either polygamy is bad and should be banned for reasons that have nothing to do with gay marriage or it's not bad and its supporters can argue for it in their turn. It's a bad slippery slope argument because, if it's bad then it should be banned for reasons that are unique to polygamy and if it's not bad then there's nothing to fear if polygamy is allowed.
It's a red herring. People have used similar slippery slopes to argue against allowing married women to own property, legalizing contraception, interracial marriages, making wives equal to husbands, and allowing divorce. (See EJ Graff, What is Marriage For)
Greg writes:
"Look, either polygamy is bad and should be banned for reasons that have nothing to do with gay marriage or it's not bad and its supporters can argue for it in their turn. It's a bad slippery slope argument because, if it's bad then it should be banned for reasons that are unique to polygamy and if it's not bad then there's nothing to fear if polygamy is allowed."
That makes sense until this issue ends up hitting the Supreme Court. At that point, how they rationalize their decision may open the door for polygamy, just like it's being argued that interracial marriage opens the door for gay marriage.
Adam,
Just out of curiosity, are you proposing banning polygamous living arrangements, or just refusing them legal recognition? Obviously if it's against women's interests to get married to a man with one or more wives already, it's even more so for them to live with him without any legal protection at all.
ech, Wikipedia may say that polyandry is illegal everywhere, but that doesn't mean it doesn't happen. I've read a few reports saying that it's on the rise in places where sex-selective abortion is playing havoc with the gender ratio. (Google "polyandry cnn" for a recent report from India about two brothers sharing a wife.)
"Just out of curiosity, are you proposing banning polygamous living arrangements, or just refusing them legal recognition?"
It comes down, again, to whether or not that living arrangment is clearly harmful. Something like the Mormon spinoff complex they found in Texas this year (I forget the initials) only without official marriages? If there's systemic self-evident harm to the people living there then yeah that's a social issue. Three people who just want to live together and have three-ways and share a bank account? Of course not. And yes, someone has to make that judgment call, just like they have to make the calls to take children away from certain households. I wouldn't say so much a ban as a case-by-case "this situation is really bad, let's fix it" policy.
The reason this differs from the blanket ban on polygamy is that you can't tell people that they can only get married if they're going to live in a good situation. I mean, you could have the policy, but there's no reasonable way to enforce it, so if an activity consistently leads to harm, you have to disallow the few times when it wouldn't.
"That makes sense until this issue ends up hitting the Supreme Court. At that point, how they rationalize their decision may open the door for polygamy, just like it's being argued that interracial marriage opens the door for gay marriage."
Which of course means that if gay marriage opens the door for polygamy, then since interracial marriage opened the door for gay marriage, interracial marriage should never have been allowed. You *do* realize that's the logical conclusion of what you're arguing?
At that point, how they rationalize their decision may open the door for polygamy, just like it's being argued that interracial marriage opens the door for gay marriage.
So we should have stopped before we got interracial marriage. It started this whole slippery slope. Of it, one commentator wrote that it would lead directly to "the father living with his daughter, the son with the mother, the brother with his sister, in lawful wedlock" and would bring forth children who would be "sickly, effeminate, and ... inferior."
Actually, I guess that skips a step, because isn't gay marriage going to lead to polygamy which will then lead to incest? Interracial marriage goes right to the incest. Now, allowing divorce, one commentator was "tantamount to polygamy," thereby throwing "the whole community...into a general prostitution," making us all "loathsome, abandoned wretches, and the offspring of Sodom and Gomorrah."
Of course, for every slippery slope there's an anti-slippery slope. Perhaps not allowing gay marriage will lead to polygamy as Andrew Koppelman has argued.
Again, I posted a link to an article called "Rock Salting the Slippery Slope," which, in 70 pages, points out the absolute inanity of these slippery slope arguments.
If polygamy is bad, ban polygamy. Figure out WHY it's bad, articulate that, then ban polygamy, not gay marriage.
I'm kind of confused about why we're trying to treat all polyamory the same way.
Why would polyamory be common enough to require a place in the legal system, first off? It's common in countries where it's to the woman's advantage to join one rich man because she'll never make a comparative amount, and it's common where countries formalize alliances by marrying off their spare daughters. Not here. Girls are raised to think of themselves as deserving one special man for themselves; men are raised to think of competing for the girl.
That leaves religious group marriages, which are inherently power-imbalanced; we know because you can't have one-woman, several-man marriages. Or check out the latest cult, where the girls were raised thinking they could not leave and had to marry a man who already had wives. There's icky power and consent issues all over those, and they'll never go mainstream.
If polygamy is bad, ban polygamy. Figure out WHY it's bad, articulate that, then ban polygamy, not gay marriage.
That's a fine idea, but as long as the gay community insists on talking about marriage as a fundamental human right, it doesn't work. Polygamous people can just take up the "fundamental human right" baton and run with it. If it's a "fundamental right," then pro-gay-marriage but anti-polygamy people need to articulate the deeply principled basis by which the two alleged "fundamental rights" can be distinguished, which they are failing at right here and now.
If, on the other hand, we were to discuss the issue in pragmatic terms--look at all these cute lesbians who want to adopt kids, or this heroic gay fireman with the appealing dark stubble who is worried his boyfriend won't get proper death benefits--then we need fear no slippery slope, because we don't need a deep principled reason to draw the line. We can just say "cute lesbians good, creepy overweight FLDS dude bad" and leave it at that.
Greg,
Look, either polygamy is bad and should be banned for reasons that have nothing to do with gay marriage or it's not bad and its supporters can argue for it in their turn.
No. Either the reasons we want gay marriage also logically demand that we support polygamy, in which case we ought to argue also for polygamy; or else they don't, in which case we can presumably explain clearly what the distinction we're drawing is. In neither case do we really have the right to blow off the logical consequence and say, "Oh, well, others can argue that if they feel like it."
For me, the case for gay marriage is simple enough: I know gay people who are as firmly wedded to one another as anyone I've met, and it seems to me simply mean not to call them "married," when half the legal marriages I know have crumbled within a decade.
I don't know anyone in a polygamous marriage, but until I do I am not going to assume that most of them are hopeless and helpless dupes under the control of a male tyrant. And if "the right to marry whom you choose" is what we are actually talking about, then we need a principled (as opposed to merely pragmatic) reason that we should stop at one spouse. If, on the other hand, the "right to marry whom you choose" isn't actually a right, but just the sort of thing that it might be nice to have around the country, so to speak, circumstances permitting well, then, we advocates of gay marrage have a higher barrier to clear.
Re: There have been two approaches to solving this problem in the past: fight your neighbor to get more women and/or kill the surplus males (most tribal societies did this, also made polygny an adaptation to frequent warfare); or expel the surplus males from society (the current FLDS polygamists are said to do this).
There's a third alternative: geld the suplus men. Polygamous societies generally had eunuchs too, often enough guarding the women. This by the way is why there are very few ancestral Black people in Middle Eastern societies despite the fact that the area relied in African slavery for centuries longer than the New World did. The African male slaves were almost always castrated preventing them from siring children. The biracial children of the African women were then absorbed into the majority population, contributing a bit of skin darkening to the gene pool, but not creating a separate racial group.
"And if "the right to marry whom you choose" is what we are actually talking about, then we need a principled (as opposed to merely pragmatic) reason that we should stop at one spouse."
Here's how I look at it. You should have a right unless there's a good reason you shouldn't. So you can argue that you should have the right to marry the one person you want of either sex because there's no good reason you shouldn't. But there are plenty of good reasons you shouldn't have the right to marry multiple people. The big one is what Sharky said:
"That leaves religious group marriages, which are inherently power-imbalanced; we know because you can't have one-woman, several-man marriages. Or check out the latest cult, where the girls were raised thinking they could not leave and had to marry a man who already had wives. There's icky power and consent issues all over those, and they'll never go mainstream."
While giving you alone the right to marry multiple people won't lead to this kind of situation, allowing it for everyone (which you have to) does, because those are the kinds of situations that happen under polygamy. So, the downside of allowing those situations to exist outweigh the benefits of having that right. Therefore, it's a right people shouldn't have. Similar logic can be used to show why you should have the right to consume alcohol and marijuana but not heroin and meth.
Reading through this comment thread, I have a hard time finding a solid basis for the argument that treats SSM as a right, but still disallows polygamy. The argument that we should deny someone a right that we extend to others because it might be bad for them doesn't hold water for me (As Megan pointed out that mirrors closely, if not identically, the logic used to disallow inter-racial marriages).
That leaves me rather nonplussed, since I think SSM is fine, and I think that polygamy is generally not (for all the reasons that Adam and others outline).
I'm not exactly sure what to do with this realization.
Adam,
It comes down, again, to whether or not that living arrangment is clearly harmful. Something like the Mormon spinoff complex they found in Texas this year (I forget the initials) only without official marriages? If there's systemic self-evident harm to the people living there then yeah that's a social issue. Three people who just want to live together and have three-ways and share a bank account? Of course not. And yes, someone has to make that judgment call, just like they have to make the calls to take children away from certain households. I wouldn't say so much a ban as a case-by-case "this situation is really bad, let's fix it" policy.
See, this is the sort of thing that spooks me. The FLDS case involved minors, and I think that was the only legal basis for intervening. You are talking "systemic self-evident harm to the people living there," which needn't involve children and might involve just about anything. "Someone," you say, "has to make that judgment call." What gives "someone" the right to do any such thing? I'm presuming you wouldn't call it a "judgment call" if it involved people held against their will or by threat of violence, so what sort of "systemic self-evident harm" do you mean, and how does it fail to be "self-evident" to the victims?
Maybe it's just me, but I can't imagine anything so amenable to tyranny as "a case-by-case 'this situation is really bad, let's fix it' policy." YMMV.
Andrews: the argument that treats SSM as a right while disallowing incest and polygamy: simple as "consenting adults."
We can't be sure polygamous marriages are consenting because of the way people in the US have to be raised in certain communities before they'll enter them. We also can't be sure because of the obvious power imbalance.
If you raise a child to think she must enter a polygamous marriage, aren't you interfering with her ability to enter the larger society? Consent and power issues galore.
But two unrelated adults who want to be married are two unrelated adults who want to be married. No consent questions.
"I'm not exactly sure what to do with this realization."
People exercise their first amendment rights in ways that are anti-social all the time: in churches, at Klan rallies, and especially here on this blog.
Fortunately our republic recognizes that when balancing individual liberties with the common good, there is generally less harm in allowing greater liberty and enduring some degree of mayhem from individuals, than in constraining liberty for the sake of order.
The possibility that some few instances of marriage will be anti-social is hardly a reason to exclude large numbers of people from the opportunity to marry in accordance with their conscience.
Michelle,
Yes, I see a lot of problems with what I posted. I pretty much only intended it to be applied to clear cult-like situations where people are being brainwashed. That's systemic self-evident harm.
As for the right to make judgment calls, well, if I'm not mistaken many states have laws that allow people to forcibly bring a clearly suicidal person to a mental hospital without their consent (they can only stay a couple days, but still). That's what I liken what I said to.
"I'm presuming you wouldn't call it a "judgment call" if it involved people held against their will or by threat of violence, so what sort of "systemic self-evident harm" do you mean, and how does it fail to be "self-evident" to the victims?"
Of course it's still a judgment call if it involves threats of violence. Who determines if it's threats of violence or not? Someone has to, a judge maybe, I don't know. As for how harm fails to be self-evident to the victims, I again point to the cult example. People in such situations typically don't know they're being harmed, and in fact, insist quite the opposite. But they are.
Also, I have no clue as to the actual laws regarding cults, so let me know if I'm way off base and there's currently no legal authority to do anything about them.
But yes, you're right about tyranny. I would hope that the benefits of intervening in such situations outweigh the costs of such power. I have no idea if they do, but if not, then it's a bad idea to have that power.
@ Adam: So what you get is large parts of the country where the options for abortion are: driving hundreds and hundreds of miles (something poor single pregnant women can't afford), unsafe backalley abortions, or a coathanger. One of those is *going* to happen if someone really doesn't want a baby.
Well, being an Olde Pharte, I remember life before Roe v. Wade, and apropos of the election, I remember the day Houston desegregated. (Yes, it pretty much happened in a day.)
It was not hard in any state, even Texas where Roe was brought, to get a safe and (sometimes) legal abortion. Almost every doctor knew of one or more that did them. All it took was a declaration of "if I have to have this baby, I'll kill myself" to allow an abortion for self-defense reasons. Or not even that. (Note: I'm not saying that the pre-Roe laws were great, just providing some historical context.)
@Rob Lyman:
That's why I added it! :-)
Adam,
Here's how I look at it. You should have a right unless there's a good reason you shouldn't.
How to put this gently?
That's not what we generally mean by a "right." If you were to say, for example, that the First Amendment grants you the right of freedom of religion, except not Islam, because that's backward and patriarchal, you might or might not have given a good reason to exclude Islam, but you're certainly not treating freedom of religion as a "right."
Andrews: the argument that treats SSM as a right while disallowing incest and polygamy: simple as "consenting adults.
So what about incest and polygamy between consenting adults?
The more I think about it, the more I'm thinking that Rob's position is the best one. Marriage isn't a right, but it's something we should extend to gay couples for a host of good reasons.
" Marriage isn't a right
How about masturbation? Any constitution protection for the right to diddle yourself? Scalia doesn't think so. How about you?
Well, if you're going to equate those, you might as well say that marriage between consenting adults of opposite sexes lead to polygamous and incestuous marriages!
Incest and polygamy can't be defined as consenting. If I need to explain it in a different way than I have already, please let me know how I can clear it up.
That's not what we generally mean by a "right."
Then I used the wrong word. You should have the freedom to do something unless there's a good reason you shouldn't. For me the words are largely interchangable; I guess that's not everyone.
As for your religion example: if your religion is based around sacrificing children or slavery, you don't have the right, freedom, or whatever to practice it. So I think my logic still holds.
"Any constitution protection for the right to diddle yourself? Scalia doesn't think so."
Seriously? I knew Scalia was bad, but I'd never heard of that. What case is it?
How about masturbation? Any constitution protection for the right to diddle yourself? Scalia doesn't think so. How about you?
I agree with Scalia; no constitutional protection. Ditto for contraception, abortion, sodomy. Not that I'm big on banning condoms, but I can separate my personal preferred policies from the Constitution.
How about masturbation? Any constitution protection for the right to diddle yourself? Scalia doesn't think so. How about you?
Assuming you're not doing it in public, sure.
I guess I'd refine the "Marriage isn't a right" position a bit. What I mean is that all of the federal and state benefits that come with marriage aren't rights, but state privileges, and I think those should be extended to gay couples who marry. But by acknowledging that they're not rights, there's no compelling reason to extend them beyond gay couples.
However, I would say that it's anyone's right to live with people as they see fit without interference from the government. So if they want to have a consensual, polygamous relationship, I think that's fine, but it's not something which should be given legal sanction.
From his decent in Lawrence v. Texas:
"State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices."
The reference to Bowers is from Owens v. State, 352 Md. 663, 683, 724 A. 2d 43, 53 (1999) (relying on Bowers in holding that "a person has no constitutional right to engage in sexual intercourse, at least outside of marriage")
This whole "if it's not explicitly in the text of the constitution, it's not protected" is *exactly* what the framers who opposed the Bill of Rights were afraid of.
Incest and polygamy can't be defined as consenting. If I need to explain it in a different way than I have already, please let me know how I can clear it up.
Cousin marriage and polygamy are fairly popular in broad swathes of the world. A lot of them are certainly coercive, but I think it's a stretch to say that they are definitionally so.
This whole "if it's not explicitly in the text of the constitution, it's not protected" is *exactly* what the framers who opposed the Bill of Rights were afraid of.
So do you think that there's a right to government sanctioned marriage, or just for two people to have a ceremony and spend their lives together. I think a case can be made for a right to the second, but I don't see the basis for a right to a marriage sanctioned and supported by the government.
sharky,
We can't be sure polygamous marriages are consenting because of the way people in the US have to be raised in certain communities before they'll enter them. We also can't be sure because of the obvious power imbalance.
and Adam,
I pretty much only intended it to be applied to clear cult-like situations where people are being brainwashed. That's systemic self-evident harm.
Question for you both: Are Amish people, in your opinion, competent to marry? Does their culture constitute brainwashing? Systemic self-evident harm? Is it the sort of thing only someone raised to acquiesce in it would accept?
And if so, what would you do, Adam, to fix the really-bad situation?
Well, not really, since you seem to think that the Constitution protects no right to any of those things. Of course, like many who feel this way, I'm sure you run to the refuge of "originalism" but in my opinion, anyone who thinks that we should be required to live under the understanding the Founders had of rights and privileges of citizenship as they existed at the time entirely misses the point of why they wrote the Constitution in the way they did in the first place.
Incidentally, McArdle is all wrong in arguing that seeking redress in the courts is merely some kind of strategy. Since some of us actually believe that marriage is a right that cannot be denied on the basis of sexual orientation, it entirely makes sense to seek to have that right vindicated in a courts of law. I do not expect people to wait to exercise this privilege simply because it's likely to offend Christian moralists who will be angered at the taking away of their power to deprive others of their rights through unconstitutional laws.
What, you mean "tell me why Amish communities aren't cults?" Okay.
Amish people can (and do) easily go in and out of Amish communities. They're raised with a knowledge of technology; it's just family tradition to reject it. They're certainly not penalized if they choose to leave the community, and the outside world is regarded as misguided but not downright evil.
In polygamous cults, those raised by the cults are trained to see the outside world as a threat they must be afraid to enter. If driven out, they're not allowed back. Family members don't talk to those who've escaped. Marriage is seen as a duty, not a choice.
By that measure there's no ride on a city bus either.
But the city does provide busses, and whether or where you sit on the bus isn't determined by whether you are romantically and erotically attracted to your own gender or the opposite gender.
If you'd like to campaign to get rid of government special recognition of committed erotic relationships, go ahead and make your case. I think on the balance marriage is a pro-social institution, but I try to stay openminded.
Meanwhile, Lawrence v Texas is the law of the land and their has not been, contrary to Scalia's fears, an outbreak of bestiality, bigamy, and adult incest. Similarly, levels of adultary, prostitution, obscenity, etc remain unchanged. That suggests that admitting that a man's right to suck another man's cock is protected by the constitution has not had any grave effects on society. (Okay, maybe masturbation is up.)
And even if there has been some modest rise in these various distasteful activities, I think a strong case that allowing gay men and women to enjoy private consensual adult relations without fear of arrest yields a pro-social benefit that dwarfs any of the anti-social effect from Scalia's cavalcade of perversions.
Does anyone really think recognizing gay men and lesbian women's committed relationships as "marriage" is going to unleash a host of anti-social effects? I mean hey zooz crisco, we put up with the Catholic church in the name of religious liberty. Surely we can stand a few married homos in the name of sexual liberty.
anyone who thinks that we should be required to live under the understanding the Founders had of rights and privileges of citizenship as they existed at the time entirely misses the point of why they wrote the Constitution in the way they did in the first place.
So you believe that we should eschew originalism because the Founders intended us to?
"Unfortunately, too many groups have decided that the success of civil rights can be widely applied to circumvent the electorate on issues where there is no public consensus."
It's pretty clear Megan knows nothing about American civics and our Constitution. I suggest she google "tyranny of the majority" before she wades into this realm. The rights of the minority are NOT subject to the will of the majority of the electorate. How do you feel about me getting to vote on your personal life, Megan? You wouldn't think it un-American and unconstitutional?
So, like, is the gay (male) version of an abortion having polyps removed from the old colon?
sharky,
OK, I'll accept that. But are all polygamous people in the US cultists? There are obviously people in this country who belong to polygamous traditions separate from the likes of the FLDS immigrants, or children of immigrants, from Africa and Asia. I'm unsure from what you've written whether you think women in these communities are capable of consenting freely to plural marriages or not.
"I agree with Scalia; no constitutional protection. Ditto for contraception, abortion, sodomy. Not that I'm big on banning condoms, but I can separate my personal preferred policies from the Constitution.",
How about wearing a blue shirt? Does the constitution protect my right to wear a blue shirt? Would a state law banning the wearing of blue shirts be constitutional?
contrary to Scalia's fears
Scalia's point has nothing to do with fears of increased masturbation. His point is that if morality cannot constitutionally be a basis for law, then a host of laws must, by that principle, be chucked out the window. He expressed, in typically exaggerated fashion, the same point that our gracious hostess and Michelle have been arguing here re: gay/polygamous marriage, namely that if sodomy is a right, so is every other form of non-coercive sexual behavior. It's the cost of declaring something a "right," as opposed to "something we choose not to ban."
As an aside, I have had the misfortune, as part of my legal career, to see woman/dog bestiality videos. The dogs showed every sign of enjoying themselves a great deal, so I don't think that consent can be denied.
How about wearing a blue shirt? Does the constitution protect my right to wear a blue shirt? Would a state law banning the wearing of blue shirts be constitutional
That would probably qualify as expressive activity protected by the First Amendment.
However, if the state were to, say, require the wearing of bright or reflective clothing while a pedestrian at night where there are no sidewalks or streetlights, contrary to your desperate desire to make an obscure political point by being hard to see, I think that would be a constitutional regulation of time, manner, and place.
Just because a law is shockingly stupid does not mean it is unconstitutional.
Hee. That's why in my original post I wrote that we have to be careful and specific.
Whether they're in those traditions or not, once women are here, it's unlikely they'll want to continue them in large numbers for the first reason I listed: women who have resources tend not to need to pick a partner they'll have to share.
Since men's increased pay in the US is not that great, I would be skeptical of any group of polygamous marriages where it's only women and one man. I'd suspect something culturally coercive was going on. The only true group marriage I'd trust to be equal would be a couple men and a couple women, and I don't think that would ever happen as an institution because it's utter legal spaghetti.
Polygamy's simply died out in Western civilization because industrialization made it non-advantageous for women and men.
Well actually, yes.
How does the choice to wear a shirt (blue or otherwise) differ from the choice to wear a condom?
Rob--an animal, by definition, cannot give informed consent.
"if sodomy is a right, so is every other form of non-coercive sexual behavior. It's the cost of declaring something a "right," as opposed to "something we choose not to ban."
So then is Scalia saying there is or there is not constitutional protection for vaginal/penile intercourse inside of marriage?
Rob--an animal, by definition, cannot give informed consent.
C'mon, you've never seen a dog hump someone's leg. And I tell you, there is some stuff on the internets ...let's just say the animal wasn't coerced.
I don't care what's on the internet. An animal can't be informed, nor can it give consent.
How does the choice to wear a shirt (blue or otherwise) differ from the choice to wear a condom?
If you wear the condom for an expressive purpose--to make a political point, say--then it would get First Amendment protection (assuming the condom itself isn't regarded as contraband). But purely private in-bedroom activity is by definition not expressive because it's private. And besides, that's no why you're wearing the condom anyway.
I was analogizing the blue shirt to, say, a black armband or a jacket saying "Fuck the draft." If you wear blue shirt for another purpose--e.g., camoflage to conceal yourself from the police--then that use could be constitutionally banned.
So then is Scalia saying there is or there is not constitutional protection for vaginal/penile intercourse inside of marriage?
In all probablity he would say that laws which regulate intramarital sex are constitutional, as would I. Mind you, I don't regard such laws (or many of the hypothetical laws under discussion) as legitimate or just exercises of state power, merely as constitutional. That is, I believe there are a great many stupid, unjust, and immoral laws which are nonetheless allowed by the Constitution. And there are also a goodly number of wise and important laws which are not authorized by the Constitution.
"But purely private in-bedroom activity is by definition not expressive because it's private.
So then the private journal that I keep is not protected speech?
So then the private journal that I keep is not protected speech?
Can the government forbid you to write certain things in a journal never intended for anyone else to see? It seems crazy to say yes, but I don't know of a case on point. Here are a couple of things to consider.
If you are a public employee, your First Amendment rights extend to public comment on issues affecting your employer, provided you don't disrupt the smooth functioning of your agency. So teachers can write letters to the editor about school policy. But on the other hand, there is no protection for a private communication to your boss; if you piss off the principal in his office, you can get canned. That is, there is a distinction between government reaction to public and private speech.
Second, to get any kind of protection at all, what you do must be expressive. Thus while a hunger strike might a protected form of expression, a particular diet pill is not.
So, when you put that condom on, you have two problems: first, you're not putting it on to express yourself, you're doing it because the pimp told you he'd kick your ass if you didn't. Second, the fact that you do it in private emphasizes the non-expressiveness of the act. Putting it on as part of a public performance would be far better for you on both counts.
sharky,
Whether they're in those traditions or not, once women are here, it's unlikely they'll want to continue them in large numbers for the first reason I listed: women who have resources tend not to need to pick a partner they'll have to share.
You think so? Are there no communities in this country in which there are many fewer eligible men than eligible women? I thought the going explanation for the rise of single motherhood in poor nonwhite communities had something to do with the dearth of marriageable men, but perhaps I was imagining things.
But let me back up a bit. What you and Adam argued, I think, was that polygamy tended to hurt women. I then asked why we should be satisfied with merely not recognizing these hurtful relationships if they're so bad, ought people to be allowed to live like this, even without state recognition? To which Adam, at least, leapt in eagerly to say that of course they shouldn't, if the case was bad enough.
I mean Adam no disrespect when I say that I'd personally rather be governed by the legendary first 2000 names in the Boston phone book than by his judgment of whether I or anyone else was brainwashed or not.
But can we turn this around for a moment? Suppose you are the second wife of a Pakistani immigrant to the United States. Only his first wife counts as "married" in US law, but you and he believe you are married. He's critically injured; can you visit him in hospital? He dies intestate; can you inherit? Can you see the baby that you and the other wife have been raising together? &c.
I don't see that refusing to recognize polygamous marriage makes these sorts of questions disappear, any more than refusing to recognize gay marriage does the same in analogous situations.
"Can the government forbid you to write certain things in a journal never intended for anyone else to see? It seems crazy to say yes, but I don't know of a case on point. Here are a couple of things to consider."
Let me see if I'm following your reasoning:
So then if I sodomize my wife, in private, for our own enjoyment, then my actions do not enjoy constitutional protection.
But if I turn on a camera and take pictures with the intention to distribute them, then my action do enjoy constitutional protection. (provided the resulting images are not found to be obscene, in which case the actions take to make them is constitutionally protected, but the act of distributing them is not.)
Am I understanding you?
Re: His point is that if morality cannot constitutionally be a basis for law, then a host of laws must, by that principle, be chucked out the window.
And why is this a problem? Laws involving coercive or unwelcomed sex, and laws involving public behaviors will remain unaffected.
Uh, Michelle? How many single moms do you know who want to share a man? If anything, single moms would probably find that less appealing--if the goal's to have someone who'll help with the kids, you don't want someone who's got another wife and other kids.
People who want to find husbands are more likely to move somewhere else.
I'm all in favor of not recognising hurtful relationships. The argument I'm addressing is that gay marriage is somehow analogous to a hurtful marriage, or that allowing gay marriage allows
I actually misunderstood your point--I thought you meant the daughters raised in the culture, not the parents who bring a polygamous marriage into the culture. It's true that's a tangle, but... we don't allow a lot of cultural practices we find harmful to carry over.
But how do you actually immigrate without knowing the marriage isn't recognised? Not to knock immigrants, I'm descended from 'em, but that strikes me as a bit unusual.
Why do gays have to settle for a second best choice with DOMA making everything ok? Fact: Blacks have voted 70% to reject gay marriage. I say we take away the rights they were given by the white man again and see how they feel, sort of like dejavu. Next, the divorce rate of straights in this country is a staggering 75%....lets us make divorce illegal, because according to the bible bangers the real reason for their no vote was mainly due to "the children needing a mother and a father". Well when the straights breed then divorce the kid grows up without both parents.....what is the difference? Last but not least if my rights are not as equal as every other person that resides in this state I believe my taxes should reflect this because I should not have to pay full taxes for less than full rights! We all know this is about money because traditionally gays have alot more money than straights...and to give us the same tax benefits during life and in death...well that won't happen either...will it?
But it's obviously not working well for judges to suddenly find a right to gay marriage that never existed before.
Is there a right to heterosexual marriage in the CA constitution?
Yes, heterosexual marriage is a legal binding agreement with surviorship benefits without being taxed. Gays and lesbians do not have the same rights. Discrimination in the workplace for one, and should my partner of 16 years die everything we have worked for will be taxed before I receive the benefits. This should not be a vote for the people...Article 1 states the right to pursue and live happy lives. It doesn't say for all who are not gay! Why are my rights to marry up for a vote? Do the blacks, asians, phillipinos, koreans, japanese, mexicans etc....have the right to marry while not even being born in this country? The answer is yes, and now that they have acquired equality and citizenship they have used their right to vote to deny gays in this state of the right to marry. I propose we revoke all foreigners citizenship, revoke civil rights take their property send them back and keep this countries borders closed. That is equal to denying me my right to freely choose my partner for life in the country I was born. It wasn't too long ago when these particular groups of people did not have rights to marry either.
Yes, heterosexual marriage is a legal binding agreement with surviorship benefits without being taxed. Gays and lesbians do not have the same rights. Discrimination in the workplace for one, and should my partner of 16 years die everything we have worked for will be taxed before I receive the benefits. This should not be a vote for the people...Article 1 states the right to pursue and live happy lives. It doesn't say for all who are not gay! Why are my rights to marry up for a vote? Do the blacks, asians, phillipinos, koreans, japanese, mexicans etc....have the right to marry while not even being born in this country? The answer is yes, and now that they have acquired equality and citizenship they have used their right to vote to deny gays in this state of the right to marry. I propose we revoke all foreigners citizenship, revoke civil rights take their property send them back and keep this countries borders closed. That is equal to denying me my right to freely choose my partner for life in the country I was born. It wasn't too long ago when these particular groups of people did not have rights to marry either.
The huge flaw in your argument is that the courts made the bulk of the civil rights progress not legislatures. It was the courts that struck down Jim Crow and the courts that enabled interracial marriage.
Rob Lyman,
Do you really believe there are no natural rights that humans possess merely in light of their being human? In other words, that there are no unenumerated rights?
If yes, how do you square this belief with the Ninth Amendment & the Privileges or Immunities Clause? What are the "other [unenumerated rights] retained by the people" & the "privileges or immunities of the citizens of the United States"?
Honest question.
Yes, heterosexual marriage is a legal binding agreement with surviorship benefits without being taxed.
Of course it's a legal binding agreement, Proud Lesbian. But that's not what I asked. I asked if there was a right to heterosexual marriage in the California state constitution.
Now, I live in New Jersey and have never read the California state constitution, but I'd be willing to bet that the "right" of heterosexual men and women to marry is not stated anywhere in the CA constitution.
Do you get the point I'm making now? Because I have a feeling you might have misunderstood where I'm coming from.
Rights come from responsibilities.
Couples who have all the responsibilities of marriage should have all the rights of marriage.
50% + 1 vote is no way to run a constitution.
Perhaps. But 4 judges ruling however they wish is far worse.
Radmul,
Have you ever heard of the 14th Amendment? The Courts may have "taken point" on Civil Rights, but they did so on the basis of a Constitutional Amendment written to require equal protection of the law for people regardless of skin color.
When did the US, or CA, or any other State, write a Constitutional Amendment requiring the State to give gays everything they want?
Doesn't exist? Then the Courts have no business interfering.
Rule of law. Democracy. They're concepts you might consider valuing. Because you really don't want to live in a US where the rest of us come to the conclusion that those principles no longer matter.
Tony,
We are now very far afield. We began with an unambiguously non-criminal act (blue shirts), moved to an item worn on the for a non-fashion purpose, and now have moved to acts rather than articles of clothing.
I see no constitutional obstacle to banning sodomy (although a majority of SCOTUS disagrees with me). I see no reason to think that merely filming a criminal act makes it non-criminal.
On the other hand, one might reasonably distinguish between a condom worn for expressive purposes (protected) and one worn for contraceptive purposes (unprotected).
GU,
Certainly there are some unenumerated rights (for instance, not to have private property taken for private purposes, with or without just compensation.) But I cannot agree with the trend of discovering new rights because there is no principled way to determine what they might be, or how to weigh one against another (as in the case of pregnant women vs. fetuses). It becomes nothing more principled than what judges feel like. That is a recipie for destroying respect for the legal system.
And further, before long, because judicial decision making becomes unmoored from anything resembling the actual text, judges decide to apply this same attitude to eliminate historical rights. Suddenly we find that the same people who discern abortion and sodomy in the phrase "due process of law" are unable to discern a right to keep and bear arms in the phrase "right to keep and bear arms" or a right to freedom of speech within 60 days of an election in the phrase "freedom of speech."
That is, I oppose creating new rights in part because it licenses shrinking old ones, and frankly the old ones are more essential.
I'm pretty sure that most of you need to revisit what rights are and where they come from. Hint: they don't come from the constitution, and they aren't granted by government.
Rights are absolute - they're inalienable - as I said before, they predate the government and they predate the US Constitution. Anything you've been taught in government-funded skules to the contrary.
Anything given or licensed by government can also be taken away or revoked at any time. Anything that can be given and taken away, or licensed and revoked, is most certainly not a right.
The perks that married couples enjoy under current tax and civil law are not rights. Those perks exist at the whim of government and are based on you qualifying for them - Just like the issuance of a license to allow you to exercise the former right to bear arms. If you fail to jump through any hoop with which the state chooses to confront you, you lose and can't legally exercise the right to bear arms.
Why do we restrict the right to bear arms? Because the majority desires it. And that's fine for most people, and I would imagine it's fine for many people arguing their support for "gay marraige" here.
The very same people getting all indignant and claiming that you can't vote away a right with a majority will tell you it's perfectly acceptable when it comes to the second amendment - something they don't like even though it's *actually written* in the US Constitution - In the bill of freaking rights for crying out loud. They make all kinds of excuses for "majority rule" until it comes to an issue that's important to them.
I mean for that matter, married people get all sorts of perks from government that single people don't. Where's the equal treatment for singles of any color, creed, religion, gender, or sexual orientation?
What's funny here is that I agree that gay people should be free to marry and do whatever straight people do. What I disagree with is this notion that the state should be involved ever - In ANY marraige gay or straight.
I disagree that being married should qualify you for any specific privilege given by government. The only time government should get involved in marraige is if there's some contract issues for which a civil court remedy is needed - for example divorce.
What we're beginning to see is the moral hazard you face when you start trying to reward certain behavior or give certain people a break that others don't get.
There's always someone waiting in the wings thinking "where's mine?" and they're right - Sauce for the goose is sauce for the gander.
Greg Q,
The same 14th Amendment requires that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ..."
Isn't marriage at least plausibly one of the privileges of citizenship in the U.S.?
Also, the Equal Protection Clause of the 14th Amendment states: "No State shall ... deny to any person within its jurisdiction the equal protection of the laws." There is nothing about skin color in the 14th Amendment. The EPC argument isn't the best argument for SSM, but let's not pretend that the 14th Amendment only applies to racial discrimination.
Same-sex marriage is not just about equal rights or lifestyle or shared love or a positive example. It is about sneaking into your brother’s room at night and taking back the baseball mitt he he stole from you the day before. It’s taking back what’s mine. My word. My marriage. Keep your laws off my language.
This country has voted for “Change We Can Believe In“, but is not yet ready to change what we believe. We are a careful and comfortable people, in words and deed. We like to think we are livingfree, but we are not yet thinkingfree.
@Rob
The mistake you're making is thinking that the US Constituion defines any right at all or otherwise limits the rights people have. It doesn't do either.
The document is like a government firewall. It states specifically the powers that government has and how they should be exercised. Any power not specifically allowed is retained by the people to either delegate to their state or use for themselves.
It also has a bill of rights, but even the people who wrote the first ten amendments were smart enough to say that the "rights" retained by the people were not *just* those defined by them.
Unfortunately, those who argued against the BoR at the time have been proven right as we now see people making claims that since a right is not specifically defined in the document or written sideways into the BoR, then it either doesn't exist or is subject to whatever restrictions and licensing the federal government chooses to enact upon it.
Hindsight is 20/20, although in this case, I'm not so sure.
GU,
Nothing in the law prohibits gays from getting married. It simply prevents them from "marrying" someone of the same sex. Which is to say, it preserves the definition of marriage that's been in use for essentially all of human history.
let's not pretend that the 14th Amendment only applies to racial discrimination.
Ever heard of the 19th Amendment? It's the one that gave women the right to vote.
If the 14th legitimately applied to anything other than racial discrimination, (like, for example, discrimination based upon sex) the 19th wouldn't have been needed. But women didn't get the vote in many states until the 19th was passed.
oooh, this will anger a number of you. i'm going to say it anyway. as hard as times are right now. with eight years of pure hell, an unjust war, unbridled greed, and economic implosion, most people are truly not interested in entertaining you and your claims at this moment. ppl don't know whether they'll have a job tomorrow. your right to marriage is really low on the totem pole of what's important in their lives right now. particularly in california where homosexuals are forever trying to bully the populace into complying with their wishes. you've angered a lot of ppl. ppl who have nothing against you but are tired of dealing with your issues every other day. you don't get everything you want just because you want it.
the harder you push, the harder the rest will push back. and honestly, your behavior makes ppl less inclined to deal with you at all. i'm bi and gay ppl get on my last nerve
please take this in the spirit in which it's given.
gay rights movement is nothing like the civil rights movement. Pls stop comparing the two, it's offensive. no one knows you're homosexual until you tell them. skin color is a different animal
Nick,
You're doing a great job of ignoring the most fundamental right in a democracy: the right to have your vote matter.
When "judges" arbitrarily rewrite the Constitution to their personal desires, that most fundamental of rights is trampled.
We The People have never voted for SSM. It has never been placed in any Constitution, and no law allowing it has ever been passed. Given that history, claiming it as a "right" just shows you've got no clue at all of what you're babbling about.
Does anyone have any hard data on gay couples who adopt and their success or lack thereof in raising kids? I'm not looking for anecdotes or assertions, but data. Drug use among children of gay couples, for instance. Or suicide rates. Or college graduation rates. Or out of wedlock births for these kids. Anything that can help measure functionality in an objective sense.
After the Obama win I was worried that Chris Rock and other comedians might lose their jobs. But now, with a clear yes on prop 8, there is hope...? Maybe not for all black comedians, unless they drop their homophobia, but for some...
"We are now very far afield. We began with an unambiguously non-criminal act (blue shirts), moved to an item worn on the for a non-fashion purpose, and now have moved to acts rather than articles of clothing."
Along the way we went through your not being sure whether or my right to keep a private journal is protected by the constitution. It's not surprising that when, at that juncture, our speed was unchecked, we ended up very far afield indeed!
You have an odd view of our foundational document Rob.
Tony,
I'm interested in this discussion as part of the broader, "if I like it and it's reasonable, it's constitutional" theme.
I think you could make a legal case that there are certain restrictions on what, where, when, why, how you keep a journal. I'm not a lawyer and I won't go into the details. But a cheap cop-out case off the top of my head would be you can't leave work at the top secret facility and go and write down your inner most worries about developing a neutron bomb along with the details necessary on doing so.
But to jump in the minutiae is pretty tedious...
Just to go back to the original point. Just because it's good (from yours or others perspectives) does not make it constitutional. At the same time, just because it's NOT specifically mentioned in the constitution does not make it unconstitutional.
It's strange how quickly a lot of people's feelings get hurt and passions get aroused by pointing out the constitution does not grant you a right to X.
It doesn't mean you can't go a head and do X. But you don't have a legal right/entitlement to do so and in the future for some (un)conceivable reason that "right" could be taken away.
Sam, you're making a straw man argument.
Many of us, in different times, places and for different reasons, enter into circumstances where we either give up fundamental rights, or circumstances where our fundamental rights are offset by legitimate state interests or the rights of other people. Any person with a modicum of political sophistication understand that this could be no other way.
Rob has asserted that he is unsure as to whether there is a fundamental right, protected by the constitution, to keep a private journal; and I find that a very odd view indeed.
If a person's legal philosophy for interpreting the constitution leads one to be unsure as to whether or not it protects the right to express our thoughts privately, in writing, I would politely suggest it's time for a reexamination of one's philosophy.
Ryan:
"Despite dire predictions about children based on well-known theories of psychosocial development, and despite the accumulation of substantial body of research investigating these issues, not a single study has found children of gay or lesbian parents to be disadvantages in any significant respect relative to children of heterosexual parents."
Charlotte Patterson. She wrote a book about it.
NARTH hotly contests her, in the same way NARTH hotly defends reparative therapy.
"Same-sex marriage is not just about equal rights or lifestyle or shared love or a positive example. It is about sneaking into your brother’s room at night and taking back the baseball mitt he he stole from you the day before. It’s taking back what’s mine. My word. My marriage. Keep your laws off my language."
No. It is about sneaking into your brother’s room at night and taking the baseball mitt he bought for himself the day before because you consider baseball to be YOUR game and he should be allowed to play.
Nobody stole your marriage. Somebody else getting married doesn't negate your marriage. Marriage is not a word you own. Gay people already call their relationships marriages. You just don't like gay people. So you want to punish them by denying them government recognition of their basic human and civil rights.
I was wondering where my baseball mitt went.
@Rob Lyman: As an aside, I have had the misfortune, as part of my legal career, to see woman/dog bestiality videos.
My condolences. What has been seen cannot be unseen.
Certainly Rule 34 of the Internet applies here. (What is Rule 34, you ask? http://xkcd.com/305/)
You have an odd view of our foundational document Rob.
Indeed. That would be the view that it means what it says, rather than what I wish it said.
You forgot the part about "and when it is not absolutely clear what one part means, we pretend it is not there."
So the fact that the 14th Amendment was ignored by states via not allowing women to vote means that an unwritten phrase ("ps, this only applies to racial discrimination") magically appears in the Constitution?
You forgot the part about "and when it is not absolutely clear what one part means, we pretend it is not there."
Well, fair enough. The alternative being "where it is not clear what one part means, we make shit up to suit ourselves and claim our whims should circumvent the democratic process."
Seriously, I'm prepared to see common-law rights in the Ninth Amendment, as I said above. But gay marriage is quite squarely in the "make shit up" category.
So the fact that the 14th Amendment was ignored by states via not allowing women to vote means that an unwritten phrase ("ps, this only applies to racial discrimination") magically appears in the Constitution?
It is a commonplace canon of construction that all parts of a document must be given effect. Clause A must not be read in a way that makes Clause B redundant. Therefore, Clause A should be interpreted as NOT doing what Clause B does.
It's funny how rules which literally ALL judges and lawyers apply without hesitation or deviation to statutes and rules are chucked out the window when it comes to the Constitution.
Wow, GU, you're amazing. It's 140 years after the 14th Amendment was passed, yet due, no doubt, to your amazing brilliance you understand the 14th Amendment better than the people who actually were around when it was passed.
Or, maybe not.
Go back and look at the arguments that were made when it was passed. What did We The People, you know, the sovereigns of the US, think was being passed?
A Constitutional Amendment is an imposition of opinion from one political majority upon all other future political majorities, unless and until a later one votes in a contrary Constitutional Amendment. It's a statement "we're changing the rules, for everyone, forever." It's not something to be engaged in lightly.
And it's not a blank check to future haters of democracy who believe that the mere fact that they want something means they should get it, the Hell with everyone else.
BTW, GU, if your interpretation were correct, there would have been no need for the Equal Rights Amendment (which failed), and we wouldn't have single-sex bathrooms, any more than we have single-race bathrooms.
@Kathy- I am sorry I did not answer your question as asked. Under the family code in the california constitution Section 300-310 (a) "Marriage is a personal relation arising out of a civil consent between a MAN AND A WOMAN to which the consent of the parties is capable of making that contract is necessary. Consent must be followed by the issuance of a license." I hope this answers your question.
Rob Lyman: "a condom worn for expressive purposes (protected) and one worn for contraceptive purposes (unprotected)."
Thanks for the best laugh I've had all day. That was gold.
That said, I'm sort of feeling Tony Comstock on this one. I don't believe one needs to find an affirmative constitutional "right" to engage in a behavior to find a constitutional right not to have the gov't restrict that behavior, or even an obligation for the feds to prevent the states from restricting it. Just because the constitution doesn't overtly protect marriage rights doesn't mean it permits the gov't to restrict those rights, or selectively protect them, in certain (e.g.: non-equal as between citizens) ways. I have no particular right for the state to sanction, or recognize, my marriage, but I firmly believe that once it starts doing so, it must do so in accordance with the constitutional requirements that all citizens enjoy the equal protection of law, unless it has a damn good reason for doing so. I would have no (theoretical) problem whatsoever with solving this issue by removing all state recognition of marriage of any kind. But then I'm a (small l?) libertarian for a reason.
I'm also confused by people who seem to think that someone's right to do X, which may or does conflict with someone else's right to do Y, means that X can't be a right. Tony's sums it up well - something can be a right (even a fundamental right) without being absolute, and there is no other way it could be since some pretty fundamental rights conflict with each other, and you can't selectively pretend some of them don't exist. In my (small l libertarian) view, negative rights, or the negative expression thereof, should almost always prevail in the event of a conflict (which obviously won't resolve all conflicts). In the immediate case, someone else's freedom to their religious (or historical, or whatever) views of marriage shouldn't be permitted to limit my ability to hold and express mine, including the freedom to marry whomever I choose. They should have to leave me the hell alone. Similarly, my freedom to marry a woman should in no way obligate their church (or whatever) to marry us. I should have to leave them the hell alone. The hurdle the gov't should have to overcome to be permitted to violate our respective, deeply fundamental, rights to be left the hell alone by each other should be really high.
I'm apparently pretty extreme in my views (though, as with all true believers, I can't for the life of me see how any sensible person could think anything else): I think it is a basic human and, perhaps as important, civil right to marry whom you wish. I think that right extends to mere recognition, not just benefits. Separate but equal civil unions don't cut it when it comes to a state-denoted status. Slippery slopes to polyandry bother me not a whit. Arguments about who had it worse historically, or criminal vs. civil prohibitions, don't in any way reduce my belief that the analogy to interracial marriage is entirely correct.
Strategically, Megan and Rob may be quite right that trying to aggressively enforce those rights may enflame, rather than beat back, people who thus far have not recognized their bigotry. However, perhaps like them, I just can't manage to overcome my visceral, gut revulsion, in my case at asking anyone to "just be patient while we wait for people to come around/be convinced/die off" while they are denied the most basic right I can think of after the right to life, even moreso than rights to liberty and property - the right to form their family.
This was my laugh of the day: "So you believe that we should eschew originalism because the Founders intended us to?" Fab.
"Arguments about who had it worse historically, or criminal vs. civil prohibitions, don't in any way reduce my belief that the analogy to interracial marriage is entirely correct.
Comparisons to Loving are seen as inflammatory by because Loving is (mis)understood to be a case addressing racial inequality, and as such, a part of the Civil Rights movement, which sought to correct unjust treatment on the basis of accident of birth.
While it is true that Ms. Jeter did not choose to be born black and Mr. Loving did not choose to be born white, they did choose to marry one another. Each of them could have as easily chosen to marry on their own side of the boundaries proscribed by Virginia law, as was the custom in their day.
I suspect Rob will tell us he thinks the court was in error when ruling that the constitution protected Mr. Loving's and Ms. Jeter's right to enter into a committed erotic relationship with the person of their choice, and have it recognized by the state as a marriage.
Kathryn,
I'm struggling to see how civil marriage can possibly be considered or compared to a negative right. It seems to me the very definition of a positive right. Unless, of course, Prop. 8 had some poorly-publicized section criminalizing telling friends you're "married" to another woman.
And while I actually agree with the idea of gay marriage, it should be acknowledge that gay individuals are not treated any differently under the law than straights. It is gay couples which are treated differently. Whether that actually matters in the constitutional analysis, and precisely how it gets folded in, I'm not sure.
I suspect Rob will tell us he thinks the court was in error when ruling that the constitution protected Mr. Loving's and Ms. Jeter's right to enter into a committed erotic relationship with the person of their choice, and have it recognized by the state as a marriage.
I say no such thing. I do say, however, that men and women are different in ways that blacks and whites are not, so the analogy is a poor one.
And the comparison is inflammatory not because of any misunderstanding but because the happy couple was sentenced to a year in prison. When that happens to someone, anyone, who traveled out of their home state to contract a gay marriage, let me know--because that really will be a violation of negative rights and a failure of the state to leave them alone.
I'm sure you're aware that there have been many gay men and lesbian women who have been jailed because of who and how they love, so I'm not sure what your stake in being aggrieved by the comparison is Rob.
In any case, from what I've read, Mrs. Loving didn't seem to think the analogy was poor, or the comparison inflammatory.
I'm not sure what your stake in being aggrieved by the comparison is Rob.
I'm not "aggrieved" by it (although I think it overly facile), but the black voters of California might have been.
Ms. Loving is of course entitled to her opinion, but it is not due any particular weight.
Rob - I see a "negative" right, not to be married, but to not be excluded from marriage. If no one was required to have the state license their marriages, there would be no issue, no affirmative right to cause the state to do so. But given that the state has decided to stick its nose in it and grant a positive right (recognition of marriage, but it could just as well be something else, say, public education or police protection), the decision to exclude specified groups seems like a positive state action to me that had better bloody well have some serious justification. Granted, this is sort of a "do you see a duck or a rabbit" thing. (I also grant that I have a tendency to see anything that reduces individual choice as a rabbit. Or a duck. Whichever.)
In the case of marriage, I'm not sure how you distinguish between the rights of the individuals vs. those of the couple - that's sort of the point of the institution. Maybe that's your point: this is a case where the equal application to individuals is irrelevant, and is in fact calculated to give cover to (intentionally) discriminatory effect. The question of whether one can have group, rather than individual, rights is interesting (and one that I'm sure will be very fun if we ever end up with state provided health care and everyone starts fighting over whether grandma gets her cancer meds or 10,000 kids get vaccinated this year), but I don't think marriage gets us there.
Ultimately, I find technical parsing of state or federal constitutions beside the point. What the law currently does or doesn't say isn't really relevant when the question is whether those laws, or the interpretation thereof, are justifiable. Slavery was expressly constitutional, not to mention widely historically practiced and biblically sanctioned, but it was still an abomination. I suppose that's some sort of a natural law argument, which would give all my old profs infarctions, I'm sure.
Kathryn,
they are denied the most basic right I can think of after the right to life, even moreso than rights to liberty and property - the right to form their family.
How are they denied that? You mean you need the government to bless you before you can have a family? Wow, that's very sad for you (not that you're not getting the blessing, bad that you think you need it).
BTW, I'm curious. Do the polyamorous have the "right to form their family" of multiple adults? Or do only gays have this right I'd never heard of before?
Oh, and you're utterly wrong in your ordering of rights. Given liberty and property, you can form your own family whether or not the government blesses it. But a government blessing on your family does nto give you either liberty or property. So rights to liberty and property are more important.
Ultimately, I find technical parsing of state or federal constitutions beside the point. What the law currently does or doesn't say isn't really relevant when the question is whether those laws, or the interpretation thereof, are justifiable. Slavery was expressly constitutional, not to mention widely historically practiced and biblically sanctioned, but it was still an abomination
Well, yes ... parsing of state and federal constitutions is beside the point of whether a law is just (or "an abomination"). But it is the only question relevant to whether a law is unconstitutional.
The death of the notion that unjust laws can still be constitutional, and thus there is no court remedy, is one of many poison fruits of the Griswold decision. Justice Hugo Black's dissent made it quite explicit that he considered Connecticut's law silly and offensive, but he didn't thereby consider that a warrant to make up a right ("privacy") in the name of remedying the injustice of having this law on the books.
And minor point ... but slavery wasn't "expressly constitutional." Or rather, it was constitutional only in the sense that it had several provisions that acknowledged the fact that slaves were held pursuant to the laws of several states (which did indeed make slavery not unconstitutional). But calling slavery itself "expressly constitutional" says way too much. It implies there existed a right to own slaves, good against federal or state laws that said you couldn't. But it didn't until the Dred Scott case, the grandfather of Lochner, Griswold, Roe and Goodridge-et-al, invented that right too.
The Constitution mostly just sets up a government structure, it is not and never could be a guarantee of good government, of wise laws, or even a check on most forms of bad government or unwise laws. And liberals (mostly, at this point in history) need to stop pretending that it is and using courts to impose their agendas by litigation rather than legislation. Now in California, even a constitutional amendment is getting litigated as unconstitutional. Unfrickinbelievable.
Courage man - I don't think we're really in disagreement. Crappy, unjust laws may be constitutional, there isn't a remedy for everything. Life isn't fair. Won't stop me from kvetching that it's cold comfort that those on the unjust side of the issue will be shamed by history. My admittedly vague understanding of the constitutional challenge to the new CA amendment is that it didn't pass by the constitutionally required margin. As you said, constitutions mostly set up structure, procedure rather than content, so presumably you agree that those procedures should be enforced.
Greg Q - I can't really convince myself of a good justification for a ban of polygamy or polyandry, either. The abuses commonly seen where it is practiced (coercion, child abuse, denial of equal rights to women, etc.) are independently prohibited here (to the extent there is the political will to prohibit them), and that should be enforced. In fact, I suspect if polygamy was decriminalized and (somewhat) mainstreamed, so practitioners weren't in hiding or walled compounds feeling the solidarity of persecution, a lot of the abuses would subside, if only because victims would find it easier to leave. You've got a point on the ability to set up your household however you want (so long as you don't expect others to recognize it), but if you don't think marriage is a fundamental part of family formation, I think you're equating the right to marry with the right to shack up. I may be out there in not objecting to plural marriage, but that's really radical - and as a married person I'd have to disagree.
My admittedly vague understanding of the constitutional challenge to the new CA amendment is that it didn't pass by the constitutionally required margin.
That's not the claim at all. Here's an explanation of the challenge ... basically, that Amendment 8 was a "revision" of the state constitution, not an "amendment," and thus required a different set of procedures to be followed.
Kathryn,
if you don't think marriage is a fundamental part of family formation, I think you're equating the right to marry with the right to shack up.
Nope. The "right" to marry is the right to say "I am part of a married couple", and have the government back you up. That's it.
CA Civil Unions give all the "rights" that marriages do, other than the right to say "the government says I'm married."
If you're not capable of forming a family unless the government says you're married, the problem's with you, not the government.
What's that you say? There are people who don't respect and value your same sex union the same way they'd respect and value a heterosexual marriage?
Guess what? Those people aren't going to respect your SSM a single bit more. As a matter of fact, they'll probably respect it less, since to their minds you might have a real civil union, but you'll never have a real marriage.
I don't have much to say about Megan's original post. Others have pointed out that the CA legislature passed laws allowing same-sex marriage (twice) but our craven Governator refused to sign them. Folks can and do argue about strategy, but when it comes down to it I am with MLK on when is the right time for people to demand their civil rights (see his letter from the Birmingham Jail).
What irritates me most is this continued insistence that Supreme Court judges invented or suddenly discovered a right to same-sex marriage. Did. Not. Happen.
What the CA Supreme Court essentially ruled was that:
a) the State constitution mandates equal treatment under the law;
b) the State constitution forbids discrimination based on race, gender, religion, sexual orientation, etc.;
c) the creation of "separate but equal" systems (i.e. marriage vs. civil union), violates equal treatment (see (a) above).
d) therefore the state cannot deny a gay person a marriage license based on their sexual preference.
Pretty simple. Pretty straightforward. And about as right and true and commonsensical as this straight, Eagle scout, veteran could hope for. So much so that I was really shocked they pulled it off. The CA Supreme Court should be applauded for standing up for freedom.
This notion that "activist judges" are "inventing rights" is just buying into the right wing myth and should not be perpetuated.
So please stop it.
Kaykuri,
By that same rational all female/male bathrooms should be unconstitutional as it violates the separate but equal clause you're invoking.
How about this. It's utterly foolish to think that a constitution implies all things must be equal.
And yes that above interpretation is activist. You can take that line of reasoning and apply it to virtually anything you want to create a right for. That is not straight forward and true. That's pretty poor legal reasoning.
The reason why I support proposition 8 is because I believe that traditional marriage is the start of a traditional family, which is the fundamental unit of society.
Marriage is more than two individuals who love each other and decide to commit to live together. When a man and a woman marry with the intention of forming a new family, their success in that endeavor depends on their willingness to renounce the single-minded pursuit of self-fulfillment and to sacrifice their time and means to the nurturing and rearing of their children. Marriage is fundamentally an unselfish act: legally protected because only a male and female together can create new life, and because the rearing of children requires a life-long commitment, which marriage is intended to provide. Societal recognition of same-sex marriage cannot be justified simply on the grounds that it provides self-fulfillment to its partners, for it is not the purpose of government to provide legal protection to every possible way in which individuals may pursue fulfillment. Father and mother each bring unique talents and abilities that compliment and strengthen each other in the nurture and raising of children that would be lacking in a same sex partnership. The vital role in the development of children played by a father fully engaged with the family is well documented. Children are entitled to birth within the bonds of matrimony, and to be reared by a father and a mother who honor marital vows with complete fidelity. By definition, all same-sex unions are infertile, and two individuals of the same gender, whatever their affections, can never form a marriage devoted to raising their own mutual offspring.
Well meaning laws by activist judges which may make sense from an individual point of view have had serious effect on families. One only need look at the effect on black families of legislation over the last 30- 50 years or so as documented in the archives of Thomas Sowell, and Lashawn Barber (http://lashawnbarber.com/) and others. I believe the actions by the CA judges is a good example.
For those who would argue that same-sex marriage would have no effect on My marriage, you are right. I've been married for over 30 years and plan on stay so for the next 30 and beyond. While it may be true that allowing single-sex unions will not immediately and directly affect all existing marriages, the real question is how it will affect society as a whole over time, including the rising generation and future generations. The experience of the few European countries that already have legalized same-sex marriage suggests that any dilution of the traditional definition of marriage will further erode the already weakened stability of marriages and family generally. Adopting same-sex marriage compromises the traditional concept of marriage, with harmful consequences for society.
Please consider the argument presented by Megan McArdle. She coherently expresses some of what I've been trying to say:
(http://www.janegalt.net/archives/005244.php).
To those who would charge that I am intolerant, Dallin H. Oaks has explained,
Tolerance obviously requires a non-contentious manner of relating toward one another’s differences. But tolerance does not require abandoning one’s standards or one’s opinions on political or public policy choices. Tolerance is a way of reacting to diversity, not a command to insulate it from examination.
Bob
@sam:
"By that same rational all female/male bathrooms should be unconstitutional as it violates the separate but equal clause you're invoking."
Fine by me. Put urinals is the ladies rooms to make them equal, or make 'em all gender neutral. I'm all for it.
"It's utterly foolish to think that a constitution implies all things must be equal."
A man can dream, can't he? Of course "all things" cannot be equal. But we are not talking about "all things", we are talking about how a state treats its citizens under the law.
I would ask our constitutional scholars here what weight is to be given to the Declaration of Independence. Because it's true that the US Constitution lays out a structure of government more than it does delineate rights. The DoI may not be binding as law, but it is a pretty clear statement of what rights we felt we deserved.
And if you can't find a right to marry whatever consenting adult you choose in the right to "life, liberty, and the pursuit of happiness" then I would say you have split one too many constitutional hairs.
And if you cannot see the difference between male/female bathrooms and denying the rights of US citizens to form their families as they choose, then I don't know what to tell you. One is a minor inconvenience, which I am more than happy to remedy on principle, and the other (I believe) is the beginning of a slippery slope to real tyranny.
I would argue, and many here would agree with me, that the real solution is for the state to get out of the marriage business. Am I really the only straight American who is appalled that I have to "apply" for a "license" to get married? But I don't hear anyone seriously pushing for that. Until then, I will continue to insist that a religiously-based law that does actual harm to other citizens is unconstitutional.
Look, it comes down to this. Rights don't exist, human, civil, or otherwise. There has been talk of "inherent", "fundamental", or "god-given" rights, and the wording in the DoI of "inalienable rights" "endowed by their creator" is beautiful and inspiring, but none of it is factually true. The only rights we have are those that we are willing to defend.
In that sense, as you pointed out, we have whatever rights we want. All of them. Except for the restriction that your rights cannot infringe on the rights of others. That is as it should be.
By the logic of many here, we do not have any rights other than those specifically enumerated in the constitution. That may be literally true in a legalistic sense (in the word of the law at least, if not the spirit), but that is not a system that I will defend.
This is a fight worth fighting, and nit picking on the sidelines is not going to get the job done. Either we are all free, or none of us are free. So who's next, now that the yahoos are feeling strong?
@Bob:
There you go again with the activist judges. Newsflash: judges do not create laws. Judges interpret the law when there is a conflict -- correctly in this case. In California at least, yahoos with an axe to grind and too much money create laws.
Your argument about traditional marriage is sweet and romantic, but it also happens to be nonsense. And I really don't intend to be mean here.
I'll leave it to the constitutional scholars among us (hello?) to ask where exactly one iota of the argument you made is spelled out in the law of this land. But I don't think it is.
Your argument invalidates the marriages of all couples who don't plan to have children, as well as those that want to but can't. Let me ask you this: if a married couple has a child and that child dies, is their marriage instantly annulled? Or is it okay if they promise to have another one?
If your agenda is to invalidate our marriages, outlaw divorce, and forcibly reunite separated families (may have to make room for polygamy there), then please be clear about your plans.
Your singling out of same-sex marriages is intolerance, plain and simple. Sorry if you don't like to hear that.
The other thing about traditional marriage is that it is traditional. In other words it is the default norm of the society. It doesn't really need any support, and in any case it is not the role of the US Government to do it.
It's like abstinence only education. You might be able to find one, but you'd have to look pretty hard to find a society where abstinence is not preached to children by default. And yet it doesn't work.
You don't have to worry about folks making babies, there will be plenty of that going on. One of the things you are trying to do is limit the number of couples available to support the excess children abandoned by traditional families, which is the part I really don't get.
What you are favoring here is special treatment of some citizens over others, based solely on sexual orientation. This is unconstitutional.
The worst part is that you are not even doing it for a good reason. Because this law will not bolster traditional marriage in the least.
You will have to be more specific on what laws were passed in the last 30-50 years that are causing the breakdown on traditional families, because I don't have time to dig through the archives.
Kaykuri,
It's pretty clear you've read very few of the comments, so I'm going to bring you up to speed.
It appears that you are single, and a pervert. Those of us who do have women in our lives who we care about, OTOH, thing it would be a really bad idea for you to be able to barge into their locker rooms and shower with them while shouting "separate is not equal!"
denying the rights of US citizens to form their families as they choose
1: You mean like laws against bigamy / polygamy? How about incest? Age of consent?
2: You can form your family as you choose, to a large extent. What you cannot do is force society to "bless" your choice. Which is what this fight is actually about: the attempt by a subset of the "gay community" to use the power of the government (and the willingness of 4 judges to abuse their power) to force everyone else in society to pretend that SSM is the same as a real heterosexual marriage.
3: Go read up on Baker v. Nelson, and the Federal Defense of Marriage Act (signed into law by that great bigot, Bill Clinton). The 4 black robed thugs in CA did abuse their power, and engaged in unadulterated judicial activism (starting with their ruling the homosexuals are a "suspect classification").
One result of that was that the people of Arizona, who two years ago narrowly voted down a Constitutional Amendment banning SSM, this time easily passed one.
When sane people go 0 - 30, they generally stop, and try to assess what they're doing wrong, and why they're failing so often.
The pro-SSM side appears to lack that basic sanity. Yo certainly do.
@Greg Q:
Call me what you like. But you are clearly an idiot, and an eloquent example of exactly why "separate but equal" cannot be allowed to stand.
[BTW, what public restrooms are you and your wife showering in? Are you homeless? You could probably get a room at the YMCA, but watch out for the scary gay people.]
The way that the right-wing, bigoted nut-jobs invert every argument, 1984 style, would be amusing if it weren't so often allowed to pass without comment.
Blatantly discriminating against a segment of US citizens is somehow standing up for "religious freedom".
You argue that one cannot force society to "bless" your choice. Which is absolutely correct, but you have the target exactly backwards. Prop 8 forces the State of California to "bless" the opinions of those who would discriminate against their fellow citizens based on some fairy tale they read.
Sometimes you make my arguments for me even more clearly than I do. "You can form your family as you choose, to a large extent." Apparently this is what passes for freedom in the USA nowadays. You are free "to a large extent". You are equal "mostly". Your vote counts the same as everyone else's "in most cases."
This is such a simple issue. There is nothing complicated about it and the CA Supreme Court ruled correctly. But apparently it's only us "perverts" who actually believe in actual freedom and actual equality under the law of the United States of America.
This particular pervert is straight, white, male, married, and both an Eagle Scout and a veteran of the US Army. Apparently my wife and I are perverted because we do not plan to have children. So my question is, when are the yahoos coming for my marriage?
If they do not. If they are content to allow (ALLOW!) my wife and I to remain married in this country, then that fact merely gives the lie to this whole "defense of traditional marriage" bullshit they are spouting.
If they simply to choose to continue to single out homosexuals for discrimination and oppression, then the fact that what they are doing is unconstitutional is only that much more obvious (as though a greater degree were even necessary).
In the United States of America, it is not for the defenders of freedom and equality to compromise. It is for the bigots to learn to deal with the fact that the same protections they enjoy to believe whatever nonsense they choose also protect the freedoms of every other US citizen, regardless of how icky they might find them.
There is already a movement underway (finally) to repeal the repugnant DOMA, and it can't happen too soon.
The CA Supreme Court correctly interpreted the law, and ruled in favor of equal treatment under the law in CA. This is a principle that was held dear in this country once upon a time.
Tomorrow is Veteran's Day, and we are going to hear a lot about appreciating our veterans for defending our rights and freedoms. It pains me that I now have to ask them to be more specific. Which constitution was it exactly that you swore to defend? Which rights in particular did your buddies die for? Because apparently one just cannot be too sure anymore.
probably the best I've found yet. though looooong.
"So we should have stopped before we got interracial marriage. "
yes, hetero marriage leads to gay marriage. we need to ban hetero marriage to save marriage.
more seriously, the anti-gay-marriage folks chase their tails more than the pro-gay-marriage folks (chase their own tails). although "Rob Lyman" put up the best defense.
the lib solution is best: leave legal contracts to contract law, and leave religious ceremonies to the social groups.
Once upon a time there was a whole state of polygamists. Then the Federal Government banned it. The polygamists had to conform; they didn't even get to vote on it.
Now who can blame them if they do to homosexual couples what the U.S. did to them?
From this angle the stance of the LDS church is hypocritical. But I fail to see how civil rights encompasses gay marriages but not polygamous ones.
if the government doesnt give every citizen equal rights then as citizens it is our right and duuty to over throw the government