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The Gay Marriage Court Decision as Roe v Wade

| 92 Comments

I wish I could be excited about the decision - it does give me what I want - but I'm not.

The lawyers are all over the tactical issues (is the decision too monolithic? Will it risk having a conservative Supreme Court establish precedents that will make achieving gay marriage harder?); let me take one social/political one on.

I don't want this to be Roe v. Wade. That decision arguably 'settled' the abortion issue, but in reality, it pulled a half-baked cake out of the oven and put it in front of the polity.

The law and social values must interact closely; at times each tugs the other forward or backward. Where they move in rough concert we get massive, successful social changes - suffrage, civil rights, improved rights for women. I tend to think that Roe v. Wade pulled them a little too far apart - which is why the issue of abortion remains so curdled and poisonous today.

I want gay marriage to happen, and faster, please. But once it happens, I want it to be widely accepted - a tranquil part of our social order, not a scab that everyone keeps picking at.

So yes, I'm happy that the court has made a decision for marriage. And I'm also sad that they have, because this needs to come from the political process, not the courts.
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92 Comments

The downside of decisions like this is that they delegimate the courts, and government in general. A majority of the population no longer feels that they are governed with their consent, I feel that way myself. If that feeling can't be changed we could be in for some interesting times. As in revolutionary times. And who knows what the outcome of that will be?

Chuck: while I agree with you on some level, the courts do need to correct things that are just wrong, whether or not the public accepts them. To be specific here: Brown vs. Board of Education.

I'm not saying that this rises to that level, but the court needs to have the strength to make that sort of decision.

chuck, with all due respect, I think you've got this exactly, perfectly backward. The court in this instance, whether you agree with the decision or not, was doing precisely what it is meant to do in such cases: limit the power of the government and stop it from over-reaching. The court here is protecting individual liberties against government intrusion. The decision is a restriction & limitation of the powers of the government.

Federal courts are routinely asked to rule on the constitutionality of laws. That is one of their main functions. While you may disagree with the decision, you pretty much have to agree that making such decisions is a court's purpose.

I understand that you might feel that the government can and should prohibit gays from marrying, but a court deciding otherwise is hardly an example of your being governed without your consent. In this case, a court is establishing a freedom and a right for individuals; it isn't prohibiting you from doing anything, or forcing you to do anything.

I'm curious to know on what evidence you believe the majority of the population no longer feels that they are governed with their consent. And when you say "no longer," I'm curious to know when you believe the situation changed.

@mark

I don't care one way or the other about gay marriage.

Federal courts are routinely asked to rule on the constitutionality of laws.

But the constitution isn't 2000 pages long or all that complicated. The vast extension of government powers through the commerce clause seems to me pretty much illegitimate. The underlying motivation for such an extension seems to be that intrusive government powers are needed by a modern state and as a result of that the goverment has got its fingers in everything. If as a consequence we were ruled by clever and accomplished persons I suppose one could learn to live with that and hang a picture of Dear Leader on the wall and bless him every morning. But instead we are ruled by the clueless and ignorant who are out stirring the pot everyday, it's like having college sophomors in charge. And one of the results of that is that when I hear about the courts involving themselves in another bit of social engineering my knee jerk reaction is becoming "so what, who cares what the courts say". I don't think I am alone in feeling that way and I don't think it is a good thing.

I'm curious to know on what evidence you believe the majority of the population no longer feels that they are governed with their consent

See here. One probably needs to know the details of the questions to interpret the result, but I suspect something significant is going on.

As to when it was different, well, I don't recall anything like this amount of disgust with the government up until the current century but it has been downhill ever since. I hold the Democrats and the Left largly to blame for their cynical manipulations in the quest for power, which is one reason I am no longer a Democrat. But the Republican establishment is hardly any better.

In the nineteenth Century we had a Civil War.

In the twentieth Century we had labor wars which went so far as to have minors strike in the middle of WW2 1943 a half Million Mine workers walked off the job.

http://en.wikipedia.org/wiki/John_L._Lewis

The Congress from its inception to the end of the Civil war was a Zoo. the Union only being saved by a series of Compromises.

The Reconstruction Period was a brutal occupation for the south. The Civil Rights Era was equally turbulent, and thank God for Martin Luther Kings's Non Violent Resistance or it could have been much worse.
When exactly have these tranquil eras existed. I can't recall any.

The nature of the Republic it to promote the tension of opposing ideas. The Constitution provides for the Separation of Powers and Checks and Balances, which only fuels controversy.

I think people look back at their childhoods as times of tranquility, but only because they were shielded from the controversy that always surrounds politics and social evolution.

The divisions now are especially marked, but they are not out of the ordinary. There have been times when these division have been more and less pronounced.

We are in times of great change, socially, politically, technologically, etc, which, I feel, is only accelerating. So, in times like this their will always be great frictions.

This isn't a court 'establishing a right' in a vacuum. This is a case where a political body was told that the rules demanded a certain outcome, and then a political campaign was run to change those rules; the election was held and the effort to change the rules in order to ensure the desired outcome was successful.

Now everyone is told "no, that election didn't matter, it wasn't ever something that could be decided by such an election." In many ways this is the worst possible outcome when it comes to leaving bad feelings in the electorate. Like Charlie Brown, they had a run up to the issue and then the football was tugged away... not even at the last second, but after the kick went through the uprights.

I'm not any different than AL on this issue. I'd like to see gay marriage, and I voted that way when the issue was raised here. But if I was thinking of ways to kick off a movement to get a federal constitutional amendment passed, I could not have picked a better one than this... a San Francisco judge, responding to a successful ballot initiative with a ruling like this.

And that's bad, because it's made it clear to those who oppose gay marriage that they can't afford to stop short of a constitutional amendment... that the issue has shifted from opposing localized ballot measures to one where nothing less than a big, once-and-for-all national push needs to be made. This in an election year where Democrats were already going to be hurting at the polls...

In a lot of ways, it will be better if the 9th (or the Supreme Court, but it might be too late by then) stomps on this decision hard. The judge has certainly given the court of appeals plenty of ammunition to do it, too. (Hint for prospective circuit court judges - you don't get to decide political issues in your findings of fact!)

It might set gay marriage back a few years in California, but a conservative-backed amendment to the Constitution would push it back a generation or more.

I share your concerns, A.L., but I think this decision is more akin to Brown v Board of Education than to Roe v Wade.

I think the key difference is that with this decision (this series of decisions) everyone involved in the resulting scenario will be around to discover, hey, a marriage between a man and another man down the block has absolutely no impact on the marriage between a man and a woman over here. All it does is make the man and the other man happier. Really, this will be an easier pill to swallow than Civil Rights, because there isn't even an economic component to base it on. The Republic will not crumble, heterosexual marriages will not crumble, birth rate trends will not change, and the outrage will drain away for lack of basis.

With Roe v Wade, though, religious conservatives can still be outraged on behalf of bunches of dead souls, because it is perfectly improvable one way or the other.

Would I have preferred a gradual legislative solution? Well, yeah. But I have a hard time telling people they should wait for what I consider to be a fundamental human right, especially if it isn't going to wreck the republic.

The correct case to site is Loving v Virginia which struck down interracial marriage bans via the 14th amendment. The logic is the same here- the government cannot make laws specific to race or gender. You can't tell a white they can only marry a white (even though they can still marry! just not who they want), and you can't tell a woman she can't marry a woman... not any more than you can tell a woman she can't make any contract with another woman.

Our problem is that we have government mixed up in a social contract- marriage. Government cant and shouldnt try to sanctify marriage. Government can and should lay out a simple contract that any two adults of sound mind can enter in to in order to provide for power of attorney, etc. Instead of allowing gays to marry, make straights and everyone else join in civil unions. If you want to marry go to church, it should have no more legal ramifications than baptism. If you want to designate who gets to pull your plug or raise your children, go get a civil union contract.

There's been some concern that the next step may involve a challenge to religious organizations that refuse to provide gay marriages in their church. What wins out, a specified right (freedom of religion), or a penumbra right (equal protection without regard to sex -- which, you'll notice, the text of the 14th Amendment explictly rejects, as it speaks of "male inhabitants").

I wouldn't have liked it if this had happened through a proper legislative process, but certainly we would have all accepted it. Instead, we appear to be using the courts to set up a constitutional crisis.

Grim, I think that fear is a little overblown.

Not completely unreasonable as I'm sure some lunatic will mount that legal challenge, but overblown in that the courts will almost certainly say that the various religious institutions are protected in this regard by the First Amendment.

I'm about as concerned by that as I am the various lunatic internet decency acts-- they are never taken seriously by the courts.

"There's been some concern that the next step may involve a challenge to religious organizations that refuse to provide gay marriages in their church."

Red herring. What is the legal argument that a private establishment would be forced to carry out a religious ritual on demand? Can women sue to become priests? Total red herring- although it again points to an unnecessary confusion caused by marriage being both a civil and religious ceremony. Get government out of the marriage business.

"[Y]ou'll notice, the text of the 14th Amendment explictly rejects (equal protection without regard to sex), as it speaks of "male inhabitants").--Grim

Not so. Even before they had the right to vote, women enjoyed constitutional protections. The 14th amendment, and the Constitution in general, protects "persons", not "male inhabitants." Here is the first paragraph of the 14th Am.

"1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The second paragraph deals with the separate topic of apportionment of Representatives and says, in part: "[W]hen the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, . . . the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State." However, this deals with elections, and, of course, the right to deny women the vote was only established in the 19th Am, ratified in 1920.

Equal protection of law for all "persons", of course, is black and white, written right in section one of the 14th Am.,it's not out in some penumbral limbo. The key point here is that California has permitted some 18,000 same sex marriages to stand. Prop 8 didn't touch those. It's a little difficult to imagine how a state can grant 18,000 same sex couples the benefit of state marriage laws, and to deny such benefits to everyone else, without violating equal protection.

I do agree that the 18,000 should not have been deemed 'married,' but that is water under the bridge.

In any event, my point is that the 14th's assertion of 'equal protection' clearly did not intend to create new rights that did not exist -- such as sexual equality. It certainly says that the states shall have to offer equal protection of the laws; but in the next breath it makes clear that only men may vote. Thus, nothing new was created. You still needed the 19th Amendment to redefine the traditional arrangement; not just some circuit court waving his hand and saying that, oh, obviously that means women can vote too.

The state -- neither California, nor 'the state' in the the sense of 'the government' -- has never been delegated the power to define marriage. It has been delegated the power to regulate the question of whether this man may marry that woman, but not to fundamentally alter the institution. That should require additional Constitutional authority, on the order of the 19th Amendment.

That was always the right, and indeed the only acceptable, road for working a change of this magnitude. Instead it's going to be done by a minority, without the work of building a supermajority -- the building of which is what allows a fundamental change to enjoy the stability and ease that womens' voting rights have enjoyed. You would have had to deal with some people (most likely including myself; although no one has really tried to convince me that this is actually something I should accept, but rather that only hateful bigots would oppose it; and not being one of the latter, I therefore see no reason to fail to oppose it) who simply cannot see their way to believing that this is acceptable. But even we wouldn't be able to argue that the process was unjust and improper; and you'd have build a coalition that would have made this stable. I think that was AL's point.

"In any event, my point is that the 14th's assertion of 'equal protection' clearly did not intend to create new rights that did not exist -- such as sexual equality."

Nothing in the Bill of Rights intended to create new rights either. The 14th extends the notion that inherent rights are universal and outside the power of all levels of government (and just as some of the Founders argued there should be no need for a Bill of Rights as the rights are inherent, there should be no need for a 14th had our constitution been read and enforced as intended).

Regardless, I don't think you are intending to make the argument that sexual equality exists because of the 19th amendment- the 19th amendment exists because sexual equality is an inherent right. The fact that it took a century and a half to realize in this nation notwithstanding. Correct?

The issue here isn't a question of new or different rights, and certainly not as pertain specifically to homosexuals. The issue is to the straightforward application of equal rights of gender, (in line with Loving) just as it applies to interracial marriage.

Let me put it this way- would it be constitutionally permissible for a state to pass a law requiring a power of attorney contract on behalf of a female to only be given to a male?

Obviously not. Marriage is simply contract law. No government can restrict contracts based on gender.

I don't think you are intending to make the argument that sexual equality exists because of the 19th amendment- the 19th amendment exists because sexual equality is an inherent right. The fact that it took a century and a half to realize in this nation notwithstanding. Correct?

No, not on my reading. There certainly are rights of that type -- things like freedom of religion, which are yours purely by virtue of being human. Those are rights endowed by God (or the Creator, as Jefferson put it).

Voting rights are not among these, however: they actually are created by the social contract. For example, if we had never established the office of "Representative," it would not be a violation of your rights as a human being that you did not have the right to vote for one. Or, as another example, if we raised the voting age to 19 or dropped it to 16, we would neither be denying nor extending inalienable rights. We'd be altering the social contract -- which we are free to do, but in the normal Article V fashion.

Marriage, whatever else it may be, is not a right: neither an inalienable human right, nor a created social-contract right. It is an institution of immense antiquity, one that pre-dates the social contract; but also an institution participation in which is not, or not merely, a contract between two parties. It is also a bedrock of human civilization, and we ought to treat it with the care due to one: with a recognition that we all have a stake in it, not just the two people entering the contract, nor only them plus any children they may produce. It matters to us all.

I realize that the advent of no-fault divorce makes it seem like marriages exist for the convenience of the two adults alone, but that is not so. We should be shoring up the institution by doing away with no-fault divorce, not using the damage that has done as a reason to tear out another supporting wall.

I'm not arguing that marriage is a right- i'm arguing that equality under the law is a fundamental right. That ideal is simply being applied to marriage, in this specific case.

I disagree that equality is simply a thread of a social contract. If we don't posit equality despite race or gender or creed, none of the other rights are worth anything- the next change in social contract simply renders your personhood obsolete.

The question of age is a touchy one only because we all agree that excersizing ones rights requires a sound adult mind. A 10 year old cant vote, by neither can they marry or enter into a valid contract. That is an issue of the ability to consent, not drawing lines of equality.

It's not just age that keeps us from recognizing someone as equal, of course. We do it for a lot of reasons. They weren't born in the right place (citizenship v. noncitizenship); they aren't of good moral character (felons v. non-felons); they don't have adequate wealth (any number of government services are available only for a fee); or status, like being elected to public office (and it is necessary to remember here that, among the government 'services' that requires a substantial fee is being admitted as a candidate for public office).

Some of these are done for no good reason, or just for the convenience of the powerful and wicked. However, some of them seem to be reasonable (such as the 'citizens only' voting rights rule). 'Equality under the law' cannot therefore be a fundamental human right, in the way that freedom of speech or religion is. These we really do extend to minors and foreigners as well as citizens in their majority. (There may be some freedom of expression limitations placed on students while in a public school, for good public order, but the students are recognized to have religious and expression freedom in spite of those limits; by the same token, we have freedom of expression rights that may be limited near political conventions, to 'free speech zones', using the same excuse.)

As for the question of whether pure equality is necessary for the other rights to be "worth anything," that doesn't stand up to serious examination. Consider the situation of an ordinary woman in China in 1815, versus her contemporary in England. For that matter, I think our own society would be worsened rather than improved if we more closely held to the standard of 'equality under the law' on voting rights for felons. Mere equality can be harmful as well as helpful.

Grim, #14:

That should require additional Constitutional authority, on the order of the 19th Amendment.

So does that mean you require a Constitutional Amendment before you acknowledge the validity of mixed race marriages?

I suspect not.

It's also a bit of a tortured reading to claim that a Constitutional Amendment is required to change something which the federal government has no delegated power to define in the first place.

Grim, #16:

It is also a bedrock of human civilization, and we ought to treat it with the care due to one: with a recognition that we all have a stake in it, not just the two people entering the contract, nor only them plus any children they may produce. It matters to us all.

Well, I can make an assertion as well as you can: No. That other man's marriage does not matter to us all.

But in all the years people have been making that assertion, no one has ever made a plausible case for how this "matters" to anyone except the people so married, except in an "Iew, I'm offended," sort of a way.

So take your turn, Grim. Reason with me. Convince me, an unmarried man, that Adam and Steve getting married changes one thing about my life that Adam and Eve getting married doesn't. Hell, I can't see that either case matters to me at all because at some point in fourth grade, my teacher's admonitions to mind my own damn business must have taken root.

And when you're done with that, please realize that I'll be agitating for the right to pass judgement on your marriage, because after all, you'll have convinced me that it matters to me, that I get a say, and that I can deny your petition to marry. ("Petition to marry." The phrase itself is offensive.)

Which I assure you, I will-- to borrow from Abraham Lincoln, whenever I hear someone arguing against the right of someone else to marry, I feel a strong impulse to arbitrarily dissolve his marriage.

But I did file a petition for a marriage license, Marcus. Also, I filed a marriage certificate that had to be signed by someone the state recognized as having due authority -- in this case, a minister. You may judge my marriage how you like, but you will not find anything in either the law or tradition to support you.

I don't have anything against interracial marriages, because they are still marriages between men and women. It is clear that the state has authority to regulate questions about which men and women may marry, for reasons of public health etc. There was no need for a Constitutional amendment there; it was merely an alteration of an existing, well-established power.

Redefining the institution so that it no longer means what it has always meant -- union of man and wife -- is not a delegated authority. The state has no such authority, and the claim it is making now is a violation of our basic charter. It is a violation of the 10th Amendment for the government to claim powers that were never delegated to it in the first place. They are reserved to the states or to the People; and the People have not delegated this one, not to the states, and certainly not to the Federal government.

As for reasoning with you, here is my reasoning. Marriage is not only about the two people who marry, because it is an institution that is about uniting families, with an eye towards producing and supporting the next generation. This is well known to everyone; it is not only your own parents who care whom you marry, nor only your children who have a vital interest in it, but also the entire community that must support and educate those children. I gather one of the judge's findings here recognizes that fact, because he would like us to believe that there is no difference between straight families and gay ones on this point. That means he also recognizes the importance of the concern, and the significant interest that we all have here. He does not dispute the argument that there is a community interest in marriages; and neither do the Prop 8 opponents, who argued at length to convince him on this point. They also recognize the community's interest. That is a point, as the lawyers like to say, that is not in dispute in this case -- and although you may, if you like, dispute it, you are disputing everyone and not only me.

There is another matter, though, which was not addressed in the ruling. That has to do with the purpose of things. Marriage is about laying the foundations for the next generation; it is about parenthood and family building; it is, in a word, about fecundity. One of the objections voiced was that the state lets straight people marry even if they happen to be unable to conceive, and indeed we do allow that.

Yet infertility between man and woman is an accident when we find it in nature; whereas infertility between two members of the same sex is how nature has ordered itself. The ruling, along with the earlier error of no-fault divorce, moves the institution from one that is based on the assumption of fertility and building for another generation to one that is about the happiness of the current generation.

That is the grasshopper and the ant problem, and you certainly do have an interest in it even if you wish you did not. If we have a fundamental need as a people, it is that need: for the next generation to be prepared for, and for our duty to them to be taken seriously.

Our government is failing that duty in every possible way. We see the grasshopper and the ant problem at work in Social Security, where they spent the surpluses every year and now find that we have serious financial problems with the program. We see it in a whole host of current government programs. We have seen it in no-fault divorce, but this ruling goes even further and formally redefines the purposes of the institution.

There are some of us left who are doing our duty to the future generations. I am alarmed, however, to see how many people want to destroy the institutions that have held our culture together for so long and so successfully, in pursuit of their own personal and momentary happiness and gratification. This is nothing but eating the seed corn -- spending not only the wealth of the nation, but its social capital as well.

What happiness they can find with each other, so long as it does not damage one of our bedrock institutions, I in no way begrudge them. This one is very old, though; it is older than the Republic, and I do not like to see it wrenched about in this way. We ought to take care of the wealth that our ancestors have given us, and not to be so quick to think we are so much wiser and better than they.

I don't have anything against interracial marriages, because they are still marriages between men and women.

But this is arbitrary and capricious, exactly what the law ought not to be: Social attitudes have changed since Loving v. Virginia. But before that, the exact same cases could be made and were made that there was some compelling state interest in denying the marriage between black people and white people. Indeed, the arguments were made on behalf of the children.

As for reasoning with you, here is my reasoning. Marriage is not only about the two people who marry, because it is an institution that is about uniting families, with an eye towards producing and supporting the next generation. This is well known to everyone; it is not only your own parents who care whom you marry, nor only your children who have a vital interest in it, but also the entire community that must support and educate those children.

This reasoning is bizarre.

I've seen the claim many times that denying gay marriage is somehow of interest to the children, but that logic is followed almost nowhere else.

We don't deny marriage licenses to infertile couples-- but even though you address that below (badly, in my opinion) the precedent goes far beyond that.

We don't extract promises to have children. We don't deny marriage licenses to, say, deadbeat dads on the principle that we'll have to clean up after another three kids when he skips town five years from now. We certainly don't criminalize or regulate having children-- only managing the results once they're here.

So basically I don't believe people when they make this case; if they believed it, they would be logically required to support a whole host of other marriage regulations which no one ever mentions outside of bad stand-up comedy routines. ("I have to get a license to have a dog, but not a child! Hur hur hur!")

(And just for the record, my parents may care who I marry, but they have no standing. Just as you have no standing in the marriage between two arbitrary men.)

Yet infertility between man and woman is an accident when we find it in nature; whereas infertility between two members of the same sex is how nature has ordered itself.

You're lapsing into a religious argument here, with nature as some sort of purposeful entity. It's not. It doesn't have an opinion.

(This is why I say "badly," above.)

Beyond that, you've not made any case at all for how homosexual marriages affect fecundity. Does the gay couple down the street make you less fertile? Your wife less fertile? Planning on having fewer children because a gay couple moved in next door? Fuck less often?

Even if you can say "yes" to any of those with a straight face, can you go back and explain why the answer becomes "no" if the gay couple next door is merely shacked up, but not married? Really, I'm keen to hear this.

What happiness they can find with each other, so long as it does not damage one of our bedrock institutions, I in no way begrudge them.

Ah, there it is!

You-- the collective you, but the personal you has now joined that group-- go on and on about the damage to the institution, and your duty to future generations, and so forth... but you never explain what the damage mechanism is. You never even explain what the damage is. You never explain why a gay couple next door, married, is going to change any of that, but a gay couple unmarried won't. You just assert it, and try to slide it into the consequences column without ever connecting the dots.

We ought to take care of the wealth that our ancestors have given us, and not to be so quick to think we are so much wiser and better than they.

Well, these are the same dead people who thought slavery was a good idea, also since time before written records.

The Appeal To Wise Old Dead People is a non-starter. (If you need a fancy Latin phrase, try argumentum ad antiquitatem.)

An argument from natural law need not be religious; if I had wanted to make a religious argument, I would have said something about 'how nature is ordered' rather than 'how nature has ordered itself.' I don't share your opinion that we should frame the public space in such a way that religious arguments are not allowed; but it happens that I rather intentionally did not make one.

This is not a claim about teleology, since you thought I might be impressed by Latin; it's a claim about the facts of life. Nature need have no purpose for me to be correct in saying that it happens to have this order. Men and women may normally have children (though there are accidents that may prevent it); men and men may not.

A better counterargument would be to ask whether I would still be opposed once science readily allows gays to bear children -- artificial wombs and so forth. The answer is that, at first of course I will be: the instinct should be to be slow and careful in adjusting these institutions. However, if that proves to be a successful mode over time, my objection might evaporate.

Not that I'm against all changes, mind you. I approve of changes that shore up our fundamental institutions. If you seriously want to deny licenses to deadbeat dads, etc., I'm all for it; that sounds like a reasonable idea.

Now, as to the violation of our basic charter: I notice you don't address that, but perhaps you were too exercised while slandering every single ancestor we have as slavery-lovers. So let's look at it again.

1) The 10th Amendment states that all powers not granted by the Constitution to the Federal government, nor forbidden by it to the states, are reserved to the states or to the People.

2) The power to redefine marriage (indeed, even the power to regulate it) is not a Federal power.

3) Therefore, this power -- to redefine marriage -- must exist at either the state level, or be reserved to the People.

4) In the current case, the People of California took great pains to forbid the state from doing exactly what the Federal court now intends to do.

5) The method they used was a popular referendum, which under the constitution of the state of California makes it a legally binding law at the state level.

5) Therefore, whether the power properly belongs to the state or the People under the US Federal Constitution, it has been exercised to forbid the precise thing that the court is now insisting be done.

6) The 14th Amendment is being cited as the reason for setting aside the state law and the will of the People; but the 14th Amendment (as discussed above) plainly considers a distinction based on sex to be valid. Therefore, the 14th "equal protection" clause cannot possibly have been intended to say that there can be no distinctions of any kind between citizens: and in fact, its own terms show that it considered sex a valid reason for making distinctions (in a matter much less central to issues of sex).

Actually, it occurs to me that telos is originally Greek, now that I think about it. Ah, well. It's used in Latin as well, especially in works of philosophy.

Anyway, the point is not about the individuals, but about the institution. You understand the distinction, I assume, but perhaps I haven't been clear. Two gays "marrying" does not affect my marriage at all. Redefining the institution of marriage so that we think of it as being 'sort of like contract law, between the two parties most interested' breaks it.

It breaks it by destroying the sense that the two parties so "contracting" are not the crucial part of the arrangement. By making it all about their happiness, we lose the focus on what it was for to begin with.

That seems like clear damage to me. You're free to see it otherwise, but my duty given my understanding is to oppose it.

Which is funny, in a way; because I wouldn't otherwise care in the slightest. It's only because people insist on trying to force it, now, that the issue enters my consciousness at all.

Nature need have no purpose for me to be correct in saying that it happens to have this order.

That's fine, as far as it goes. But you didn't say that. You said nature ordered itself. It's right up there.

Now, as to the violation of our basic charter: I notice you don't address that, but perhaps you were too exercised while slandering every single ancestor we have as slavery-lovers.

Oh, please. You've also made the implicit claim that every single ancestor we had was opposed to gay marriage.

I could also have said that these were the same ancestors who thought the earth was flat, with the same force. The appeal to dead people is still a fallacy, because it lets you cherry-pick only the dead-people-policies that you like, and conveniently forget about all the dead-people-policies that we threw out because they were wrong.

As to the specifics, since I have not invoked the 14th Amendment, and my point had nothing to do with the 14th Amendment, I'll leave that to Roland and Mark.

Now then, as to the discussion we were actually having! You brought up fecundity. Want to get back to the part where gay married people prevent you from having children? That's really the crux of your argument, isn't it? Gay married people next door means no kids, but gay shacked up people means kids as normal.

Why is that, exactly? Reason with me, Grim. Help me understand.

It's in the post right above your last. :)

Some minor corrections: I said that "nature orders itself" precisely to avoid a religious formulation about nature being ordered by something else. Your continued objection to that phrasing means that you must be confusing nature having a purpose with nature having an order.

Nature may or may not have a purpose, but it certainly does have an order: the periodic table, the development of which I was discussing recently with a friend, is a good example of this. The order was plain enough that, once the basic features of the table had been mapped out, it was possible to predict the existence and properties of undiscovered elements.

So, religion may hold that nature's order arises from a divine purpose. Non-religion may hold that nature's order arises from no purpose. It cannot reasonably hold, however, that there is no order.

Second: the informal fallacy you are citing only holds in cases where it is being used as a fallacy -- in other words, as a guarantor of the truth of a logical claim. In this case, if I were arguing that we should never change anything about marriage because X ancestors supported it, that would be the fallacy you mean. Suggesting marriage was perfect because it was old is another example.

However, it is not a fallacy to say that old institutions often function in ways we don't fully understand, and we ought to change them only slowly for that reason. Far from a fallacy, that is another fact of life: one of the gods of the copybook headings, as Kipling put it: "Stick to the Devil you know."

But Grim, it is a contract, and it often has been, even in Western Europe!

Sometimes it's been a private contract, where two people mutually consented, acted married and were therefore treated as married. Sometimes it's been a private contract, but formally recognized by the state. Sometimes it's been a public contract with bride prices, dowries, family agreements, arranged marriages and the whole works. The form of it varies widely through history, as does the religious involvement.

But it is a contract.

What it is not, is the hothouse flower you're claiming it to be, because all of those arrangements seem to have "worked". So I find your claim that broadening the notion of the marriage contract is going to somehow "damage" it is silly.

But still, let's rephrase the question: If we replace "traditional marriage" (which is really a misnomer, since "traditional marriage" is always defined very narrowly to hew to a particular thin slice of tradition) with more general marriage contract...

...are you going to have less children? Do any of the factors in your marriage change?

No, of course not. It's just as silly as the previous question. And if not yours, why would you assume that you're special and everyone else's marriage is going to disintegrate? We know from history that many different marriage contracts have been tried, and they don't lead to any sort of "fecundity collapse" where people stop having children because they don't like their marriages.

None of your argument follows from anything I know about history.

People don't have kids because they're married. People have kids because they like kids or because they like sex.

"'Equality under the law' cannot therefore be a fundamental human right, in the way that freedom of speech or religion is."

Apply your own diagnosis to freedom of speech or religion. There is no freedom of speech in China- does that mean freedom of speech isn't fundamental.

Look- equality under the law is equality of citizens under the law. That is obvious and fundamental. It seems like you are arguing that since equality isn't universally applied (and I mean that literally- as in if there are citizens of Mars that don't have equal American rights that would 'prove' the argument you are setting up) it is hypocritical. But our Constitution was never intended as a doctrine of mankind. It is a constitution of these United States. That it doesn't speak to others outside that realm, or to felons punished inside the law, certainly doesn't nullify its integrity.

"As for the question of whether pure equality is necessary for the other rights to be "worth anything," that doesn't stand up to serious examination. Consider the situation of an ordinary woman in China in 1815, versus her contemporary in England."

Again- why would I do that? This is an American Constitution, not a treatise on the rights of man.

But examine your argument- was barring blacks from Constitutional protection legitimate? Why not, if what you are saying is true? We don't protect the rights of blacks in Sudan, so why do we have to here in America? Was our enfranchisement of blacks simply a kindness? Or was it a requirement of natural rights, long overdue?

But this is a digression- whether the 14th amendment reflects an inalienable right (of Americans of course) or not is somewhat beside the point.

The 14th IS the law of the land. There is not a word about 'marriage' in the Constitution, but there is about equality under the law.

So I still would ask you to answer that one question Grim:

Would a law be constitutional that forbid women from contracting with other women, or men with other men, if in some other context. For instance, if the State of Illinois forbade a male condo owner from leasing to a woman and vice versa. Would that stand up?

#26:

Many different marriage systems have indeed been tried, and have worked to varying degrees. If you want to re-institute one of those, we can talk. I've got no problem with polygamy (Mormon or Islamic). I've not really got any problem with the sort of temporary marriages that once were called 'handfasting' and now we call 'living together,' although they are not idea if you intend to have children. Etc.

I'm not arguing against change, but against a radical and untried redefinition that appears to me to eliminate the idea at the base of marriage: the idea of building a family, for the future, not just a happy couple for the present.

You say that you just 'don't believe' people when they assert they want that, because they'd have to support other things too; but I do support at least one of your proposals, re: deadbead dads. And why wouldn't I? When a father's permission was necessary for a marriage -- because the older generation and the one to come are both interested in the marriage -- he would hardly want to give his permission to a scoundrel. It is also good for a young man to learn whether he is apt to be marrying into a family that loves him or hates him. I asked my future father-in-law for permission to seek the hand of his daughter, and it was a wise idea even though -- under the current system -- I certainly did not require it.

You may be interested in the piece below also, although it's not chiefly addressed to you.

#28:

In a matter touching sexuality, it might be. One place where there is absolutely no "equality of citizens" under the law is abortion rights, for example: women have them and men do not.

I can imagine the government forbidding contracts that appear to transfer those rights, so that men got a veto over them: say a man and a woman entering into such a contract, the woman changing her mind and wanting an abortion after all, and taking it to court. The court might well argue -- given the longstanding intensity of its support for abortion rights -- that her fundamental right to abortion in this case overwhelms the man's ability to enforce a lawful contract: in other words, that there can be no lawful contracts of this type, because her status as a woman-citizen is more important than her status as a citizen; the sanctity of her right to choose being more important than any notion of equally-protecting the man-citizen.

Grim,

One place where there is absolutely no "equality of citizens" under the law is abortion rights, for example: women have them and men do not.

The law does not prevent men from having abortions. Biology prevents us from being pregnant. All pregnant people are treated equally.

I'm . . . against a radical and untried redefinition that appears to me to eliminate the idea at the base of marriage: the idea of building a family, for the future, not just a happy couple for the present

1) Appearances are deceptive. The proponents of prop 8 failed to provide any evidence that gay marriage eliminates the idea of building a family as a base of marriage. Any married couple that wishes and is capable can build a family. For that matter, unmarried people can build a family.

2) Heterosexuals are allowed to be married without building a family, if by family you mean having children. My wife and I do not have children, e.g., nonetheless we consider ourselves to be a family.

While it would be nice if this came about via the political process, for the arguments well laid out, post by post, above by Mark Bruener above, I don't see how the court, once confronted with the question, could have ruled any other way. The law is the law, after all. The government simply does not have the authority to prevent people from getting married absent any evidence that such a marriage would harm other people, those getting married, or the interests of the state. AL, in his original post, seems to imply that the court had a choice. I just don't see that it had. The argument was overwhelming.

"The court might well argue -- given the longstanding intensity of its support for abortion rights -- that her fundamental right to abortion in this case overwhelms the man's ability to enforce a lawful contract: in other words, that there can be no lawful contracts of this type, because her status as a woman-citizen is more important than her status as a citizen; the sanctity of her right to choose being more important than any notion of equally-protecting the man-citizen."

There is already established law that a person can't barter control of their body away via contract, man or woman. IE- a court can't force me to give you my kidney no matter how many contracts I signed agreeing to it (you could seek damages otherwise, but no court could force me into surgery).

Hence, there is no gender dynamic at play in your example. Is there any other way you can think of that such a gender based law would stand up?

The other problem with the abortion argument is exactly what mark stated- men are not barred from abortions.

Simple thought game- if men are genetically engineered to have children sometime in the future, would they be subject to the same abortion protections women are today? There is no reason to think they would not be.

Ah, so you want to say that it's OK for the law to bifurcate here -- indeed, it would be absurd not to do so -- because of the biological facts of life? Great! I'm right there with you. That's exactly the argument I've made myself. That kind of basic fact of life is a perfectly reasonable cause for a practical 'inequality' in the law. The natural infertility of homosexuals is as clear an example of that as the natural impossibility of men carrying children.

"Men are not barred from abortions" in just the same way that marriage is perfectly open to homosexuals -- real marriage, with a member of the opposite sex. They have equal access to it; it's just that they have no use for it.

#30:

This is why AL's original point is very persuasive to me. You say that, as you understand the issues, absolutely no other result was even possible.

I've laid out in #22 why, from my perspective, this result is both unconstitutional and illegitimate.

The controversy hardens positions. I wouldn't even be slightly interested in the question if we weren't seeing an attempt to use the courts to force a national solution, and enshrine something I think is wrong as a constitutional right. If this were just California, a few other blue states, maybe some cities here and there, I wouldn't really care about it -- certainly not enough to fight about it. I'm OK with a fully Federalist solution that lets us have standard X here, and standard Y there, even on an issue like this one. Even though I think it's wrong, it doesn't bother me that people elsewhere don't agree. I just object to being told that I have no right to disagree with them, and must abide by their view of what my obligations to them are.

One side views this as a basic rights of humanity thing. The other views it as some combination of a preposterous imposition, a dangerous and foolish effort, and an unconstitutional assertion of power by the Federal government.

Courts make rulings. They are appealed. It may find its way to the supreme courts calender. The court makes a ruling. Case closed.

Which side am I rooting for? I think you render unto Ceaser what is Ceaser's.

No religious group has the right to deny marriage or anything else to anybody else if it does not prove that the behavior is detrimental or against the law.

"Men are not barred from abortions" in just the same way that marriage is perfectly open to homosexuals -- real marriage, with a member of the opposite sex. "

In no way does that equate. Homosexuals are perfectly capable of physically going to a court house and filling out a marriage license. 3000 Californians prove that. Men are physically incapable of having abortions, but would be able to do so if it were physically possible. One is a physical bar, the other is demonstrably a political bar.

Your 'they can marry, just not who they choose based on gender' is precisely the logic used by Virginia to bar Loving's marriage. You can marry, just not inter-racially. In no way does that satisfy equal protection. In fact its the logic of separate but equal, which we know is inherently unequal.

"The other views it as some combination of a preposterous imposition, a dangerous and foolish effort, and an unconstitutional assertion of power by the Federal government."

All of which have been the same arguments made against racial integration, gender equality, and every other extension of liberty in history. In the face of that we require real dangers, real damages. Show us specifically how society will be harmed and how we can measure it.

To do otherwise is demagoguery pretty much be definition.

Your physical v. political distinction is nice, Mark, but incomplete. It is indeed true that men are physically incapable of carrying a baby in the womb, whereas gays are physically capable (and only politically incapable) of filling out marriage forms. However, you have forgotten to fill out the other side of that equation. Gays are physically incapable of producing offspring; but men are physically capable (and only politically incapable) of terminating their parenthood rights and responsibilities.

The parallel to gay "marriage" is the "men's rights" movement that wants to let a man exempt himself from duties to the child he engendered. A woman has a right, if she decides she does not want a child, to kill it and be done with all future duties to it; a man may neither kill it nor free himself from duties to support it. He is physically capable (a man can kill an infant as well as a woman; or a man can fill out a form renouncing his parenthood rights in return from being liberated from their responsibilities). But there is a political bar.

And good that there is: I am, as you have probably understood, wholly opposed to abortion as well, save in those limited cases where they are necessary to save the life of the mother. But that is a separate topic; I mention my opinion here only so you won't take me to be arguing that men need to be liberated from these duties in order for us to be consistent on 'equality of protection under the law without regard to sex.' I desire no such equality, nor any such consistency, which would be neither right nor just.

Sex is one of those biological realities that is prior to the law, and which the law must accommodate. Injustice rather than justice results where the law insists on ordering society in defiance of nature.

That seems like harm enough for me; but I will point, again, to the argument in #22. This ruling is an affront to the Constitutional order, and another encroachment on our traditional rights and the due delegation of powers. I would oppose a ruling of this type even if it were to my advantage; or even if it were over a topic I care about even less than I care about homosexual issues.

Toc3:

Rendering to Caesar is a fair point; but let us remember that our duty to Caesar includes holding him to the Constitution. That is part of the bargain: if we fail to do our best to defend it, we are not doing our duty as citizens.

For those who believe that this ruling is not only Constitutional but just, that duty pulls them one way. For me it pulls another; but in both cases, it won't do simply to say "submit." That is not what a citizen's duty requires, here or elsewhere.

"gays are physically incapable of producing offspring; but men are physically capable (and only politically incapable) of terminating their parenthood rights and responsibilities."

Which is a distinction having zero relevance in our law.

"Sex is one of those biological realities that is prior to the law, and which the law must accommodate. Injustice rather than justice results where the law insists on ordering society in defiance of nature."

We are a nation of law, not justice, and you can argue the justice of gay marriage with someone else, i'm wholly decided on this issue because the law is obvious and inescapable. If you aren't happy with that state of affairs, I suggest taking my advice and removing government from any role in marriage whatever, since the government can't sanctify the sacrament to your satisfaction. Make marriage a purely private social/religious act, and put force civil unions as the government option if people want tax preferments or inheritance rights.

"That seems like harm enough for me; but I will point, again, to the argument in #22. This ruling is an affront to the Constitutional order, and another encroachment on our traditional rights and the due delegation of powers"

So Loving was as well I take it? Interracial marriage was forced by the courts, was that wrong?

Regardless, you still haven't demonstrated a shred of tangible harm, aside from the alleged deviation from 'nature' which any biologist would demolish instantly (homosexuality being common in other species, as well as found in all human cultures, hardly a fad).

Forgive me Grim, but your argument seems to distill down to the religious implications (and of course the ever present yuck factor), and that is simply not good enough to defy the rule of law in our system. The possibility of fire and brimstone devouring our nation doesn't count as foreseeable damages gay marriage will cause.

Can I also add personally that I take some umbrage at taking the idea that marriage is simply a step in procreation? My wife and I plan on not having children .That may diminish our marriage in the eyes of some (to each his own), but I will certainly stand up and fight putting that notion into law (where it certainly DOES NOT exist now).

I am not at the mercy of my biological urges (which as a male are to copulate, not necessarily procreate anyway) and I object to such a notion becoming the reason for being of our interactions with the government, which I (and millions of others) never signed up for, never voted on, never had an opportunity to.

If anything is a new addition to the social contract, it is this novel idea that marriage exists as a means of procreation (and does a terrible job of it if our illegitimacy and divorce rates are any indication). If I took it seriously and not as some desperate grab for an edge in the war against gay marriage I would be concerned.

Biology urges me to do (and not do) many things that I ignore. I certainly don't want my nation basing the rule of law around satisfying those urges at the expense of liberty and equality.

Well, forgive me in return, but I have noticed that you have been very insistent on being allowed to 'boil it down' in such a fashion. Your counterarguments have very often taken the form of 'that has no relevance to our system of law,' even though it is an example drawn from our system of law, for example; or reading my remarks about nature to be religious, even after I explained that they were not; or reading me as acting from religious doctrine now, after I just agreed with toc3 that this was a "Ceasar" rather than a "Lord" related matter.

I know it would be very helpful if your opponents would agree to be irrational bigots, but nevertheless I am not one. (Not wholly, at least! It can be very hard to tell when you are being fully rational, if indeed anyone is ever fully rational.)

I said in the beginning that no one has ever yet really even tried to convince me that gay marriage would be a good thing, but only made assertions that only bigots could oppose it. You have applied that model at some length, but you've said nothing I haven't heard from others. It's always "Loving!" or "slavery!" or whatever. I find no merit of any kind in arguments of that sort, and there's no reason I should. If the game is to convince some observer that I am secretly an evil racist gay-hater, you might: but you're certainly not going to convince me that I am.

At one time I would have been astonished that you thought you could; but I have seen it done so often over the last few years that it has lost the surprise value. It has become normal now: we are all racists who oppose any of these progressive notions; we are all driven by hate; we are irrational. And this is the mode whether we are talking about... well, it doesn't matter what we are talking about. It's always the mode.

There is no magic left in this line of argument. It is past time to stop undermining or wrenching our basic social institutions around, and time to start rolling back your innovations. That will be the work of the next few years for many people like me; it is of the utmost importance that we restore the Constitution, the 10th Amendment, and eliminate this poisonous power that has caused the courts to feel that every social institution and every crack of life is their playground to order as they will.

You still never tried to convince me that your position would actually benefit marriage, as opposed to benefitting the individual gays who think they would like to be married. Indeed, you've taken the opposite approach: you've asserted that you will not even entertain the question of whether marriage as an institution might be harmed, unless clear evidence can be provided to prove the assertion beforehand. Given that no society in history has considered altering marriage in this way, of course no such proof can be produced. The very radical nature of what you propose allows you to claim that your opponents cannot meet your standard.

So be it. I am not convinced. You are not convinced. We each believe the other is wrong, not only about the case but about the Constitution. And so we are at an impasse. The court insists that there be only one solution, not a system in which different people can live differently. Therefore our duty requires each to work against the other, and what they believe is right. In time one of our minds may change; or we may find that the country can no longer hold together, with so little common ground, and so many things we have to fight about.

That will be at the feet of the Court -- not for this case alone, not by far, but from this entire line of 14th Amendment jurisdiction. It is the insistence on making these kinds of cases Federal cases, with one-size-fits-all solutions, that is tearing the nation apart. But perhaps there is still time to pull the Court's fangs before it destroys the nation entirely.

Grim,

I just want to add one thing to Mark Buehners' # 37. You wrote, and he quoted you, that the law insists on ordering society in defiance of nature

The court ruling, however, does no such thing. Even if, for the sake of argument you accept that homosexuality is somehow in defiance of nature (a tough thing to accept, given its actual and widespread existence), the court ruling doesn't require or insist on anyone doing anything. It doesn't mandate marriage for gays. It simply allows those who want to marry, to marry. That's all. All the heterosexuals who are married will still be married in exactly the same way they married before. Nothing will change. Nothing will happen. No one is being forced or required to do anything they don't want to do. There will be no ordering or re-ordering of society.

The court ruling is a limitation on government power. You seem to view it as the opposite, as if it is some sort of government intervention or interference. I just don't get that.

It is not my belief that homosexuality is in defiance of nature. What I mean is that human nature requires institutions to get it to act like ants instead of grasshoppers. What is in defiance of nature is ordering marriage so that it is chiefly about the pleasure of a mated pair (instead of the institution for building families that plan for and raise the next generation), and thinking that will not diminish fertility/fecundity. We need the institution; it is not just there for people to play with.

Umbrage at the idea that marriage might be chiefly about children, and only secondly about you, is noted. I also have reason, plenty of reason, to take umbrage -- at being told that my concerns cannot be rational, must be merely religious, and are expressions of something that is the very close kin to bias or bigotry.

However, I have no wish to take umbrage; I leave it on the table. It isn't worth getting angry over, and indeed if I were to get angry every time someone who believes in a more-or-less conservative way is called a name, I would have no time to do anything except be angry.

Oh:

...the court ruling is a limitation on government power. You seem to view it as the opposite, as if it is some sort of government intervention or interference.

There are three levels at which powers can be held. The Federal, the State, and those powers not delegated to either, but retained by the People.

This is the argument from #22. Prop 8 is a "limit" on government power -- it is the People pointing out to the state that they are NOT delegated authority to redefine marriage. The Federal government is stepping in and telling the People that they may not refuse to delegate power to the state; and then also telling the state that they will, in fact, redefine marriage in a particular way. That's why this strikes me as an intervention -- not by "government," but by a particular level of government (the one least rightfully involved in the question, unless it goes back to the People for more authority under Article V).

But Grim, the way you are defining it, marriage itself is in defiance of nature. You're describing it as a cultural restraint we need to put on our natural impulses. While that is certainly one way of looking at, you must admit that it's not the government's role to impose that particular view of marriage. Good heaven's, that would be the ultimate Nanny State.

Whatever your personal feelings about marriage and children are, you have to recognize the people like Mark and myself do, in fact, get married and don't, in fact, have children. You wouldn't try to outlaw our marriages, as well as those of gays, would you?

Grim,

Prop 8 is a "limit" on government power

My understanding is that prior to Prop 8 (and, in fact, the motivation behind Prop 8) was that the state courts had ruled that any ban on gay marriage was a violation of the state constitution. Prop 8 was an attempt to extend the power of the state to allow it to ban gay marriage. This would have been a change from the status quo, increasing government's power (in this case, the state of California's).

The Federal court ruling, however, found that such a change to the state constitution would be a violation of the US Constitution by infringing on the individual liberties guaranteed by the Constitution. This ruling thus limits the state's powers.

This is no different than if the Federal Court were to strike down a proposition approved by the majority of Californian's that amended the state constitution to allow the state to ban printing presses, say, or force people to testify against their spouse.

Proposition 8 increased the state's power. The court ruling decreased the state's power. And yes, of course, the power to do so is invested in the court by the Constitution, so the decision of the court is itself an exercise of power. But that's what courts are supposed to do. It's their job.

I'm beginning to wonder how many Marks there are in this debate! Is it Mark and mark and mark b. and also Marcus? I may be eliding some of your points together!

First: Yes, I do view marriage as a cultural restraint on our natural impulses. No, I don't think that's 'in defiance of nature,' because it is a point about human nature. Humanity has a nature too, and it's very important that we recognize that fact.

For example, it is perfectly right to build a shelter and heat it with fire in the winter. This is not evil because it is 'in defiance of nature' and some desire nature has to get cold! Rather, it is in accord with nature, because we must know our own nature well enough to know that we shall otherwise die.

Or, if we are farming and we wish for fertile fields (since we are talking about fecundity), we are not 'defying nature' by plowing the field, loosening the soil, and irrigating. Nature may have, in some sense, caused the soil to become impacted and the water absent; but we must understand the nature of the grain well enough to know how to create a healthy environment for it.

Second: Re: Nanny States. I am in general opposed to the state at every level; but prefer cultural institutions. What puts me on the side of Prop 8 is chiefly that it is an example of the People attempting to restrain the Government (at both levels) from forcing them about. I wholly approve of that.

I wouldn't object in the slightest to gay men and women ordering their own lives however they wish. It is in the attempt to use the government to force changes in the cultural institution that I find cause for opposition.

Third: No, I wouldn't try to ban marriages of that sort. I have no reason to do so, any more than I have reason to oppose Islamic polygamy (which I observed to work fairly well in Iraq). These sorts of marriages have long existed and -- theory aside, but from simple practical observation -- are not incompatible with the institution's health. I'm not interested in restricting who can marry more than it is already: although, I am interested in restricting who may divorce more than is the case under current law. The ease of divorce seems to me to be a very serious problem for the institution.

Gays who wanted to try and convince me that their marriages would actually improve the institution might begin by signing on to the anti-divorce platform! I might be willing to come to a trade there, if a compromise position were sought.

#44:

That's an interesting reading. So, from your perspective:

1) The state never had the authority to ban gay marriage. Laws saying so were unjust, and only waiting on the courts to overturn them.

2) The state gained the power to ban gay marriage by popular referendum. This is a net gain for government power.

3) The Federal government restored the status quo by ripping away that power. This is an exertion of power by the Federal government over the states, but does not increase the total amount of power in government when it is considered at all levels.

Thus, we went from 0 to +1 to -1 back to 0.

My view is:

1) Before the Founding, marriage existed as an institution with a given nature. This institution passed into the social contract at the Founding.

2) The Federal government was granted authority neither to regulate nor to redefine it (10th A).

3) The states were granted authority to regulate, but not to redefine it.

4) The People retained the authority to redefine marriage.

5) California's state courts, by eliminating the laws that did not permit homosexuals to "marry," claimed a new power from the People: the power to re-define the institution.

6) The People stripped that power from the state by referendum. (This is the point at which we are back to status quo in my view).

7) The Federal government stepped in on the state courts' side, and insisted that the government would have the power to redefine marriage. It then also assumed the right to dictate to the state what the new definition should be.

That leaves us at +1 government power on my view; whereas you feel we are at 0 here. I find that interesting.

Grim,

Defying nature is not a bad thing. I'm wearing reading glasses as I type. Neither reading glasses nor typing are natural.

The government has always had the authority to define and regulate marriage within the limits allowed by the Constitution. Age, number of spouses, grounds for divorce, etc. So long as the state has a compelling interest it can restrict who marries who. I can't marry my 3 year-old cousin after divorcing my wife because she dyed her hair blue yesterday. I think we can all agree that a state has always had and continues to have the authority to define, regulate, restrict or redefine marriage as long there is a good reason for doing so. The state of california was unable to offer any good reason for denying gays the right to marry each other. You offer no good reason. Your only reason seems to be that you don't want them to. I am unwilling to extend to you and any majority the power to tell me who I can and cannot marry unless you are able to produce a good reason. Your belief that it isn't natural isn't good enough. Next thing, you'll want to ban reading glasses. . . or typing. Come to think of it. That last might be a good idea. No more typing. At least not for tonight. Good night, Grim.

Good night, friend. If it helps you sleep, you may go to your rest knowing that I have no more thought of banning reading glasses than of banning warm fires in the winter. These things are very much in accord with our nature; indeed, my own eyes suffer much the same fate as I grow older!

Grim- I apologize for getting heated and loose with my language yesterday. I want to make it clear that I don't think you are a bigot in any way.

I did want to address this notion of marriage as a constraint on our lesser natures. If that is the case, I'd expect assaults on marriage that have definable and measurable negative impact on the institution to draw exponentially more ire than gay marriage which would seem to have limited if any measurable damage. Yet we have never seen anything like this kind of controversy over no fault divorces or even out of wedlock birth rates.

The idea that allowing gays to marry takes them out of the hetero marriage/parenting pool hardly passes the snicker test, and a counterargument is well worth making that a strong gay marriage can certainly raise children... often the children that have been abandoned or otherwise fallen out of failed hetero marriages or non-marriages.

For that matter gays can decide to procreate via a third party- which begs the question: is this a concern about birth rates (which is a real long term concern, and again one which gay marriage or lack thereof hardly affects), or about eugenics and the carrying on of biology. Gays can certainly participate in the former and technology will likely soon enough speak to the latter.

So how exactly does gay marriage harm the child rearing 'goal' of marriage, assuming we were to accept that assertion?

I accept your apology entirely, and with a good will.

You may not be familiar with Cassandra's Villainous Company blog -- I'm sure you recognize the reference to Shakespeare -- but it is a good place for those who want to understand my position. You'll find me there more often than anywhere else, except of course for my own hall.

I have great concerns about birth rates, and demographics generally; and how we manage to fire these under the problems of the current age. Just yesterday Cassandra was pointing out that 'no fault' divorce is of small matter beside 'irreconcilable differences' divorce; and I can't argue with her numbers. The fact is that we need to make divorce much less available, if marriage is to be sustained.

"How exactly?" you ask; I wish I could give you a better answer than to say, as I have said, that the current proposal redefines marriage in terms of current happiness instead of future plans. Gays may someday participate in generations to come more than they do; but for now, the objective weight of a 'gay marriage' decision is to restructure marriage around the two people, not the future. This is somewhat akin to Orwell's notion of 'objective fascism,' although obviously I don't intend any of the negative connotations associated with 'fascism.' The point is that one can support a usually praiseworthy goal -- peace! -- in a context that makes that goal unwise. In the current situation, where we are seeing a collapse of marriage and fertility both across the West, we must devote ourselves to rebuilding the frontier.

Now, as I said above, I'm willing to be persuaded -- for example, by a compromise position whereby gays get to marry in return for an end to these forms of divorce. However, that requires compromise -- one thing for another. We move away from the idea that one idea is morally perfect, and the other a crime of some sort; instead, you get what you want, and I get what I want. Which is children -- more children, for all of us.

Grim, I understand your point. But it still comes back to this: Do you think that gay marriage is going to encourage less children from being born? By what mechanism?

We know for a fact that gay marriage will produce some number of addition children via surrogate births. Call that X. Now, that is a gross gain of children... wanted children in every case mind you. In order for gay marriage to be detrimental to your cause (which I think we all support), it would have to deter (somehow) more births than X to have a net negative effect. So in order to agree that your position has standing, I would need understand what the mechanism is that will result in less babies being born than gay marriages will actively produce.

I'm afraid I can't give you more than I have, which is only a sense of how the concept behind the institution is being altered. It would be different if this had been tried before, at any length: if we could point to any place that had done it, and look at how it had worked.

As Robert Samuelson put it just today, "'No one has a good answer' as to why fertility varies." But it does; and it's of crucial importance to all of us that it does.

So I'm willing to cut a deal; this in return for that, given that 'that' might reasonably be expected to improve fertility. The institution is about fertility, at least as much as it is about anything else. Fertility is a mystery -- indeed, it is the source of mysteries. We understand the soil very well, and ourselves poorly: but I know, and have seen, the difference between a people that makes comfort, and a people that makes children. We need to be the latter; it is good for all of us that we should be.

I didn't realize there was a growing lack of fertility. There are certainly many more options which Americans seem to be trending towards (birth control, abortion), but those are individual decisions. This seems to be a nebulous way to govern those decisions, particularly given that it only directly impacts those with no breeding prospects to begin with.

I understand the concern, but this path seems to be stacking personal life decisions (the most important ones) against this societal problem. Is there a limit to how far we could go down that road? Should vows of celibacy be outlawed- more importantly could they be, using this logic?

I'm usually skeptical of the needs of the many argument, and this is no exception. Society tends to solve its own problems given enough time, and trying to manipulate or coerce people into seeing things your way doesn't seem effective very often.

If enough individuals have decided to forgo having children (at this particular moment in our history, these things do change), who is to say its wrong? Moreover I can't personally make what is essentially a third party suffer on the off chance this somehow allowing them to marry each other could affect this issue in some undefined but bad way. One might argue that if we breeders have a problem we ought to solve it ourselves (and i use the editorial we here of course).

Grim: Bringing a whole new meeting to the phrase "nanny state".

/snark

A very old meaning, you might say. The two things that ancient kingdoms and empires prayed for were fertility and victory. That's a part of human nature that has not gone away.

As for vows of celibacy, you ask an interesting question. The only organization that normally asks them is the Roman Catholic Church which -- being Catholic -- has not begun to worry about fertility, as there remain plenty of children being produced in the third world. And indeed, for a generation Europe has looked to that answer: to immigration! So have we, to some degree. And immigration can be a very good thing, properly managed.

We have yet to get a definitive answer that that Caesar has actually violated the Constitution.

As it stands now we have been given a decision by the courts that he has not. So, it would seem that Caesar is being held in check, though at this point those parts of our system that rule on constitutionality have said there has been no violation by Ceasar.

But Grim - pretty much every gay couple (those who are married or would be married if they could) has or is planning on having kids.

Grace has a co-worker who's a gay guy; he and his partner have two sons with the same surrogate, one from each of them.

The gay women at the funeral I was at today have a son.

One of the POINTS of encouraging gay marriage is to encourage settled couples to act like they are permanent...

Marc

Grim, #29:

I say I don't believe people (and I should point out, that's a general statement, not a personal statement, though it was badly phrased) for two basic reasons: First, because I never see people arguing for any of the other things they'd need to believe independent of being challenged on it, and second because I have yet to see anyone really internalize the notion that if they get to approve or deny someone else's marriage, someone else gets to approve or deny theirs.

I also still fail to see how this supposed redefinition of marriage changes anything for anyone except the married gay people in question. I think your definition of "family" is insultingly narrow if it requires that children be a part of it-- but even if I did share your concern about "fecundity" as you put it, I could not force myself to be concerned about gay marriage because... they're unlikely to be having kids anyway. It doesn't make sense.

Nor does it make sense that married heterosexual couples are going to stop having children just because gay people are getting married. You've admitted that you won't, but you won't specify why you think anyone else would be so affected, or why you're special and immune. For that matter, you haven't specified why you think marriage, but not shacking up, is the magic activity that will trigger these "fecundity" issues.

It's just an assertion: If we let gay people marry, the sky will fall. Why? Because the sky will fall!

#33:

One side views this as a basic rights of humanity thing. The other views it as some combination of a preposterous imposition, a dangerous and foolish effort, and an unconstitutional assertion of power by the Federal government.

Whatever else it may be, it's not an imposition, unless you think you're going to be imposed upon to marry a gay man.

There is no imposition, here. You're not forced to do anything except mind your own business.

This applies to #45, as well-- much is made about impositions, but unless you think you're going to be press-ganged into a gay marriage, you're not being imposed upon at all.

#36:

However, you have forgotten to fill out the other side of that equation. Gays are physically incapable of producing offspring; but men are physically capable (and only politically incapable) of terminating their parenthood rights and responsibilities.

But there is no requirement to do so. You seem to think this is a stunning point, but it's meaningless. There is no requirement for a heterosexual marriage to produce, or to be able to produce offspring. There is no inherent commitment in the marriage licensing procedure to produce children.

You went 'round with infertility before, but that's beside the point: I could write my vows and deliver them with a megaphone promising not ever to have children, and the state would have no business so much as saying 'Boo.'

#39:

The reason, Grim, that people keep bringing up Loving v Virginia is because it's relevant. I'm not a fan of jumping up on the chair and shouting bigot, the parallels between the cases and the arguments made against them are striking, right down to the "basic social institutions," and "natural law," lines.

#41:

What is in defiance of nature is ordering marriage so that it is chiefly about the pleasure of a mated pair (instead of the institution for building families that plan for and raise the next generation), and thinking that will not diminish fertility/fecundity.

That train left the station a long time ago. Marriage has, for quite some time, been about the happiness of the married individuals. Obviously not for all of history, as there have been barbarous times in the west where marriages were arranged, bride prices paid, permission denied by parents of legal adults, etc.

But for quite some time, marriage has been the preserve of the two people entering in to it. Likewise, divorce has been with us for some time. And birth control. Etc. Getting spun up about this in the face of all that is just weird.

Or, on the other side, bastard births. We don't criminalize fathering (or giving birth to) illegitimate children, unless there was some other criminal act involved such as rape, or statutory rape. We don't criminalize fathering or giving birth entirely out of wedlock.

Yes, yes, all these things may in fact make you and others unhappy, as does gay marriage. But put any of those things up for vote in California and the result would be raucous laughter. Only gay marriage incites this sort of shuddering "the sky will fall!" outcry.

Strangely, I also don't see a large number of people campaigning to repeal the ability to divorce (as though being locked bad marriages is going to create marvelous childrearing situations) or to criminalize bad sexual decisions, or anything of the sort. I don't see people campaigning to bring back bride prices or arranged marriages, or to put a law on the books requiring the parents' consent even if the engaged couple are legal adults. I don't see any of that. Only the gay rights thing. The closest we get is the Catholic Church's insistence that birth control is theologically wrong... but, even the Church won't go so far as to agitate to make condoms illegal. They just express unhappiness that people would use them.

So if you want to express unhappiness that gay people marry, that would be your right. To force them not to, though, that's where everything goes weird.

Weird in the sense of being what every culture in human history has always done? I guess I can live with that, as long as it works.

I'm willing to admit to not being 'fully rational,' as long as we keep the ground fertile. If we were talking about religious history, and not the road forward, I'd point out that almost all of these anti-gay things we inherited from Leviticus seem to be from a period when Jewish fertility was falling; but I expect there are others, including A.L., who could say more about that and with greater authority than I could.

A.L.,

Is that so? I know no gay couples, which is a point I should have probably made clear earlier in the discussion. They are thin on the ground here; thinner than ghosts, or vampire frogs. Although we have a lot of frogs, and they do come out and sing only at night.

In any event, as I said, no one has ever actually tried to convince me to support all this. That was your point originally, wasn't it? That this would be better done as a democratic effort, than by forcing a change that many of us of good will might feel a duty to oppose?

But I should offer this in speaking of these things. Much of what we are is hidden from us; that seems to me to be a constant of reality. Even a rational man must admit it, if he is honest; and, being honest, how can he think that he is rational?

Grim's point has nothing to do with Loving v. Virginia. Marriage is not a contract, it's an institution joined by mutual assent. The nature of that institution, it's definition, is found in English common law. It's a tradition, rooted in religion and culture. For example, a marriage by this definition cannot be a temporary thing (an agreement to marry for only x years), though this is acceptable in other traditions and cultures, and it would be acceptable if marriage was simply a contract.

State legislatures can regulate the institution. They've done so with age requirements, bans on close relations and bans on inter-racial marriage. Anti-miscegenation laws do not arise from Anglo-Saxon traditions, these are innovations based upon the dominant philosophies and science of the time.

My understanding is that same-sex couples want to be a part of the tradition of marriage. The only way to do that is through legislation. If marriage becomes whatever two people agree to or whatever a judge finds rational, then the institution of marriage will be meaningless. (I wouldn't expect the institution to end necessarily, but it would become more of a religious institution)

"Grim's point has nothing to do with Loving v. Virginia. Marriage is not a contract, it's an institution joined by mutual assent."

Not according to the Supreme Court- Loving, if nothing else, proves that government's role in marriage is subject to the 14th amendment. That's not really subject to debate, its a fact.

"They've done so with age requirements, bans on close relations and bans on inter-racial marriage."

Age requirements exist on all contracts. Close relations is probably pretty suspect constitutionally as well... but there is no argument for having relations as a protected class so its not so cut and dried (and who cares? is anyone eager to sleep with their sister but deterred by being out of wedlock?) And, of course, we've seen the court has stricken down the ban on interracial marriage. I won't insult you by asking if you find this objectionable.

"Anti-miscegenation laws do not arise from Anglo-Saxon traditions, these are innovations based upon the dominant philosophies and science of the time."

Anglo-Saxon traditions didn't sprout wholesale from Moses. They were innovations based on dominant philosophies and science at the time. Including all kinds of things we object to today (I don't think we are bringing back debtors prison). Common Law cannot trump constitutional law.

"My understanding is that same-sex couples want to be a part of the tradition of marriage."

Incorrect. They want to be allowed to partake in a government brokered contract that provides certain advantages. 'Tradition' is a nebulous word. 'Tax break' is not. Nor is 'custody' or 'living will'.

"Tradition" might include putting on a white dress and having a priest bless you. There is no legal argument to be made that anyone has a right to that.

"If marriage becomes whatever two people agree to or whatever a judge finds rational, then the institution of marriage will be meaningless."

Obvious straw man is obvious. Marriage is a contract with exact and specific requirement and benefits. Two people can't decide that their marriage means they don't have to pay taxes.

"(I wouldn't expect the institution to end necessarily, but it would become more of a religious institution)"

Is this a bad thing?

Look- we've involved government, hence it is subject to constitutional restricts on government. If you want marriage to be a purely social institution, remove government from any role in it other than to issue contracts on civil unions to all and sundry, and then have the marriage as you like it in a church or hall or whatever. But once you invite government in, it must play by the constitutional rules.

I don't understand this desire for government to 'sanctify' marriage- particularly for anyone of a libertarian or even conservative bent. How easy is it for that tail to wag the dog? You want marriage the way you want it, you better get government out of the game. If we've learned anything we've learned that.

The government offers a certain service when it marries people, or acknowledges people married by others, a priest, e.g. Additionally, the government offers certain protections to married people. Being married gives you a certain tax status; it gives you certain property rights; it gives you certain confidentiality rights; there are several situations in which your marital status informs your civil status and a set of rights, including property rights.

The government does deny the right to marry, and thus the services and protections that go with being married, to certain people: children, siblings, people who are already married, the insane, etc.. But the denial of this right in those circumstances has a rational basis. The denial of the right based solely upon the gender of the spouses is not rational. It is merely traditional.

I don't think you can deny rights and protections to individuals based on tradition under any reasonable reading of the 14th Amendment.

Again, I don't see how the judge could have ruled any other way, given the law.

All of Grim's arguments require a very personal and somewhat idiosyncratic view of the meaning and purpose of marriage that the government has no business using to determine who can and cannot get married.

PD, #61:

Grim may not be speaking directly to Loving v Virginia, but Loving v Virginia certainly speaks directly to him and the results of his ideas:

As Mark Buehner says, Loving v Virginia establishes at least two things: First, that marriage regulations are themselves regulated Constitutional principles, and, second, that those principles include at least Due Process and Equal Protection.

The court specifically struck down the idea that Equal Protection was not being violated. The pretext of, "Both black people and white people are punished for violations," was struck down, as was, "A black man is as free to marry a black woman as a white man is to marry a white woman."

Compare and contrast to Grim's quip that homosexual men have the same rights as heterosexual men because they can both marry women. Note the similarity to argument shot down decades ago. Note that the correct metric here is that the homosexual man is denied the right which a heterosexual woman already has-- to marry a man.

Further, the Court specifically wrote in Loving v Virginia that marriage is a right-- a basic and fundamental civil right, in fact.

Explain to me why that is not relevant to Grim's line of argument that marriage is not a right of any kind, up in #16. It seems highly relevant, to me.

The reason Loving keeps coming up in these discussions is that arguments are eternally advanced which were struck down decades ago in that decision.

Moreover, Loving v Virginia makes another excellent point, which is that the Racial Integrity Act constructed a system in which the only determinant of whether an act was legal or illegal was the color of someone's skin.

Likewise, maintaining the ban on gay marriage continues a system in which the only determinant of whether an act is legal or illegal is one's sex. This cannot possibly satisfy the Equal Protection clause, and seems directly relevant to me.

The reason Loving keeps coming up in these discussions is that the current law, in most places, creates directly analogous situations to those caused by anti-miscegenation acts.

mark:
Being married gives you a certain tax status; it gives you certain property rights; it gives you certain confidentiality rights; there are several situations in which your marital status informs your civil status and a set of rights, including property rights.

I believe the current claim is that married couples enjoy "more than 1000!" rights that are being denied to gays. Oddly neglected is the fact that marriage entails obligations and legal liabilities; someone should add those up and subtract from 1000 in order to get a more honest figure.

Most of these "rights" are so irrelevant that millions of couples live together without availing themselves of this rights bonanza. The "right" to prevent someone from testifying against you in court by marrying them is of dubious merit. The "right" to enter into an insincere marriage in order to obtain US citizenship, or benefits, or a tax or business advantage, is something that gays can do as well as straights.

When you strip away the thick coating of pathos, of course, there are indeed significant things at stake. Tax status is indeed very important - to people in upper income brackets. (If this were not an Upper Middle Class crisis, we probably wouldn't be talking about it.) The corresponding legal obligations are equally weighty. Garnishment for alimony can run to over 50% of income. The first guy to pay that to another guy will be a true pioneer, and I trust he will do it without unreasonable complaint.

That said, if I ever see a bunch of Sheriff's deputies busting up somebody's gay wedding, I will be the first to write an indignant letter.

You know, I'm glad we've had this talk. I still don't agree, but I have a much better sense of why you all (I mean, all the Marks!) feel as you do about all this.

M.V. raises a substantial point I was not aware of, which is that Loving declared marriage to be a "basic civil right." I looked up the quote:

Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival....

Obviously I disagree with that sentence only insofar as I would replace the phrase "civil rights" with the word "institutions"; but he means something like 'the ability to enter a marriage is a civil right,' I suppose, rather than marriage itself.

"Our very existence and survival" is exactly what I'm worried about (and not only me; there are others worried about demographic collapse, notably Mark Steyn). This is the institution most associated with that part of our survival that depends on producing and raising children.

That is a way in which Loving is relevant ot the current case -- there is a bit of precedent there that, of course, I disagree with but that has to be considered. I tend to reject references to Loving because I don't see them as relevant, as the whole idea of race (and therefore interracial) is of very recent coinage compared to marriage; is false as a concept; and in any case has nothing to do with marriage.

A demonstration: Earlier this summer I was reading Wolfram Von Eschenbach's Parzival. Parzival has a half brother, whom his father has with the Queen of Zazamanc. She is black, a fact noted by the author, who writes with apparent approval of the aesthetics both of the lady herself, and of the pair of them. The problem that eventually breaks them up is not her skin color, but her religion (which was obviously of first importance in the Middle Ages, when Parzival was written).

Questions of fertility seem to me to be at the very base of marriage, in a way that ideas of race -- which are purely aesthetic -- are not. But I've made this argument at length, and will not repeat it again. If I have succeeded in getting mark to upgrade his opinion of my thinking to 'idiosyncratic,' I've achieved more than I expected.

Grim, I'll add one more reason I feel as I do. I certainly didn't always take the subject seriously, as I'm solidly heterosexual. Since I have no direct stake, it was easy for me in my youth to shrug it off: "Oh, well, they can't get married, but that's not that big a deal."

But, similar to you in #59, at that time I didn't really know any gay couples, nor even very many gay people-- out "out" anyway. But now I do. Not legally married couples, since I don't live in a state that allows that, but I do know gay couples who are in every moral sense married and committed to each other, and who would like to be married, but are prevented.

And knowing these couples, and calling them my friends makes this issue hard to ignore. You think I develop a sharp tongue, try telling one of them to their face that their marriage isn't good enough for you. They react sharply because they are hurt. They are made second class citizens, and they know it.

And for the record, Grim, I consider your reasoning to be "idiosyncratic," as well. I have generally found you to be an honorable person, acting and arguing without malice. But those idiosyncracies, still, are well addressed by Loving v Virginia.

Loving correctly analogized the law it was striking down, the Racial Integrity Act of 1924, with a eugenics law. The phrase 'basic civil rights of man' is attributed and lifted from Skinner v. Oklahoma:

"We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, farreaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear."

This was a time in which procreation and marriage were synonymous. The Lovings could not legally have sex. They could not be married in a Catholic or Presbyterian Church without having that marriage annulled and have all of the participants thrown in jail.

The purpose of the Racial Integrity Act of 1924, and the companion Sterilization Act, was to improve the genetics of the people by eliminating undesirable influences of "lesser" races and the feeble-minded. It was proto-NAZI-ism and benign genocide. The purpose was to stop the Lovings from procreating.

Two observations. No human being or law is preventing same sex couples from conceiving, let alone having sex. And California give same sex couples the same rights as married couples, so this is not about perks.

Nevertheless, PD, no one else is legally required to consider both marriage and procreation as two sides of the same coin. Only for homosexuals is this objection raised.

This, too, violates equal protection. We've been over this at length-- if you want to claim that marriage is about procreation, you logically have to deny marriage permits to other infertile couples. But we never hear about that.

And, no, California may say they offer gay couples the same rights, but they in fact do not. They are denied the right to actually be married. Aside from that rhetorical flourish, even in California, homosexual couples must file taxes separately, to the best of my knowledge.

Even so, why the tremendous effort to create a parallel legal regime that means exactly the same thing as a pre-existing one, but is called a different name? There is justifiable suspicion that, in the way of "separate but equal" everywhere, "equal" really means "equal, except when it's not."

"... try telling one of them to their face that their marriage isn't good enough for you. They react sharply..."

Well, and if I said to anyone's face that anything about them 'wasn't good enough for me,' I would expect -- and deserve -- a sharp reply.

I believe as I do; but I assure you that I would take care to be courteous to your friends. As for me, I've known several gay men over the years -- mostly in Washington D.C. or Atlanta, where I've had occasion to be. I always got along with them, and one of them I liked and admired for his scholarship and humor. However, I must also add that they didn't at any point strike me as men who were much interested in building families, but rather in that... ah, athletic gay culture that gets all the attention. So, I lack that aspect of your experience.

"Two observations. No human being or law is preventing same sex couples from conceiving, let alone having sex. And California give same sex couples the same rights as married couples, so this is not about perks."

1. The right to marry has been upheld even in prisoners sentenced to life without hope (and hence without the right to procreate). The idea that marriage is fundamentally synonymous with procreation is not tenable.

2.Even if you hold that Loving et al were ruled so specifically to protect the right of procreation and not marriage per se (and there is nothing in the decision nor any other case to suggest this), it is irrelevant. Consider the 2nd Amendment- the right protects the people from the tyranny of the government via the militia... but that does not limit the right to arms as strictly to participation of the militia (Heller).

3.Separate is not equal. If civil unions were indeed equivalent to marriage, the words would be interchangeable. Since, obviously, they are not held to be interchangeable, they cannot be equivalent. This is another good opportunity to envision the Loving situation- if mixed marriages were simply called 'civil unions' but not marriages, would it stand judicial muster? No way.

PD,

The purpose was to stop the Lovings from procreating

I don't see that the purpose of the law was necessarily relevant to the reasons it was struck down. It is the effects of the law that were unconstitutional, no? Had the purpose of law could have been to prevent violence against the Lovings provoked by their marriage, the law would still have been struck down.

And, since you raised the question, what is the purpose of preventing gays from marrying, anyway? What is meant to be accomplished & why? That's what I just don't get.

Apart from Grim's fairy tales about gay marriage leading to a decline in birthrates, no one has offered any hint of the harm avoided by denying gay people the same rights as straight people, however insignificant Glen believes those rights to be.

Being married may not seem like much to Glen, but apparently, thousands of gay people do want to do it anyway. Why shouldn't they? I still haven't heard a reason for not letting them, a reason for the law to treat them differently than the rest of us.

A small correction: the decline in birthrates is a well-documented fact, not a fairy tale (although I have nothing against fairy tales; any reader of Chesterton or Tolkien knows that they have much to teach us). The question is whether further shifting our cultural institution away from fertility will result in further harm; or if, as I believe, reform is needed in the other direction.

However, to quote President Obama, let me be clear: only a certain amount of this is cultural. A lot of the change may be chemical, as the chemicals we ingest have changed and diversified a great deal during the period of declining fertility rates. Still, it looks like cultural institutions (including religion! which has been roughly handled here) do have a mitigating effect.

This fertility issue is a fairy tale. Its got nothing to do with something in the water or marriage losing its allure and somehow thusly making procreation lose its allure. Its got to do with American citizens making rational decisions as individuals. I don't recall ever agreeing to become a mechanism for the state or society to perpetuate itself. Certainly not at the expense of my individual liberty.

Declining birth rates have a lot to do with declining infant mortality and vastly increased wealth. You don't need to have a house full of kids in the hopes that enough survive to bring the crop in any more. A sustainable birth rate at replacement levels is in fact the ideal situation, given finite resources.

That's not what we're talking about, though. We're talking about a birth rate below replacement levels -- often far below.

Some of that is 'people making choices,' but some of it is not. The Samuelson piece cited above makes a case that taxation is a major factor: because it has raised the cost of living such that children are not as affordable; he also cites a study showing that retirement programs in America and Europe appear to be transferring wealth from those who would be having families to those who are retired, at a level that may be impacting fertility as much as 0.5 children per woman in Europe. That's social policy at work.

Children, because they grow up to be the workers and producers that drive the economy, are a major investment for every nation in every generation. This is one of the few major investments that is still privately funded -- we chiefly use the old, organic instruments of the family, and the family's wealth, rather than trying to nationalize the matter. That means we're relying on cultural institutions.

I view that as a good thing, for many reasons. In return for carrying that weight, though, the institutions ought to be given a certain breathing space. But again, here we have grounds for a potential compromise position: support for altering the definition of "marriage" in return for support for ways of shoring up the institution as a way of sustaining families. You want marriage reformed in the interests of group X (people who want to be married because they want social approval for their relationships), I want marriage reformed in the interests of group Y (people who are trying to sustain families and develop the next generation). Perhaps there's a way to do both.

Also, re: chemical issues: you may be interested in this paper on the subject of how birth control pill hormones alter women's perceptions of attractiveness away from men who have the markers of high fertility.

I mention this, because it points to a way in which women may believe they are making choices of the type you mean to say are good, but actually harming their long-term interests. They may be on the pill because they want to enjoy a sexually fulfilling life while they pursue education and a career, and arrange a stable marriage. They intend (as many women do) to marry later and have children when there is a stable family.

However, the tool that helps them in the early phases may be setting them up for failure later on: they may end up 'freely choosing' a man who is less able to be a father, and whom they might not have chosen if they were not on the pill.

In that sense, women are certainly making free choices -- and I'm not arguing for restricting access to the pill or anything else. It is important that people understand these issues, though, precisely because you can't really make a free choice if you don't have reasonably complete information. If your choices are aimed at an eventual husband and family -- at fertility, that is -- these chemical issues are something you might want know about and consider.

Grim, your concern about declining birth rates seems a little strained. The population of the U.S. recently passed 300 million. It is projected to approach 450 million in the next 40 years, your evidence of declining birth rates notwithstanding.

However, none of this is remotely related to the issue of gay marriage.

1) procreation is not connected to the legal right to marry. E.g., we don't deny women over 45 years old the right to marry because they can't get pregnant. According to your reasoning (& I use the term loosely), California voters could outlaw old-lady marriage and there's nothing the courts could do about it. According to A.L., apparently, even if the courts could do something about it, they shouldn't, because you don't need a good reason to prevent old women from marrying, you just need a majority who believes its a good idea.

2) Dick and Jane are not going to have fewer kids because Tom and Harry are getting married. Neither are Tom and Harry are more likely to have kids if they can't get married to each other. In other words, gay marriage has absolutely nothing to do with fertility or birth rates.

Speaking of brain chemistry, since we were just, there's another issue that may be relevant -- not to fertility, but to threat perception.

The upshot of that piece is that a lot of public polling seems to align with the scientific studies that suggest conservatives are more likely to perceive threats than liberals -- whether or not threats are there. That means conservative thinkers must always beware of the danger of a false positive (in this case, that I am deeply concerned about undermining a major cultural institution, when in fact admitting gays will not really affect it). You can end up defending something that was not in danger.

It also means that those on the other side are in danger of false negatives (in this case, that this seems like a small matter that will make some people happy, when in fact it will prove to undermine marriage as an institution even further). You can end up not defending something, only to find out it was of utmost importance.

I mentioned a Kipling poem earlier. It's worth remembering that he was writing at the height of the British empire. When he wrote "Recessional," I'm sure many thought it was an odd thing to say. Yet he was right.

Still, it's always possible that this time it is my kind that is wrong, and your kind that is right. Because that is always the possibility, it is proper for each of us to do what seems like our duty, recognizing that we each have an important role to play. I've offered some thoughts on what it would take to get me to support your position. You may decide that my support isn't important; but I have to defend what seems to me to need defending, even though I could be wrong.

What a perfect segue into the controversy over changing the 14th amendment to deny citizenship to babies born from illegal aliens! Can we get a new thread? ;)

Mark B., at least there's no argument that the 14th would need to be amended first.

Yes, we can!

mark:
Being married may not seem like much to Glen, but apparently, thousands of gay people do want to do it anyway.

If read all that I wrote, I said that some of the rights of marriage are indeed significant. Others are not, and the whole rights-denial thing is being grossly exaggerated. When you pare it down to the claims that are significant, which are mainly financial, then you get a fairer picture of what is at stake.

Love and happiness are not at stake. Unless love and happiness are reduced to money, the state does not dispense them.

Grim, #70,

I have two observations that will, I hope, take this in a different direction, instead of just re-hashing what we've both already said.

First, I believe you entirely when you say that you'd be as polite as you possibly could to my gay friends-- and not just because they're my friends, either. You don't strike me as a rude sort of person.

I am also not a fan of ceding all interpretive power to the listener; that way lies madness as anyone can claim offense for anything at any time (which some people do) and we'd have no recourse to tell them that they're over-reacting.

However, there are some things that it's really just impossible to say politely. A trivial example is, "Yes, honey, I'm sorry, that dress does make your butt look big. You should buy a different one." There is no rephrasing that's going to work.

Similarly, there is no way to tell someone that their marriage isn't good enough for you, doesn't meet your standards, whatever, that is polite or will be well-received. And that is basically what you're saying: You have standards for marriage, and their marriage doesn't measure up. Nor can I divorce "Your marriage isn't good enough," from "You are a second class citizen."

Second, regarding your experiences with homosexuals and the, ah, athletic gay culture. It is your contention that people require institutions such as marriage to get them to act in more family-oriented ways, yes?

I'm not sure I buy that, but if I understand you, you do. On that basis, then, why are you surprised that a class of people to whom you bar access to your cherished institution of marriage don't act in family-oriented ways?

Doesn't it make perfect sense, by your argument, to assert that homosexuals are non-family-oriented because they are legally unable to form families? (I trust we're not going to argue over whether childless heterosexual couples qualify as "families.") Doesn't it logically follow from your argument that, if allowed to marry, the, ah, athletic gay culture will subside somewhat into stabler, more family-oriented forms?

Is that not at least partly what you want?

Marcus:

I was expecting your first objection, but not the second one. The second one is easy to answer: I am not thinking of 'a group' or its dynamics, but of two particular men. I don't think either one of them was much interested in fatherhood, and more to the point, I don't think either of them was doing anything except what he wanted to do. They seemed very happy, and why shouldn't they be? As so many have pointed out here with regard to heterosexual couples, children are not for everyone.

So, would they have been more domestic if the option was available? I doubt it. No more than some of you have said you wish to be. Whether there is some general thing to be gained, I do not know; but in these cases, the men were doing just what they wanted to do.

Now, the other question is of greater weight.

You understand that the point works both ways? Millions of people in California were just deeply insulted by a Federal judge, who told them that they were completely irrational, and acting out of malice and animus alone. Yet this judge had a duty; one you feel he has done well. I wish he had ruled along the lines laid out in #22, above, but I suspect he has done what he thought his duty required.

So, I take no offense, even though this is the sort of thing that (as you put it) cannot be said without giving offense. I can tell you why in one word: duty.

There are times when, in spite of all good will, our duties require us to oppose each other. Sometimes, we are even called to fight, even to kill, over differences -- rarely, our own differences with each other; more often, the differences that leaders of political factions have been unable to resolve. I don't believe there is any danger of us coming to the point of war over this issue; I am speaking generally.

A man has to do his duty. A man who won't do what he believes is right just because others disagree with him, however stridently or emotionally, is failing his duty. You know that I think we are talking about things that are not small matters: about the survival of our culture, our traditions, and everything we have loved; about children and future generations receiving what we've built. I take it you feel you are standing up for big things too: something like the dignity of humanity. Of course a man has to stand up for those things, according to his best ability and understanding.

Courtesy is most important when we are involved in such issues: whether in politics, diplomacy, or war. The best kind of man will do his duty faithfully, but with courtesy for those he has to oppose. A man who does one or the other is less good; a man who does neither is no man at all.

Grim,

So, would they have been more domestic if the option was available? I doubt it. No more than some of you have said you wish to be. Whether there is some general thing to be gained, I do not know; but in these cases, the men were doing just what they wanted to do.

Of course they were. But I thought your thesis was that the institution of marriage exists to channel human activity.

Are you ceding that argument on the grounds that it doesn't actually work that way? Certainly if the marriage of gay men can affect other people, it should also affect the people actually getting married.

I don't think you can have this one both ways. Remember, you're not just speaking of one or two individuals, you're speaking of an entire culture even if it's one you know primarily through reporting than personal experience. That is what you called it-- the, ah, athletic gay culture.

You understand that the point works both ways? Millions of people in California were just deeply insulted by a Federal judge, who told them that they were completely irrational, and acting out of malice and animus alone

Fair enough, but I left out a clause that I wanted to include-- namely, that I defer on interpretation to people are being prevented from exercising their right; and that making someone a second class citizen is far worse an offense than calling someone mean names.

Are we to pretend that all offensive behavior is equal and opposite? No, I think not.

But I thought your thesis was that the institution of marriage exists to channel human activity.

Are you ceding that argument...?

Ah, I see. No, not at all. What you are missing is that my argument has been that the redefinition of marriage would weaken the institution in just this regard. Since you're asking me about the new "marriage" and not the good old one, no, I don't really think it will have the same effect. If it did, I'd have little reason to be opposed in the first place.

In addition, though, I'm not sure I have understood the impulse to marry among gays as chiefly a desire to form families and procreate -- not merely because of the impossibility, except through surrogates etc., but also because the arguments have really been mostly about respect for gays and gay relationships. That's part of the damage I'm talking about: it's a redefinition of the purpose of marriage. It's no longer about the family you're building, but about proving something about the respect due to you and your partner right now.

That may be inaccurate, if A.L. and others are right that gays really want children en masse; but it's the impression that one gets from the arguments fielded. If it's not true, as I've said, I might well be willing to consider supporting the one thing in exchange for support for reforms that would strengthen the institution in regards to its old functions. And if, indeed, they really are mostly interested in channeling their lives into family-building, they may even wish to support these reforms.

...a far worse offense than calling someone mean names. Are we to pretend that...?

No, let us pretend nothing. However, balance the books on this. From your perspective, they are being 'denied their right,' and that this 'makes them second-class citizens,' and that this is worse than 'calling people names.' That's only one perspective.

From the other perspective the sentiment is that this is an attempt to fundamentally redefine one of our foundations, and a complete refusal to be bound in the slightest by anything present in all human history; and that this is a sort of reckless gambling with our civilization; and that is what is worse than calling someone names. Furthermore, there is no insult intended in saying that gays may not marry; to say this should be no more offensive than, say, to read the definition of the word "marriage" out of a dictionary (which, if the dictionary were published any time between the first dictionary and the last few years, would provide exactly the same affront to your friends as anything I've said, and with as little intent to offend on the part of the book).

So, the things that are giving rise to the offensive words are these duties: your sense that you must stand up for what you see as their fundamental right, or mine that I must stand up for what I see as a bedrock foundation already crumbling and in need of shoring up rather than further movement. That is the duty; and we must do our duty, even if it inadvertently causes offense. Yet we should, as far as we can, be courteous to our opponents.

Grim, I sigh in despair. We are apparently not going to move the discussion in a new direction because you're still stubbornly equating MARRIAGE with CHILDREN. This, despite the utter lack of any legal or social requirement for a married couple to have children, or for a married couple to have children in order to be called a family, or for two people with children to be married in order to be called a family.

These are legally and logically separate concepts, but every time anyone mentions marriage, you reflexively change the discussion to include children.

But only for gay people. Not for any other type of heterosexual but infertile couple.

That's the discriminatory part. That's where Loving v Virginia steps in and says, "No, you can not so regulate."

Nor can you show harm, because as I understand it, your thesis is that gay people marrying will somehow "damage" marriage, even though by your own admission it won't change your behavior, and wouldn't change the behavior of gay people getting married. Since I assume you and your gay acquaintances are typical, not extraordinary, we've got all the bases covered, there: Does not change the behavior of straight couples, does not change the behavior of gay couples, does not change the behavior of people already married, will not change the behavior of people not yet married. Despite the surface claims that "marriage" will be damaged by yielding different behavior, the detailed claims are actually exactly the opposite. (You may feel inclined to claim that heterosexual and homosexual marriages are completely separate things again; save it, unless you want to apply them to all other infertile couples.)

You can't say how this damage will be caused; when questioned in detail about the effects on real, actual people, you admit that no change in behavior will result; but you insist that it will somehow happen anyway.

That's... irrational.

And before you puff yourself up feeling offended because of the Loving v Virginian parallels or the irrational label, let me wave all that away, under your own rules: I mean no offense. In much the same way you won't change your argument when you offend others, neither will I.

Because you insist on a definition of "marriage" not supported in law, in common social use, or even really by your own internal consistency, there's no point in continuing the conversation.

You may have the last word.

Don't despair. The conversation has been a useful one on several fronts, even if you didn't find that you could change my mind.

The inclusion of children as the foundation of marriage is not irrational. It only appears so to people whose thinking about marriage is based on their thinking about contract laws, property rights, and other business matters. That, though, is not what marriage is about: that's a partnership.

The difference between a marriage and a partnership is that marriage creates a kinship bond. Two families are forged together.

Unless they actually have at least one child, however, that bond is only theoretical. It is the act of having and raising a child that makes this new kinship bond actual: something that persists across generations, and perhaps forever. What began as a union of the flesh of man and wife becomes an actual union in the flesh of their child. That child carries the genetic information of both families: he or she is the living bond that the marriage symbolizes, and it is for that reason that he or she has rights of inheritance even if there is no will.

Of course he (or she) does: the child was the purpose of the pooling of resources. This is also why a child has a claim on both parents if they divorce, and must be sustained until he or she reaches majority. The need to provide for children is why the institution developed in the first place, when it was often negotiated by the families, before love was introduced at all. This is the root of the thing.

The more people have talked about how 'a good marriage is like a partnership,' or divorce suits have invoked contract law-type arguments, the more we've moved away from remembering that it is not a business arrangement between two people. A good marriage may work like a partnership, in that both husband and wife has to pull their own weight; but it is not a business partnership, it is a kinship bond. A marriage may have some analogies to a contract, in that husband and wife each have obligations that the other has a right to insist upon, but it not a contract. (Indeed, the sharp response when people attempt to introduce an actual contract into a marriage -- the so called 'prenuptial agreement' -- shows how much it is not like a contract.)

While it is true that many men and women marry and then do not have children, or have children who pre-decease them, this is not what the institution was for. It has proven to be non-harmful, however, and so there is no reason to abandon the practice. The practice of divorce, which has proven to be quite harmful, ought to be reformed.

Upholding successful traditions, far from irrational, is a highly rational way to deal with the uncertainties of life. Remembering the roots and the core reasons for a tradition is one of the best ways of ensuring that a formerly-successful tradition continues to be useful, and is not washed away by 'the silent artillery of time.' Insofar as our system of laws does not permit the People to uphold traditions of special importance to them, the law is unjust and must be altered.

This position may be -- what was the word? -- idiosyncratic, but if so, I don't mind that. On the other hand, seven million people voted the same way I would have; perhaps it's not quite as unusual a position as you believe!

Finally, I accept that you believe you are doing the right thing, and I take no offense at your words. I said, at the first instance, that I would not: that I would leave aside the opportunity to be offended; and I've said why. I appreciate our long talk on the subject, and take heart: if you haven't altered my final opinion, you have taught me a lot about why you hold differently. It's a more respectable, and less irrational, opinion that I had originally believed it to be.

Pardon me: I need to rephrase this to avoid an ambiguity.

"...many men and women marry and then do not have children, or have children who pre-decease them.... It has proven to be non-harmful..."

This means, "non-harmful to the institution," not "non-harmful period." Obviously it is very harmful for someone to lose a child; and infertility can also be personally devastating.

However, infertility could not be excluded originally, as we didn't know the causes of it (and, indeed, still do not fully understand it). And of course no one can predict fate. So, we have a lot of experience with these aspects, and know what their effect is. It is not a gamble, which is why these cases are different.

So Grim, in your view it is rational and it would be permissible for a state to deny women who are past menopause the right to marry so long as a majority of people in that state agree.

Furthermore, if we do allow woman who are past child-bearing age the right to marry for companionship, or love, or economic reasons, we would risk harming the institution of marriage by making it about something other than family and children. Such a law is not only rational and permissible, it is desirable. Correct?

The reductio ad absurdum you're attempting fails because the argument is not based on a single principle. It lies at the intersection of two principles, which must be balanced.

The first principle is that the institution is fundamentally about kinship and children, and this should never be forgotten when we are thinking about whether or how to reform it.

The second is that we should not gamble with such a fundamental institution. The argument against gambling also has two parts:

1) Don't gamble with foundational institutions.

2) Things we have long experience with are not gambles.

Have women past menopause long married? Do we know how it works out? Of course.

Now, to ban older women from marrying would be a novel practice. That would be a gamble, not quite on the order of gay marriage, but certainly a new practice.

Reforms to the institution of marriage should be limited to those where we are rolling back recently-instituted practices that have proven harmful -- such as no-fault divorce, irreconcilable differences divorce, etc.

If you want to do anything more, you will have to do it in spite of me, and I will oppose you -- unless you can convince me by offering a compromise position that appears to shore up the institution at least as much as you want to alter it.

Take heart, though. Under the second part of the second principle, if you are successful and gay marriage proves not to be the disturbance I fear it is, I will come to accept it and defend it over time. Of course, if we institute it and it does appear to be causing harm, I will continue to oppose it.

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