New Jersey, Being Subtle

New Jersey’s Supreme Court said today that same-sex couples are entitled to have the same rights as married couples but also punted to the legislature the issue of whether that collection of rights should be called marriage or could be called something else.

That’s interesting to me, and I think a pretty subtle piece of maneuvering by the Supreme Court. It’s recognizing the rights of same-sex couples, but allows New Jersey politicians a certain amount of political cover by allowing them to call the same-sex legal relationships something other than marriage. In doing so it may also defuse the conservative boogeyman issue of same-sex couples from other states getting married in New Jersey and then going back to their home states and demanding recognition for their married status, since, after all, if the legal term for their relationship is not “marriage,” then other states can possibly argue that they are not enjoined to give full faith and credit to them as might otherwise be the case (DOMA notwithstanding) as they don’t have an equivalent relationship status on their own books. In which case the same-sex marriage crowd gets most of what it wants — legal recognition for same-sex couples on a par with married heterosexual couples — while the anti-same-sex crowd can possibly take satisfaction in knowing that what happens in Jersey stays in Jersey, at least from a legal point of view.

Mind you, not that I expect the anti-same-sex people to look at it that way. I certainly expect they’ll vomit up the same old “activist courts/marriage doomed/pedophilia and bestiality are next” and try to use this ruling to rally the troops to beat back the evil Democrats on election day. But I’m not entirely sure this will work very well: The SCOTSONJ didn’t rule for same-sex marriage, it ruled that same-sex couples should have the same rights as married couples. And while most people still are a little twitchy about same-sex marriage, if I remember correctly most Americans think same-sex couples should have some sort of legal recognition for their relationships. And in any event, the SCOTSONJ is leaving it to the legislature to decide what to call this new rights package; if the legislature decides to call it “marriage,” that’s their decision. So I don’t know if this decision will lead to the mainstream America freak-out/Republican voting behavior the anti-same-sex forces are no doubt hoping for.

Personally speaking, I would prefer that marriage be called marriage, regardless of the gender distribution of the two consenting adults within it. But I certainly see the wisdom of how this particular ruling was constructed, particularly so close to an election. This ruling seems to split up the baby pretty adeptly.

To same-sex couples in New Jersey: Congratulations on your new bouncing bundle of legal rights. I hope you enjoy them as much as I enjoy mine.

Here’s a pdf of the ruling, for your reading enjoyment. The relevant paragraph:

HELD: Denying committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose. The Court holds that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. The name to be given to the statutory scheme that provides full rights and benefits to same-sex couples, whether marriage or some other term, is a matter left to the democratic process.

See? Smartly done.

91 thoughts on “New Jersey, Being Subtle

  1. Obviously, this is great news. It’s always good to see the idea that gay Americans are entitled to the same rights, privileges, and responsibilities as straight Americans confirmed. It’s still unfortunate that many of the so-called Defense of Marriage Acts outlaw not just marriage but any other attempt to create a legal connection between two equals of the same gender (i.e., civil unions). So, there will probably still be people all twisted into pretzels, not because NJ will eliminate discrimination in its application of marriage laws, but because gay Americans in NJ will have access to the same state-granted rights that straight Americans have. (This, of course, does not a thing for Federal rights. e.g., even in MA, legally married gay couples are not married in the eyes of Federal law.) I think they have a problem with state recognition of any sort of (previously non-existing familial) relationship between two people of the same gender.

    But I bet you’re right that fewer people will be pretzel-like than if the NJSC had explicitly removed that discrimination.

  2. Ugh – while this is a great thing (relatively speaking) for NJ, it will only incite the other states with anti-same-sex marriage bills on the ballot this year. See? The activist courts are at it again! Didn’t you see what happened in Massachusetts? (um, there weren’t any real negative effects, but don’t let reality interfere, they’re on a roll) Come out and vote! Who cares if your Congresscritter violated some page or allowed it to happen? Vote the party line and keep those activist judges down!

    I wish the NJ court had waited a few weeks to issue its opinion – courts have willingly issued decisions after the market has closed to protect a company’s stock price, they could have waited until after the election this time…

    I would like to say that Americans have matured since the last time this was a nationwide issue, but I don’t believe they have. So long as they get their news from Fox and Rush, they’re never going to have a rational opinion about this…

    Republicans will now go full bore with the message that civil unions (the best that can happen in NJ, from their perspective) are the gateway drug to gay marriage leading inevitably to legalized man on dog sex.

  3. Tor:

    “Republicans will now go full bore with the message that civil unions (the best that can happen in NJ, from their perspective) are the gateway drug to gay marriage leading inevitably to legalized man on dog sex.”

    Possibly they’ll try, but I’m not convinced it will work. As I noted in the entry, if I recall correctly most people support rights for same-sex couples, even if they don’t want same-sex marriage. I don’t think this particular ruling is going to be that much of a winner for them.

  4. Rick Santorum in the state next door will obviously take this one lying down, lubed up with Streisand on his iPod playing “It’s my turn.”

    Ahem.

    Personally, this will make Mrs. Chang’s family reunion most interesting this year. For you have the one uncle who came out with the pronouncement that all faggots should get AIDS and die (his comments on Katrina were equally stunning) and then the other deceased uncle (R.I.P. Kippy) whose son died of AIDS.

    Oh yes, that will be a good bocce game.

  5. Well, a lot of the Deomcratic gains have come from republican disgust with their candidates. I don’t think this will sway many people who are already currently planning on voting, but I think it will increase the size of the likely voter pool, as same sex marriage opponants who had left the likely voter pool jump back in. Especially in races that had been solid R votes, and have now been written off by the GOP – they may be back in play.

    And the ‘evangelical’ vote – which allegedly propelled the GOP to victory last time, are perfect candidates for people who would not vote this time, due to lies, convictions, Abramoff, Foley and the rest, and who would then change their mind now that same sex marriage (even if it is only ‘marriage’) is an issue.

    It isn’t rational, but that doesn’t mean that it doesn’t fill me with fears of impending doom.

  6. Chang, that was disgusting. I didn’t think that the combination of Santorum’s policies, the now ubiquitous second meaning of his name (the frothy mix…), and his personal lack of morals or ethics could be made any worse, as he had already been banished to the deepest, darkest corner of hell (in my mind’s eye).

    But it just got a little worse. I suppose you think that this was a public service.

  7. Here in Colorado, we have a couple items on the ballot about this issue. One is a constitutional amendment to define marriage as a union between one man and one woman. The other is a statutory referendum to create a civil union arrangement. There are some moderately conservative people who are urging a yes vote on both.

    The theory is that the civil union arrangement creates some stability for people that is of benefit to society in areas of inheritance, child support, next-of-kin issues, and so on. Even people who disapprove of homosexual unions appreciate stability in these areas because it puts ground rules in place and reduces litigation and other such angst. Whereas the constitutional amendment would prevent the Colorado courts from creating a “right” to marriage that would circumvent the legislative process.

    Me, I’ll vote against the amendment just because I prefer to keep most things out of the constitution – we shouldn’t set in concrete what needs to be looked at and moved around from time to time.

  8. The Supreme Court of Canada (although it might have been a provincial court…) has said that we (in Canada) can’t dodge the bullet that way. They claimed that calling it anything other than marriage was itself a form of discrimination, regardless of the legal status of the union.

    When I first heard this argument, I wasn’t entirely convinced, but the following thought experiment is illuminating: What if there was a law stating that the word marriage could only used between a white man and a white woman? Sure, we’ll give black and interracial unions all the same rights, but they just can’t call it “marriage”.

    Does that still feel like equal rights to you?

  9. Dete:

    “They claimed that calling it anything other than marriage was itself a form of discrimination…”

    Naturally, someone should bring this argument to the attention of the NJ legislature, who will be making the determination as to whether to let same-sex couples in on marriage.

  10. Of course it is discrimination. Separate but equal (and civil unions aren’t even equal) is inherently discriminatory in practice. But NJ, even if it does end up calling it a civil union, represents progress, as well as additional precedent for the other states currently considering this issue.

    Separate but equal was wrong, but far better than the prior state of affairs – and concrete proof that we are at least moving in the right direction. Albeit slowly – far too slowly.

  11. My wife very succinctly summed up the biggest threat to marriage: heterosexuals.

    Yes, nerdy men with bizarre senses of humor turn her on, and I like anything in a skirt. See? That whole monogamy thing gets a little shaky should we indulge. Nary a same sex pairing mentioned, is there? The biggest threat gays pose to marriage is…

    To gay marriages.

    Hate to break it to you, anti-same-sex crowd, but adultery’s been a threat long before this issue ever hit the radar. That’s right. Straight people are the biggest threat to marriage today.

    Ask Jennifer Aniston.

  12. See, and I thought the relevent part of the ruling was this:

    Despite the rich diversity of this State, the tolerance and goodness of its people, and the many recent advances made by gays and lesbians toward achieving social acceptance and equality under the law, the Court cannot find that the right to same-sex marriage is a fundamental right under our constitution.

  13. CoolBlue, the argument in that paragraph extends only to the word “marriage.” I think the more relevant point was a few paragraphs down.
    Other than sustaining the traditional definition
    of marriage, which is not implicated in this discussion, the State has not articulated any legitimate public need for
    depriving committed same-sex couples of the host of benefits and privileges that are afforded to married
    heterosexual couples.
    There is, on the one hand, no rational basis for giving gays and lesbians full civil rights as
    individuals while, on the other hand, giving them an incomplete set of rights when they enter into committed samesex
    relationships. To the extent that families are strengthened by encouraging monogamous relationships, whether
    heterosexual or homosexual, the Court cannot discern a public need that would justify the legal disabilities that now
    afflict same-sex domestic partnerships.

    Or, marriage by any other name.

  14. Sorry, in my post above the paragraph starting “Other than sustaining..” and ending “…domestic partnerships.” was a quote from the syllabus. My HTML tags were wrong.

  15. John said:

    Dete:

    “They claimed that calling it anything other than marriage was itself a form of discrimination…”

    Naturally, someone should bring this argument to the attention of the NJ legislature, who will be making the determination as to whether to let same-sex couples in on marriage.

    I suspect that the legislature will enact a law creating civil unions, which will then go back to the courts, with this argument as a fundamental part of the challenge (“separate is never equal”). That should take us to or past the next federal election cycle; hold on to your hats, this thing’s not over by a longshot, more’s the pity.

    I wish the court had been able to find a good basis for having the cojones to rule that what’s good for the goose is good for the gander, even if there’s two of them.

  16. if the legal term for their relationship is not “marriage,” then other states can possibly argue that they are not enjoined to give full faith and credit to them as might otherwise be the case

    This is a common misunderstanding of the Full Faith and Credit clause, with no grounding in actual case law. Courts have repeatedly ruled that states are not required to recognize marriages in other states that would be illegal in their own (e.g. for reasons of age, consanguinity, mental fitness, or (pre-Loving) race). Even without DOMA, no state is required to recognize the validity of gay marriages in Massachusetts or New Jersey. I would interpret the New Jersey ruling as requiring the immediate recognition of Massachusetts gay marriages, and Massachusetts to conversely allow New Jersey gay residents to marry there, but those are the sort of question that lawyers call “interesting” which translates as “$300 an hour for a full ruling, and keep it coming”.

  17. Dave:

    “Even without DOMA, no state is required to recognize the validity of gay marriages in Massachusetts or New Jersey. ”

    I agree, but having the legal relationship be a civil union rather than a marriage makes it even less likely someone would make a recognition argument, in my opinion.

  18. At the risk of drawing fire, I’ll suggest that the gay marriage issue is not as simple as deciding whether limiting marriage to one man and one woman discriminates against homosexuals, and that if it does, it is necessarily unconstitutional. By that analysis, the pro-gay marriage crowd wins handily, right? I mean, by definition, limiting marriage to heterosexual couples “discriminates” against homosexuals.

    I think that the problem with gay marriage is not with gay marriage – it is with marriage as a legal construct. Ideally, marriage is a set of expectations that are useful to society, coupled with a set of privileges or benefits that society bestows, to encourage the fulfillment of the duties.

    (It is easiest to think about the concrete benefits – taxes, marital property rules, inheritance rules, childcare laws, and the like – because those are subject to legislation. There are intangible benefits to marriage too – social stature and religious approval, for instance – that aren’t subject to legislation anyway, so why bother talking about them?)

    The question then arises – what duties are required of married couples nowadays, and what privileges do they receive, and are the benefits and duties balanced?

    At a casual look, it seems like the legal benefits of marriage are about as high as they ever were (with the exception of the “marriage penalty” that used to be in the federal tax code), while the fulfillment of the duties is no longer enforced by law or society: having children is optional; divorce is relatively easy, and children suffer thereby; and the nuclear family unit does a lousy job transmitting traditional societal values. Arguably, society is not receiving much bang for its buck as is.

    Looked at that way, what’s the big deal with gay marriage? Heterosexuals damaged (I won’t say “destroyed”) the institution of marriage long before homosexuals decided marriage wasn’t some square, straight thing and wanted in on the deal after all…

  19. legal recognition for same-sex couples on a par with married heterosexual couples

    “On a par with” meaning “better than nothing”. The word marriage has a great deal of legal significance, and being married gives you rights that even very expansive civil unions* does not. Better than a stick in the eye, but it does not give same-sex couples equal rights at all.

    By that analysis, the pro-gay marriage crowd wins handily, right?

    No.

    If anybody really cares to talk about the legal issues, rather than flail about God Said or a misunderstanding of what marriage laws (and Full Faith and Credit) mean, I’m happy to bore y’all to death and provide links; but I’ve gotten weary of doing so for people who find it tedious to be confused with the facts.

    *The joke here in CA is whether entering such a partnership makes you “civilized” or “unionized”.

  20. The problem, as I understand it, is that marriage confers federal-level benefits that civil unions do not. Call it a civil union, and the federal government can say “Yes, but those social security benefits/tax deductions/etc are for married couples.” That at least is how the argument in favor of equal marriage was explained to me before MA adopted equal marriage laws. I don’t know if having the word marriage has actually helped MA couples obtain federal-level marriage benefits in practice.

    I know a lot of the wingnuts pull up the argument that since marriage is a religious institution, the government shouldn’t be allowed to decide how it works. By that logic, though, the government shouldn’t deal in marrying straight people either. If they’re not allowed to deal in religious affairs, even when those religious affairs have civil ramifications, then why don’t they just call all marriages civil unions? Leave it up to individual couples and their faith communities to decide if they want to call it marriage or make it somehow religious– that part of it is none of the government’s concern, right?

  21. mythago:

    I’m not sure what the pithy “no” means you are disagreeing with. You quote one sentence from one paragraph, the point of which is to deride the idea that the gay marriage issue is one merely of discrimination versus non-discrimination – but your following paragraph implies you agree at least that there is some complexity to the issue. So what’s up?

  22. Annalee Flower Horne:

    “The problem, as I understand it, is that marriage confers federal-level benefits that civil unions do not. Call it a civil union, and the federal government can say ‘Yes, but those social security benefits/tax deductions/etc are for married couples.’”

    Well, because of DOMA, the federal government doesn’t give those benefits nor would it if NJ same-sex unions were defined as marriages; it currently doesn’t with Massachusetts.

  23. Well, because of DOMA, the federal government doesn’t give those benefits nor would it if NJ same-sex unions were defined as marriages; it currently doesn’t with Massachusetts.

    That’s what I figured. I know that states don’t have to recognize marriages from other states now. I thought DOMA failed at the federal level, though? It could be I’m just having a massive brainfart about that.

    By the way, and this is only related in the most tangential way imaginable, I think it’s awesome how you made sexual orientation a complete and total non-issue in OMW. I had a roommate last year who got on my case for not ‘acting queer enough,’ and I was always thinking, “How exactly does one ‘act queer?’” It was nice to spend some time with a gay character who treats their sexual orientation the same way straight people do.

  24. Annalee Flower Horne:

    “I think it’s awesome how you made sexual orientation a complete and total non-issue in OMW.”

    Well, you know. My universe reflects my thoughts on the matter.

  25. Jim Winter writes:

    “Hate to break it to you, anti-same-sex crowd, but adultery’s been a threat long before this issue ever hit the radar. That’s right. Straight people are the biggest threat to marriage today.

    “Ask Jennifer Aniston.”

    Good Lord, man, are you suggesting that the government outlaw Angelina Jolie? Have you not an ounce of compassion?

  26. I live in New Jersey.

    I’m also a heterosexual 18-year old college junior.

    I personally think this is a great day for equality. I haven’t really had much occasion to say this before, but I am damn well proud to be a resident of the state of New Jersey.

    And why? Because the 4-3 decision wasn’t ’4 for gay-marriage, 3 against’, but rather something more stunning:

    4 for civil unions or gay marriage, 3 for gay marriage only. Call it an activist court, call it whatever the hell you want, but New Jersey, at last, has taken the step forward to make change happen — change that has long been overdue.

    Will this be a rallying cry for the Republicans? Well, I’m not so sure they have a firm grip on the ‘moral values’ axis of the country right now. Corruption and pedophilia seem to have damaged them more than a bit (dog eat dog in the Republican House right now), and Bush is making concessions left and right. Rats + Sinking ship?

    Some right-wing jackass is going to say that this is going to lead to more Mark Foleys or something — something about legalizing gay marriage promoting homosexuality and stuff like that. People like those…nevermind. I still hold with the famous Voltaire quote, though it it extraordinarily hard sometimes.

    But furthermore, the point is that even if this issue galvanizes Republicans and the religious right, at best it is a wash. And with people choosing Democrats over Republicans these days on the issue of terrorism, I see good days ahead for America.

    Well, John, I also am astounded like you how Democrats can ‘snatch defeat from the jaws of victory.’ Given that we now have no habeus corpus, I hope something happens if the Democrats win next month.

    On another note, I am also quite interested in seeing Barack Obama win President in 2008.

  27. Y’know I think that court also knows full wel about name creep. For example here in the UK when we legalised “civil unions”[1] it took, what maybe three, four seconds for most ordinary people to start calling it marriage. Before the law even came into force most of the major stores that do marriage inventories were stocking gay marriage items like his and his, or hers and hers cards. The authorities and a few of the more nuttier religious cults are still jumping up and down being indignant and screaming “it’s not marriage, it’s not marriage” but I give it ten years, fifteen at most if the tories get back in god forbid, until Parliament gives in and says it’s marriage. Because, most people are already calling it that.

    I imagine it’ll be pretty much the same in New Jersey.

    [1] A civil union gives exactly the same rights as marriage it’s just you aren’t supposed to call it that. As opposed to an uncivil union wich, according to the tabloids, is what Paul McCartney had.

  28. In my perfect world, the state government would get out of the business of marrying people and leave that to the religious organizations.

    Originally, the church provided the marriage product (better known as a sacrament). But government horned in on their business model. In a modern world, the church would have sued to protect their IP rights and forced the governments to provide a different product or at least one by a different name.

    Back to my perfect world: governments provide a product that is mariage by another name – let’s say civil union – to any set of 2 or more adult people who want to bind their lives together (I really don’t care about the slippery polygamy slope but am not keen on extending to children or animals). In order to get the legal rights of a civil union you have to get it through the government. If you choose to also have the sacrament of marriage, you can do that as well. The religious organizations can put whatever conditions on marriage they like, most often that it must be between a man and a woman.

    In order to get to my perfect world, I suggest all state marriages be dissolved and automatically redone as civil unions. Let’s not redo the paperwork, we’ll just change the name of the office and call it done. If you got married in a church then you can say you are married. If you went the justice of the peace route, you only have a civil union. If gays really want to get ‘married’ they can go knocking on the church doors. If what they want is a legal binding together, then their local state goverment could provide the service.

  29. BTW, I am as happy as I can be for the two gentlemen in the picture, and wish them all the best in their married lives. That said, I will admit to a certain relief that, even in married bliss, they are not able to breed.

  30. Well, until they find a nice lesbian couple who wants kids, too. Then it’s turkey baster time!

    Seriously, though, I think we’ll be finding a lot of same-sex couple wanting children and either having them through adoption (which is good) or through other gays/lesbians who want children, too.

  31. Seriously, though, I think we’ll be finding a lot of same-sex couple wanting children and either having them through adoption (which is good) or through other gays/lesbians who want children, too.

    Pretty much already occuring. The census department’s best guess is something like 1 million kids are being raised in two-same-sex-parents households in the US. How much marriage might increase that is anyone’s guess.

  32. Jojo, so many of those gays married in California would have their marriages restored (as I remember, most were blessed by a minister or priest)? Would we then have to have a “full faith and credit” religious declaration (married by Baptists and the Lutherans will accept)? What about those people joined by a religious practitioner as registered by the state, but not in a church or belonging to a certain church? Could you be married but not “civily joined”? I think your “perfect world” would create many more problems than it would solve. I think the State has a clear case of priority in these matters because marriage is a legal entanglement (for lack of better word). If you don’t believe that, just review any divorce document or proceedings, even “simple annulment” decrees and you’ll see what I mean.

  33. Jim Winter:

    My wife very succinctly summed up the biggest threat to marriage: heterosexuals.

    Yes, nerdy men with bizarre senses of humor turn her on, and I like anything in a skirt. See? That whole monogamy thing gets a little shaky should we indulge.

    “Marriage” != “monogamy agreement”. (Though obviously there’s a lot of overlap.)

    Jojo:

    Back to my perfect world: governments provide a product that is mariage by another name – let’s say civil union – to any set of 2 or more adult people who want to bind their lives together (I really don’t care about the slippery polygamy slope but am not keen on extending to children or animals).

    Hear, hear! I’m always a little amused/disturbed by people who lump same-sex marriage and polygamy in with bestiality and pedophilia. Do they really not understand the concept of “consent”? Or do they just don’t think it’s an important distinction?

    I’m guessing that people like that don’t make for fun dates.

  34. The problem, as I understand it, is that marriage confers federal-level benefits that civil unions do not. Call it a civil union, and the federal government can say “Yes, but those social security benefits/tax deductions/etc are for married couples.” That at least is how the argument in favor of equal marriage was explained to me before MA adopted equal marriage laws. I don’t know if having the word marriage has actually helped MA couples obtain federal-level marriage benefits in practice.

    There’s recently been what one would have thought would be a really high-profile case of a MA couple not getting the benefits an opposite-sex married couple would have received, but the news media outside of MA largely ignored it. Gerry Studds, recently mentioned in the news in a pathetic attempt to equate what he and Dan Crane did with what Mark Foley did, died unexpectedly. He was survived by his husband, Dean Hara, and Hara was quickly denied Studds’ congressional pension, which a wife (or a husband, had the deceased spouse been female) would have received.

  35. I absolutely believe that the glory of the NJ ruling lies in its willingness to separate the word “marriage” from the rights of committed partnership. Okay, yes, I think that’s still a kind of discrimination against couples who want the whole enchilada. But.

    The problem up until now has been that the conservatives pushing the “defense of marriage” acts have been soft-peddling some pretty nasty stuff under the guise of “reasonableness” — for example, a few years ago, when you Ohioans were voting on your own gay marriage ban, my progressive/liberal Christian brother said to me, “well, I’ll probably vote for it. I’ve heard the arguments that ‘marriage’ should be between a man and a woman, and frankly, I think that’s reasonable.” Because that’s absolutely how they were selling it to him: oh, sure, you can support gays and give them all the rights they want. But do they really need the word “marriage”? That’s a sacred contract, now. Let’s be reasonable!

    He’s not really in favor of keeping gay/lesbian couples from having spousal health insurance, or visiting rights, or joint tax filing status, etc. etc., and I think he changed his mind after I convinced him to look up what all was really going to be lost in this argument over the “fine print.” But to this day I really feel that the rest of the state of Ohio was suckered into voting for that amendment — suckered by the failure to make the distinction that the NJ court just did.

    So, yay, New Jersey.

  36. The problem, as I understand it, is that marriage confers federal-level benefits that civil unions do not.

    That’s one of the problems. The other biggie is that there are all kinds of laws and regulations that use the word “marriage”. So what happens when a state decides that okay, you get the same deal but we don’t use the M-word?

    What happens is that you generate many billable hours for lawyers fighting out whether particular laws that say “marriage” also apply to “civil unions”, and if so, to what extent, and while the courts are hashing this out the legislatures will be doing the same. And no, simply saying “Okay, every law that says ‘marriage’ should read ‘and civil unions’” is not a cure-all. Especially when you have reactionary bozos hiring their lawyers to the contrary.

    CJ – the “no” was because (and I don’t mean this in a snotty way) you don’t seem to understand what ‘discrimination’ means, legally. There’s a good overview at Wikipedia, and at Cornell The short version is that some discrimination is more discriminate-y than others.

  37. mythago – your facts confuse me, and I find it tedious to be confronted with them.

    Seriously, I think I do understand what “discrimination” means, and when (in theory) it is constitutionally permissible to draw legal distinctions between groups of people, and what standards the government must meet when it does so, all the way down to “rational basis” for most instances. My practical knowledge is in the criminal arena, from occasionally having to defend the constitutionality of a statute that a defense attorney says violates equal protection. My theoretical knowledge is from law school some years back – I’ll concede I’m not a specialist in equal protection and civil rights law outside the criminal context.

    The only point of my first paragraph, which point seems obvious to you, is that same-sex marriage proponents cannot win on a claim of “mere” discrimination, because sometimes the government has a right to “discriminate.” The question is whether the discrimination is “unlawful.”

    The larger point of my whole comment is to suggest that the same-sex marriage issue is really a smaller part of the larger “what is marriage supposed to be anyway” issue. I’ve noticed some of the folks above suggest “civil unions” should be the norm, and “marriage” should be a non-governmental, personal, possibly religious, imprimatur. That sounds like a sensible, libertarian-ish position.

    The funny thing about Colorado’s proposed civil union is that it would arguably not be available for heterosexual couples. Pulling marriage out of the governmental sphere might make the whole debate more rational and end silly inconsistencies like that.

    I’m one who thinks a marriage is a commitment to family and society as well as to the other person in the couple. I would enthusiastically jump on the same-sex marriage bandwagon (as opposed to tepidly, as I have) if I could have in exchange some way to encourage both heterosexual and homosexual to stay in their marriages and take their responsibilities seriously.

  38. CJ, so are you thinking of the removal of hard won women’s rights issues such as no-fault divorce (which we would disagree on) or actual pre-martial counseling that discusses the real issues in marriage (which then we can discuss what kind and whom should do that counseling)? That and we could also discuss responsibilities, as I have heard just recently on the radio opponents to the NJ ruling that one of those “ancient” responsibilities is to procreate. That concept would change the context of marriage completely.

  39. John,

    I agree with you about the court’s decision being subtle maneuvering and I agree that two men or two women getting married has no effect on my or your marriage, so gay marriage doesn’t bother me in the least; as one wag put it, “why shouldn’t they be allowed to marry and be as miserable as the rest of us?” I don’t agree with your conservative bashing, however. Sure, there are some nut cakes out there frothing at the mouth (Fred Phelps comes to mind) but the majority of people that I know who (1) are conservative and (2) against gay marriage aren’t like that. Their reaction, it seems to me, is more like the classic /new coke imbroglio: people don’t like to have their icons messed with. These people present more or less reasoned arguments for their opposition. Although I don’t find their arguments compelling, I also don’t find them full of fire and brimstone or dire warnings about pedophilia and beastiality. In short, we may not agree with them but their arguments are made in good faith and demonizing them does nothing to advance the goal of eventual acceptance of gay marriage. Quite the contrary, it mostly results in folks cementing their views rather than being open to dialogue. You may feel that you don’t need or want dialogue with them, but in that case you should be prepared to wait a much longer time for the outcome that you do desire.

    On a related matter, many of the commenters are celebratory about the decision. From a pragmatic view, I find this misplaced. A very likely outcome is the introduction of a state constitutional ammendment to outlaw same sex marriage. If that happens, I would judge the chances of it passing as substantial. If we are ever to have the end of this issue and just let people who want to get married get married, it will have to come through the democratic process, not from the judiciary.

  40. if a hetrosexual couple gets their relationship certified and approved in city hall or some other “civil” union and never go to a religious institution to have it formalized, does that then mean they aren’t “Married?” while i don’t agree with the position, i can understand why a religious institution may refuse to solemnize a relationship between two people of the same sex, if it is against the credo and doctrine of their faith.

    what i don’t get is where a civil authority gets off telling its otherwise legitimate citizens that they cannot have access to the rights, privileges and recognition of a civil ceremony.

    i also don’t get how homosexual couples marrying threaten hetrosexual relationships or the life and safety of children. especially considering so many of the hetrosexual couples i’ve seen working on second, third and fourth marriages with multiple children. i could *almost* understand a civil authority outlawing divorce (as was once the practice) in order to preserve the “sanctity” (which shouldn’t be the purview of civil authority anyway) of family life. divorce was once outlawed because church authority was against it (and i use church with a small “c”) but eventually civil authority made room for dissolving marriages in a “civil” manner and left churches and religion to find their own way with respect to the separation of
    “sanctified” unions.

    i predict that eventually the same thing will happen with so-called “gay marriages.”

  41. Steve Buchheit:

    You write: “CJ, so are you thinking of the removal of hard won women’s rights issues such as no-fault divorce (which we would disagree on) or actual pre-martial counseling that discusses the real issues in marriage (which then we can discuss what kind and whom should do that counseling)?”

    That’s the rub, isn’t it? Any legal or regulatory effort to somehow strengthen marriage almost certainly erodes personal freedom. On the other hand, changing the social or cultural matrix to informally sanction “marriage violators) cannot be legislated. (Although that would be interesting to try: “It shall be a class 1 misdemeanor to express approval for out-of-wedlock childbirth…” No, it would never work.)

    So I’m veering toward mild despair on this whole thing, which leads to my tepid endorsement of same-sex marriage rights: why not? It’s not as if marriage is doing great work for society right now anyway. (Yes, I’m overstating things, which is easy to do in a blog comment. Sorry.)

    I do have one observation on no fault divorce, and the extent to which it represents a hard-won women’s rights victory: is it possible, both historically, and outside the confines of the upper middle class, that abandonment of wives (and children) has been a graver social problem than women being trapped in bad marriages?

  42. CJ, “that abandonment of wives (and children) has been a graver social problem than women being trapped in bad marriages?”

    I wouldn’t contest that issue, just look at Ireland and the problems that such a practice has had on their society. In Ireland they have recently passed more lenient divorce laws to help with that problem. This is also an argument for no-fault as the abandoned wife (or husband) can then try and get their financial and emotional life back on track and have that faster than the “traditional” forms of divorce, which would cost them even more and require tracking down the husband (or wife) that has fled and dragging them into court for all two to three years of hearings.

  43. The question is whether the discrimination is “unlawful.”.

    Right. And the courts have spent an awful lot of energy avoiding the issue of the fact that these laws discriminate on the basis of gender–which invites stronger scrutiny than sexual orientation.

    Abandonment and homicide have always been problems in marriages, and no-fault divorce is a good way to avoid them.

  44. How do these laws discriminate on the basis of gender? They use gender, but they discriminate equally against both genders…

  45. Tor:

    “How do these laws discriminate on the basis of gender? They use gender, but they discriminate equally against both genders…”

    The exact same argument could be (and was) used against interracial marriages decades ago. It still sounds stupid today.

  46. Well, no. The two issues are very different, from a legal standpoint. From a practical and social standpoint, I agree with you. But that is not how the equal protection clause is interpreted.

    Just doing some quick research, I see that even courts sympathetic to same sex marriage have not been persuaded by the sex discrimination argument (Massachusetts and Vermont). And while the Supreme Court used equal protection to strike down laws prohibiting interracial marriage – those laws at their heart were designed to maintain white supremacy and discriminate based upon race. The laws banning same sex marriage discriminate explicitly against sexual orientation, but not specifically against either gender.

    Hence my question…

  47. Steve Buchheit:

    I don’t think using one of the most repressive family law schemes in the modern Western world as an example is entirely fair. Doubting the wisdom of no-fault divorce as currently practiced is not the same thing as consigning unwed mothers to laundry factories.

    The trick is to strike the right balance. An ideal divorce scheme would have a ready egress from marriages plagued by abuse, adultery, addiction, or abandonment. It would at the same time be sufficiently onerous (either legally or socially) so as to deter couples from separating who just need to slog through a rough patch.

    No scheme will be perfect. The question is, which way do we err? We pass laws that infringe upon individual freedoms all the time for perceived societal good. Surely we all agree that divorce is, and should be, harder than breaking up with a girlfriend or boyfriend. But how much harder is ideal?

  48. CJ, was just showing the point and saying that Ireland has suffered terribly from their laws regarding divorce that has lead to a high rate of spousal abandonment amplifying your point. As for the law, I think we should err on making it as easy to dissolve some bonds as it is to create them. As I’m sure you know, even no-fault divorce isn’t as easy as saying, “I just think we should see other people,” and requires much from both parties. And divorce, any divorce, will be the second most important financial decision that anybody will make in their lives (marriage being the first), hardly equal to boyfriend/girlfriend breakups.

    I do think we need to educate children to understand what marriage is and how to cope with relationships. Unfortunately such discussions always get bound down in sex and “Men are from Mars, Women from Venus” blathering. Given the psychology of relationships, especially abusive of detrimental relationships (which we’ve discussed before) I am willing to err making divorce easy. As a society, parents, family, etc should educate their children as to what a successful marriage is and how it’s a partnership, how to work through problems, actually talking about the taboo of money issues, etc. instead of letting kids think that what they see on TV or in the tabloids is the ideal because they look pretty and live in neat places.

  49. It would at the same time be sufficiently onerous (either legally or socially) so as to deter couples from separating who just need to slog through a rough patch.

    It already is. I don’t know if you’ve ever seen the procedure up close and personal, but it’s not like getting a haircut.

    those laws at their heart were designed to maintain white supremacy and discriminate based upon race

    Tor, from a lawyer’s POV, the courts using that argument are full of it. “But that was about race ONLY so it DOESN’T COUNT” is not a valid Equal Protection argument. The reasoning of one case can be applied to another case.

  50. Oh, hell, mythago, I’ve seen the procedure up close and personal, from the underside, as a child. If that psychological bias renders moot everything I say, then so be it.

    I never said or implied divorce is easy. I think it’s not hard enough. Clearly it is easier than it used to be a few decades ago, else it would not be so much more common. There is some good to this change as others have pointed out, but it is not an unmitigated good.

    Maybe there can be graduated levels of inquiry into whether divorce is appropriate based on whether children are affected?

    The attitude that became popular during the 70s (when the no-fault experiment began) was “If I’m unhappy in my marriage, my children will be, so getting divorced is actually the right thing to do.” As with all the most successful contemptible lies, there is some truth underlying this one. The conclusion is wrong, though – parents have a moral obligation to learn to be happy or at least content in the marriages they chose.

  51. Anonymous, “parents have a moral obligation to learn to be happy or at least content in the marriages they chose.”

    So, as a fellow child of divorce, how would your parents feel about such an argument? Because you know, so many people get married with their eyes fully open and knowledgable about the world and relationships and even each other.

    Your argument “if I’m unhappy” was the same crap I heard growing up about divorce, and it’s a complete lie. Nobody goes through the buzzsaw of divorce because “they were just unhappy.” They go through divorce because they can no longer stand to be with the other person, they no longer can trust the other person, they aren’t safe in the relationship, etc. They may say it’s “because they’re unhappy” but that is usually hiding or masking other reasons that they’re either embarassed or have been trained not to expose in public. I’ve only seen one divorce close up that was actually beneficial to both parties (one of them came out of the closet) and have heard about another (both people flowered after the divorce economically and physically). For most people divorce forces their lives to make a 90 degree turn and nobody comes out the winner, but at least they come out of it.

  52. John:

    Perhaps you would field a question from a member of your loyal but conservative opposition:

    It seems to me that the debate about gay marriage has been framed in two extremes: either you must accept homosexual unions as *exactly the same as heterosexual marriage* (the liberal position), or rail on about the Evil of the Gay Agenda (the conservative position). As a [secular] conservative, I would suggest that a more nuanced position is possible:

    1.) I see no problem with a civil union that gives gays legal rights of inheritance, hospital visitation, etc.

    2.) But–I think that the significance of the heterosexual union in the child-producing/child-raising experience is an important distinction that cannot be ignored. I have to admit, gay adoptions do make me nervous. (Not because of pedophelia concerns—but because I think heterosexual households provide better environments for raising children.)

    Here is an analogy: I am a single, heterosexual male. You are a married heterosexual male. If tomorrow each of us wanted to adopt a child, you would likely pass muster, but I almost certainly would not–adoption agencies favor married heterosexual couples over single heterosexuals by a wide margin.

    I know that this would technically be “discrimination” against me as a single. But in this particular case I would agree that discrimination makes sense–because I know that you and your wife would be capable of providing a much better growing up experience for a child than I would.

    The same principle applies with gay adoptions. I know that the pedophilia argument is a red herring; and I also believe that two gay parents could keep a child alive and unharmed until the age of 18 or so. But I think that the distinct input of two heterosexual parents is better for kids.

    I remember talking with my dad about girls when I was 12 or so…Now I am trying to imagine that conversation with two adoptive gay male parents who were attracted to men as teenagers…Sorry, but that image just doesn’t work….It makes me feel kind of oogy.

    Do you agree that a nuanced position regarding gay marriage is possible?

    Note: I know that MyThago will post that out in California, pagan lesbian households are considered the ideal environment for children. But then–a lot passes in California that looks loopy to the rest of the country. (I recently heard that the CA state legislature is suing automakers for their role in global warming and brush fires)–but I digress.

  53. Sorry, Steve Buchheit, “Anonymous” was me. And I stand by what I said. I understand people enter into marriage unwisely. Nevertheless, once in a marriage, they must take all good faith efforts to maintain it, and society should encourage and reward those efforts.

    It’s not fair. But then, it’s not fair that some people are alcoholics, and must take extraordinary steps to stop drinking, lest they destroy their own lives and damage their loved ones’. They didn’t become alcoholics “with their eyes fully open” – nevertheless, they must deal with their unfair situations.

    What would my parents feel about that argument? I suspect they would rationalize, just as most people do, so as to live with themselves. And to be fair, only they know if they tried their hardest to maintain the marriage. I don’t – I’m not inside their heads.

    I stand by what I said about the “I’m unhappy” rationalization, too. I think there’s been movement away from it in recent years, and that’s a good thing. But it was a real part of the “me generation” zeitgeist, and I hope you are correct that people don’t divorce just because they are “unhappy.”

    Because my observation is that the normal pattern goes something like this: couple meets, falls in love, marries or cohabitates, reaches a crises, and divorces or splits up; they drift into new relationships that replicate the same crisis they experienced in the last one!

    Certainly there are marriages so broken there’s no point continuning. The principle valid reasons for divorce (I think) are adultery, addiction, abuse, or abandonment (or some combination, when one leads to another).

    However, I’m told half of marriages end in divorce. Do half of marriages suffer from adultery, addiction, abuse, or abandonment? I really don’t know. If not, though, people are getting divorced for lesser reasons. And I wonder if getting to the point of not being able to stand one’s spouse is easier when the back of your brain knows you can always leave.

  54. Greg:

    “You are a married heterosexual male. If tomorrow each of us wanted to adopt a child, you would likely pass muster, but I almost certainly would not–adoption agencies favor married heterosexual couples over single heterosexuals by a wide margin.”

    Can you site proof of this? As far as I know, single-parent adoption is legal, for both men and women, so I’m not sure I buy the thesis that a single man would “certainly” be rejected as an adoptive parent out of hand; also given the number of single people who do adopt, being single in itself does not seem to be much of an impediment.

    Aside from this, your opinion that two heterosexual parents is better for children than two gay parents is not borne out in psychological studies, which have repeatedly indicated there is no detriment to children being raised in a family with same-sex parents. Your feelings about aspects of it being “oogy” are your own thing, but the fact that it raised your squick does not rise to the level of empirical proof that same-sex households are a worse environment for kids than opposite-sex households.

    Aside from that, same-sex couples already adopt children in many states without the benefit of being married, and of course there are many children who are naturally born to homosexual parents who are now living in same-sex relationships. Because of this, conflating same-sex marriage with same-sex adoption or same sex-children child raising isn’t particularly useful.

    And aside from that, the idea that marriage is primarily or substantially about child-raising is something of a red herring in itself, I think. Marriage can be primarily or substantially about child-rearing, but of course there are numerous couples who marry without having or without ever intending to have children, whether by choice or biology. Those marriages are legally no less valid than those into which children are brought, through natural or adoptive means.

    There may or may not be room for nuanced discussions about same-sex marriages, but I don’t know that addressing those discussions through this particular avenue is fruitful.

  55. mythago, you wrote: “‘But that was about race ONLY so it DOESN’T COUNT’ is not a valid Equal Protection argument. The reasoning of one case can be applied to another case.”

    This is an opportunity for you to refresh my memory. My recollection is that race is a special case compared to other differentiating factors, because of the Civil War amendments that gave rise to the whole “Equal Protection” line of cases in the first place. Legal distinctions based on race are subject to “strict scrutiny” analysis; distinctions based on gender are subject to “clear and convincing” analysis; and other distintions are subject to “rational basis” analysis.

    Am I wrong? I’m really asking; I could have forgotten something, or things may have changed since I studied this in school.

  56. Scalzi, I think Greg is correct that state agencies generally prefer married couples to single persons all else being equal. In Colorado, anyway, the standard is “best interest of the child,” which requires a case-by-case analysis. (And that is about all I remember from that section of the bar exam.)

    Thus, a single blood relative of a recent orphan may be preferred to an unrelated married couple who are better prospects on paper. But a married blood relative with a stable lifestyle and a solid income would be better yet.

    I think this sheds no light on the same-sex marriage issue, because one could conclude that a married homosexual couple is a better risk than an unmarried person of whatever sexual orientation, all else being equal.

  57. And regarding: “Marriage can be primarily or substantially about child-rearing, but of course there are numerous couples who marry without having or without ever intending to have children, whether by choice or biology. Those marriages are legally no less valid than those into which children are brought, through natural or adoptive means.”

    That doesn’t mean that marriage isn’t mainly about childrearing from a societal point of view (anthropomorphizing “society” of course). That’s why law and custom have traditionally created incentives to marry – to encourage that children are born, that they are born into a viable economic unit, and that they learn to “think right.” If marriage weren’t mainly about childrearing, I’m not sure what reason society would have to create privileges for it.

    But that’s a different issue from whether same-sex marriage is proper. It gets back to what I think is the larger issue, which is what interest does society have in rewarding marriage in the first place? And is society getting its money’s worth?

  58. Note: I know that MyThago will post that out in California, pagan lesbian households are considered the ideal environment for children.

    Actually, in California, households where children are fed, sheltered, housed, educated and loved are considered an ideal environment; whether the parents’ genitals are matched sets, or whether the family is careful to worship only a single male deity, is not so high on our list. I’d be interested in hearing how your charming regional customs differ.

    As for your oogy feelings, I am pleased to say that there is no “a lot of people get oogy about this” standard for determining what’s in the best interests of children. And a good thing, too, unless you’re quite positive that your own little household would be certifiably non-oogy to the majority.

    My recollection is that race is a special case compared to other differentiating factors

    Yes. What I referred to was courts saying that the reasoning of cases like Loving v. Virginia only ever applies to race, and can’t apply to other categories because, uh, That’s Different. Loving was quite clear that the issue isn’t whether you discriminate against everyone just as badly; it’s whether your law draws problematic classifications.

  59. When I saw the above picture, a headline for THE ONION instantly appeared in my mind:

    “UGLY, OBESE BADLY DRESSED GAYS CAN NOW MARRY: Protests From Well-Groomed, Thin Fashionable Gays”
    ;-)

  60. Can you site proof of this? As far as I know, single-parent adoption is legal, for both men and women, so I’m not sure I buy the thesis that a single man would “certainly” be rejected as an adoptive parent out of hand; also given the number of single people who do adopt, being single in itself does not seem to be much of an impediment.

    As an adoptive parent, I had to do a boatload of reading on the subject and talked to more social workers and adoption agency personnel than any one person should have to. While you are correct that single parent adoption is legal, it is relatively rare to find an adoption agency that will handle it. Adoption agencies are in a weird quasi-official status, where they are allowed to undertake actions that one would think require governmental powers (arranging adoptions), but they are allowed to put just about any restrictions on their clientelle that they want. That includes conditions on race, religion, age, marital status and wealth that a court strike down in a heartbeat if attempted by a government agency. There are a certain number of agencies which will consider single females (if infertile), but not single males. Agencies that will work with single males are quite rare. Many agencies will also not work with unmarried straight couples (on the assumption that they are unserious) but will work with unmarried gay couples.

    Now, you don’t have to go through an agency to adopt a child. It’s just vastly easier than most of the alternatives (which is to say it’s difficult and extremely expensive, but not life-alteringly difficult and insanely expensive). Even if you go outside of agencies, you’ll need vetted by a registered social worker or two, and if they downcheck you, your adoption simply isn’t happening.

    Now everything gets a bit easier if you’re looking to take an older or less desireable child, but it’s still nothing like easy, and being married gives you an enormous boost.

  61. Dave:

    “Now everything gets a bit easier if you’re looking to take an older or less desireable child, but it’s still nothing like easy, and being married gives you an enormous boost.”

    No doubt being married helps (when one can get married to the person one is in a committed relationship with). I don’t doubt a single male looking to adopt would have more difficult time of it than a married male in conjunction with his wife. I do think a determined single male could adopt, however.

    CJ-in-Weld, do me a favor when you post and try to consolidate all your comments into a single post whenever possible. Too many comments in a raw by a single post seems to twang my Web site feng shui. Thanks.


  62. I do think a determined single male could adopt, however.

    For an infant in one of the desirable classes, I’d guess about three years of determined effort, $100K, and a fair risk of failure. At that point it’s just about cheaper and easier to hire a surrogate to bake one for you.

  63. I’m sorry for the multiple posts in a row. Seems like when my wife is out of town I go all feverish, stay up late, and compulsively post blog comments, especially at this site with its rare combination of diverse viewpoint and polite exchange.

    Which I suppose helps answer my earlier question about what is marriage good for if not childrearing – mine seems to moderate odd behavior…

    Is there any way to consolidate at this point?

  64. I could go back and do it, but I’m lazy. Don’t worry about previous posts, just try for the future. Thanks!

  65. That doesn’t mean that marriage isn’t mainly about childrearing from a societal point of view (anthropomorphizing “society” of course). That’s why law and custom have traditionally created incentives to marry – to encourage that children are born, that they are born into a viable economic unit, and that they learn to “think right.” If marriage weren’t mainly about childrearing, I’m not sure what reason society would have to create privileges for it.

    The degree of historical illiteracy in this country is truly shocking.

    Society has always seen a need to regulate sexual activity for a variety of reasons, including but far from limited to the fact that it produces children. Civil authorities in the west, though, didn’t get involved in creating or recognizing marriages until well into the Middle Ages, and then it wasn’t about childrearing; it was in response the the rulers’ need to know who had claims to what property. The feudal system made knowing who was the heir and who wasn’t, and who was a widow (or widower, in more cases than you’d think) with a surviving claim on the dead spouse’s property, an absolutely vital issue of civil peace and order.

    While abuse or neglect of children was frowned upon, the notion that civil authorities had an interest in how you raised your children and a right to intervene, came quite late, well into the 19th century, not only after animal welfare legislation, but to some degree as a result of it.

    Socially, yes, marriage is to a great degree about childrearing, but that’s because most marriages take place between heterosexual young adults. Marriage as a legally recognized civil contract, though, is all about making it easier for the civil authorities to sort out the property rights when the relationship ends, whether in death or divorce. And despite the lowered probability of children being involved, all those concerns of property disputes and resulting social discord that the state has to deal with when that end comes, are as prominent in same-sex relationships as in opposite-sex relationships.

  66. Lis Carey, I think I disagree with you largely. I’m not historically illiterate, either.

    Marriage exists in every culture on earth, regardless of whether the culture is large or complex enough (I won’t say “advanced”) to develop a formal legal system or organized religious hierarchy. The forms and customs of marriage differ from place to place and time to time, but they all function in some way to create an environment to raise children according to that culture’s specifications.

    Certainly marriage exists some places to regulate inheritance of real property and such, as you say. What I am saying doesn’t contradict that – the reason society privileges marriage is for the benefit of its own stable continuation.

  67. Mythago – from a lawyer’s POV, I know that you can’t necessarily use one precedent interchangably when you are dealing with different protected classifications. Although if the law said, ‘two people of different national origins cannot marry’ I would agree that race and national origin could be used interchangably. But at the very most, we are talking about gender, and realistically, we are talking about sexual orientation. Gender gets intermediate scrutiny (if I remember Con Law well enough) and sexual orientation is not a protected class under federal law.

    So it seems to me that the people denying the equal protection argument aren’t saying that Loving was ONLY about race, but rather that this issue isn’t really about gender, and is really about sexual orientation – which isn’t a protected class. Loving *was* about a protected class – race. That doesn’t mean that you can necessarily legally discriminate, but it does mean that you are stretching Loving by trying to use it to cover sexual orientation.

    So are you trying to say that laws banning same sex marriage fail the rational basis test, or that a court should hold that sexual orientation *should* be a protected class, and therefore get strict scrutiny – in which case Loving would directly apply?

    Troll repellant: I’m not saying whether these same sex marriage laws *should* be legal – personally, I would be happy if sexual orientation and gender *both* recieved the same level of protection as race and national origin. But the way the law is now, I don’t believe that is the case.

  68. and realistically, we are talking about sexual orientation

    But the law doesn’t say anything about sexual orientation. A gay man and a lesbian can marry in order to raise children.* The law makes a prima facie gender-based classification: says right there, gotta have one boy and one girl. So saying it’s “really” about sexual orientation ignores the fact that the law flat-out, right there, says so in black and white, restricts marriage based on your gender. I truly don’t understand why the fact that the law has a disparate impact based on sexual orientation means we get to ignore what the law actually says. (Isn’t that something legal conservatives always complain about?)

    The reason for bringing up Loving is that many people opposed to same-sex marriage say “There’s no discrimination; men can’t marry men just like women can’t marry women.” The State of Virginia made the same sophistic argument in regard to race: we discriminate against everyone equally, therefore there’s not really discrimination. The Supreme Court dismissed this as the sophistry it is.

    *One of the San Francisco city supervisors is raising a child with a lesbian friend; I don’t think they’re married, but they certainly could marry.

  69. CJ, you miss the point.

    Society has a whole raft of reasons for regulating sex and promoting committed relationships–and children are high up on the list. Civil law, though, that subset of society that has a monopoly of legitimate force, has an overlapping but different and not 100% congruent set of reasons for promoting marriage–and the big one one the civil law side is not children, but property, and concomittant issues of social stability implicated in disputes over property.

    In less complex, or more correctly, in smaller and more homogeneous cultures, the issues don’t look separate; religious law and social pressure do the job well enough, without a separate existence of civil law, because everyone shares the same religious framework and subscribes at least nominally to the same set of behavioral values, and you can’t get away from your neighbors.

    In larger, more diverse, and more mobile societies, civil and religious authority become separate, and the concerns of civil and religious authorities, while still overlapping, also become more separate. And while the civil authority shouldn’t step on the religious authorities, neither should it kowtow to them–the more so since no longer does everyone share the same religious framework and the same religious authorities. Civil law still cares about property and social stability issues implicated in the formation and dissolution of committed relationhips, but it’s not concerned with–and shouldn’t be concerned with–whether or not a particular partnership complies with this or that set of religious requirements.

    Civil law governing marriage has never been concerned with the children as a primary issue. It’s always been primarily a matter of property rights. And as infant mortality rates have dropped, the broader social interest in ensuring that every adult pair contributes generously to the gene pool has dropped.

    Pairing off into committed, mutually supportive partnerships benefits society by adding to social stability. Recognizing and privileging those relationships increases social stability by making it both easier and more attractive to pair off. This benefit to society exists regardless of whether the pair are theoretically potentially fertile together–and in fact with nearly every child born almost guaranteed to reach adulthood, there’s a benefit to society in having some pairs who won’t reproduce themselves, but will either remain childless or be available as potential adoptive parents for children whose biological families have failed.

    No one is saying that the Roman Catholic Church, or Orthodox rabbis, or any sect that chooses not to should be required to recognize and bless relationships that don’t comply with their religious laws; only that, no, they don’t get to veto the civil authorities’ decision to recognize those relationships, because civil and religious concerns are different, and neither should veto or interfere with the other except where third parties’ rights are involved.

    Something to note: In Massachusetts, a notably Catholic state, civil law allowed marriages forbidden by the Catholic Church for centuries prior to the 2003 ruling permitting same-sex marriage: MA civil law allows first cousins to marry, while Catholic law forbids marriage between any relatives up to three degrees (the capsule version being that you can’t marry your third cousin but you can marry your fourth cousin, although it’s a bit more complicated than that.) Somehow, we’ve all stumbled along without social collapse, despite the fact that MA, a predominatly Catholic state, allows what the Church regards as incestuous marriages.

  70. Lis Carey, I think we’re talking at cross-purposes. The difference is between proximate and ultimate causes.

    I agree with much of what you say concerning the difference between traditional and modern societies, and the divergent roles of law and religion. I still contend the ultimate reason for the whole schmear, whatever form it takes in a given culture, is about procreation and cultural transmission. Property is only an issue insofar as it matters to procreation.

    The question remains – why does society encourage men and women (or their families, more often) to mingle their lives and properties such that complex rules must be created to govern dissolution of the arrangement? I think the answer is that society finds it socially useful to make marriage something more than a contract between business entities, which has its own set of less stringent legal and social rules.

    You say that “children are high up on the list.” I’m suggesting that if society did not perceive marriage as a useful means to create new members (that is, were children not a concern – say, we reproduced like Martians in Red Planet), none of the other legal and social aspects of marriage would have come into play at all, civil, religious, or otherwise.

    I agree with you, however, that notwithstanding the institution of marriage’s fundamental reason for existence, those ancillary functions have become and remain very important indeed.

  71. I wasn’t aware that a disperate impact argument was available for Equal Protection cases – my understanding was that disperate impact was used only for Title VII cases. Of course, I could be wrong on that, but are you aware of a sucessful diserate impact case under the 14th Amendment?

    Determinations that are gender based aren’t necessarily discriminatory – we have men’s bathrooms and women’s bathrooms – is there an equal protection argument for saying that all bathrooms should be unisex? Assuming, of course, that the bathrooms aren’t significantly different (hey! this ladies room doesn’t have a urinal! Someone call Mythago! ;) ).

    The reason the same argument was unsucessful in Loving was because the law there was *intended* to be discriminatory against blacks. As the Supreme Court said,

    “There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.”

    Whereas with the same sex marriage laws, the purpose of the law is not to discriminate against one gender. Both genders are treated equally, with no *intent* to penalize one or the other. The *purpose* of the law is to discriminate against one sexual orientation – regardless of gender.

    So the difference is that Virginia said that both races were treated equally, when their clear intent was to discriminate against blacks. The same sex marriage law defenders say that both genders are treated equally, when their intent is to discriminate against homosexuals.

    So are you trying to say that laws banning same sex marriage fail the rational basis test, or that a court should hold that sexual orientation *should* be a protected class – just like race, and therefore get strict scrutiny?

  72. I think the answer is that society finds it socially useful to make marriage something more than a contract between business entities, which has its own set of less stringent legal and social rules.

    It’s very hard to identify what society finds socially useful by divining it; everyone has their own values of “useful”. What we do know is, as Lis states, we have centuries of legal and civil documentation regarding the institution of marriage, and only in the last 150 years or so has most of that addressed the issue of children qua children (i.e., not as inheritors of property). (Which, if you think about it, makes sense — given the high death rates prevalent in earlier times, children were, legally, fungible. Why waste legal breath on addressing their circumstances when there was a significant chance they’d die before they reached their majority anyway?)

    So I reserve the right to disagree with you (and other commenters) who insist that the primary and fundamental purpose of marriage is and always has been the raising of children. It is a purpose, certainly–but I think it’s shortsighted to claim universal historical precedent to justify a particular political and social position, one specific to this time and place.

    (In other news, put me in the Civil Unions=/Marriage camp. Don’t obligate religious entities to recognize unions they find abhorrent, and given all couples the same legal rights and responsibilities of commitment. But I’m one of those dangerous Left Coast liberals who thinks lesbian pagans can make good parents.)

  73. I wasn’t aware that a disperate impact argument was available for Equal Protection cases

    I feel like I’m arguing with the Red Queen here.

    Look: the law, on its face, creates a gender-based distinction. You proposed that we should ignore that (as many courts do) because the REAL reason for the laws is to discriminate against homosexuals. That is a disparate-impact argument.

    Both genders are treated equally, with no *intent* to penalize one or the other.

    By this logic, it would be perfectly constitutional for a city to pass a law requiring males to wear blue and females to wear pink. After all, we’re not penalizing anybody!

    It’s quite true that Loving attacked white-supremacist thinking. It’s also true that Loving pointed out that it’s not just unequal treatment that’s prohibited; it’s making classifications in the law based on a suspect class.

  74. Well, if your definition of a a Red Queen is someone who responds to your arguments as you make them, but because they are (so far) unconvincing to him, doesn’t change his mind, then I agree. But initially, you gave no grounds, then you used Loving, and now you’ve moved on to disparate impact – I’ve been responding to your points as you raise them.

    Maybe we’re looking at disparate impact in different ways. In my practice, it is a work rule or practice that is facially neutral, but in practice, has a disparate effect on a protected class – under Title VII, those protected classes are race, color, religion, sex or national origin, as well as pregnancy, age, and disability under different statutes. Saying that all blonde people must dye their hair black would have a disparate impact on scandanavian-americans, for example. But I was (and still am) unaware of any case extending the disparate impact framework to the Fourteenth Amemendment…

    In any event, although the same sex marriage laws are facially neutral, in that they effect people of both genders equally (i.e. they discriminate against them equally) in practice, they have a disparate effect on homosexuals. If being gay was a protected class on par with race, I would buy your argument. But under Federal law, sexual orientation is not so protected.

    And no, your proposed law would likely be unconstitutional because it treats people of different genders differently, and it would fail the intermediate scrutiny test. A law that said that all people must wear purple, would be constitutional under Equal Protection. The same sex marriage laws are equivalent, as far as I can see. They are saying that no person can marry someone of the same gender. Gender is involved, but both genders are treated the same way.

    And while Loving did prohibit classifications based upon a ‘suspect class’:

    “At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the “most rigid scrutiny,” (citing Korematsu)

    Federal law has reserved the ‘most rigid scrutiny’ for certain types of classifications – race and natural origin. Gender gets intermediate and sexual orientation gets rational basis, as I’m sure you know.

    If you are saying that there is no rational basis for same sex marriage laws, I’d agree with you. If you are saying that sexual orientatation should be examined under strict scrutiny, I would also agree with you. But I am not aware of any case law that supports either position.

    It seems to me that you are making legal arguments about what *should* be, rather than saying that a court has ruled incorrectly based upon the current state of the law.

  75. So are you trying to say that laws banning same sex marriage fail the rational basis test, or that a court should hold that sexual orientation *should* be a protected class – just like race, and therefore get strict scrutiny?

    How about both? I mean, maybe I’m missing something, but although I see why state governments should involve themselves in prohibiting marriage where consent issues are problematic for the protection of the people involved (human-animal, obviously, and adult-child), but if men can get married, and women can get married, I see no reason why they shouldn’t be allowed to get married within their own genders as well as between two genders. (Is it gender, or sex? Or do the laws distinguish between the two?) Although the children argument would make sense in some other society, our laws don’t even, as far as I know, require consummation, or tests for fertility, or production of heirs, as major parts of marriage. And with technology the way it is (plus good old partner-swapping, or egg/sperm donorship, surrogate motherhood, and so on), it’s just as feasible for a lesbian or gay couple to have children as it is for a heterosexual couple to not have them. And society seems as eager to encourage people to not have children as it is to encourage them to have them, so even if same-sex couples were less likely to have children it wouldn’t matter. And there are plenty of studies favorably comparing the welfare of children raised in same-sex households versus different-sex households, ooginess factor aside. (And we don’t bring up the ooginess factor in regards to people being raised by their grandparents, or by the person of the opposite sex or gender, do we?)
    And I think that sexual orientation ought to be a protected class as far as scrutiny for discrimination goes. I’m not sure, but I thought it was already protected in hate crime statutes and housing and employment statutes and so on, and it’s fairly clear that there is widespread, institutionalized and not, discrimination against people on the basis of sexual orientation.
    I wonder how anti-sodomy laws got struck down?

  76. if your definition of a a Red Queen is someone who responds to your arguments as you make them

    No, it’s because you presented what is essentially a disparate-impact argument, and when I pointed that out, you suggested that *I* was making a disparate-impact argument. I’m not. I’m noting that the laws draw a gender-based classification on their face, and to say we should ignore that makes no sense.

    although the same sex marriage laws are facially neutral, in that they effect people of both genders equally

    Just as in Loving, the ‘anti-miscegenation laws’ affected both races equally. Yet those laws were rejected, not just because they were motivated by racism, but because they drew a race-based classification. Marriage laws flat-out draw a gender distinction; why is this so hard to acknowledge?

    And no, your proposed law would likely be unconstitutional because it treats people of different genders differently

    No, it would be unconstitutional because it creates a gender-based classification, and there is no compelling state interest supporting it.

    Discrimination against sexual orientation is a separate issue. And, depending on your state, might have a level of scrutiny beyond rational basis.

  77. Greg writes: “I remember talking with my dad about girls when I was 12 or so…Now I am trying to imagine that conversation with two adoptive gay male parents who were attracted to men as teenagers…Sorry, but that image just doesn’t work….It makes me feel kind of oogy.”

    Actually, gay male parents might be an *advantage*, because they may have been privy to the sex and dating stories of their female friends, when they were young.

    Many homosexuals will have tried hetero dating early in life, so they probably aren’t entirely uninformed on the topic.

    Another advantage is that gay parents are probably a lot more likely to be frank about contraception and safe sex.

  78. You know what makes my head spin? It’s watching one party present solid historical facts, and then watching the other party say, “I disagree with you.”

    CJ-from-just-up-north-of-me, are you disagreeing with the conclusion Lis draws from the historical facts concerning marital law in western society, or do you in fact think she has the facts wrong? If the former, please make it more clear how your opposing conclusions are supported by the agreed-upon facts; if the latter, please use facts to disput Lis’s facts.

    You sound like too reasonable a person to be doing what you sound like you’re doing, which is trying to dispute facts with bare opinion.

  79. Mythago: I think you misunderstood that point I was trying to make. As I’ve said before, I do not think a disparate impact argument is available for Equal Protection issues. In fact, I don’t think, under our current framework, the anti same sex marriage laws are unconstitutional, although I wish they were.

    I think where we differ is that you see a prohibition against gender classifications, where I see a prohibition against discrimination based upon gender. The difference may be negligable in most cases – but it is obviously significant here. You seem to be getting very annoyed by all this, so I’m happy to just agree to disagree….

    Greg: Actually, most of the gay adults I know did not come out until after high school. Many of them dated and had relationships with people of the opposite gender – whether in an effort to be something they weren’t for their parents, honest confusion or something else. So since we’re talking about stereotypes here, my feeling is that two gay male parents would likely be *better* at talking to their son about dating someone of the opposite sex than a hetero couple. Of course, that is dependant on the people I know and have grown up with, but it certainly doesn’t make me feel ooogie…

  80. Nicole J. LeBoeuf-Little:

    I think my difference is one of approach. My undergraduate and truncated graduate programs were in cultural anthropology, before I went to law school. I am thinking of “marriage” as any socially sanctioned union of male and female, which is broader and older than the formalized ritual weddings of our own culture. What we think of as “marriage” is a subset of the broader institution. There is not one culture on earth that does not have some socially sanctioned union of male and female.

    I don’t disagree with Lis’ articulation of western historical tradition. Nevertheless, I think the reasonable conclusion based on cross-cultural comparison is that society privileges marriage – whether by social custom and pressure, religious practice, or (in our most recent epoch) outright legislation, because of society’s perceived interest in procreation and childrearing. All the other components of marriage are accretions to further this end. Over time, they assume importance in and of themselves, until it seems marriage is about more than childrearing, and it is to individual people. But to the culture around them, they are deviations from the expectation.

    Thus, society regulates sexual freedom by way of giving males some confidence of paternity, thus improving the chances they will support what seem to be their own children. (I note that in cultures with more relaxed sexual mores, fathers are less involved, and maternal uncles more involved, in childrearing.)

    Thus, societies that practice land ownership bind property transfers up with marriage contracts and family alliances in a way stronger than mere business contracts, as part of a joint project to further their respective families’ reproductive success.

    Thus, society at large rewards marriage and deters (in most cases) non-marriage, except (historically) in specifically defined roles, often involving clergy or military.

    But these things are all secondary effects! There would be no reason for them if not for the underlying drive.

    The reason exceptions abound is because there is no consciousness to any of this. “Society” and “culture” are abstractions of the individual attitudes that make them up. They are not illusions, though; they have real effects on the people living within them. In fact, it is fair to say that “culture” is the human environmental niche, as arboreal heights are a monkey’s niche.

    Culture and society are a result human cultural evolution. Within this matrix, individuals sometimes try different strategies: cheating, serial monogamy (or polygamy where allowed), and so on. Thus, the picture is never entirely homogenous even within fairly small, uniform cultures.

    It may well be that we are in an age where these assumptions I’m making are breaking down. Genetic testing, for instance, creates greater confidence of maternity than the most severe purdah. This could be more profound than the birth control pill. There is always lag time, though, as the aggregate human consciousness absorbs implications.

    Right now, the debate about same-sex marriage is for better or worse informed by tens of thousands of years of cultural evolution, not just a few decades of Western legal development. People who get “oogy” about same-sex marriage are not necessarily homophobes as such (although I’m sure some are); rather, they are responding to some fairly powerful cultural software.

    This doesn’t mean they are right about how marriage has to be. I’m just saying that trying to run the debate as if with mere homophobes is unpersuasive to the larger portion of the population, and is unfair, too. More productive in the long run is to address the concern, not dismiss it. You won’t persuade everybody! But it’s the fence-sitters you’re after, not the homophobes.

  81. I think where we differ is that you see a prohibition against gender classifications, where I see a prohibition against discrimination based upon gender.

    I “see” that prohibition because that’s what Loving addressed: the argument that it’s not really discrimination if you discriminate against everybody was rejected.

    Remember, also, that we’re not just talking about the national Constitution, but state Constitutions. A state with an ERA is generally going to have a strict (rather than ‘intermediate’) level of scrutiny for gender-based laws, for example.

  82. Mythago – ok – you’re not content to simply agree to disagree, obviously because your position is so clearly correct…

    So, yes, that defense was rejected in the context of a statute which was created to discriminate against blacks. But just because a defense was rejected in one case does not mean that you can pull that portion of the ruling out of context and use it in very different cases.

    “Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), upon which petitioners additionally rely, does not militate against this conclusion. Virginia’s antimiscegenation statute, prohibiting interracial marriages, was invalidated solely on the grounds of its patent racial discrimination. As Mr. Chief Justice Warren wrote for the court (388 U.S. 12, 87 S.Ct. 1824, 18 L.Ed.2d 1018):

    ‘Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). See also Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L. Ed. 654 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations.’

    Loving does indicate that not all state restrictions upon the right to marry are beyond reach of the Fourteenth Amendment. But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.

    Baker v. Nelson, 291 Minn. 310 (Minn. 1971), which was upheld by the Supreme Court in 409 U.S. 810 (1972).

    The Minnesota Supreme Court, as well as the US Supreme Court, missed the part of Loving that is central to your argument that it is classifications, not discrimination that is prohibited by the 14th Amendment.

    As for state constitutions – of course they are going to be different. That’s why NJ was ruled the way it did, when other states did not. But Loving is basically irrelevant to those cases – Loving didn’t interpret the Virginia State Constitution, but rather the US Constitution.

    You’ve taken a very strong stand that same sex marriage laws are unconstitutional. (Mythago: It’s also true that Loving pointed out that it’s not just unequal treatment that’s prohibited; it’s making classifications in the law based on a suspect class.) Unfortunately, The US Supreme Court as well as a number of other high courts have all disagreed with you. You may be morally right, and I fully expect history to vindicate your position, but as for right now, your interpretation of Loving and the current law surrounding same sex marriage is dead wrong, or at least utterly unsupported by any case law.

  83. CJ, thanks for clarifying your position. I think perhaps that you two are talking past each other, as you are talking about marriage as a societal concept and Lis is talking about marriage as a legal one; perhaps there is an interesting debate to be had regarding which concept of marriage is more relevant to questions concerning US law?

    Tor and Mythago: Jon’s post in the CNN Poll thread seems tangentially to address your disagreement. He described “one-man-one-woman” marital law this way: “A man may marry a woman, but a woman may not.” Looked at that way, such law does in fact, both in the letter and in the effect, discriminate based on gender. It prohibits a woman from doing something that a man is allowed to do (and vice versa).

  84. Looked at that way, such law does in fact, both in the letter and in the effect, discriminate based on gender.

    Exactly. The “but it’s not discrimination” argument is that women can do something men can’t (marry a man), so since everybody’s limited it’s not really discrimination. It was one of the arguments used in Loving.

    But just because a defense was rejected in one case does not mean that you can pull that portion of the ruling out of context and use it in very different cases.

    “Out of context”? It’s an Equal Protection issue. There’s nothing weird about applying it to similar situations; lawyers do that all the time.

    or at least utterly unsupported by any case law

    I refer to you Baehr v. Lewin, the “Hawaii marriage case”, and to the original Marriage Cases ruling in California that was recently overturned by an appellate court (next stop: a very reluctant California Supreme Court), as well as Goodridge.

  85. Lawyers try to apply defenses from previous cases to other cases, but (1) usually, they only use successful defenses (here, you are using the failure of a defense in one context to show that it should fail in other contexts – not all Equal Protection issues are the same) and (2) if and when they are successful, it is because there is enough similarities between the two situations to merit applying one to the other. In this case, race and gender use two totally different standards. Finally, the same sex marriage laws are not being used to discriminate against one gender. Loving was struck down because the law was used to discriminate against blacks. You would have a great argument if the same sex marriage laws were created to discriminate against women, but the fact is, while the law uses gender classifications, it does not punish one for the benefit of the other – it punishes both with relation to the other.

    With regard to Goodridge and Baehr, the first was decided under Massachusetts’ Constitution and the second under Hawaii’s. As I said in the post you just responded to, state constitutions are different from the federal constitution, and can provide more protection than is available federally. That’s what happened in MA, HI and NJ. The current state of the federal law, which is what we’ve been discussing all along, is that same sex marriage does not violate the 14th Amendment, despite your misreading of Loving.

  86. THIS DOESNT SURPRISE ME BEING JERSEY IS OCCUPIED BY CROOKED COPS, POLITICS , ILLEGAL IMMIGRANTS , QUERS… I GUESS THATS WHAT MAKES IT THE ARM PIT OF AMERICA…. EX, MIDDLESEX COUNTY RESIDENT

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