Iowa Lets You Marry The Person You Love

Even if that person has the same plumbing you do. A summary of the ruling is here.

And of course the same sort of people who pulled off the bigoted and hateful stripping of civil rights from same-sex couples will try to do it here, too. However, unlike California, Iowa requires constitutional amendments to get legislative approval in two separate sessions before going to a public vote, and doesn’t appear as if such legislation will get to a vote this session. So that’s three years of people getting married to whomever they wish, at least. Three years is a long time to try to keep people full of hate and fear, especially when they see married couples being happy and productive, and not the least hateable or fearable.

And yeah, it is significant that Iowa is The Heartland of America™. Equal rights can’t be portrayed as something wacky and crazy that they do on the coasts anymore. I’m all for that. Good on you, Iowa.

335 thoughts on “Iowa Lets You Marry The Person You Love

  1. To anyone thinking of spouting the “Judicial Activism!” or “Unelected Judges!” line here:

    1. Iowa Supreme Court judges stand for election after they’re appointed. Look it up.

    2. “Judicial activism” is code for “I haven’t got the slightest goddamn clue what it is the courts actually are supposed to do” and you will be treated as such, probably by me excising your comment, because I’m fucking bored of people confusing their own ignorance of how the court system works with something being wrong with it.

    Also in a more general sense, suggesting that a court ruling is somehow illegitimate because what they’re ruling on has not gone through the legislature/executive means that you don’t actually understand the system of government under which we live. If I were you, I would avoid making that fact known.

    Basically, your brain-dead talking points are not going to work here, so please save us all the pain of watching you mouth them.

  2. Good for Iowa. It will happen everywhere sooner or later. I’m just worried that it might be way later. I just don’t get it, the hate and vile that gets spewed every time the subject comes up.

  3. One of the more interesting points in the opinion was the discussion of immutability.

    When deciding whether or not a government classification, courts use a four part test that looks at whether there has been a history of discrimination based on the classification, whether the classification is related to the ability of the people classified to be productive members of society, whether the classification is based on an immutable characteristic, and whether the group created by the classification is relatively politically powerless. Some courts have said that you need to satisfy all four prongs; others have said that you don’t.

    But this requires courts looking at the issue to take a stance of some sort on whether or not homosexuality is immutable. Iowa ducked the question in a clever way: ‘immutability’ doesn’t have to be ‘absolute immutability’, they said; and we know that because we’ve held gender to be immutable, but Iowa statute expressly recognizes that gender can change by providing a mechanism in law for obtaining legal recognition of gender changes.

  4. For those who wish it, the full decision is here. It is also theoretically on the state Supreme Court’s website, but that’s been slashdotted all morning.

  5. Yay, GO IOWA!

    Also, a note. On the article you link to, there is a picture of a protester with a placard that reads “SAME SEX ANIMALS DON”T MATE”, which is totally not true. I remember reading studies about some species of monkey (bonobo’s maybe?) that have been known to have same sex partnerships. And there is a species of lizards in California that are only female. They reproduction by cloning and the process is triggered by two lizards going through a mating ritual, with one playing the “male” part.

    Way to be even more wrong protester guy!

  6. That’s not going to be much of a drive for my friends here in Minneapolis to go to get married.

    This is both good and bad.

    Good that they finally get to be legitimately married.

    Bad that I’m going to have to attend more weddings.

    I’ll manage.

    Good for you Iowa.

  7. Note that it won’t take effect for about 3 weeks, and even then it sounds like the legislature could delay it significantly.

    I’ve no idea if they want to.

  8. In similar news, Sweden has now re-aligned same-sex partnerships to be EXACTLY marriages (since Wednesday, apparently).

  9. Given I’m right next door in Illinois, and lesbian, this is wonderful!!!

    I mean, I adored the decisions in Massachusetts, Connecticut, and California (boo, hiss, to the bigots), the fact that this is a Midwestern state means a LOT. This isn’t the acts of so-called ‘coastal’ liberals, this is about equality and human rights for ALL people.

    And I say such as a so-called ‘coastal’ liberal myself originally :)

    I’m going to have a big dorky grin for the whole day now … not to mention when I walk in to lecture to my undergrads this afternoon (just have to wonder if I should mention it … it is a sociology course after all).

  10. Well, thank you John, for refusing to allow opposing opinion and declaring it in advance to be brain-dead and invalid. You are a true open-mined progressive sort of fellow. Obviously, you are secure in your uncontroversial, irrefutable beliefs. So the question becomes: why have a comment section on this post at all? Just the amen chorus?

  11. why have a comment section on this post at all? Just the amen chorus?

    Um, so we can have a celebratory thread just once where we can cheer equality, human rights and love without having bigots turning up telling us how evil and disgusting we are, and how we’re going to destroy society?

    You know, the usual.

  12. Mule @ 11:

    He didn’t disallow opposition, he just wants you to be intelligent about it. If you’ve read this blog at all you’d know that Scalzi actually derives most of his super powers from opposition.

  13. I’m friends with one of the couples represented in this case. Fantastic people. We Iowans, we ain’t as stupid as Hollywood makes us out to be:)

  14. Sean Fagan: I don’t see where you are deriving the theory that the legislature could delay it. It’s possible for them to get a constitutional amendment on the ballot to change it, by passing such an amendment in two successive sessions of the legislature, but that wouldn’t delay it; it would just create a popular vote on the issue in 2010 or 2012. Marriages would continue in the meantime, just like they did in California last summer.

  15. “He didn’t disallow opposition, he just wants you to be intelligent about it. ”

    Well, a point of view he disagrees with ( because of it’s political inconvenience) is disallowed in advance & DECLARED to be brain dead. Fine. As he so often points out – his blog, his rules, blah, blah, blah.

    [this part of the post deleted because complete braindeadedness. Muleface, your inability to understand why your argument is bad does not require me to allow it here anymore. Go read up on our system of government, please -- JS]

  16. MuleFace:

    “Well, thank you John, for refusing to allow opposing opinion and declaring it in advance to be brain-dead and invalid.”

    You’re welcome. However, as noted, I’m not disallowing opposing opinion; I’m disallowing three particular arguments I think are bad, based on my own interminable experience with them here and elsewhere. If you can make an opposition argument that doesn’t rely on ignorance of a) Iowa’s Supreme Court, b) the function of the judiciary, c) the tripartite nature of our system of government, by all means, lay them out.

  17. Hint: if you can’t argue against same-sex marriage without making dumbass I Don’t Understand Civics 101 arguments, then maybe the problem is not Scalzi’s comment policy.

  18. And I continue to dispair for my own state of California. *shakes head*

    I’m happy for Iowa.

  19. MuleFace: both houses of the Vermont legislature have approved a gay marriage bill; the Governor is about to veto. Both houses of the California legislature have approved a gay marriage bill; it was vetoed by the Governor.

    Seems like in both states, gay marriage won approval via democratic means only to have that approval stayed by the undemocratic means of executive veto.

    Unless you want to argue that an executive veto is democratic but a court ruling, by elected judges, isn’t … a proposition I think is extremely difficult to sustain as a logical matter.

  20. Having your own opinion is fine and dandy, using other people’s made-up “facts” as attempts at rationalizing irrationality is tiresome.

    Newspapers have long since stopped printing the blatherings of blatant racists in the name of false “balance” in any discussion of equal rights. I look forward to the day when Focus on the Family is similarly treated.

  21. Apparently some folks think that only a referendum based on a straight-up popular vote is appropriate. I wonder where those people are every time we have to vote on new taxes, which in my state requires a supermajority (66%+, not 50%+) to pass. I guess thwarting the will of the majority of The People is ok when it comes to taxes.

  22. Matt @ 14 – congratulations to your friends. And I will now take back (FOREVER) every horrible thought I have had about Iowa since we were relocated there for 15 very long months. As a matter of fact, I solemnly pledge to never speak poorly of anyone or -thing Iowan for the rest of my life. (Or for at least 3 years, since I’m horribly worried this will be challenged as soon as possible.)

  23. Oh Noes! Marriage is ruined in Iowa. Now all those innocent straight couples will have to divorce because marriage wasn’t defended properly from the evil gay couples.

    seriously though, if this can remain in place for a while, it will be interesting to see if the divorce rate trends up or down. My bet is down or flat.

  24. Two of my very dear friends (who both happen to be female, and are in a relationship) just moved back to Nebraska. Hopefully, soon they can get on their feet and make a trip across the border. (Or maybe even start looking for jobs in Omaha/Council Bluffs instead of just Lincoln.)

  25. MattMarovich: the beauty of California’s system is that we can change our minds. The battle for marriage equality in California is not over; there will be another vote, and eventually we will win.

  26. From the film Double Indemnity:

    NEFF
    Where did you pick up this tea drinking? You’re not English, are you?

    PHYLLIS
    No. Californian. Born right here in Los Angeles.

    NEFF (smirking)
    They say native Californians all come from Iowa.

    maybe it’s time we got some more Iowans in California.

  27. While I support same-sex marriage I think this statement:

    Seems like in both states, gay marriage won approval via democratic means only to have that approval stayed by the undemocratic means of executive veto.

    Violates John’s rule about arguing from ignorance of “the tripartite nature of our system of government”. The executive veto is part of the system of checks and balances, exercised by the duly (and democratically) elected official. It seems to be the mirror image of the ‘activist judiciary’ argument.

  28. Nebraska recognized a Kansas marriage between a 12-year-old and a 22-year-old, so they should be OK with an Iowa marriage between two adult women, right?…

    Right?

  29. Aphrael: Intresting about the immutibilty thing, and it makes sense, really. I can understand the appeal – personal & political – of the stance that a person’s orientation is deeply innate, but I’ve never really liked it.

    For one thing, that doesn’t seem to always be the case. For another thing, to whatever extent the US really is a free country, it damn well shouldn’t *matter* whether it’s a choice or not.

  30. Apparently at least three members in Vermont who voted against the gay-marriage bill in the House pledge to change their votes should the governor veto the bill, so it seems likely to pass in Vermont in the near future.

  31. Dave Ruddell: that’s a fair point. What’s not clear from my comment is that I was trying to draw an analogy between an executive veto and a court decision, in response to someone who had been arguing that the court decision was undemocratic. My suspicion was that the person I was arguing with would think that the executive veto was democratic but that the court decision wasn’t, and I wanted to force him to confront the reasoning behind his distinction.

    That said, there’s a long history in this country of political opposition to executive power, and that opposition has often described executive power as being undemocratic by nature; this was the essence of the Whig argument against President Jackson, for example.

  32. it damn well shouldn’t *matter* whether it’s a choice or not.

    I totally agree with this point, it’s always what annoys me about the “I was born this way!” argument.

    I mean, I personally experience my being lesbian as something I was born with, but I know plenty of people that never thought of themselves as remotely queer having fallen for someone of the same-sex.

    Hence, to me, if you’re in a same-sex relationship, you deserve equality. Period. It doesn’t matter how you got into the relationship.

  33. Waltz @ 23 : Oh, no, no. There is plenty to speak ill of Iowa about. Our 8 months of winter followed by the 4 month flooding and/or blistering and sweltering summer. And then there is harvest season which is the only time you lock your doors so no one puts their extra zucchini in your car.

    A man can only eat so much zucchini brownies!

  34. John:

    I am puzzled by your editorial heavyhandedness on this. What do you think you are protecting the readers from? You rarely surprise me, although I have certainly noticed a particular unwillingness to brook any disagreement on this issue.

    As far as my “inability to understand our system of government” goes – all I can say is that many Supreme Court Justices present and past would agree with me(And dammit, you KNOW this is true). The appropriate role of judges in our system of government has been, is, and shall continue to be a matter of considerable controversy. By definition, a controversy mean there is not yet a consensus.

    Here’s a challenge for you Scalzi: Let’s call in our Law Professor bloggers out there – Reynolds, Althouse, Volokh, feel free to add any you choose – and see what they have to say about the role of judges and whether my understanding is illegitimate as you say.

  35. Bearpaw: there’s a problem with equal protection jurisprudence, which is why immutability matters.

    The problem is this: it’s clearly true that the state may draw some classifications among citizens. Otherwise, for example, a law prohibiting the blind from driving would be unconstitutional. The question courts have to adopt is which classifications the state may draw. The bare text of the fourteenth amendment, which just requires equal protection of the laws, is no help.

    Now, one argument is that the fourteenth amendment only bars classifications based on race; but that’s never been accepted by a majority of the US Supreme Court, and is adhered to only by a small subset of judicial conservatives.

    But the decisions the Supreme Court has handed down don’t seem to follow a consistent pattern. Most classifications are allowed if there is a legitimate state interest being served and the classification is rationally related to the state interest; this is known as ‘rational basis review’. But certain classifications get heightened review: gender, for example, or classifications based on bastardy, or classifications based on the number of adults in your living situation (in the context of the decision in question, the law was an indirect attempt to exclude hippie communes from the food stamp program). But the court has never been terribly clear or consistent about what characteristics qualify a classification for heightened review.

    Legal scholars have drafted a four-part test to try to explain why you get heightened scrutiny; immutability is part of that test. Although it’s worth noting that courts applying this test have disagreed about whether or not you have to have all four characteristics for the classification to get heightened scrutiny.

  36. aphrael, you’re right, it wasn’t clear, because I was trying to draw your attention to that very thing (the rough equivalence of judicial decision to executive veto). It appears that we are in agreement. Lemonade and Nutella for everyone!

  37. @26, aphrael

    Oh, I know that there will be another vote (and I have hopes for the proposition that removes the word marriage from all current California law and instead makes everyone a domestic partnership), but I’ve always liked to think that my home state has a bit more sense and it saddens me when it’s apparent that it doesn’t.

    I will, however, continue to argue for change, acceptance, and equality until that next vote comes.

  38. Muleface:

    “I am puzzled by your editorial heavyhandedness on this.”

    Why? Stupid arguments bore me. Stupid arguments posted over and over and over and over and fucking over again bore me even more. And as I said, the issue is not brooking disagreement, it’s not bothering with arguments I don’t respect or consider valid, based on my own experience. The average jackass spouting off about “judicial activism” is in my experience about as well informed about the judiciary as the average jackass spouting off on evolution is informed about science. You’ll note I tend to excise those “arguments” here as well, because they are equally fruitless.

    “The appropriate role of judges in our system of government has been, is, and shall continue to be a matter of considerable controversy.”

    That may be; however the argument you attempted to post on the matter, and which I excised, was a bad argument because it exhibited fundamental ignorance about our system of government. Appealing to a greater authority (in this case the legal bloggers you appear to think you have in your back pocket) does nothing for the fact that you appear not to have the first clue what you’re talking about here. Don’t go running to other people to make your arguments for you. Make your own arguments, and do them well, or I’m going expunge them. You didn’t make a good argument, and in fact made an argument that I noted I was going to expunge if it showed up because it was ignorant. I appreciate you don’t seem to feel you’re ignorant in this case, but so far I disagree, based on what you wrote. You want to prove me wrong, go ahead, but if it starts off with either of the three things I’ve mentioned as part of its basic contention, you’ve already failed.

  39. I am puzzled by your editorial heavyhandedness on this.

    Not been around long?

    There’s a history of impatience with ill-thought out arguments. And…Scalzi’s blogs…Scalzi’s rules…Remember that you’re a guest here.

  40. “You really ought to give Iowa a try!”

    I predict the same thing will happen in Iowa that has been happening in Massachusetts: none of the dire and scary predictions made by the liars on the right will come true, and grassroots support for the amendment banning same-sex marriage will dry up.

    aphrael, I thought it was entirely clear from your initial comment that you were drawing just that analogy. When judges are elected, it’s really just the same thing. But the other side isn’t exactly known for its familiarity with logic, or even its willingness to refrain from outright lies (as we saw with the CJCLDS *spits* in California), in arguing this matter.

  41. Scalzi, you kill me. I’m sorry your open mind is incapable of containing my allegedly brainless arguments. I shall not further waste my time or yours. On many matters, you are capable of interesting, engaging thought and open minded debate. This is not one of them.

  42. Mythago @22: Apparently some folks think that only a referendum based on a straight-up popular vote is appropriate.

    We should probably have a few years of allowing gay-up popular votes along with them. Three years is a long time to try to keep people full of hate and fear, especially when they see gay-up popular votes being productive, useful, and not the least hateable or fearable. :)

    (Sorry.)

    Seriously, I used to be in favor of gay marriage, but I am no longer. The place to debate the reasons is not the comments section of the blog post, though — it’s something I wrestled with over the course of several years — so I’ll register my disagreement and bow out for now.

  43. It appears that there might be a move to enact a residency requirement in order to prevent out of staters taking advantage of this ruling. Should be interesting to see how that plays out. Also, if this is still an issue during primary season in 2012 it might provide some interesting opportunities for someone like Mike Huckabee.

    MuleFace, you’ll have to work on your Good Bye Cruel World speech. I wasn’t feelin’ it.

  44. MuleFace:

    “On many matters, you are capable of interesting, engaging thought and open minded debate. This is not one of them.”

    Oh, bullshit, MuleFace. “Open minded” is not synonymous with “politely entertaining ignorance.” As noted before, your inability to recognize that you’ve made a stupid argument does not require me to either respect the argument, or to have it drag out here just to be nice. If you want to make an argument that doesn’t proceed from a fundamental misapprehension of how the American judicial system works, then by all means make it. If you can’t, then that’s something you need to work on.

    This is probably a good time to link back to entry on why I’m not especially interested in being “fair” here. Seven years old, and it still applies.

  45. Jake Freivald: I would be interested in hearing your reasons for changing your mind, but I agree that this is not the place for the debate. If you’re interested in sharing, please email me: aphrael at gmail.

  46. John:

    Your insistence that an essentially ideological difference between us represents ignorance on my part is embarassingly immature on your part. You are either utterly ignorant of a mainstream (albeit conservative) point of view, or you are just being an extremely determined asshole. At this point, I must reluctantly lean to the latter.

  47. MuleFace, if you actually attempted to make an argument instead of simply insulting our host, you might sound like less of a jackass. Although, given your handle, jackassery may be your objective.

  48. Most surprising to me is that this was a unanimous decision, where the both the California and Massachusetts rulings were closely divided (4-3 in both). From my reading of the ruling, it seems to be that a big difference was that the Iowa Court relied on scientific studies (specifically citing briefs by the American Psychological Association, the American Academy of Pediatrics, and the National Association of Social Workers, among others) that found no difference in the quality of parenting between gay married couples and straight married couples, followed by a detailed consideration of the rules for finding these “constitutional facts” were followed.

    The CA and MA courts apparently did not; theirs were simply fiat declarations that gay marriage is a “right” no different than marriage – and that is something that the other branches of government, and the people who elect them, have a right to override. (Enforcing existing civil rights is the job of the courts. Creating new civil rights is the job of the traditionally political branches of government. Big difference!) It seems that it was the addition of evidence that kept this case from being another closely divided decision (that and it looks like they didn’t have to mangle prior precedent to get there.)

    Besides, marriage has been traditionally regulated at the state level (as a lot of things should be) And it looks like the citizens of Iowa will get their opportunity to have their voice heard through the Amendment. So… meh.

    I disagree with the ruling, and I still think legalizing gay marriage should be done by legislatures and not courts, but it seems that the Iowa court conscientiously used the process and form of a judicial decision – reading the law and precedent and considering actual evidence – even though nothing would have stopped them from behaving like a backup legislature and adopting their own views as law as happened in CA and MA.

  49. MuleFace:

    “Your insistence that an essentially ideological difference between us represents ignorance on my part is embarassingly immature on your part.”

    Your insistence that your ignorance of how the judicial system works is merely an ideological difference, is on the other hand, just simply embarrassing, MuleFace.

    Mind you, I don’t have any doubt that the intentional obfuscation of the proper role of the judiciary in our system of government is a current conservative talking point, but that neither means I need to respect it, nor entertain it here.

    Additionally, “mainstream conservative” is not the same thing as “mainstream,” as the recent election cycle made clear.

    As for being the asshole here, I’m not the one promoting a completely ignorant understanding of our judicial system, now, am I.

    Xopher:

    I can fight my own battles, thanks. Please don’t contribute to pulling the thread into the flames. MuleFace has been contentious, but aside from the parting “asshole” shot, he’s been fine. And I can handle that.

  50. Yay Iowa’s Supreme Court!

    Of course, I’m up here in Canada, where we’re starting to find the whole debate a little archaic. Like watching people argue about whether women should be allowed in the workplace.

  51. Why is a discussion of judicial activism off limits here (other than because it’s your blog, which is certainly valid)?

    Iowa Judges are initially appointed and then stand for a retention election. Retention is much more limited than an open election among multiple candidates. The Court is not a democratic instituition as compared to the process of passing a law (state legislature plus governor).

    The Iowa decision does expand the law by arguably changing how “immutable” is treated and giving heightened scrutiny on the basis for the newly protected class. That sure sounds like an activist court.

    Given that background, isn’t there a bona fide basis for debating the issue?

    Personally I have no problem with permitting gay marriages under state law. I see marriage as more of a religious issue. As long as the state does not restrict religious marriages, I don’t see a problem.

  52. I would actually like to hear sane, thought-out, and educated arguments against a given court decision or gay marriage in general. I get terribly disappointed when I the best I can find is “God doesn’t like it” or “Animals don’t do it.” Or “but, but… activist judges!”

  53. Jonathan, why do you say they changed how immutability is treated? I thought they just examined evidence as to whether sexual orientation was immutable as defined in law. Weighing evidence isn’t judicial activism, is it?

  54. John, my apologies. It was indeed the parting shot that lit my flamethrower. I know you don’t need my permission to excise the offending parts of my comment at 55, or even the whole thing, but if it helps I wouldn’t whine about it or even be secretly annoyed.

  55. Jonathan:

    “Why is a discussion of judicial activism off limits here?”

    If you want to discuss the particular reasoning in the decision, that’s more than fine. But I find hauling in the “activist” canard prejudices the discussion. Also more to the point, there’s a difference between believing a court decision overreaches, and that the court itself is trying to subvert its role on a consistent basis, which is the implication of “activism.” Since I seriously doubt anyone here discussing this particular decision has been closely following the Iowa Supreme Court up to this point and is qualified to comment therein, I’m going to treat “activist” like the knee-jerk code word it is.

    So: If you want to talk about the “immutability” issue, by all means let’s discuss it. Try not to leap to “and therefore this is an activist court” because of it. That’s not in evidence.

  56. I just wanted to reply to Jenne in comment 6. I grew up on a ranch and I can testify that the animals there did not seem to have any hang ups of that nature.

  57. “Activist judge” is generally just code for “he didn’t vote my way!”

    Anyway: This was some good news that I’m quite happy to hear. Go Iowa!

  58. Xopher: they basically said that ‘immutable’ doesn’t mean ‘absolutely immutable’.

    They started off with:

    A human trait that defines a group is “immutable” when the trait exists “solely by the accident of birth,” Frontiero v. Richardson, 411 U.S. 677, 686, 93 S. Ct. 1764, 1770, 36 L. Ed. 2d 583, 591 (1973) (Brennan, J., plurality opinion), or when the person with the trait has no ability to change it, Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 360, 98 S. Ct. 2733, 2784, 57 L. Ed. 2d 750, 815 (1978).

    But then they weakened it to:

    That is, we agree with those courts that have held the immutability “prong of the suspectness inquiry surely is satisfied when . . . the identifying trait is ‘so central to a person’s identity that it would be abhorrent for government to penalize a person for refusing to change [it].’ ”

  59. Well, I don’t think that my “asshole shot”, as you call it (which brings unpleasant pictures to mind) is any worse than 90% of your comments directed at me.

    Leaving legislation to legislatures is hardly an out of the mainstream idea, which you know darned well. If you choose to simply shout me down, call me ignorant and stupid, you show yourself to be a 3rd grader, not some kind of informed citizen. But fine, as I said before, you are clearly not of a mind to brook any disagreement, declaring in advance the opposing arguments to be illegitimate, etc etc etc, “we won the election, so opposing ideas are all now out of the mainstream nonsense, blah blah blah….” Yeah, that’s real democratic of you.

    You’re a better writer than political thinker John, which you have admitted many times, and are certainly now demonstrating. Thanks for the object lesson.

  60. Aphrael – I’m not sure I see how that’s “weakening” the definition. It’s an either/or – I’m a lesbian, and as near as I can tell have been all my life. So I fit the first half of the definition even though I could theoretically have gender reassignment surgery to become male.

  61. Jonathan, if I read you correctly you’re probably talking about the judges shift from an interpretation of the immutability prong from a strict literal immutability to “the identifying trait is ‘so central to a person’s identity that it would be abhorrent for government to penalize a person for refusing to change [it].”

    I don’t have any problems with that interpretation of the immutability prong myself – as the decision points out, gender is not strictly immutable under Iowa law, and although the decision doesn’t mention it, race (Michael Jackson!) isn’t either I imagine. I also don’t know if it’s even a shift, as they don’t seem to cite themself.

    The judges ruling on whether homosexuals are similarly situated (IV. D., pages 25-29) feels slightly off to me, though I don’t really know much about it, so I’m not sure I can comment.

  62. MuleFace:

    “Leaving legislation to legislatures is hardly an out of the mainstream idea, which you know darned well.”

    But that’s not what the Iowa Supreme Court did here, which you would know if in fact you weren’t in fact apparently entirely ignorant of what it is the judiciary does. We go back to the issue, MuleFace, that you don’t seem to have the slightest clue what you’re talking about in this matter, up to and including the fact that just because I don’t want to entertain your ignorant argument, doesn’t mean that others making better arguments in opposition to the decision can’t bring them up here.

    “You’re a better writer than political thinker John, which you have admitted many times, and are certainly now demonstrating.”

    Even if I have said that (which I’m not aware of saying, actually), given your apparent inability to understand the basics of our government, MuleFace, I’m not sure you’re actually qualified to judge. However, I will suggest to you that if you think you’re going to win a snarkfest with me on the matter, you may be misinformed.

    So I will make it easy for you and just say you’re done with this thread, MuleFace. Any further comments by you here will just be deleted. Move on to the next thing, please.

  63. Yay, Iowa!

    mule, you’re not objecting to a court decision simply because you so admire the rule of law, separation of powers, the way the judiciary acts as a check on the executive branch, etc. And i know this for a fact because, as John pointed out, you don’t understand how the Judiciary could possibly have the authority to declare that a law infringes on someone’s rights. Well, that’s what the Judiciary does. That’s their primary JOB.

    Since you don’t understand the actual process, you can’t be upset that the process wasn’t followed, because it was. No, being upset about the process is a way for you to avoid discussing the underlying bigotry that you want encoded in law.

    It’s like a creationist tactic to argue “Teach the Controversy”. Rather than have to come out and say something absurd like “I think dinosaurs and man walked side by side six thousand years ago”, the creationist will instead argue about “process”. “The theory of evolution isn’t unanimously agreed upon, therefore schools should teach about this disagreement”

    You know, because they’re so fired up about making sure schools teach valid science. (sarcasm)

    So, here you are, complaining that the legal process wasn’t followed, as if you’re simply interested in maintaining the proper checks and balances of government, because the only alternative to arguing “process” is to reveal whatever nonsensical bigotry you’ve got going on that compells you to want your bigotry enforced on everyone else by law.

  64. Greg, I’ve already told MuleFace he’s done with the thread, so responding to him is not going to do any particular good, as he’s not able to comment back.

    Quick edit — ah, I see you caught that.

  65. Aphrael, that seems like common sense to me. Else what immutable category would stand? We’ve already discussed changing genders, and one’s apparent race can be changed by doing hideous violence to one’s body as Michael Jackson has shown. One’s sexual orientation can be changed, if at all, by doing hideous violence to one’s mind…and the result is not a happy heterosexual, but a miserable blob of self-hating guilt, pretending to be straight, like a Republican Senator.

    MuleFace, it is the responsibility of the legislature to write the law, but the law “is not what is written, but what is read,” and the courts, in our system, have the responsibility to read it and decide what it means, and if two levels of the law conflict, to strike down the lower level in favor of the higher (in this case the Iowa State Constitution).

    Court rulings expand definitions, or narrow them, all the time. The fact that they got specific about immutability doesn’t put them outside the mainstream of judicial decisions. And they considered evidence and weighed it before making their decision.

    All of that is precisely what the judicial branch is designed to do. You may complain about judicial activism, but it’s not present here. A case was brought before them (note: they didn’t go crusading through the law books looking for something to strike down), and they ruled on it.

  66. Dammit. Another crosspost, dammit. And here I was trying to be all good and stuff.

    Apologies again. Rats.

  67. Masterthief: I’m not sure about CA, but I’m fairly certain that what the MA SJC said was that marriage is a right regardless of the gender of the participants. i.e., it is discrimination on the basis of gender (not orientation!) to disallow two people of the same gender to marry. They did not create a new right called “gay marriage” as your wording would imply. They enforced the existing right of marriage. The government has no right to dictate to you the gender of your spouse.

    After all, it is now perfectly legal for two heterosexual males to marry in MA. I’m not sure why they would, but that’s really none of my business.

  68. My main problem with the “similarly situated” bit is actually that it has to more or less define the purpose of marriage under Iowa law; they need to do this to determine if the equal protection argument applies.

    Which is sort of the whole point of the debate. It’s from a legal perspective of course; they cite the court going back to the 1800s. But I could see an argument as the legislature’s bill is partly a demonstration of how the people of Iowa are defining the purpose of marriage. The state just made a (crappy) procreation argument on this point though, and I’m probably missing something.

  69. John Chu 79: After all, it is now perfectly legal for two heterosexual males to marry in MA. I’m not sure why they would, but that’s really none of my business.

    “Security!”

  70. John Chu: your interpretation is correct. Actually, in both cases, they said “courts decided long ago that marriage is a fundamental right” and then “you can’t deny people a fundamental right based on sexual orientation.”

    The key difference between what you said and what I said is the long ago bit — it’s not that the courts are saying, for the first time, that marriage is a fundamental right; they’re building on a long tradition of saying so.

  71. Like Thor before him, the rest of his super powers come from the Large Mallet of Correction. Although I don’t believe that Thor’s blog was nearly as entertaining.

  72. Yay Iowa! Sweden did not surprise me — they’ll have full marriages starting in May — but a mid-western Supreme Court up-holding constitutional law on this issue did, and shows how far things have come, and how fast they may yet go.

    Gay people already have the equal civil right to marry. It’s in the federal constitution, it’s in state constitutions. It’s just that it was socially acceptable to discriminate against them and deny them their already existing civil rights. The lawsuits that gay couples have brought against the governments are about their being denied their already existing civil rights, not wanting a new one. Being gay is not a new classification, but one that has existed for some time.

    So it is a matter for the courts, because it’s deciding whether discrimination against gays is a violation of existing civil rights and civil rights law. It is the correction of the violation of a civil right, not the creation of a new civil right. So the legislation is not involved at all. Which is why anti-gay activists have had to create laws removing gays’ civil right to marry from the state constitutions and try to get those proposed laws passed by the legislature, which is a body of politicians who are unfortunately not always concerned with either law or rights, but instead, votes. (Which is why we have a system of checks and balances.)

    These anti-gay laws that they attempt to get passed are not constitutional and violate the terms of existing law, which is what the Supreme Court in Iowa was asked to rule on. The anti-gay adherents based their argument in part on the claim that gays were harmful parents and a dangerous influence on children, and therefore should not have the same civil right as guaranteed by constitutional law to heterosexual citizens. The court threw out that argument, and rightly so, as it is plain and simple bigotry.

  73. Actually, John Chu, consider this: you and your lifelong friend are 75 (and can’t join the army, this being the 21st Century). Your wives are dead. He has an income from an annuity, and medical insurance that would cover a spouse; you don’t, and Medicare doesn’t look like it’s going to cover your medical expenses for long. Two heterosexual guys might marry for that reason.

    Actually some different-sex marriages are made for just about those reasons.

    Now imagine a married couple, together 50 years. One of them is sick, and the other has insurance, but the insurance won’t cover the sick spouse because the state won’t let them marry. That’s the situation gay couples are in (or exposed to) in every state except the three that allow same-sex marriage, and that’s why I get so angry at people who debate it as if it were some abstract issue.

    There ARE NO reasonable reasons to oppose same-sex marriage. They either stem from things that are not legitimate sources of law in the US (your* religion should not be privileged by law), or from the privileged class wanting to keep privileges from getting to the other classes (such as “if gay people start filing joint tax returns, it will cost the state money”**).

    I have no friends who oppose same-sex marriage, just as I have no friends who would deny me any other basic human right.

    *generic
    **in addition to being a scumbag selfish argument, this isn’t even true: most gay couples pay MORE taxes after getting married, not less.

  74. The government has no right to dictate to you the gender of your spouse.

    Which is the argument I’ve always felt was much stronger than using orientation itself as the protected category. If there’s so much political and personal resistance to the idea of protecting sexual orientation, then we need to recast the argument.

    If I am allowed to marry a man in California, but not a woman, I’m being punished for the gender of my beloved, not for the quirk in my makeup that makes it possible for me to fall in love with a woman rather than a man. (Or both!) And that is gender descrimination, which is subject to strict scrutiny.

    I like this argument and I wish they’d used it in California. Well, maybe next time.

    As for “activist judges”, well, you’d have to go all the way back before Marbury v. Madison to get away from that. The courts’ role is to interpret the law, and to hold the law up against the constitutional standard. If the law fails that test, it is held invalid. The legislatures get to continue drafting laws and sending them out to be challenged in the courts, and the executive gets to propose laws and veto them, and the courts rule on their validity. That’s how the system works. The courts do not make new law: they interpret law.

    The Iowa Supreme Court ruling no more makes new law than Brown v. Board of Education or Dred Scott did. Granted, Dred Scott was bad law, but the ruling wasn’t made up out of whole cloth: the case was evaluated in the legal and constitutional context of the time, and the ruling stood until the constitution itself was amended to overrule it.

  75. I would love to hear how this is “judicial activism” in a way that cannot be applied with equal force to, say, Brown v. Board of Education — or, for that matter, Marburry v. Madison.

    Watch for the fun part, coming soon: this is a unanimous state supreme court decision, made by state judges, appointed by a state governor who was elected by citizens of the state, applying state precedent to interpretation of the scope of the state constitution (which itself was enacted by state legislators who are elected by citizens of the state), which decision could be reversed through a state constitutional amendment by state-elected state legislators. Yet this will be offered as evidence of why we need a federal marriage amendment — to protect federalism.

  76. A little late to this discussion, but I wanted to throw in my two cents. I am glad that John threw out the judicial activist discussion. As someone else said, it is often just code for any judge that decides something contrary to what the complainer thinks. Don’t get me wrong. There are plenty of decisions that are decided upon dubious grounds, faulty reasoning, or just plain stupidity. Judges can be just as stubborn and opinionated as any member of the executive or legislative branch and they certainly can be just as unfair.

    While I agree with the Court’s decision, I don’t think it was a foregone conclusion. Some people seem to be saying that it is clear from the Constitution (federal and state) there there is some fundamental right to marry as you please. I think a compelling argument can be made, but it is a fact that this interpretation is relatively modern. This right certainly didn’t exist at the time of the ratification of the Constitution, nor did it exist at the time the 14th Amendment was ratified. What did exist was the power of the state to control who was allowed to marry and under what circumstances. This was just the reality.

    There doesn’t seem to be much discussion on the decision here. Personally, I think it was well written and well resasoned and I can’t find any major faults in how they reached their conclusion.

    There ARE NO reasonable reasons to oppose same-sex marriage.

    I think this is the best argument. While it may not be the most legally savvy argument, it is the most compelling. The fact is that there are a significan number of adults that want to enjoy marriage and there is no logical or reasonable reason to deny them. Historically, the State has had the power to regulate this in a way to prevent it from happening, but that doesn’t mean they should continue to do so.

  77. Note how much of the current controversy depends on the definition of marriage; for instance, Kat: Gay people already have the equal civil right to marry. It’s in the federal constitution, it’s in state constitutions.

    I’m not picking on Kat, of course, since this use of language is implicit in much of the discussion above, but she makes a good example.

    If “marriage” means “a legal union of a man and woman”, then gay people have the right to marry people of the opposite gender. Historically, they have exercised that right for a variety of reasons: financial, political, to gain an heir, what have you. But a right to marry someone of the same gender is oxymoronic.

    If “marriage” means “a legal union of any two people”, and distinctions of gender may not be considered, then (a) marriage is no different from any other form of contract, and a lot of the historical understanding of marriage is nearly incomprehensible, and (b) the word “two” seems pretty arbitrary as well — why the hoopla about polygamy?

    I think it’s clear that marriage has historically meant a union of one man and one woman. It gains gay marriage supporters no ground to act as though it hasn’t. You could argue that the institution of marriage has been unjust for all these centuries, much like the “peculiar institution” of slavery, but we shouldn’t accept the fiction that it was something other than what it was.

    I also wonder about why we would call something “marriage” in the case that Xopher offers about John Chu and his lifelong friend. Why would you call their mutual support “marriage”? Would the people who wrote the Constitution recognize their pooling of resources as “marriage”? Further, why assume that the wives are dead? If the purpose is to allow people to pool resources, why not let John, John’s friend, and John’s wife all get married so they can mutually support each other?

    I don’t believe that gay marriage destroys “real” marriage. I believe that it’s a sign that we have already degraded the traditional view of marriage. Easy divorce, allowing biological parenthood to give a man a claim on a child who was adopted by someone else (vs. legal status as husband of the mother at time of birth), removal of the stigma against single parenthood, and a variety of other factors have combined to remove from marriage the notion that a husband, wife, and minor children are a single, atomic unit that forms the basis for larger society. People no doubt thought they were doing well by allowing these things, but I believe the loss was not worth whatever we gained: we didn’t make life better by making some aspects of it easier.

    In other words, I believe that the call for gay marriage is a symptom of much deeper problems, not a civil rights issue in itself.

    I knew I said I wouldn’t get into it on the blog. I commented on the language and definitional issues, and the rest fell out. Sorry about that.

  78. @79 John Chu 82 aphrael: That part of Goodridge was a sleight-of-hand. There is no possible way the right of marriage could have included same-sex marriage under prior existing values of the word marriage. Even the Supreme Court in Loving v. Virginia, when it struck down anti-miscegenation statutes, recognized that the right to marry meant the right to marry a person of the opposite gender only.

    And this was for a very simple reason: there was no such thing as same-sex marriage anywhere in the world before the 1990’s, because before that it was biologically impossible for a human being to procreate without an act of heterosexual intercourse, and the law reflected that. Not just “if you did you’d get dirty looks,” but scientifically impossible. In vitro fertilization wasn’t shown to be feasible until 1978, and it took another decade more for surrogacy to become a viable option, and then another few years for adoption laws to catch up.

    In short, we’re not here because our morals have expanded and forced a reconsideration of the law as in the Civil Rights era, but because our technology has expanded and dragged the law along behind. Courts can follow the SJC and try to retcon the definition of marriage all they like, and pretend marriage always included gay marriage and likewise that our ancestors were acting out of bigotry and spite. But it is no more correct than to redefine the word “leg” to include “tail” and then to say that sheep have five legs.

  79. Although Iowa is in the heartland, it’s not an especially conservative state politically. 5 of the 7 judges were appointed by Democrats (and I think 1 of the 2 others may have been reappointed or elevated by a Democrat, although I’m not certain of that). Now if this decision was from the Alabama SCt……

    “Jonathan, why do you say they changed how immutability is treated? I thought they just examined evidence as to whether sexual orientation was immutable as defined in law. Weighing evidence isn’t judicial activism, is it?”

    I don’t read the decision as a matter of weighing evidence, but rather as interpreting various court decisions to fashion an definition of immutable that may be more expansive than previous supreme court decisions. The District Court apparently granted summary judgment on this issue. The Iowa Supreme Court should not be weighing evidence in this posture.

  80. Jake, The Economist has pointed out that same-sex marriage promotes economic stability.

    And the notion that “a husband, wife, and minor children are a single, atomic unit that forms the basis for larger society” was invented in the 20th century, and doesn’t have the weight of tradition you claim. It was a product of the mobilization of society, and of our society’s growing gerontophobia. Prior to that time, family was a much larger concept; your cousins probably didn’t live more than a day’s walk from you.

    And same-sex unions have a long history, actually, and the ceremonies for binding them are in fact the source of the marriage ceremony used today (Boswell, J. Same-Sex Unions in Premodern Europe, New York: Villard Books, 1994).

    And it seems to me that having more people commit to each other legally in marriage would be a force opposing some of the things you decry, like easy divorce.

  81. As a bisexual, I find the arguments about equal protection/orientation kind of troubling.

    I understand that it’s not fair to deny marriage to someone who simply cannot have romantic feelings for a member of the opposite sex. However, I also wonder if maybe that same reasoning would deny marriage to me if I wanted to marry a woman. After all, one might argue, I could love and marry a man, so perhaps I ought to be required to marry one if I want the benefits of marriage.

    The reasoning behind the MA ruling makes more sense to me: That it’s a matter of gender, and not orientation. It’s also more in line with the reasoning behind Loving, which basically came down to saying that the state cannot dictate the race of one’s marital partner.

    Additionally, the equal protection/orientation argument also starts muddying the waters about the legal purpose of civil marriage itself, by introducing elements that have nothing to do with contract law.

    Civil marriage shouldn’t regard romantic or sexual attraction as a required component. Whomever one wants to decide to share legal and financial co-responsibility with should be a matter of personal choice, and one shouldn’t have to prove that one has romantic or sexual feelings for one’s intended in order to enter into that contract.

    When we start talking about marriage outside of those strict contract terms, we invite arguments about the religious or cultural intent of it. If we’re going to add love or sex as a key component of civil marriage, it’s not a stretch for the opposition to add procreation and Holy Matrimony to it as well.

    If I want to share finances with someone, it shouldn’t matter whether that person is a member of the same or opposite sex (or has no definable sex at all.) It shouldn’t matter what race or religion that person is, either.

    But it also shouldn’t matter whether I want to raise children with, have sex with, buy flowers for, give sappy Hallmark cards to, create childish nicknames for or promise to honor and cherish that person, either.

    Exactly how I execute the contract of civil marriage with my partner of choice shouldn’t be a matter of the state’s concern at all.

  82. Argh. I didn’t close that tag correctly. I meant the </a> to come right after the title.

  83. Masterthief@ 54-

    I disagree with the ruling, and I still think legalizing gay marriage should be done by legislatures and not courts,

    I note that you say “gay marriage” and not “marriage, so I wonder if you think courts legalizing interracial marriage (Loving V. Virginia, for example, though some state Supreme courts also overturned those laws) was OK, but somehow same sex marriage is not.

    Care to clarify? Especially in light of you saying “Besides, marriage has been traditionally regulated at the state level (as a lot of things should be)

    Which BTW is utter nonsense. States *and* the federal government regulate marriage, and marriage contracts are honored across state borders. For example, Florida can’t suddenly stop recognizing Delaware’s marriages, even by voting to do so.

  84. @90, Jake

    Why would you call their mutual support “marriage”? Would the people who wrote the Constitution recognize their pooling of resources as “marriage”?

    If you want to speak of historical marriage then I would argue that, aside from the gender of the two people being involved, they certainly might.

    Before the 20th Century marriage for love was often seen as a rather idiotic thing to do in many countries (mostly European but several Asian countries as well). Marriage was primarily an arrangement for procreation (to continue your family, gain more resources through children) and economic/social/political gain.

    In Renaissance Florence, which was pretty progressive for the time as far as women, marriage, and property are concerned, it was not uncommon for widows to marry again because, legally, they could not sign any papers or make legal agreements for themselves. Also, remarrying safeguarded their belongings as theirs from being reappropriated by their families since her belongings were now her husbands due to marriage).

    People like to bring up the historical idea of marriage but, other than the gender issue, the historical idea of marriage does nothing but mirror and support many of the reasons why homosexual people want to get married as well.

  85. The meaning of ‘marriage’ has shifted by degrees through the centuries anyway. Why should it not continue to do so as our society continues to change?

    “Because that’s the way it’s always been” has never been a good enough reason for me. That’s nice, but does it work NOW?

  86. “Exactly how I execute the contract of civil marriage with my partner of choice shouldn’t be a matter of the state’s concern at all.”

    This raises an interesting question. To the extent marriage involves religious elements, why should the US govt have any role? The govt is not supposed to interfere with religion. Many of the arguments aganst gay marriage stem from religious issues. I was about to ask whether we could seperate the two, but there already is some seperation.

  87. It might be useful to explain part of the reason Prop 8 (banning gay marriage) won in California, because it explains in part why people are so afraid of gay marriage.

    To a large extent, there is the belief that expanding gay rights will lead to restriction on religious freedom. Specifically, that eventually churches will be forced to perform same-sex ceremonies or lose their tax-exempt status. I have heard this from several sources, namely a Utah Mormon and also conservative Christians in Southern California. They have “heard it from lawyers” that this is true. This was not in advertisements, but apparently advocates were making the rounds of churches pitching this argument.

    This is a head-scratcher; after all, churches routinely decline to perform marriages for all sorts of people; Catholic priests won’t perform the sacrament of marriage for divorced people, etc.. When I have pointed this out, however, my correspondents insisted that this was a wedge issue designed to attack conservative religion.

    Another element fueling this belief was a recent California court decision against a private fertility clinic who refused to provide IVF services to a lesbian couple. “If they can do this to doctors,” goes the argument, “they will do it to churches.”

    Now, I think this argument is baloney, but it appears to be both pervasive and persuasive to a large group of people. It does go a long way to understanding why people feel so threatened by same-sex marriage.

  88. Specifically, that eventually churches will be forced to perform same-sex ceremonies or lose their tax-exempt status. I have heard this from several sources, namely a Utah Mormon and also conservative Christians in Southern California. They have “heard it from lawyers” that this is true.

    The Iowa SCT specifically addressed this in its decision – at least the same-sex ceremonies part – and debunked it.

  89. MasterThief at 91:

    Well, actually, I think you’re wrong MasterThief. About two things. Well, actually probably more than just two things, since your underlying assumptions are so flawed.

    1) “There was no such thing as same-sex marriage anywhere in the world before the 1990’s…” Try reading Marriage, a History: From Obedience to Intimacy, or How Love Conquered Marriage by Stephanie Coontz. She actually knows what she is talking about.

    2)You state that it is “biologically impossible for a human being to procreate without an act of heterosexual intercourse”. While I am not going to bring up the rare cases where you are wrong, I am going to ask the following. Why are you tying the act of producing children to marriage? Does that mean those who are child less are not really married?

  90. @101, CWJ

    Churches, as opposed to the fertility clinic, are private organizations rather than businesses. Legally, private organizations are allowed to discriminiate against individuals because of their private nature

    For instance, the Boy Scouts of America have won several court cases regarding expelling homosexual members from their ranks and private schools are allowed to say they do not want organizations that conflict with their possible legal message (or students who won’t adhere to their particular code of conduct) involved with their campus. Their tax exempt status (and the fact that they are not businesses per se) is what allows them the ability to do so.

    The fertility clinic is a business and as the lesbians sexuality is not a factor in whether or not them receiving IVF would negatively impact their health or lives then, yes, I could see the clinic being sued and losing.

    However, the two are really apples and oranges.

  91. The Iowa SCT specifically addressed this in its decision – at least the same-sex ceremonies part – and debunked it.

    Good–but proponents must continue to debunk it, because it will continue to come up. (And, like creationism, when this meme is killed, other variants will, sigh, spring up.)

  92. This raises an interesting question. To the extent marriage involves religious elements, why should the US govt have any role? The govt is not supposed to interfere with religion. Many of the arguments aganst gay marriage stem from religious issues. I was about to ask whether we could seperate the two, but there already is some seperation.

    That, to me, is the absolute core of the issue.

    People keep confusing the state contract of civil marriage with the religious rite of Holy Matrimony.

    The two things are NOT the same. That most people sign the contract and perform the rite in the same fell swoop doesn’t change the fact that they are, in fact, two entirely different instruments.

    Same-sex couples (and multi-partner relationships) already have the right to a religious solemnization ceremony in a number of different faiths. What they do NOT have is a right to the civil contract.

  93. Tal, unfortunately, part of the process of determining whether a law is constitutional – for both equal protection and due process theories – is determining what the state interest is which the law promotes.

  94. MasterThief @ 91 –

    And this was for a very simple reason: there was no such thing as same-sex marriage anywhere in the world before the 1990’s,

    And here you’re grossly oversimplifying. No nation recognized same sex marriages, but individual states certainly had same sex domestic partnership laws that carried increasing amounts of rights over time.

    Also, prior to 1990, genetic males married – transsexuals were recognized as the gender they chose in many states, and granted valid marriage licenses.

    because before that it was biologically impossible for a human being to procreate without an act of heterosexual intercourse

    Nope. You’re wrong. They were banned because people were bigoted against same sex couples. Not because of procreation. The procreation argument was created because people wanted a reason other than “the bible says so” for banning same sex marriage.

    In short, we’re not here because our morals have expanded and forced a reconsideration of the law as in the Civil Rights era, but because our technology has expanded and dragged the law along behind.

    Again, wrong. Plenty of lesbian couples got pregnant before IVF. Plenty of gay men in committed relationships fathered children and then adopted them. Procreation in marriage is *not* always based on the two people involved combining genetic material. And gay people can, and *have* had children without the aid of science. What they do is have sex with someone of the gender they’re not attracted (unless they’re bisexual) to just to have a kid.

    I know this for a fact because I know more than one of those couples. Whereas you seem to be just pontificating out of your belly button with no grounding in reality.

  95. @104
    Matt, I agree. But this is a common argument and perception, one that is making the rounds in conservative churches, in California and elsewhere. And since the meme was traveling quietly in those circles, it meant that, for example, many if not most Prop 8 opponents were unaware and unable to counter it. I didn’t learn about it until well after the election.

  96. @107: True, but I think the state interest in the case of domestic contracts is simple, and has long been legally established: Stable households.

    The state grants rights and benefits to married couples in large part because studies are clear that married couples bring a benefit to their communities. They tend to own property, for instance, which means they’re more invested in civic issues.

    Additionally, a reciprocal legal and financial responsibility between adults helps alleviate the burden on the state for taking care of people who become dependent.

    The same argument, of course, is true for children: It’s in the state’s interests to promote children being raised in stable private households rather than warehoused in state care.

  97. There is no possible way the right of marriage could have included same-sex marriage under prior existing values of the word marriage.

    You know, there’s a funny thing about “rights” versus the law. When the US formed, the very same guys who demanded that a Bill of Rights be added, were the same guys who ratified a Constitution that counted slaves as fractional human beings.

    so, there is honestly NO WAY that the Right of life liberty and the pursuit of happiness actually included african american slaves. They people who ratified the constitution and the Bill of Rights that went along with it, ratified a constitution that counted slaves as fractional humans.

    And yet, would you stand here and argue the fact that the right of racial equality didn’t exist in the original documents is in any way relavant to opposing slavery today?

    The US was founded by a bunch of white, male, slave-owning, land owners. Just because they didn’t really mean it when they said “all men are created equal”, doesn’t mean the courts can’t or shouldn’t hold us to it now.

    This starts to turn into Argumentum ad antiquitatem.

  98. Yes *another*. Intelligent people would have figured out that it means something to him, and respectful people who were bored by the conversation would have just skipped over it and said nothing.

    Try being at least one of those.

  99. To the extent marriage involves religious elements, why should the US govt have any role?

    Because marriage is a binding civil contract that the government is bound to enforce, one which grants additional rights and responsibilities under the law to the signatory parties. The Iowa decision is one involving civil statute, not religion. Your church can marry (or not marry) whomever they please–it has no force of civil law unless accompanied by the prescribed legal forms of civil marriage in that state.

    But a state-sanctioned civil contract that grants enforceable rights is indeed a legitimate concern of the government. And as different states have different laws and are NOT required to recognize marriages performed in other states or nations, it is also a concern of the federal government.

    Anyone raising the hue and cry of “judicial activism” about this decision without having actually read the decision AND being familiar enough with Iowa case law AND the Iowa constitution to show exactly where the decision departs from the orthodoxy of same, has no reasoned argument. It may indeed be “judicial activism,” but that has to be shown by analyzing the decision itself in the light of the relevant precedents under Iowa law, not by patellar-reflexive outgry. I’ll reserve my own opinion on the legal validity of the decision itself until I can read it–so far all the sites that have it are locked up by traffic.

    However, it would be unwise to assume that the Iowa SC decision can not be overturned by state constitutional amendment. It can, and could well be.

  100. Hooray for Iowa! I married someone from there, so I already had some idea that it was a nice place. Maybe not a lot of jobs, but good schools, people work hard, generally are nice to each other. We went back recently for a vacation, visiting Iowa City, the Amanas (good German food), the motorcycle museum in Anamosa, and the Bily Clock museum in Spillville (which has a very nice Antonin Dvorak exhibit). But I don’t think I could live in Iowa. I would gain too much weight. Mmm, Kathy’s pies in Cedar Rapids…

  101. From a strictly legal point of view, if marriage is a civil union, a legal document, how many other legal documents, contracts, licenses, etc, require that the signer be of a specific gender? That’s an honest (if uninformed) question. I’m not a lawyer, so I don’t actually know the answer.

  102. To the extent marriage involves religious elements, why should the US govt have any role?

    off the top of my head: inheritance laws, adoption laws, property laws, divorce laws (splitting property, custody of children, visitation rights, etc), end-of-life and medical treatment decisions (you’re spouse is in an accident, ends up in a coma that is unlikely to recover, your spouse has no living will, can you as “spouse” tell the doctors what would be your spouses wishes?), insurance and other benefits from employers of spouses.

    I’m sure there are a few more.

  103. Xopher, I am not expecting you to agree with me about gay marriage, but I can’t agree with this statement: the notion that “a husband, wife, and minor children are a single, atomic unit that forms the basis for larger society” was invented in the 20th century. I can show you documents going back centuries that encapsulate this notion. That’s not counting the real issue, which is that the concept of man-woman-children as fundamental social unit has been implicit in law for millenia.

    Yes, you will find exceptions, of course, and you will find people who disagreed with it. Mormons and Muslims extended it to include polygamy. The intelligentsia of the late 1800’s extended it to include homosexuality and polyamory. The 20th century saw much more acceptance of divorce, single motherhood, and contraception. More and more of those dissenting opinions have been codified into law over the last 100 years. So Boswell (whom I haven’t read) and others can write books about various aberrations, but the notion of the man-woman-children family unit has been pervasive in Western society. Those aberrations exist against a backdrop of “ordinary society”, and would be quite different without it.

    I don’t have a problem with MattMorovich’s denial that love played a part in historical marriage, but his argument doesn’t weaken my point. Proponents of gay marriage insist — at one time I insisted — that gay people should be able to marry people they love just as straight people do, but marriage isn’t only about love. It’s about society.

    And that is why it’s not just a religious matter. As a society, we grant legal privileges to and make legal demands on people who are married. If the drive for gay marriage destroys straight marriage directly — I’m not saying it will, because people are more conservative than their arguments would logically take them — it will happen because all of the criteria and meaning behind marriage eventually dissolve. People will wonder why we provide privileges to people who establish this contract. People will wonder why there are so many restrictions on the establishment of this contract. They will extend marriage to include polygamy (has already happened in Europe — Holland, maybe?), close relations (because procreation isn’t an issue), and so on, until there’s nothing left except a private, non-binding promise.

    I know a lot of people will think that the slippery-slope argument is bunk. Note that there were people who argued that liberalizing divorce laws would lead to a separation of child-rearing from marriage, thereby paving the way for gay marriage. They were pooh-poohed, of course.

    I very much sympathize with the pro-gay-marriage crowd here. I simply disagree with you.

  104. @118 Greg, In some states adoption is effectively, if not explicitly, limited by gender, in that a biological or adoptive mother’s parental status is terminated if another woman adopts the child. Obviously this is most at issue in, say, lesbian couples in which the biological mother can only be replaced by her partner as “parent”, but it’s also a major issue for any gay couples trying to adopt. (In other cases, gay couples are specifically excluded from adopting children, even their own long-term foster children.)

  105. It seems to me that the problem of the ‘churches will be forced to marry these people meme’ is simply gotten rid of. Make all marriage civil marriage. Religious ceremonies will have no legally binding power, and we can do that by requiring that legal marriage only occur through the government- county clerk, justice of the peace, etc. Unless a priest, parson, rabbi, etc. also holds one of these civil service positions, they should not be allowed to legally marry anyone.

  106. Go Iowa!! Maybe all states will consider this now, and the heat will be off us on the left coast? After several very good discussions with different people, I guess I should have votes for prop 8 here. Maybe. I am glad to see this moving more into the national spotlight.

  107. “Make all marriage civil marriage”
    I don’t follow this. Sounds like a First Amendment violation on its face.

  108. @103 Todd Stull:

    1. The first civil union between homosexuals (They called it a “registered partnership,” I’d call it the first “gay marriage” because it was the first homosexual relationship to enjoy the legal protection of government) was in Denmark in 1989. Prior to that, gays and lesbians could form any same-sex relationships they wished, but those relationships recieved no special protections besides what the civil rights of the people forming it guaranteed. It’s not a question of what people thought, it’s a question of what the law would recognize.

    2. I said it used to be impossible. Back then, there was one way to biologically reproduce. Now there are 18. And why I am I tying the act of marriage to procreation? Because for better or worse, that’s what modern Western society did.

    Back in the 18th and 19th Century when the world’s major legal systems (including the laws governing marriage) were developing, human fertility was essentially a black box. People knew that if men and women had sex, the woman would get pregnant and the child would share traits of both parents, but not much else. And since arranged marriages were falling out of favor due to increased mobility and the end of the last vestiges of feudalism, both common and civil-law systems enacted a number of laws and legal presumptions governing marriage, including the presumption that all children born to a woman after she married a man were assumed to be fathered by the man, even if they biologically were not, and that all married couples were capable of creating children right up until the moment when one of the spouses died. A lot of these presumptions still survive in our legal system, especially the old English common law ones. No political body made the determination that marriage and children were linked… it just evolved that way.

  109. @122
    Pam, yes, that is an appealing option. For example, that happens to be true in Italy. (It probably is elsewhere in Europe but I don’t know.) A civil license is required; simply performing a ceremony in a church has no legal binding.
    I like this route on a personal level, although I think it would be difficult to carry out, as the US tends to be very calcified in some traditions.

  110. That’s not counting the real issue, which is that the concept of man-woman-children as fundamental social unit has been implicit in law for millenia.

    Which culture, which society?

    And you really should be prepared to bring out those documents; your case is stronger if you do bring them out and refer to them.

  111. “A civil license is required; simply performing a ceremony in a church has no legal binding.”

    Isn’t that the current law in the US? I was married years ago in a synagogue in NY. Although my wife to be and I lived in Maryland, we were required to apply for a NY state marriage license. In NYC, I understand that if the Rabbi is not registered with the City, the marriage is not valid under NY law.

  112. That’s not counting the real issue, which is that the concept of man-woman-children as fundamental social unit has been implicit in law for millenia.

    Actually, it’s not. No, really, it’s not.

    The nuclear family is a modern invention. As a species, we’ve always tended to breed and raise our young in a tribal community, rather than as discrete units of father, mother and children. Bonded mating pairs exist in many species, including our own, but they’re rarely exclusive or permanent. Even Emperor penguins seek a new mate every year.

    Even just a century ago, it was common in America for extended families to share living space (and it’s still common in many cultures.) It was almost never just mom/dad/kids, but gramma, uncle Joe and cousin Francine all in the same house.

    It wasn’t until after WWII that that started changing, and people started moving to tiny little boxes in the burbs that were only big enough for four people.

    The nuclear family is not a “natural” unit of human society by any stretch of the imagination. It’s just what’s been most common in recent history in the Western world.

  113. Sub-Odeon: You’ve put your CATFOTFIC and IDCSESU in the wrong place. They belong here.

    Greg 113: *scribbles hasty notes* THAT will come in handy. Thanks for pointing it out!

    Jake 120: You “simply disagree” that I should have the fundamental human rights you take for granted. Yeah, I get it. Don’t expect me to love you for it. You’re making the same crap arguments that the right has made for the entire time this has been debated, and many of the same ones made against legalizing interracial marriage.

    Feel free to pretend to yourself that you’re not motivated by homophobia. Don’t expect to convince anyone who’s heard this song before.

    MasterThief 125: You’re talking nonsense. If marriage and children were so closely linked in law, then couples who didn’t have children after a few years of trying would be expected to divorce, and certifiedly sterile people would not be allowed to marry at all. Women past menopause would all be permanently single. Marriages would automatically end when the youngest child turned 18 (or 21, or some other magic number).

    It’s just not an argument that holds water. Society has recognized purposes for marriage outside of mere procreation for a long time now. 80-year-olds get married in the retirement community. No one is required to show fertility as a condition of marriage. Infertility is not considered sufficient reason for divorce (compare, say, infidelity), even though some people do divorce their spouses for that reason.

  114. Isn’t that the current law in the US?

    Yep.

    People get confused about this because clergy are licensed by the state to sign marriage licenses.

    But not all clergy are licensed, and any marriage that doesn’t have a signed license filed with the state is invalid.

    In fact, perfect example:

    My high school best friend got married 25 years ago in a small ceremony in a tourist town by a for-rent preacher. He signed their license, but never filed it. The net result? They weren’t actually legally married, and didn’t find out about this until ~20 years later.

    They were subject to common-law marriage by that time (which differs from state to state) but for most purposes, including federal income taxes, etc., they weren’t actually married as far as the government was concerned.

    The solution to this confusion, IMHO, would be that we stop licensing clergy to authorize civil contracts.

  115. Why is a discussion of judicial activism off limits here?

    Jon Rowe (a libertarian law professor, and thus neither a fan of oppressive government nor ignorant of the judicial system) has written quite a bit about how the phrase “judicial activism” is essentially meaningless beyond, “judicial decisions I don’t like.” Search his eponymous blogspot blog for lots of examples.

    An example: read the Bill of Rights and you won’t find the phrase “freedom of association” anywhere in it – it was invented in a Supreme Court decision back 1958 as implied by a bunch of other enumerated rights; and it’s pretty non-controversially accepted by both lefties and righties alike as a fundamental right. It was even used to overthrow New Jersey’s democratically-enacted non-discrimination law in the Boy Scouts vs. Dale case. And somehow that case is applauded by the exact same people who are crying “Judicial Activism!1!!” in this case.

    This is part of what courts do. They vet laws to see whether they are Constitutional. Sometimes they even discover that some rights are implied by the Constitution even though they aren’t written out in black and white. You can argue that their reasoning led them to an incorrect conclusion, but you just can’t say that they’re not allowed to do it, ever, unless you’re willing to discard the right to freedom of association, and the right to own private property, and the right to not have your citizenship arbitrarily revoked (just to name a few “judicially invented” rights that popped into my mind and that have been used to overturn laws violating them).

    So, in summary, a “discussion of judicial activism” is a recipe for heat without light – the term just doesn’t mean anything discussable. The only appropriate discussion that can be had in this case is “did the Iowa Supreme Court correctly interpret the Iowa State Constitution?”

  116. The only appropriate discussion that can be had in this case is “did the Iowa Supreme Court correctly interpret the Iowa State Constitution?”

    Exactly. The meta argument about whether courts should be able to judge the constitutionality of laws enacted by legislatures or the people is irrelevant. The fact is that they ARE able to do so, and do so all the time.

    Constitutions are like meta laws. They are the guidelines by which all other laws must abide. Any law enacted contrary to those guidelines is de facto invalid.

    Those guidelines CAN be changed, of course, but they cannot be simply superseded by other laws. Constitutions are not subordinate to other law.

  117. @ Jake Freivald in #90
    Marriage can only be degraded by the people in the marriage. All those things you’ve listed have not weakened *my* marriage and the cohesiveness of *my* family one iota, and I live in Connecticut. If public pressure to conform to the traditional ideal of a family is the only thing holding a family together then that family is not worth preserving.

    This comes from someone whose parents *SHOULD* have divorced, but they were Catholic and born in 1928 so it was verboten. Ahh the amount of money I and my siblings would have saved in therapy bills and anxiety/depression medications if they had.

  118. MasterThief: Back in the 18th and 19th Century

    there was legalized slavery. What’s your point?

    Jessie: In some states adoption is effectively, if not explicitly, limited by gender,

    I would assume that any state that recognized gay marriage would not allow something like this to remain.

    I was looking for something not linked to marriage that was still a legal document that required a specific gender.

    You don’t have to be male to form an LLC. You don’t have to be female to get licensed as a nurse. A license to practice medicine isn’t limited to only males.

    The marriage license (and the associated adoption stuff) is the only legal documents I can think of that actually demands specific genders.

    also, these:

  119. Personally, I’ve actually seen evidence that not allowing same-sex couples to have access to marriage harms the institution of marriage – because it means not only that committed relationships have to come up with alternate means, but because many allies and people of good will declare marriage rotten and argue for its abolition as a result.

    I’ve yet to see evidence that marriage equality harms marriage.

    My slippery slope goes the other way ….

  120. @ 120, Jake, what about the religious freedom issue? My parents church wants to perform gay marriage, but is prevented by state law. It is their sincere and Biblically based belief that marriage is a sacred institution in which all God’s children have a right to participate.

    Apart from the simple biology of procreation, and some mechanics that are none of my business, I see no difference between two men who love one another romantically, and a man and a woman who love one another romantically. Since we don’t forbid infertile couples from marrying, and the Supreme Court has ruled that consensual sex acts between adults of none of our collective business, what, exactly is your rationale for discrimination?

    The only one you list is the possibility that gay marriage might, through unspecified mechanisms, destroy straight marriage. When I weigh that against the clear societal benefits of allowing gay marriage, I really don’t see your point.

  121. @124:
    “Make all marriage civil marriage”
    I don’t follow this. Sounds like a First Amendment violation on its face.

    I don’t think that means what you think it means.

    Let me sum up:

    All marriages recognized by the state are ALREADY civil marriages. They were all licensed by and registered with the state.

    Whether they happened in the context of a religious ceremony in a church, or at city hall, they are legal marriages because they are recognized by the state. Whether God or anyone else recognizes them is immaterial.

    In the United States, out of tradition, we extend clergy the privilege of acting as agents of the state for the purpose of legally solemnizing weddings. Different jurisdictions extend different levels of privilege. For example, when I officiated at my friend’s wedding in St Paul, MN, I had to register as clergy with the State of Minnesota (via the good offices of the County of Anoka), but when I officiated at my nephew’s wedding in Tulare, CA, I was not required to register as clergy with the State of California. However, both jurisdictions extended me the privilege of solemnizing marriages as a traditional courtesy.

    The fact that I am clergy DOES NOT grant me the right to solemnize marriages; the fact that I am allowed to act as an agent of the state for that specific purpose DOES.

    Why?

    Because all legal marriages in the United States are civil marriages, even when they’re officiated by clergy. It’s just that then they may also be religious ceremonies, too.

    The religious ceremony might well be the meaningful part of marriage for many people, but that doesn’t mean it’s the legally meaningful part. That’s why officiants often add, “and by the State of XX…” when solemnizing marriages.

    And that’s what this whole thing is about: people’s legal, civil rights. The legal argument doesn’t touch on religious ceremonies, and attempts to make it do so are ignorant at best, and often cynically disingenuous.

  122. @108 Josh Jasper:

    1. See response above. It doesn’t matter what the couples thought of their relationships, but what the law did. And I have found no evidence of a legal recognition of a same-sex union prior to 1989. And if transsexuals were allowed to marry, it is only because the law recognized one partner as legally having a different gender than their genes said.

    2. Before Steptoe and Johnson perfected IVF in 1978 and proved it was possible with the birth of Louise Joy Brown, all children who had ever lived on the planet Earth had been originally conceived in an act of heterosexual intercourse. The law before then didn’t “ban” gay couples from creating children, because the law cannot permit what biology does not allow. And I find it hard to believe that gay couples would have been allowed to adopt children back in the 1980’s given the current state of the law, given that the Supreme Court as late as 1986 was upholding the prerogative of states to criminalize homosexual acts in Bowers v. Hardwick. You can argue that it was wrong, but it it doesn’t change the fact that that is the way history happened. A lot of things have changed since then, but prior to the 1990s your LGBT friends would not have been able to have families, either genetically or through adoption, before technology changed and brought the law along with it. Gay marriage advocates cannot claim the benefit of the traditional understanding of marriage for an idea that’s less than 30 years old. For your side, the normative argument – saying “this is the way things should be” must be the load-bearing one.

    @113 Greg London: The reason your attempted analogy fails is because the Constitution was explicitly changed after the Civil War in the 1860’s and 70’s (not exactly democratically, but Union bayonets were close enough) to make the opposite interpretation law – the 13th Amendment outlawed slavery, the 14th Amendment guaranteed all citizens due process and the equal protection of the law, and the 15th Amendment guaranteed African-Americans the right to vote. True, it took another 100 years for these Amendments to be actually enforced on behalf of African-Americans, but without them there would have been no Civil Rights movement.

  123. Personally, I’ve actually seen evidence that not allowing same-sex couples to have access to marriage harms the institution of marriage – because it means not only that committed relationships have to come up with alternate means, but because many allies and people of good will declare marriage rotten and argue for its abolition as a result.

    Also, vast majorities of the US public seem to be generally in favor of granting at least some rights and privileges associated marriage with to same-sex couples. Even many people strictly opposed to same-sex marriage are willing to say that same-sex couples should be allowed to visit each other in the hospital, for example.

    The problem is, if you start making these rights and privileges available to same-sex couples, many opposite-sex couples will start taking advantage of them as well, maybe even choosing them over full marriage. We’ve seen it happen in France, where vastly more straight couples have chosen PACS civil unions, despite the fact that they were invented for gay couples. Likewise, before Canada had same-sex marriage, they souped-up common-law marriage and made it available to same-sex couples (to avoid getting gay cooties on the M-word) – and now, many many many opposite-sex couples are choosing not to marry and are instead lazily sliding into common-law status.

    Having no gay marriage available while at the same time choosing to not actively persecute gay people ends up creating not-marriage statuses that disincentivize marriage for opposite-sex couples. Having no gay marriage available demonstrably harms the institution of opposite-sex marriage, at least in modern societies that value individual rights.

    Jake, if you’re truly worried about opposite-sex couples not wanting to marry, then it would seem to me that the only feasible solution is to open up marriage to both same- and opposite-sex couples, while at the same time ending all domestic partnership or other quasi-marriage options (which a number of institutions in Massachusetts actually did after same-sex marriage was instituted).

  124. @120, Jake

    Proponents of gay marriage insist — at one time I insisted — that gay people should be able to marry people they love just as straight people do, but marriage isn’t only about love. It’s about society.

    Right. Love is the emotional response that people tout because, well, who would want to be denied the ability to marry the person they love? Marriage is also about stability, commitment, the ability to have certain rights/responsibilities in regards to the person you are committing to (such as the ability to make medical decisions for them in the event they are unable to or inheritance), and the benefits of marriage. My argument was directly against your claim that the Founding Fathers couldn’t perceive of two people getting together for purely economic reasons “marriage”.

    But let’s go on.

    Yes, you could say marriage is about society but society isn’t a static thing. Society changes and evolves depending on the needs, wants, and views inside it. At one time in the US, if I’m not mistaken, you could only vote if you were a land owner. Over two hundred years ago you could own a slave and one hundred and fifty years ago my wife wouldn’t be able to vote and fifty years ago I could be thrown in jail for marrying outside of my “race”.

    Society changes. Again, your falling back on the “but this is how it’s always been done” argument which doesn’t fly.

  125. @125 Xopher: Of course it’s nonsense! It’s English Common Law, with a couple of centuries of various legal hacks and kludges piled on top of it! Back then, yes, widows generally didn’t remarry after menopause, people who were known to be sterile (and yes, about the only people who were reliably known to be sterile were castrated men and post-menopausal women) didn’t even try to marry. And yes, a lot of those reasons have gone away, but the law still keeps the structures built around them in place. Law is the ultimate “legacy mainframe.”

    And before you go further, let me remind you that this is a description of the way the law used to be. Which is not always what the law should be. (But if you don’t know where you’re coming from, how do you know where you’re going?)

  126. @MasterThief:

    And I have found no evidence of a legal recognition of a same-sex union prior to 1989.

    How do you define “legal recognition”? Tribally-recognized same-sex marriages were not uncommon in a lot of North American native tribes, though they were usually thought of as a union between a “normal” person and a “special” person who was mystically connected to both sexes. These people used to be called “berdaches” (by Western anthropologists), but the modern (non-derogatory) term is “two-spirited“.

  127. My parents church wants to perform gay marriage, but is prevented by state law.

    Actually, they’re not prevented. They can absolutely perform gay marriages–but it’s only a religious ceremony, without any legal status. Which, frankly, I think should be the case of all religious ceremonies: they should have no legal result. But the First Amendment would definitely protect any given church’s right to extend its religious practice to anyone it chooses to, or to exclude anyone it chooses to.

    In fact the issue of gay marriages is what has splintered the Episcopal church: some of the parishes are willing to perform them, others are not, and the conservative faction is trying to legally separate itself from the more progressive faction as a result.

  128. “”Make all marriage civil marriage”

    I don’t follow this. Sounds like a First Amendment violation on its face.

    I don’t think that means what you think it means.”

    That’s why I said I don’t follow this. I thought the idea was that the state would only recognize marriages performed by non clergy. That seems to dsicriminate against religions.

    The proposal was:

    “Religious ceremonies will have no legally binding power, and we can do that by requiring that legal marriage only occur through the government- county clerk, justice of the peace, etc. Unless a priest, parson, rabbi, etc. also holds one of these civil service positions, they should not be allowed to legally marry anyone.”

    I think it is ok to require a Rabbi or Priest to register with NYC, for example. But, I don’t think it is right to say that only if the Rabbi or Priest is also an elected or appointed official will the marriage be legally recognized. That would permit the majority religion to dominate.

  129. To several commenters above.

    Several sects no longer will sign state marriage licenses if you want the marriage to be civil and thus ‘legal’ you must get it signed by somebody else, such as a judge.

    I believe this includes both the Unitarians and the Presbyterians.

    I think France is also a country where the religious ceremony has no legal meaning.

  130. Jonathan @146:

    I think it is ok to require a Rabbi or Priest to register with NYC, for example. But, I don’t think it is right to say that only if the Rabbi or Priest is also an elected or appointed official will the marriage be legally recognized. That would permit the majority religion to dominate.

    I still don’t think you’re following. Their ability to perform marriages wouldn’t have anything to do with their religion, under Pam’s suggestion. It’d be solely a civil function. The couple could then go and get a religious ceremony performed, but that would be separate. Right now, any member of the clergy that is licensed to do so can perform your religious marriage ceremony and have it be legally binding.

  131. I think it is ok to require a Rabbi or Priest to register with NYC, for example. But, I don’t think it is right to say that only if the Rabbi or Priest is also an elected or appointed official will the marriage be legally recognized. That would permit the majority religion to dominate.

    No, you’re still confused.

    Marriage is often two things: a legal contract recognized by the state, and a religious ceremony conducted by a religious figure of authority. Most states allow a religious figure to perform a ceremony and then validate it as a legal contract through signing a piece of paper. (Some people skip the religious part altogether and just go to a judge for a civil ceremony.)

    The religious element is solemnified by the ceremony; the legal status may be changed by either the ceremony or the signatures, depending on the state.

    One of the major points of conflict in this entire debate is that some people tend to interpret “marriage” as solely a religious institution, when in fact as discussed at length above, it also has this legal facet which intersects with all sorts of things like tax law, inheritance law, family law, and so forth. But when we talk about changing the definition of “marriage” to allow homosexual couples to marry, the perception (by some) is that the state will require that the religious ceremony be changed regardless of what any given church wants.

    But the state cannot require a particular religious ceremony of a church. That would be a violation of the First Amendment. No state will ever say to a church, “You must marry this gay couple.”

    The state can, however, say to a county clerk, “You must recognize the marriage of this gay couple.” Because that’s the legal part of the institution, not the religious.

    So making explicit that legal marriage =/ religious marriage is a way of protecting the right of a given church to marry, or not marry, whoever it wants. The state can and must marry anyone; the church marries only those it approves of.

    Thus protecting both church and state from inappropriate interference in each others’ business.

  132. 2. Before Steptoe and Johnson perfected IVF in 1978 and proved it was possible with the birth of Louise Joy Brown, all children who had ever lived on the planet Earth had been originally conceived in an act of heterosexual intercourse.

    Um, no. There are several ways to achieve pregnancy that involve neither test tubes nor penises going into vaginas.

    /infertility patient.

    That’s why I said I don’t follow this. I thought the idea was that the state would only recognize marriages performed by non clergy. That seems to dsicriminate against religions.

    Why should the state have to recognize contracts performed outside of established contract law?

    Some religions allow clergy to act as officers of the law. We don’t. That’s not discrimination against religion.

    Judges and justices of the peace are not allowed to perform religiously binding marriages unless they are also clergy. Why should clergy be allowed to perform legally binding marriages unless they are also licensed?

  133. 148/149 Thanks. I’m a little slow today; it’s been 20 years since I took con law. The problem is that marriage has both a legal and religious meaning. I thought she was suggesting as a practical matter that religions could not call a marriage a marriage. Perhaps we need a different name for the legal device, since marriage has long held a religious meaning?

    “Why should clergy be allowed to perform legally binding marriages unless they are also licensed?”

    There is a difference between being licensed (or registered as NYC now requires) and being an officer of the court. The suggestion was that only officers of the court be permitted to preside over marriages.

  134. MasterThief, either you’re being deliberately obtuse, or you’ve never seen a turkey baster.

  135. moneyshot:

    “The court reaffirmed that a statute inconsistent with the Iowa Constitution must be declared void, even though it may be supported by strong and deep-seated traditional beliefs and popular opinion,” the court said.

  136. MasterThief @91: I have a child who was conceived “without an act of intercourse”. If you think hard for a minute, you can probably figure out how this can happen without the aid of IVF, test tubes or any of that new-fangled science stuff.

    As for never-been-before, as I recall you’re a law student? In your Con Law and Family Law classes, you’re going to learn (if you haven’t already) that today’s version of marriage is very recent and very much a break with our past. Wives having their own rights under the law, equal to their husbands’? No-fault divorce? Marriage between two people known not to have children? WTF! say the ancestors.

  137. Perhaps we need a different name for the legal device, since marriage has long held a religious meaning?

    Why can’t the people who consider marriage to have religious meaning stick with their special words like “holy matrimony” and leave the ordinary language to the rest of us?

  138. Josh & Xopher,

    Good snark, gentlemen.

    I had begun to compose a lengthy reply to JS’s original message when I suddenly stopped, sat back, reconsidered, and ultimately decided to delete it and throw in a vote of apathy.

    Once, I had energy for this debate. That energy has more or less been exhausted. At least here. Because the same people generally come at each other with the same arguments, and I am not sure anyone who is staunchly on one side or the other has had their opinion affected one iota by what’s been said.

    Now, as I approach middle age, I think I am finally maturing enough to realize that engaging in the same on-line arguments with the same on-line entities — over and over — is a fairly fruitless way to spend my time.

    Maybe this is just my ham-handed way of singing off from this particular subject at Whatever.

  139. Dw3t-Hthr @136: That is so true. Before I could get married, I had to work through my partner’s concerns about marriage being discriminatory and abusive. Some of our friends have refused to get married because they don’t want to be a part of something that has been used to hurt people. Sadly, I can’t argue with their choice. I made a different choice, feeling that we could define our own marriage. But I can’t help being aware of my friends who don’t get to make that choice, or here in California were allowed to make it, and now are threatened with having it taken away from them again. How can it possibly be good for marriage to have the state forcibly dissolving marriages between loving and caring couples?

  140. @Pam,

    All “marrage” as defined by law is civil marrage. I assure you the state cares not one whit what religious ceremony you may or may not have had, they care ony about two things.

    Did you file the appropriate paper.
    Did you submit the appropriate fee.

    It doesn’t mater if the Pope himself performed the ceremony. Did you fill out the government paperwork and pay them for the privlidge? If not, then you are not married in they eyes of the state.

  141. Jonathan @152: In the law, words have meaning. Start calling the state-recognized version of marriage “Bob” and you run into trouble. “Well, yeah, we recognize that married people have these rights, but Law #493204 doesn’t say a darn thing about people who’ve been Bobbed.”

    I really don’t get the religious argument. The government permits all kinds of marriages that various large religions bar, yet there has been no movement by the Catholic Church to make sure no marriages between divorced Catholics and Protestants are legally recognized; no fund-raising drive by Jews to persuade the government that it should refuse to let a Jew and a Gentile marry at City Hall. But all of a sudden, with same-sex marriage, everyone’s in a tizzy about how they’ll be forced to recognize civil marriages!

    It’s like they’re lying cobags, or something.

  142. I saw a gay (and African American) comic the other week talking about how women always want him to be their date for weddings (big hunky guy, very impressive-looking). He said he refuses to go to weddings, then explained why. “I wonder if back in the Jim Crow days white people would invite their black friends to come watch them vote?”

    I understand how he feels, even though I don’t feel the same way.

  143. Jonathan@146, cofax@149, etc,

    It was my original comment, and yes, that was exactly my point, that religious people (or any other non-official person) should not be made an agent of the state to perform legal civil marriage while doing so as part of a religious ceremony. It is a religion’s right to have any form of religious ceremony that is desired, and to not offer that ceremony to those who don’t practice that religion. However, when they take on a state function, they should no longer be allowed to discriminate.

  144. Mythago @ 163:
    I agree it ought to be an obvious non sequiter. But apparently a lot of people buy it and believe it deeply–specifically people who went out and voted for Prop 8 in California. I have tried arguing with people against this and they insist that there is a plan to force churches to perform same-sex marriages.

  145. The part that pissed me off the most was the response by the National Organization of Marriage:

    Maggie Gallagher, president of the National Organization for Marriage, a New Jersey group, said “once again, the most undemocratic branch of government is being used to advance an agenda the majority of Americans reject.”

    “Marriage means a husband and wife. That’s not discrimination, that’s common sense,” she said in a press release. “Even in states like Vermont, where they are pushing this issue through legislatures, gay marriage advocates are totally unwilling to let the people decide these issues directly.”

    This seems to go right back to the fundamental misconception about how America’s government is constituted.

  146. CWJ @166: I have asked Proposition 8 advocates to find me a single case where a church was sued for refusing to perform a ceremony that violated its tenets. (We’re not even to “and where the plaintiff won”, yet; just a case that was filed.) They usually kind of shuffle their feet. Once in a while somebody points to a case where a church operated a business in a secular fashion – like renting out a gazebo on church property for public events – and make a kind of half-hearted attempt to pretend it’s the same thing.

    So those people who insist there is A Plot either haven’t thought about it very hard, or they want to believe it’s true, because they have to grasp at some straw to pretend they are the real victims. It’s very hard for people to actually say to themselves “You know, I really am willing to take rights away from others that I want for myself, just because I have a third-graders’ eeeeewwwww reaction to thinking about them smooching.”

  147. @157 mythago: Ah, the “David Crosby Special.” Well, it was still a tube (although I had no idea they were doing it as far back as the 1880’s, the earliest I had heard of it being done was the 1940’s.) But more importantly, unmarried women were generally kept from receiving donated sperm and the law presumed as late as the 1973 (and the Uniform Parenthood Act, if I have the name right) that the resulting child’s father was the man the woman was married to, not the biological father. Those old common-law legal presumptions in action.

    Yes, I am a law student, and believe me, I know con law and family law are in flux. I spoke of law being the ultimate legacy system. But the problem is that there really isn’t a way to tell what parts of the system can be discarded versus the ones that cause major problems if removed. (No-fault divorce, in particular, turned out to have some major unintended consequences.) This is why social change, while necessary, should be done carefully, and with deliberation instead of raw zeal. In other words, through legislatures, not courts.

  148. Mythago @ 168: they have to grasp at some straw to pretend they are the real victims.
    I think you have hit the nail on the head.

  149. This is why social change, while necessary, should be done carefully, and with deliberation instead of raw zeal. In other words, through legislatures, not courts.

    Because legislatures always deliberate with care, and don’t respond on a dime to public outrage and political pressure.

    ::blinks innocently::

    (Please note it was very hard for me to type the above sentence with a straight face.)

    The point of the courts’ pre-eminence in this system is because they are less subject to political pressure, and can therefore act to protect minority interests without fearing being run out of town on a rail. Granted there’s every chance the Iowa Supreme Court justices who are subject to retention election next year will lose that election (which is one reason I don’t much like judicial elections), but that just makes me respect them more.

  150. Here in Minnesota, making fun of Iowans seems to be a state sport.

    I daresay that I am going to call a personal moratorium on Iowan jokes for a while in appreciation for what the Iowan Supreme Court has done. Huzzah! Love conquers all!

    Unfortunately, I live in Rep. Michele Bachmann’s district, so I suspect a supermajority of my neighbors, if made aware of the ruling, would just reinforce their low opinion of Iowa.

    I can hear the “Adam and Steve” inanity now. :eyes roll:

  151. Most of all, I love myself. Can I marry myself in Iowa and file for tax purposes under advantageous laws?

  152. @TomB 160- This one confuses me: if person A is prohibited from having ice cream, why wouldn’t person B eat as much ice cream as they like if they enjoy ice cream?

    Or, to the point directly, why does your paticular marriage have a blessed thing to do with all marriages? (Being something of a restatement of the question what on earth does a gay marriage have to do with someone straight’s marriage and why would the straight couple care?)

  153. Paul 172: I always wanted to open a restaurant in a gay neighborhood and call it “Adam and Steve.”

  154. From a conservative perspective, the gay marriage debate really boils down to three questions:

    1. Will gay marriage violate anyone’s rights? No.
    2. Will gay marriage increase taxes? No.
    3. Will gay marriage make the streets unsafe? No.

    That does it for me. I am straight and Republican, and I could care less if Ohio started allowing gays to marry tomorrow. I would rather focus on real conservative issues, like smaller government and lower taxes.

    The religious right’s preoccupation with this issue has assured one outcome: that 99% of gays vote for the Democrats.

    Consider the situation in California: California is one of the most over-taxed, over-regulated states in the union. But what issue did the California GOP decide to champion this past election season?….Proposition 8.

    The essence of conservatism is a small, unobtrusive government, and a society where each individual can define his or her own “pursuit of happiness.”

    To my fellow conservatives: We are supposed to be on the side of individual freedom. Leave social engineering to the Left. Our rightful position regarding same-sex couples who want to get married can be summed up in three words: Leave them alone.

  155. Xopher, I someday will get around to making a shirt that says STEVE WOULD HAVE TOLD THE SERPENT “NO”.

    MasterThief @169, of course there is a way. There are several ways, and you’ll have them pounded into your head in Con Law. In this case, the way is through Equal Protection analysis.

    I’m actually kind of surprised to see you jumping on the OMG COURTS NOOOO! bandwagon, because the whole point of those creaky, ancient cases they torture 1Ls with is to get you to divorce the result from the process. That is, “Do I like the result?” is not a substitute for legal analysis. You are, in essence, arguing that an unpopular result is all you need to show that the court overreached its authority. Don’t try that one on your final exams.

  156. Edward 176: While far from a conservative, I like this point of view. Thank you.

    mythago 177: I’ve seen a button with a picture of an apple in a woman’s hand, and the words “Thanks, Eve.” While I like yours…if I wore it it might come off as misogynist.

  157. Xopher, it does a little, but the people you’re messing with are already misogynist. It’s telling them they’re idiots in their native tongue.

    Master Thief, I don’t get the “David Crosby Special” comment. I’m really trying not to TMI on you here, but if you use your imagination I’m sure you can think of all kinds of primitive methods by which fertilization can occur without intercourse. OR test tubes.

  158. I have never before wanted to live in Iowa. After reading the court briefing, I stand corrected.

    There’s nothing half way / about the Iowa way to treat you / if we treat you / which we may not do at all.

  159. Edward at 176

    I always thought conservativism should sound just about exactly like that. Thanks.

  160. As a resident of one of those wacky coastal states with same sex marriage, I’m completely delighted to see the midwest getting on board our train. It was great when our neighbors to the south hitched their car to the train, and we were very sad when the California boxcar got side-tracked.

    All day long, I’ve been going, “Wow! Iowa!” (And I hope, someday, to cheer loudly, “Wow! Ohio!” about my native state.)

    Next stop: Vermont.

  161. Deb Geisler @ 182 —
    I hear you on the Ohio native thing. Hopefully, this decision will spur some action in Ohio. After all, the Buckeyes HATE to let Iowa beat them, right?

  162. Edward Trimnell @176: To my fellow conservatives: We are supposed to be on the side of individual freedom. Leave social engineering to the Left. Our rightful position regarding same-sex couples who want to get married can be summed up in three words: Leave them alone.

    Bravo.

  163. waltzinexile @183: So my nephews tell me. Me, I’m a Bobcat. :-) Columbus was just a town I had to drive around to go to college…

  164. On a completely frivolous note, The Little Brown Church has been a wedding destination for decades, in a Vegas kind of way. I wonder if it will become a trendy destination for same-sex couples. That would be very cool, in a retro kind of way.

    On a more serious note, props to Iowa. I may have left 30-some years ago, and I’m pretty sure I won’t go back except to visit, but I’m not as surprised as some of you.

  165. But not all clergy are licensed, and any marriage that doesn’t have a signed license filed with the state is invalid.

    Depends on what state you’re in. A few still recognize common-law marriage. Six? Eight? Something like that. BUt once again, clergy are not required. Basically, all states in some way generally recognize officiating clergy as qualified witnesses to a marriage declaration, but they also recognize the county clerk. And some states have additional requirements for the clergy in order for them be qualified as a witness in place of the clerk. (Requiring the cleric to register in advance with the local district court as an officiant is fairly typical.)

    Generally speaking and outside of common-law, you’re married in the eyes of the state when the certificate has been properly signed, witnessed, and filed. They don’t care if you were “married” in the Vatican or had no ceremony at all. As long as the paperwork is in order.

  166. gwangungon @127: Which culture, which society?

    Western. That’s the one we’re in, and the one the law affects.

    And you really should be prepared to bring out those documents; your case is stronger if you do bring them out and refer to them.

    It’s going to get tedious in a comment thread to post relevant quotations and links. Perhaps two will be sufficient to show that the man/woman/children idea wasn’t invented a century ago. They are religious, but then, many older documents relating to the ordering of the world were.

    ~5000 years ago an influential Hebrew related that ‘Adam said: “This is now bone of my bones, and flesh of my flesh: she shall be called woman, because she was taken out of man: wherefore a man shall leave father and mother, and shall cleave to his wife; and they shall be two in one flesh.’

    The Tridentine Catechism (mid-1500s) says The special character of this union is marked by the word conjugal. This word is added because other contracts, by which men and women bind themselves to help each other in consideration of money received or other reason, differ essentially from matrimony. and As, then, the marriage contract is not a mere promise, but a transfer of right, by which the man actually yields the dominion of his body to the woman, the woman the dominion of her body to the man, it must therefore be made in words which designate the present time, the force of which words abides with undiminished efficacy from the moment of their utterance, and binds the husband and wife by a tie that cannot be broken. It explicitly names the three primary reasons for marriage as natural instinct for mutual companionship, procreation, and control of lust.

    Note that I’m not asking for you to agree with these documents in any way. I’m just debunking the idea that the husband/wife/children kernel was invented less than 100 years ago.

    Talon: The nuclear family is a modern invention…. Even just a century ago, it was common in America for extended families to share living space (and it’s still common in many cultures.) It was almost never just mom/dad/kids, but gramma, uncle Joe and cousin Francine all in the same house.

    I will agree that we used to have stronger tribal bonds and extended families than we do now. But if you are claiming that the husband and wife weren’t seen as having a fundamentally different relationship to each other and to society than, say, husband and mother-in-law, I’m afraid you are mistaken.

    Xopher: Feel free to pretend to yourself that you’re not motivated by homophobia.

    This issue strikes you personally much more than it strikes me, and I respect that and I respect your anger.

    I don’t know that you are helping your argument by saying that I’m motivated by homophobia. Does that mean that I don’t like sticky fluids? That videos sex turn me off if it’s man on man (mostly true) or woman on woman (false), but not if they’re mixed gender? What did I become afraid of over the past ten years, as I stopped supporting gay marriage?

    Those things aren’t the point, though, as shown by the fact that I know people who are grossed out by the thought of gay sex but who accept gay marriage. I think that if you label anyone who disagrees with you as homophobic, you simply take meaning out of the word and make it less effective.

    Peytonon: Marriage can only be degraded by the people in the marriage.

    An individual’s marriage, true. The institution of marriage, false.

    Ahh the amount of money I and my siblings would have saved in therapy bills and anxiety/depression medications if they [i.e., parents] had [divorced].

    Children of divorce never need therapy?

    MikeTon: Jake, what about the religious freedom issue?

    There is nothing to prevent a church from performing marriage between two males or two females or three people or a man and his dog. There is only a lack of official sanction for the change in religious status.

    Since we don’t forbid infertile couples from marrying, and the Supreme Court has ruled that consensual sex acts between adults of none of our collective business, what, exactly is your rationale for discrimination?

    As I said, I don’t see gay marriage as some new attack on traditional marriage; I see it as a symptom that traditional marriage has already been dramatically undermined.

    MattMarovichon: My argument was directly against your claim that the Founding Fathers couldn’t perceive of two people getting together for purely economic reasons “marriage”.

    I didn’t deny the economic argument; I agree with it. I said (implied, maybe?) that they wouldn’t perceive two men getting together for purely economic reasons as “marriage”.

    Recall that I started by talking about definitions: two men cohabitating and even engaging in some sort of contract would not have been considered marriage. Saying “the equal protection clause requires that we allow these two men to get married” wouldn’t have been true: it would have been an oxymoron.

    I agree that society isn’t static. If one wants to argue that marriage is an outdated institution that should be eliminated, like slavery or orphanages, that’s a legitimate line of attack. (I wouldn’t support that either, but it would directly address the issue.) But words have meanings, and I can’t see how allowing “gay marriage” because of equal protection is anything other than a redefinition of the term.

  167. With no insult meant to Iowa, I’m bloody *ashamed* that a supposedly conservative “heartland” state is two steps ahead of my own supposedly “ultra-liberal” California in the civil rights department.

  168. Jake, your cracked theories about same-sex marriage harming “the institution of marriage” are typical of the homophobes who really want to prevent same sex marriage for one underlying reason: they hate gay people and want to cause us what pain they can, and keep us from getting what is ours by right: equal treatment under the law.

    None of the arguments you’ve presented has been any more convincing than that.

    I say FUCK the “Institution of Marriage.” I say FUCK your arguments about “redefinition of the term.” It means the same thing for gay couples as for straight ones; if you weren’t homophobic you would see that. I’m not “labeling as homophobic anyone who disagrees”; I’m labeling homophobia where I see it.

    Like I’ve said, I’ve heard this song before. It’s not any more convincing now than it was the last 100 times. You may have yourself convinced that your pseudo-rational arguments are anything other than a cover for hate, but that’s all they are.

  169. Just as one clear example: justifying the denial of a key civil right because it would require “redefining” a term is not a rational argument. No reasonable person would make such an argument.

  170. Jake @189, have you in fact read the Iowa Supreme Court’s decision?

    When you say that “allowing “gay marriage” because of equal protection” is a redefinition of the term “marriage” – something you oppose – then what you’re really saying is that we should tear up the Equal Protection Clause, root and branch. Is that really what you want?

  171. And the gay marriage issue once again reaches its predictable pinnacle of reasoned blog discussion.

  172. Now, Tully, I haven’t bored the earlobes off you all yet with a nitpicky legal analysis of the court’s decision. We’ve got some time.

  173. Our economy is dying.
    It has been shown that gay marriage will improve the economy (all the gifts for newlyweds and such, I suppose).
    People are still arguing about this?

  174. ytimynona @ 196:

    “Our economy is dying.
    It has been shown that gay marriage will improve the economy (all the gifts for newlyweds and such, I suppose).
    People are still arguing about this?”

    I’m a big supporter of gay marriage, but the “economy” argument strikes me as lame. I would imagine that killing all the unemployed people would solve our unemployment problem, but that doesn’t mean it’s good policy. Gay marriage is a moral/ethical/cultural issue, not an economic issue. It’s about civil rights, not GDP. The fact that gay marriage might have a marginal short term positive impact on the economy (insofar as it encourages spending on weddings…and pretty much that’s it) is really a side issue at best. (That said, if that’s what gets people over the hump to accepting gay marriage, then I guess I won’t complain…but come on, kids — this is about equal protection under the law and basic human rights, not about economic considerations).

  175. Jake @ 189: Western. That’s the one we’re in, and the one the law affects.

    1. Western culture is hardly monolithic. I guarantee you that the culture here in Seattle is dramatically different than the one in my hometown of Reno, and those two cities aren’t even enormously far away from each other.

    2. This is the Intarwebs. It is not restricted to Western culture.

    But if you are claiming that the husband and wife weren’t seen as having a fundamentally different relationship to each other and to society than, say, husband and mother-in-law, I’m afraid you are mistaken.

    First, I’m Tal, not Talon.

    Second, my point was in response to your idea that man/woman/children is or ever was the most common configuration of what we would consider a “family.”

    The nuclear family is not, and has never been a cornerstone of culture, Western or other. It is a modern notion, and one that simply does not reflect the vast majority of households around the world.

    You can, if you’d like, talk about how “traditional” marriage is increasingly uncommon. But you have yet to prove that the tradition you’re defining was ever common enough to have constituted the majority of households. If a “tradition” is something that’s only practiced by a minority population, why is it something that should be imposed on everyone?

    You (along with millions of other conservatives) appear to be pining away for a time that never existed except on 1950s sitcoms. You’re lamenting something you think is dying, but which was never alive to begin with.

    I agree that stable households are a cornerstone of society, but the exact configuration of the families within those households can vary wildly, and still be stable.

  176. We Californians aren’t any stupider or more bigoted than people in any other state. We’re just cursed with a really bad state constitution, one of whose many flaws is that it can be amended to deny people fundamental rights by a simple majority vote.

    Or, well, maybe it can. One of our constitution’s many other flaws is that it’s just plain sloppily written. The California has a procedure for “amendment”, and a different and more onerous procedure for “revision”, and it doesn’t say what the difference between an amendment and a revision is supposed to be. Possibly it’s a redundancy that someone forgot to strike, or possibly someone was trying to make a distinction and never got around to saying what it was. Depending on how that mess gets interpreted, Prop 8 may or may not be valid.

  177. One of the most infuriating things about this issue to me is the extent to which those purporting to stand for the protection of “traditional marriage” hide behind vague allusions to the erosion of social institutions (without ever explaining why the social institution in its present form is so damned important in the first place) and theoretical bullshit. This isn’t an issue being kicked around in your philosophy class, dickheads. This is a REAL issue that impacts REAL people and their REAL relationships and their REAL families. Those most guilty of this are actually the most articulate of the bigots — guys like Jake @ 189, who behave as though taking a contrary position on something like this is some sort of game, like an intellectual chess-match-jerk-off with others that enables you to show how brilliant you are. An intellectual challenge. Well, this is not an intellectual challenge. This is not a battle of wits. This is not Philosophy 101. This is people’s lives. It’s their families. It’s their world. And your vague, theoretical bullshit arguments don’t do a hell of a lot of good to a kid who just wants his mom to have the same legal bond with his other mom that his friends’ parents have.

    Here’s a homework assignment for anyone who wants to wax philosophical about how permitting same sex marriage will further erode the precious institution of marriage. Find your nearest married gay couple, and explain that to them. To their face. In detail. If you are so confident in your ideas, then present them to the individuals whose lives you are tearing apart. Because if you can’t do that, then you are a fucking coward, and you need to shut the fuck up.

    Talk to these people about how their desire to have appropriate social recognition of their commitment to one another is a “symptom that traditional marriage has already been dramatically undermined.”

    http://www.couragecampaign.org/page/s/divorce

    Asshole.

  178. Western. That’s the one we’re in, and the one the law affects.

    Speak for yourself. You’re certainly not speaking for me or my relatives.

    It’s somewhat insulting that you think your rather narrow view of the world is applicable on a more general basis and that other perspectives need not apply.

  179. In Wisconsin clergy do not have to register with the state to be legally allowed to perform marriages. So long as the clergy member is considered to be in good standing by his or her particular sect, the state is good with it.

    I served my time (ten grueling seconds!) filling out the form, and as an ordained minister in the Church of the Latter Day Dude I am therefore legally empowered to perform valid marriages in Wisconsin. I checked.

    I don’t understand why being an ordained minister makes me an authority on who should and should not get married, but apparently in some people’s mind it does. So I shall assert my priestly privileges.

    Personally, I don’t see how the LDD Church could possibly be upset about gays marrying, or anything else for that matter (“the Dude abides, man”), and I would be happy to officiate same if the state hadn’t passed one of those benighted anti-gay-marriage amendments so beloved of the religious right wing.

    But you know, MY faith says its okay. Why don’t I count?

    Good show, Iowa. I liked living there when I was there, and I’m glad to see common sense prevailing.

  180. Edward @ 176:

    “That does it for me. I am straight and Republican, and I could care less if Ohio started allowing gays to marry tomorrow. I would rather focus on real conservative issues, like smaller government and lower taxes.”

    Sorry, Ed, but I have some bad news. You’re not a Republican. Your party has abandoned you. You are a sensible person who wants the government to have less power and take less of your money. That does not make you a Republican. That makes you a Libertarian. They are the only political party left in America (within reason) that actually embraces that philosophy.

    In case you hadn’t noticed by the way your last three administrations ran up a $10 trillion debt and greatly increased the power of the federal executive branch to a rather frightening degree (for purposes of oppression and war-mongering, of course), the “smaller government and lower taxes” train left the Republican station about thirty years ago. Hate to break the bad news to you. The good news is that you can start voting Libertarian now, and feel a lot better about the fact that you aren’t voting for the Republican who takes office and pisses all over your values and interests.

  181. masterthief: The reason your attempted analogy fails is because the Constitution was explicitly changed after the Civil War in the 1860’s and 70’s (not exactly democratically, but Union bayonets were close enough) to make the opposite interpretation law – the 13th Amendment outlawed slavery, the 14th Amendment guaranteed all citizens due process and the equal protection of the law, and the 15th Amendment guaranteed African-Americans the right to vote. True, it took another 100 years for these Amendments to be actually enforced on behalf of African-Americans, but without them there would have been no Civil Rights movement.

    Right, OK, so, what you’re saying is that without the amendments changing the constitution, the original US Constititution could never be interpreted at a later date to require racial equality? You’re arguing that consistency is more important than anything else?

    I think someone else already mentioned a laundry list of rights that were created by court interpretation rather than constitutional ammendment. So, when you get up in arms about all those rights, instead of simply rules mongering the specific rights that conflict with your personal bigotry, then you’ll actually show some consistency.

    Till then, you’re just a bigot hiding behind arguments to game the system to your bigotry.

  182. This is why social change, while necessary, should be done carefully, and with deliberation instead of raw zeal.

    Said with the zeal of a bigot.

    Come on, just say you’re a bigot and be done with it. You don’t want gay marriage because you’re a bigot. Quit prancing around the fundamental truth here.

    You don’t want “social change” if it conflicts with your bigotry. It should be “done slowly” so you can obstruct it for as long as possible.

  183. masterthief: No-fault divorce, in particular, turned out to have some major unintended consequences.

    Seriously. Get over yourself. You don’t give a damn about unintended consequences. YOu don’t want gay marriage at all. You argue legal bullshit to dress up your bigotry in pretty language, and you argue “unintended consequences” to portray yourself as if you fucking give a damn about people being harmed by a bad law.

    All you care about is putting yourself between gays and their right to marry.

  184. Jake: What did I become afraid of over the past ten years, as I stopped supporting gay marriage?

    It looks to me like you’re afraid that the “institution of homosexual marriage” will find acceptance. You’re arguing against it, anyway, and in this context that’s what homophobia means.

    Peytonon: Marriage can only be degraded by the people in the marriage.

    Jake: An individual’s marriage, true. The institution of marriage, false.

    What a lofty, conceited and totally offensive idea about the institution of marriage. Seriously, you think that we degrade that institution just by asking for it? It’s an honor that us flaming homosexuals want marriage. An exultation of it. Let’s not pretend that your opinion carries any more real weight than mine.

  185. Matt – the problem that I have with the ‘revision’ argument is that it’s fundamentally procedurally unfair.

    At the time the petitions were turned in, the Supreme Court had not yet issued its decision in the Marriage Cases. The proposition represented no substantive change in the Constitution, and was clearly an amendment.

    After the petitions were turned in, but before the Counties finished counting the signatures, the Supreme Court decision was issued, in effect changing the Constitution. That might have made Proposition 8 a revision.

    But … it’s totally and completely unfair to change the procedural rules for any given petition after the signatures have been turned in. The advocates of this measure couldn’t have been expected to follow the revision procedure when they started; the fact that the Constitution changed shouldn’t retroactively require them to do something they didn’t know they needed to do.

    [Note: i voted against Proposition 8, and was angrier the day after it passed than I have ever been about an election result. I would vote to repeal it in a heartbeat. But I don't think changing the rules retroactively is fair.]

  186. I doubt I can contribute anything that hasn’t already been beaten to death, autopsied, buried, exhumed, restudied, and reburied, so I’ll just say Hooray! And leave it at that!

  187. “Traditional marriage” also carefully avoids discussing what traditional marriage really is. MasterThief alludes to no-fault divorce, but it’s more than that: couverture, where a wife was civilly dead and her husband stood for both of them in the eyes of the law, for a rather big starter. (MasterThief, if he takes Family Law, is probably going to run into that quote from Blackstone about a woman’s identity being subsumed into her husbands, “as a rivulet runneth into the Thames”). Then there’s marital rape, which at common law did not exist, the definition of rape being a man forcing a woman “not his wife”.

    So aside from the few wackaloons who really do want to go back to women being their husband’s or father’s property – most people, when they say “traditional marriage”, are talking about a sanitized model that never existed. They’re not really arguing from precedent. They’re arguing from a fantasy.

  188. Claiming that “the institution of marriage” can be contaminated without providing an example of what concrete effects that contamination has is a form of lying.

  189. aphrael @ 209 — “But … it’s totally and completely unfair to change the procedural rules for any given petition after the signatures have been turned in. The advocates of this measure couldn’t have been expected to follow the revision procedure when they started; the fact that the Constitution changed shouldn’t retroactively require them to do something they didn’t know they needed to do.”

    That’s a fair point, but one that can be disposed of fairly easily. Should the Cal Supreme Court determine that Prop 8 is a revision rather than an amendment, they will not be “changing the rules.” The Constitution will not have “changed.” At most, they will be creating a rule governing an issue that previously didn’t have a rule.

    The Cal Supreme Court is being presented with a question of first impression — whether California’s constitution may be altered by simple majority popular vote in a manner that would strip a protected class of a fundamental right. There is no rule about that. The Supreme Court has to interpret the constitution as it presently stands, in light of other relevant jurisprudence, to determine the appropriate holding on the issue.

    Regardless of how they rule, they are NOT “changing” a rule. And, regardless of how they rule, they will be clarifying a point of law where no clarity presently exists. If there were presently a rule in the constitution that says “Californians may amend the constitution by simple majority vote through the ballot initiative process in any way they see fit, regardless of whether the amendment would fundamentally alter our process of government or undermine the concept of separation of powers” then there would be no argument. The rule is what it is. But that isn’t what the constitution says.

    Whatever procedural unfairness you might perceive in the situation is heavily outweighed by the fact that permitting Californians to alter their constitution in a manner that would operate to destroy a civil right by a simple majority vote, with no other procedural protection whatsoever, is completely insane — and the Cal Supreme Court may well determine that it is impermissible. And, in my opinion, that’s exactly what they should do.

  190. No one has ever explained to me how the “Institution of Marriage” is harmed by letting gays have it. Perhaps because they can’t come up with anything? I suspect that’s why Jake has to come up with his convoluted idea that “gays wanting marriage isn’t a cause of moral degeneration, it’s a sign of it” as if that weren’t just another way of being homophobic. If you call me a sign of moral degeneration that’s not a lot different than calling me a moral degenerate.

    This is going to seem like a tangent, but bear with me: I remember that when Time had some kind of huge anniversary, some years back, they reprinted a few articles and letters from various periods in their history, to give a feel for the times they came from. Some of them were embarrassing to the magazine, as when they said that any grade school kid knows that Dr. Goddard’s rocket can’t work, because as soon as it gets outside the atmosphere it will have nothing to push against.

    Others were sources of pride, as when a reader wrote in to protest the magazine having used the title ‘Mr.’ when writing about a black man (they replied that they would use it for any adult male regardless of color). The reader was arguing, in effect (and maybe in actual words, I can’t remember at this point) that it degraded the title to “expand” its usage to include members of a lesser race. (Sound familiar?)

    Gave me quite the jawdrop at the time. You know the one…I mean, it’s not like you didn’t know that racism was absolutely accepted and totally mainstream in 1928, and that only wacky radicals opposed it, but seeing the actual words of someone from the mindset of the time is still startling.

    Jake’s comments keep making me think of that. I hope that in the not-too-distant-future people will read his comments here with the same kind of jawdrop that that Time reader’s letter gave me.

  191. Xopher, by ‘the institution of marriage’ they’re referring to a whole set of social assumptions about the roles of men and women, both in and out of marriage.

    re the California Supremes – the smart money is on a decision that upholds Prop 8, but not retroactively, allowing anyone who married between In Re Marriage Cases and Prop 8’s implementation to stay married.

  192. I wasn’t actually arguing that the California Supreme Court should strike down Prop 8 based on “revision” argument. (My position, FWIW: I’d be happy if there’s some genuine reason why Prop 8 would be invalid, and I don’t know enough about the legal details to know whether this is a genuine reason.)

    I was just pointing out a couple of the ways in which the California constitution is badly written. The idea that you can take away fundamental rights by a simple majority vote is terrible. The idea that you have one procedure for an “amendment” and a completely different procedure for a “revision”, with no definition of how those seemingly synonymous terms differ, is terrible in a different way. A lot of California’s problems are a result of our bad constitution.

  193. LB: ahh, I think you’re missing my point.

    Assume for the moment that the revision distinction is valid, and that Proposition 8 is a revision under the state Constitution and must follow the revision procedure.

    My point is that it wasn’t a revision on the day the signatures were turned in.

    The fact that it became a revision on the day the Marriage cases decision was handed down should not act to retroactively change the rules which proponents of the measure had to follow to get it on the ballot.

    That’s my complaint: something which wasn’t a revision when it was proposed became a revision by the time of the election through no action whatsoever of the supporters of the amendment. In that case, I think the amendment rules should continue to apply, notwithstanding that the thing has become a revision in the meantime.

  194. Matt Austern – my impression, after watching the three hour oral argument before the state Supreme Court – is that Proposition 8 will be upheld, but that the marriages conducted between May and November will remain valid.

    The key here is that Justice Kennard – part of the majority on the marriage cases case – was fairly vehemently opposed to the revision/amendment argument; she seems to place a great store in the democratic nature of the initiative system, and appeared to think that it is a higher value than just about anything else in the state constitution.

    If she’s not going to support overturning Prop. 8, then its opponents have to get a justice who wasn’t in the majority on the marriage cases case, which seems extremely difficult to do.

  195. Tal @198:

    The nuclear family is not, and has never been a cornerstone of culture, Western or other. It is a modern notion, and one that simply does not reflect the vast majority of households around the world.

    I believe someone upthread brought up the work of Stephanie Coontz; for this subject I gesture at The Way We Never Were: American Families and the Nostalgia Trap.

  196. Mythago @ 215 – Xopher, by ‘the institution of marriage’ they’re referring to a whole set of social assumptions about the roles of men and women, both in and out of marriage.

    The magic trick is that anyone using that phrase doesn’t have to explain themselves to anyone ever, which is why I have such contempt for the people using it. They’re part of a conspiracy of bigoted liars.

  197. This argument that gay marriage will hasten the demise of the institution of marriage, or dilute/rob it of meaning, is similar to the predictions in the 50s that the advent of television heralded the death of movies. Such predictions resurfaced in the 80s, with the advent of home video. Film studios, fearing their livelihoods at stake, went as far as the Supreme Court to ban the technology.

    Turns out those fears were unfounded, those predictions spectacularly wrong.

    I have a 50-inch LCD HDTV, a 5.1 digital surround sound system (100 watts/channel, with a 150-watt sub), and a Blu-Ray player. When I pop in my copy of The Dark Knight, the picture is gorgeous, the audio impeccable. And still the experience doesn’t compare with seeing the movie in a theater.

    But I’m not only talking about my individual moviegoing experience here. I’m talking about the institution of movies. I’m just old enough to remember the days when all you needed to say at the ticket window was, “One, please.” Try that today at your local thirty-screen movie megaplex.

    The institution is alive and well, thanks. Modified, yes, but still thriving.

    I would argue there’s a reason why it continues to thrive: it provides a unique experience, one that can’t be duplicated in the home, no matter how advanced the technology. Its core appeal remains unchanged. Going to the theater is an event, an occasion that, by its nature, is much more special than plopping down on the most comfortable couch in the world and pressing play on your remote.

    And so it is with the institution of marriage. The sense of purpose, of meaning that one gets from marriage is not derived from the knowledge that certain people are allowed to marry, and others are not. Rather, it is the exclusive and lifelong commitment of one person to another that draws us to the institution, that gives it its meaning. That is its core appeal, and allowing homosexuals to marry does not alter that appeal one iota. Rather, it validates it. People still want to participate in it, and will continue to want it, no matter who is allowed to marry.

    Marriage and movies. Neither are going anywhere.

  198. History: The Sacred Band of Thebes, a regiment of 150 paired homosexual male couples for Thebes’ army. You joined the band, you married a guy.

    Massive combing of church records and documents in places like the Vatican, St. Petersberg, Paris, and Istanbul have found records of same sex unions performed in official ceremonies by Christian priests from the early days of Christianity up into the Renaissance. The Domnican Jacques Goar published a collection of Greek prayers that included same sex marriage ceremonies in the 1600’s. The Office of the Same Sex Union was performed for female or male couples in the 10th and 11th century Greece. The Order for Unity of Two Men was performed in the 11th and 12th centuries. In Ireland, there are records of gay marriages in the 12th and 13th centuries. There is evidence that an early Byzantine Emperor married his male partner. (See the Yale University history department.) Don’t screw with history, especially when there are written records.

    In Afghanistan, they’ve just passed a law that makes married women their husband’s property again, and legalizes married rape. Marriage is about law. It is only about religion to the extent that religions control and effect government — are allowed by the law to control and effect government, as occurred in Afghanistan. Or in Iran, where gays can be executed.

    Real people, as has been pointed out, are being effected by law. Marriage gives people not only rights that others don’t have, but power under the law. I have, as a married woman, power that gay people cannot obtain with the partner of their choice. I have the right to the partner of my choice. I cannot, under the laws where I live, be forced to marry someone. I have the right to make decisions about my child, my husband, etc. I have rights to my husband’s money, land, etc.

    This is a battle about power, not religion, matrimony, love, history, the definition of family, or the moral fiber of society. It’s a battle about equality and choice, about my having a right to enter into a legal contract, while others are discriminated against and prohibited from entering it. It is about the legal status and definition of gay citizens. We could make them property, as the Afghanistans just did with women. We could make them citizens denied the rights and powers of marriage, as we currently do. Or we could say that people are equal and have the equal right to chose with whom they enter into legal partnership. Gay marriage is not just about gay marriage, but whether a gay citizen is an equal citizen with access to equal legal powers, and about what all people in our country are going to be allowed to do under the law.

    Our meta-laws say that all adult citizens of the U.S. are equal. Equal is equal. You cannot get rid of equal just because most citizens think someone should not be equal under the law. And when we have laws in place that say we can get rid of equal, we need to void those laws because they are illegal. If they are not voided by the branches of the government, the people have the right to redress by courts and by free speech protest and by vote.

    If you cannot prove why gay citizens should not be equal citizens under the laws of the Constitution, you got nothing. But the longer that we allow gays to be denied equal legal power, the more threatened our own legal power and equality becomes. If gay citizens continue to not be allowed equality and the legal powers of marriage, than I can be denied equality and the legal powers of marriage on some other grounds by those who co-opt the law. I can be denied the right to have my marriage be legally valid because I am not a Mormon. I can be denied the right to own my husband’s property after his death because I am a woman. Throw equality out, you’ll have a much nastier slippery slope.

  199. Mythago @ 195: Now, Tully, I haven’t bored the earlobes off you all yet with a nitpicky legal analysis of the court’s decision. We’ve got some time.

    Heard all the arguments already, Mythago, for years on end. Some are better than others. Spent years fighting to keep a DOMA amendment off of my state’s ballot because I knew it would pass, and withstand scrutiny, and raise the hurdles for ongoing acceptance that much higher. And it passed, and has so far withstood scrutiny.

    We failed. And we failed at least in part because of such “enlightened public discourse” from DOMA opponents as seen above, clearly typified by Xopher’s “fuck you homophobe” rant at #191, or Greg London’s “homophobe bigot” reaction at #206/207. Once you resort to hitting the automatic ad hominem demonization response button to discussion that deviates from your own preferred view, all reasoned discussion with you is OVER. Thus my comment about the predictable “pinnacle” having already been reached.

  200. Tully – We failed. And we failed at least in part because of such “enlightened public discourse” from DOMA opponents as seen above

    Oh, if only we were well mannered and cute like those Queer eye For The Straight Guy actors, all the bigots would melt![/sarcasm]

    Phaugh. If someone calling themselves an ally can’t cope because someone actually gets angry at bigotry they were just looking for an excuse anyway. It might as well have boon someone with a pride bumper sticker who cut them off in traffic.

    Seriously, you’re starting to remind me of the people who told Tempest that her “tone” was the problem back in the Racism 101 threads.

    Once you resort to hitting the automatic ad hominem demonization response button to discussion that deviates from your own preferred view, all reasoned discussion with you is OVER.

    Your problem is that you mistook the person Xopher was pissed at for a reasonable human being.

  201. Tully, we were past the point of arguing with those people. I’m tired of behaving as if these people were making rational arguments when they’re just making excuses as usual. There’s no point in engaging them as if they were rational beings.

  202. Josh Jasper, and Xopher: the problem is that allowing ourselves to get past the point of arguing with our opponents, we cede the field, and let them win.

    That doesn’t mean we shouldn’t get angry. As I said above, I was beyond pissed on the morning of November 5, 2008, and there’s more than a bit of lingering bitterness in my mind over it.

    And yet … when I’m arguing with people who aren’t allies, I have to remain civil; I have to remain polite and engage with them as they see themselves and argue with them in their terms, gently prodding them to see where they are wrong.

    Anything else just pushes them farther away; and pushing them farther away means making it more difficult to win the war.

  203. Aphrael: the problem is that allowing ourselves to get past the point of arguing with our opponents, we cede the field, and let them win.

    We? I don’t concede any such thing. You can feel free to.

    And yet … when I’m arguing with people who aren’t allies, I have to remain civil

    Feel free to do so on your own. Don’t lecture people who choose not to that they’re the reason we’re loosing. It’s tacky. And don’t mistake civil language for actual civility. I’ve lost count of the douchebags who, in all “civility” compared me to a pedophile or animal f*cker, and when I called them on it, I was blasted for a lack of civility.

    The “tone” argument is a derail. It’s a red herring in racism 101, it’s a red herring in the marriage debates. Xopher should have skipped the post telling off muleface because Scalzi doesn’t like that sort of thing, not because it was undeserved or counter-productive.

  204. aphrael @ 217 —

    I understand what you mean…but I think the major mistake you are making is that you are focusing on these procedural rules in terms of their “fairness” to those responsible for setting forth a ballot initiative. “Fairness” to those people is not what the procedural barriers to amending the state’s constitution are about. Those procedural barriers are intended to govern the circumstances under which we will permit our constitution to be changed, to protect the public from being subject to constitutional amendments/revisions that are arbitrary or not sufficiently well thought out. (Although, frankly, the procedural barriers in place in California are pretty lousy, which is why we are in this situation in the first place).

    While it may be true that, in some sense, it is unfair to the people who followed the rules as they existed (or at least seemed to exist) at the time to get Prop 8 on the ballot, the interest in fairness to those people is not at issue. What is at issue is our interest in protecting our constitution by ensuring that changes to the constitution are procedurally proper. The distinction between constitutional amendment and revision isn’t about being fair to the individuals who submit a ballot initiative. That isn’t the point. The point is insulating our constitution from being fundamentally altered in a manner that is too easy to accomplish.

    We are not penalizing the people who put Prop 8 on the ballot by saying that they didn’t follow the necessary procedure. It’s not an ex post facto penalty thing. It isn’t about THEM. It is about US.

    In addition to that, the point I made before still holds — the law is what it is. Prohibition of gay marriage has always been inconsistent with the equal protection clause, notwithstanding that the California Supreme Court just recently got around to making that determination. They didn’t make a new law. They made a determination as to what the law has always been upon presentation of the question in the context of a lawsuit. Likewise, should the California Supreme Court determine that stripping a fundamental right from a protected class constitutes a constitutional revision requiring more stringent procedural hurdles, the Supreme Court isn’t saying that this is something new — they are saying that this has always been the case, but the question simply didn’t come up before. So, while the determinations relevant to appropriate procedure hadn’t been made, I wouldn’t necessarily jump to the conclusion that this particular challenge to Prop 8 was outside of the realm of contemplation at the time Prop 8 was submitted.

    But, as I explained above, even if one could not reasonably expect the founders of Prop 8 to have foreseen the necessity to adhere to more stringent procedure, that “unfairness” (if you want to call it unfairness) is besides the point. The alternative is that we would be permitting what we would now recognize to be a procedurally inadequate submission of a constitutional revision to deny a fundamental right to a protected class because, at the time the submission was made, there had yet to be a judicial determination of what the proper procedure would be (or a judicial determination that Prop 8 constitutes the denial of a fundamental right to a protected class). So we make an exception to the rule because Prop 8 was submitted before the judiciary had an opportunity to rule on the issue? That just doesn’t make sense.

    A lot of people bought slaves at a time when they didn’t know, and could not have known, that slavery would become illegal. Whatever unfairness arises from those peoples’ reliance on slavery laws as they existed at the time they bought their slaves really has nothing to do with the propriety or impropriety of the abolition of slavery. Certainly, it does not dispose of the issue. And this example doesn’t even account for the fact that slavery abolition was, in fact, new law, whereas the determination that discrimination against homosexuals in the institution of marriage violates the equal protection clause, and the determination (if it is so determined) that stripping a protected class of a fundamental right constitutes a constitutional revision, is really a determination of the state of the law as it always has been…regardless of whether or not we were aware of it.

  205. MT @ 169 said:

    “This is why social change, while necessary, should be done carefully, and with deliberation instead of raw zeal. In other words, through legislatures, not courts.”

    That may well be the most nonsensical pairing of sentences I have ever encountered. Anyone who actually believes that legislatures reach conclusions through “deliberation,” and courts reach conclusions through “raw zeal,” and not vice versa, has absolutely zero credibility.

    What an utterly oblivious comment.

  206. CWJ @ 101:

    Regarding where the fear of churches being forced to officiate same-sex weddings is coming from, I believe Sweden is being used as a scare tactic.

    Ake Green, a Swedish pastor, was sentenced to a month in jail (though it was later overturned) over preaching a sermon against homosexuality. Prior to the Prop 8 vote, his arrest was used to bolster claims that legalizing same-sex marriage could affect religious groups’ ability to espouse their beliefs.

    Sweden is also the same country, where, during the debate on the recently-passed gay marriage bill, one of the minor parties was indeed pushing for a requirement that clergy be forced to perform same-sex weddings or lose their right to officiate at any weddings, though that requirement didn’t make it to the final bill.

    The two countries have obviously completely different legal protections and systems, and the 1st Amendment gives sufficient protection that such things are unlikely to ever occur here (even assuming anyone was advocating such). However, this can be viewed by those fearful of government intrusion into churches as revealing the true motives of some advocating same-sex marriage (or perhaps just a preview of where the U.S. could be in X years if they don’t draw a line in the sand).

    Plus, one might imagine that if you’re the type of group that sees a constitution as something the majority can change to restrict the rights of the minority, you’re probably loathe to accept that, when you’re in the minority, your right to express your religious beliefs will be perfectly safe just because the constitution says so.

  207. Brian @232, I doubt most of the people handwringing about churches know much about what’s going on in Sweden; the propaganda spread around in favor of Proposition 8 was that churches would be forced to marry same-sex couples. Couple gay panic with utter ignorance of the law and you get people thinking that if City Hall has to marry two men, so does their church.

  208. YAAAAAY IOWA! It’s been a while since I’ve been as proud of the state I grew up in as I am now. (I just hope it stands… but at least the bigots have two or three years to watch the state entirely fail to go all fire and brimstone, just like Massachusetts has so far entirely failed to fall into the ocean. :-)

    Plus, one might imagine that if you’re the type of group that sees a constitution as something the majority can change to restrict the rights of the minority, you’re probably loathe to accept that, when you’re in the minority, your right to express your religious beliefs will be perfectly safe just because the constitution says so.

    If someone actually articulated to me that they were afraid I’d suspend their constitutional rights when they were in the minority, the only cogent response I can think of is, “I know it’s hard for you to believe, but on this issue, if on no other, I really am a better person than you.”

    Whatever happened to Christians doing unto others as you* would have them do unto you?

    * generic.

  209. tully@224: We failed. And we failed at least in part because of such “enlightened public discourse” from DOMA opponents as seen above, clearly typified by Xopher’s “fuck you homophobe” rant at #191, or Greg London’s “homophobe bigot” reaction at #206/207.

    I’ve no interest in allowing a bigot to hide his bigotry behind language. You want to engage a bigot in “enlightened public discourse”, well, they have a saying about teaching a pig to sing. And the bigot is the pig.

    Ain’t no way in hell that MasterThief gives a rat’s ass about the proper balance of powers between Executive, Congress, and Judiciary to achieve the proper checks and balances in the system. No, he’s learning the system solely to game it. Had masterthief been born a bit earlier, when the federal government attempted to correct racial discrimination, masterthief would be the sort of bigot at the front of the line shouting “State’s Rights!”. As if he gives a rat’s ass about states rights, when he’s really only interested in opposing racial equality and hiding behind the law.

    If MasterThief is not a bigot, by all means, let me hear him come out and publicly acknowledge his real name and the fact that he truly wants to see gay marriage be allowed, and his only concern regarding “judiciary” is merely his undying respect for the Constitution and the checks and balances it created.

    But he can’t do that because he’s a bigot. And he can’t just come out and SAY he’s a bigot, he has to HIDE behind legal bullshit. It’s a concept called “disassociation”. He uses language to disassociate from his real purpose. He happens to be moving in exactly the same direction of a bigot, but, you know, he’s only doing it out of love of the constitution. Or whatever bullshit you want to dress it up as.

    But in the end, bigots like MasterThief are trying to say in essence, “I really want to allow equality of (race, sex, orientiation, etc), but you really mustn’t force me to do it. Leave us alone, and we’ll do it on our own, certainly. But you mustn’t violate (state rights, judiciary authority, some other bullshit excuse) or I’ll have to oppose you to the end of my days.”

    And it’s complete and absolute horseshit. All it means is a someone like Masterthief will defend State’s Rights, judiciary authority, or some other bullshit excuse more than he will defend equality. And that makes him a rule’s-gaming bigot.

  210. Greg, I’m perfectly willing to believe that MasterThief is a ‘federalist’ who has a very abbreviated understanding of the role of the Courts. I went to law school with a lot of of these folks. They tend to be confused about the difference between actual judicial activism – where a court says “Yeah, that’s the law, but we think that’s kind of stupid” – and a court simply rendering a decision that is legally valid, even though that decision may be wildly unpopular or may result in major changes in how the law operates.

    So it’s one thing to say that in a particular case regarding same-sex marriage, a court overreached or engaged in judicial activism; that is, that it did not appropriately analyze the law, and its decision amounted to massaging the law into the path the judges wanted it to go. But to say “this should not be decided by the courts” is to pretend that courts should only be allowed to make decisions that everybody likes.

    I jump down MT’s throat about this less than I otherwise might, because he’s a law student. Unless he goes to Liberty University or something, the first time he whips out a canned pseudo-federalism speech in front of a halfway aware Con Law professor, he’s going to get his ass and his grade handed to him. Probably in a Tupperware container.

  211. You think there aren’t some Con Law professors who’d give him a wink and a nudge on that? C’mon, I read Volokh Conspiracy when I’ve had my antacid treatment. At least some of them are fine with it.

  212. Among the many problems I have with the “immutability” argument is that so many of the gay people I know will claim at some (possibly strategic) point that “sexual orientation” is immutable; at others, they will talk glowingly of the fluidity of sexuality, that Kinsey showed we’re all really bisexual using a 10 point scale, and that thinking that sex or gender or sexuality is fixed is old-fashioned undoubleplusgoodthink.

    The scientific evidence — maybe I should put that in quotes too — on the matter is not very helpful, since it is almost always not about “sexual orientation” but about gender. Homosexual males are assumed to be those who are penetrated/mounted, heterosexual males are those who penetrate/mount. It’s amazingly muddleheaded thinking, at least if you expect scientists to know what they’re talking about and to think logically about it. In this matter, however, I don’t expect them to. And it’s dangerous to hang an argument for rights even on less badly thought-out science, since science can and does change.

    Another problem. If it is argued that homosexual males (for instance) should be allowed to marry other males because we can’t function heterosexually, then bisexual males or any gay-identified males with heterosexuality in their history (i.e., most of us) should not be allowed to marry, because those men can function heterosexually. I don’t see how immutability comes into it anyway, except by bad reasoning. Did the Justices reason in Loving v. Virginia that Mr. Loving had an immutable, biologically fixed orientation toward black females, was therefore incapable of heteroracial marraige, and had a claim to marry a black female? Not as far as I know. I see no reason why same-sex marriage should be subjected to analogous restrictions or rationales.

    I also take exception to your title, John, “Iowa Lets You Marry the Person You Love.” Marriage isn’t about love. It’s a contract about property and related matters. When W. H. Auden married Erika Mann back in the 30s because she’d been stripped of her German citizenship by the Nazis, it wasn’t because he “loved” her in this sense — they were both queer, in fact, and after the wedding they hardly ever saw each other again. There is no reason why you have to love the person you marry, or marry the person you love. I’d urge anyone interested in this issue to look at Nancy Polikoff’s recent book Beyond (Gay and Straight) Marriage, published by Beacon last year; it warns against fixating on marriage as the be-all and end-all of legally protected relationships.

  213. Duncan, you sound like you need a hug. I’m very sorry you were hurt, but to many of us, love is a rather large part of marriage. If I didn’t love my wife, well, lets just say no amount of money could keep us together.

    Does marriage involve a contract – yes. Is marriage nothing but a contract – no. Not even close. If you have been married you should know that. If you haven’t, you have no idea what you are talking about.

  214. This entire thread makes me sad.

    I’m an American who moved for work to Europe in 2001. I’m starting not to recognize my own country, and this kind of crap doesn’t make me want to move back anytime soon.

    I really don’t care about gay marriage. I JUST DON’T CARE. On the scale of “things I care about”, who you frak and who you live with is very low on the list. I’m more excitable about 20 different things.

    But From John’s posting and first comment — I don’t want to hear what you have to say — LA, LA, “Bigot,” LA LA, “Don’t know what the judiciary is about”, LA, LA … — to the almost blind anger and finger-pointing by various commenters, I wonder: Is this what discourse has come to in the United States? A bunch of Coulters against a bunch of Olbermanns? If so, a pox on all of your houses.

  215. Scott, is that really all you see in this thread? For all the occasional lapse into hyperbole, there’s some damned fine debate going on here; John’s comment was meant to try to forestall anyone from going down Stupid Alley in comment threads, and it’s sad that one early commenter ignored that, but later comments (on both sides) are immersed in actual debate.

    Also, I do hope you realize that a statement like On the scale of “things I care about”, who you frak and who you live with is very low on the list is about as privileged a statement as you could make; it’s easy not to care when you’re not in a position of being prevented from doing so. People who are being told that who they frak and live with makes them something less than the neighbors, on the other hand, have some damned good reasons to care.

  216. Duncan – that Kinsey showed we’re all really bisexual using a 10 point scale

    That’s a *six* point scale. I’m not sure if you’re making fun of some strawman you’re importing to make a point, or if you’re really not clued in.

    Scott- I really don’t care about gay marriage.

    Shoo. You’re not contributing anything, other than complaining about what someone’s personal space looks like. If you don’t care, go somewhere where people talk about things you do care about. Like “how I can improve my trolling in ten easy steps” or “advanced pointless whinging for the self important”.

  217. Well, no, marriage doesn’t involve love. It’s a business contract, in which two adults consent to join their assets and legal status, recognized and recorded by the government. No citizens are required to pass a love test to get married, (though citizens who marry non-citizens may have to pass one to keep their partner in the country.)

    Because it is a legally recognized partnership, you can make medical decisions for your partner in the hospital and sit by their bedside, and many other legal and financial benefits of having such a contract. Married people have legal powers, just as businesses that partner in contract have legal powers.

    Gay citizens who want to enter into this contract with someone of the same gender can’t in most of the country, so the battle is not about love, but rights. Yet, most of the gay citizens who want to marry want to do so because they love someone of the same gender. So Scalzi’s title is perfectly appropriate.

    As for Scott, I perfectly understand why he is sad. Every civil rights battle is saddening. But necessary, because it is not just one group’s rights that are involved, but all citizens’ rights. In the words of President John F. Kennedy, if I may be allowed to paste a long quote here:

    “So it is apparently necessary for me to state once again not what kind of church I believe in — for that should be important only to me — but what kind of America I believe in.

    I believe in an America where the separation of church and state is absolute, where no Catholic prelate would tell the president (should he be Catholic) how to act, and no Protestant minister would tell his parishioners for whom to vote; where no church or church school is granted any public funds or political preference; and where no man is denied public office merely because his religion differs from the president who might appoint him or the people who might elect him.

    I believe in an America that is officially neither Catholic, Protestant nor Jewish; where no public official either requests or accepts instructions on public policy from the Pope, the National Council of Churches or any other ecclesiastical source; where no religious body seeks to impose its will directly or indirectly upon the general populace or the public acts of its officials; and where religious liberty is so indivisible that an act against one church is treated as an act against all.

    For while this year it may be a Catholic against whom the finger of suspicion is pointed, in other years it has been, and may someday be again, a Jew— or a Quaker or a Unitarian or a Baptist. It was Virginia’s harassment of Baptist preachers, for example, that helped lead to Jefferson’s statute of religious freedom. Today I may be the victim, but tomorrow it may be you — until the whole fabric of our harmonious society is ripped at a time of great national peril.

    Finally, I believe in an America where religious intolerance will someday end; where all men and all churches are treated as equal; where every man has the same right to attend or not attend the church of his choice; where there is no Catholic vote, no anti-Catholic vote, no bloc voting of any kind; and where Catholics, Protestants and Jews, at both the lay and pastoral level, will refrain from those attitudes of disdain and division which have so often marred their works in the past, and promote instead the American ideal of brotherhood.”

  218. Duncan @ 238 — “I don’t see how immutability comes into it anyway, except by bad reasoning. Did the Justices reason in Loving v. Virginia that Mr. Loving had an immutable, biologically fixed orientation toward black females, was therefore incapable of heteroracial marraige, and had a claim to marry a black female? Not as far as I know. I see no reason why same-sex marriage should be subjected to analogous restrictions or rationales.”

    Immutability is an important consideration because it is a necessary element of what constitutes a protected class for purposes of equal protection analysis. In essence, the government will not go out of its way to protect you from discriminatory treatment which you choose to subject yourself to. Convicted rapists, for example, face all sorts of disadvantages, both in the law and in the greater culture, because of their “convicted rapist” status. But the constitution will not afford the same protection from state discrimination to the “convicted rapist” group as they will to an ethnic minority because being a “convicted rapist” is not a trait that you are born with. It’s something you did to yourself.

    Immutability becomes important in the context of whether gay marriage is truly an equal protection/civil rights issue because there are those who would argue that homosexuality is merely a “lifestyle choice” — something that the gay person can decide to participate in, or not. If homosexuality were merely a “lifestyle choice” — like being a goth, or being a surfer, or being a pet owner — then there would be no good reason to afford them the benefit of heightened scrutiny in equal protection analysis. If you can change the aspect of yourself that is being discriminated against, then it isn’t really discrimination so much as an adverse judgment of a choice you have made.

    You do raise an interesting point about the “Kinsey scale” and the notion that sexuality for many is fluid. And it would seem that for bisexual people, having same sex relationships is, in some sense, optional. However, many gay people are as gay as I am straight — that is to say, they are on the far end of the “Kinsey scale” and have no interest whatsoever in an opposite-sex relationship. It is for those people (who, despite your anecdote, make up the overwhelming majority of the gay community) that homosexuality is indisputably an immutable trait. In fact, a great deal of effort has been made (and, in some contexts, still is made) to “treat” homosexuality as though it were a psychological disorder or an addiction of some kind, and those efforts have always resulted in near total failure. It is as though they are trying to un-black a black person. The Mormons, for example, still characterize homosexuality as a moral struggle against “same sex attraction” that can be dealt with through prayer and self-discipline. Many have tried, and virtually all have failed.

    Even as to bisexual individuals whose sexuality is more fluid, they ought to have the right to marry the person of their choice. The fact that they are attracted to both genders is itself immutable, and this immutable characteristic may well lead to them having a legitimate desire to forge a bond with another person of the same gender. The fact that they could potentially fall in love with and want to marry someone of the opposite gender doesn’t do much good under circumstances when that doesn’t happen. So while the “immutability” argument is tougher to make in their case, there is still no reason to deny bisexuals the right to marry someone of the same gender if they choose to do so — particularly where same-sex marriage already exists to prevent an equal protection violation against strictly homosexual individuals.

  219. LB, that’s a very clear and thorough explanation. Thanks. One question: Religion isn’t immutable either, correct? That doesn’t mean religious discrimination is allowed, that just means that religious groups are not protected the way immutable ones are, and thus there’s no hightened scrutiny?

    For example, I’m Wiccan. I’ve been discriminated against more than once, and some of my friends have suffered much, much worse. Immutability would grant hightened scrutiny, meaning the courts would look at discrimination cases much more readily, but it doesn’t apply in this case, is that right?

  220. Xopher, the decision states:

    That is, we agree with those courts that have held the
    immutability “prong of the suspectness inquiry surely is satisfied when . . . the identifying trait is ‘so central to a person’s identity that it would be abhorrent for government to penalize a person for refusing to change [it].’ ”

    which may (IANAL, but I believe I’ve seen L’s say so) apply to religion as well.

  221. mythago: Greg, I’m perfectly willing to believe that MasterThief is a ‘federalist’

    I’m not.

    “[Their relationship] is essentially different from that of man and wife joined in lawful wedlock.” A North Carolina judge, 1858, referring to a marriage between two African American slaves, unrecognized by the state because of their race

    @113, I said that the US was founded by a bunch of white, landowning, male, slave owners, and that MasterThief’s strict interpretation of the Constitution means that we should take “All men are created equal” to mean all white, landowning, males. And that we cannot in good conscience extend it to women, minorities, or people who don’t own land, until we change the constitution with an ammendment to EXPLICITLY add those people to the constitution. To which, MasterThief@139, in stating that the 15th ammendment was the only reason we can legally extend voting rights to black, said, in effect, “Fuck yeah”.

    I’m expected to take this argument in good faith? That the government cannot do anything that is not explicitly spelled out in the constitution, and individuals do not have any rights but what is explicitly spelled out in the constitition?

    You can. I decline.

  222. @236 Mythago: I actually have taken Con Law (I’m a 2nd year evening student). Made an A and everything.

    The logic here is not that courts should only make decisions that everybody likes, it is that courts exist to say what the law is, not what they think should be; unless the legislature is trespassing on a definable right that can be pointed out in the text or public meaning of the constitution or statute (and vague hand-waving about “equal protection” doesn’t count), it should always defer to the legislature. If this is an “abbreviated understanding” of the role of courts, I share it with a couple of Supreme Court Justices. And no, I do not go to Liberty University. My law school actually has a reputation of being one of the most liberal in the country; it doesn’t even have a working Federalist society chapter. I figured that if I only get to do law school once, I might as well do it with people I will disagree with so as to sharpen my own thinking. And I actually made law review, so I must be doing something right.

  223. @235 Greg London: Yay. Way to validate everything tully said. If you are still puzzled as to how gay marriage advocates lost the vote in California, wonder no further. Throwing the word bigot around at anyone who expresses the slightest doubt or hesitation at forcing a major change to an institution based on nothing more than a slender constitutional syllogism is not a recipe for success.

    I do actually give a rat’s ass about separation of powers, and federalism, and “government of the people, by the people, and for the people.” I do give a rat’s ass about the United States. And if there’s one thing that I have come to appreciate, it is this: no matter how just or righteous the cause, nothing, and I mean NOTHING, justifies running roughshod over the system of government the founders of this nation created in their wisdom. To repeat: it is the legislature that passes, amends, and repeals laws, and creates new rights. It is not, repeat, NOT the job of a judiciary to countermand the laws the legislature passes without anything but the most rock-solid basis in constitutional text and public understanding to do so. Their job, again, and to paraphrase John Marshall, is “to say what the law is,” and not what the law SHOULD be. Otherwise, they’re not really a court. They’re just a backup legislature. And, if faced with only two options, better that there be a tyranny of the majority than a tyranny of the minority. (I have a very long and detailed explanation of on this subject, but there’s a lot of ignorance you packed into your post, and I know Scalzi has the meter running.)

    As for state’s rights, well, go back and read the Constitution. Specifically, the Tenth Amendment. It’s already in there. (The idea that its use by advocates of slavery and segregation somehow negates the idea is defeated by the fact that the states, while they retain a lot of rights, do not have the right, either legally or morally, to hold other human beings in bondage or second-class citizenship. Note, too, that the Civil Rights movement was not a simple case of a majority oppressing a minority, but a minority oppressing a smaller minority, while a majority looked the other way, partly out of apathy, partly to keep the post-bellum peace, until roused to action.) As for what I would have done in the Civil Rights movement, consider, in addition to the above that I am a Christian, and that I do believe, as Paul wrote to the Galatians that “there is neither Jew nor Greek, neither slave nor free, neither woman nor man, for you are all one in Christ Jesus.” You can figure out the rest.

    Please note that I am on the fence on whether gay marriage would be a good thing in terms of social policy if enacted legislatively (such that if you put a gun to my head and forced me to choose, I’d ask if I could do it on the basis of a coin flip), I am in favor of gay civil unions/domestic partnerships (and am old enough to remember a time when this was the chic “progressive” position), of junking laws prohibiting consensual gay sex between adults, and of the rights of gays and lesbians to do everything from holding a job without fear of being fired for their sexual orientation to keeping their closets full of assault weapons to protect themselves from violent gay-bashers. If this is actual “bigotry,” and not just a fever dream, please point out where. Otherwise, stow your attitude, I’m neither impressed nor intimidated.

    I blog and comment pseudonymously precisely because of people like you, who can’t understand the difference between process and result, who can’t understand that what we want is not always law, and what is law is not always what we want, and all else equal, we’re all better off that way. And no, this isn’t “bullshit” or “dissociation” or whatever other form of illness or inadequacy you feel the need to ascribe to your opponents. Quite the opposite. I am more than happy to consider arguments and evidence for or against gay marriage on the merits. But don’t tell me that the one singular issue of gay marriage is worth breaking all the rules and process of our system of government over. It isn’t. Nothing is.

    Roper: So, now you give the Devil the benefit of law!

    More: Yes! What would you do? Cut a great road through the law to get after the Devil?

    Roper: Yes, I’d cut down every law in England to do that!

    More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down – and you’re just the man to do it! – do you really think you could stand upright in the winds that would blow then?

    *braces for mallet of loving correction for going so long

  224. LB – Immutability is an important consideration because it is a necessary element of what constitutes a protected class for purposes of equal protection analysis.

    And still it’s a legal fiction once you define “race” as a concept that can somehow magically contaminate people through inheritance, you have to go back in time and interview everyone’s great grandparents to make sure no one was secretly non-white.

    Xopher – 14th amendment law is more about race than religion (it has been expanded to gender and parental status), but the prohibition against religious discrimination is covered in other areas of the constitution.

  225. MasterThief: Yay. Way to validate everything tully said.

    Tully is assuming that people like you are rational. But people like you are anything but rational. SOmething your last post just validated. So, yay to you.

    If you are still puzzled as to how gay marriage advocates lost the vote in California, wonder no further.

    It was never a mystery to me. Bigots like you gamed the system, and in california, the system to ammend the constitution is easily gamable.

    Please note that I am on the fence on whether gay marriage would be a good thing

    Wow!!! Really???? I’m totally not surprised. That completely did not catch me off guard. I’m completely not floored by this revelation. I’m absolutely not stunned.

    I blog and comment pseudonymously precisely because of people like you, who can’t understand the difference between process and result

    Oh get over your wrongly-persecuted victim-complex bullshit. You’re blogging anonymously because you’re a bigot.

    You’re a bigot and like most bigots, you think you have every rational reason in the world to explain why it isn’t “bigotry” but some logical progression of thoughts and ideas that lead you to your position.

    Oh, sure, you’re “on the fence” about it. As if you’re some totally rational fucking machine that strictly applies theories of law and process and comes to the logical and rational conclusion. Fuck you and fuck that. You’re a fucking bigot, and like every other fucking bigot I’ve ever run into, you think you’ve got the “truth”. Back in the day, it was “white man’s burden”. You think “sitting on the fence” is really that different?

    But don’t tell me that the one singular issue of gay marriage is worth breaking all the rules and process of our system of government over.

    Oh spare me your slippery sloped strawmen. No one here is arguing any such bullshit as breaking “all the rules and process of our system of government”, and you fucking know it. But your argument doesn’t stand a chance in hell if you don’t pretend that we’re making a deal with the devil and you’re trying to save the soul of america while “sitting on the fence” about what is right.

    News flash: YOU. ARE. A. BIGOT.

  226. I do give a rat’s ass about the United States. And if there’s one thing that I have come to appreciate, it is this: no matter how just or righteous the cause, nothing, and I mean NOTHING, justifies running roughshod over the system of government the founders of this nation created in their wisdom.

    I have the urge to start humming

  227. But don’t tell me that the one singular issue of gay marriage is worth breaking all the rules and process of our system of government over. It isn’t. Nothing is.

    wait… nothing??? Seriously? Nothing is worth breaking the rules and process of our government? Not even, oh, hell, I don’t know, just hypothetically speaking here, say state sanctioned slavery? That’s not worth breaking the rules and process of government over?

    nothing?

    Look, you want to open a church that worships a process, then by all means, go for it. Just don’t demand that everyone submit themselves to your “god”.

  228. Masterthief @250:
    I don’t agree with Greg that you’re necessarily a bigot, but I do think you’re making a homophobic argument. You seem to be stating (please correct me if I’m misunderstanding you) that “marriage” and “gay marriage” are wholly different states of union, and that you can’t compare them because the Founding Fathers wouldn’t have recognized them as equal. But we recognize a lot of things as equal that the Founding Fathers would not. We don’t have to update the law every time that we move forward in our understanding of the world. When it became clear that it was possible to go from Atlanta to Boston in an afternoon, we didn’t assume it was illegal to do so. So why should we, when we realize it’s possible for two people of the same sex to have the same sort of relationship as a heterosexual couple, assume it’s illegal for them to be married?
    And in fact, we don’t. Instead, legislatures have passed laws limiting marriage to a specific class, and the courts have been, as is their role, interpreting the constitutionality of those laws.
    So the two arguments against these decisions are either (1) that same-sex and different-sex relationships are fundamentally different, which is a homophobic argument, or (2) that same-sex relationships are not deserving of equal protection, which is also a homophobic argument. So while I don’t believe you’re necessarily homophobic, I must ask: why are you making these arguments if you’re not?

  229. I am more than happy to consider arguments and evidence for or against gay marriage on the merits.

    And then we will know the Peace of Landru.

  230. Xopher — JJ’s response @ 252 is somewhat oversimplified but generally correct. Religious groups need not worry about the fact that their religious status is arguably not “immutable” because religious freedoms are protected under the First Amendment, which carries no “immutability” requirement for such protection.

  231. He’s claiming he’s on the fence about it in order to get some sort of metaphorical “dance” out of the people involved, so when it actually comes to a vote he can say “if only so-and-so treated me better, I’d have voted for your right, but he was a big meanie, so I’m lashing out and voting against you”.

    Presumably, if he’d been alive during the 1960’s, he’d have been seeking out discussions about racist laws and citing Malcom X as a reason he was “on the fence”.

  232. “Talon” was a copy/paste error that incorporated some of the timestamp. Sorry.

    Xopher, I don’t expect you to believe me, like me, or agree with me, but I should say this officially once: You are made in the image and likeness of God, and are worthy of honor and respect. From here on, though, I won’t address charges of bigotry or hatred or intent to cause pain, because I don’t think there’s anything I could do to prevent you from thinking other than you do.

    I started participating in this thread by noting the importance of the definition of marriage. It appears that this is in fact the problem here. From the summary: The purpose of Iowa’s marriage law is to provide an institutional basis for defining the fundamental relational rights and responsibilities of persons in committed relationships. It also serves to recognize the status of the parties’ committed relationship.

    If we were at a blank slate, and I were asked whether the state should legislate “committed relationships” like this, I would ask a lot of questions:

    * How long do these commitments last? (Because of easy divorce, it’s until the people involved don’t want to be committed anymore.)

    * What are these committed relationships for? (Anything you want them to be for. What business is it of anyone else’s what we want out of these relationships?)

    * Why are we recognizing the status of the parties’ committed relationships? (Because we’ve always done it.)

    Not only would I agree with the Iowa Supreme Court — why should homosexuals not get this recognition, if we’re permitting it for heterosexuals? — I would wonder why the state is legislating such a thing at all. If you want to recognize that a couple of people are going steady, feel free to use or invent your own ritual for doing so, but leave the tax code out of it.

    But I think there is (or was) a greater purpose for marriage: supporting the natural source of fecundity of the human race.

    To that end, I was a bit taken aback by one of the statements in the summary: “The statute, the court found, is under-inclusive because it does not exclude from marriage other groups of parents—such as child abusers, sexual predators, parents neglecting to provide child support, and violent felons—that are undeniably less than optimal parents.” I think it should be perfectly legitimate — required, even — to deny child abusers, sexual predators, and violent felons a marriage license.

    Some people won’t like my use of the word “natural”. I don’t like IVF because of the destruction of human embryos and the way it makes us do cost-benefit analysis of human lives: “Should we implant a bunch of the embryos because each cycle is expensive, or should we freeze a bunch of them and hope they don’t deteriorate much?” I feel like it’s playing God with some very tiny lives. (I do think that they’re human lives, by the way; although many disagree, I think that once you have a creature that just needs time, nourishment, and protection to become a fully-functioning adult, you’ve got a human being.) I also think that although there are other methods of impregnation, the law shouldn’t revolve around detecting every which way they happen.

    I also don’t mean, as was apparently argued in Iowa, that marriage makes for more procreation. It’s just that when sex happens, and there’s the possibility or intent of procreation, everyone’s better off when it happens in a supportive legal and societal environment.

    We’re pretty screwed up as a society with respect to procreation. We have people afraid to adopt in the US because they’re afraid that some father or mother is going to suddenly appear and assert parental rights, so they fly to other countries to get children instead of adopting needy ones at home. We have some people aborting perfectly healthy fetuses for their convenience, and others going through a lot of time and money to create their own — and then killing some of those for their convenience, too.

    The weakening of marriage has already happened; the quest for gay marriage is an understandable reaction to it, and is a symptom rather than the problem.

  233. MT @ 250 said “To repeat: it is the legislature that passes, amends, and repeals laws, and creates new rights. It is not, repeat, NOT the job of a judiciary to countermand the laws the legislature passes without anything but the most rock-solid basis in constitutional text and public understanding to do so. Their job, again, and to paraphrase John Marshall, is “to say what the law is,” and not what the law SHOULD be. Otherwise, they’re not really a court. They’re just a backup legislature.”

    That is correct. And that is exactly what the California Supreme Court has done, and will continue doing. Your suggestion otherwise is an ignorant accusation that you cannot back up with anything substantive. You may disagree with the legal analysis of In re Marriage Cases (and there is room for reasonable minds to differ), but suggesting that the REPUBLICAN MAJORITY CALIFORNIA SURPEME COURT was engaging in legislation from the bench without adequate basis in legal authority is, frankly, an outrageous claim that you simply cannot substantiate. The notion that Chief Justice George disregarded the state constitution and related jurisprudence to pursue a policy preference (where, in fact, it isn’t really clear that it is his policy preference) is absurd, and the fact that you are advancing that view exposes your ignorance.

    You say you’re a law student. You have a lot to learn.

    For a response as to everything else you have said, see my comment @ 200, and JS @ 1. I think that about covers it.

  234. Jake @ 260 —

    See my comment @ 200, as it applies equally to your more recent posts. You are nearly as intelligent as you think you are. You are, however, a coward.

  235. Important correction to the above:

    Jake @ 260 –

    See my comment @ 200, as it applies equally to your more recent posts. You are NOT nearly as intelligent as you think you are. You are, however, a coward.

  236. Jake @260:

    You lose me as soon as you start calling divorce “easy” and abortion “convenient.”

    Anyone who calls divorce “easy” has never been divorced. Certainly none of the divorcees I know would describe the dissolution of their marriages that way. They were shattering experiences, financially and emotionally.

    And this notion that women go skipping and dancing into and out of abortion clinics is–pardon the expression–divorced from my reality.

    You seem to proceed from unproven assumptions to unsupported conclusions. You have yet to demonstrate that the institution of marriage is weak, or that gay marriage would further weaken it. Your simple assertions aren’t getting the job done.

  237. It would be much easier to sit back, shut up, and let the prevailing viewpoint rule. (I live in suburban New Jersey and work in Manhattan, so the pro-gay-marriage viewpoint seems to prevail here.) Instead, I comment on what I really think under my real name, and not in an anti-gay-rights echo chamber, either.

    It is harder to face real people — co-workers, friends, and former roommates among them — but I have done that occasionally, too. Of course they don’t like it, and therefore the topic generally gets avoided, but those who know me don’t doubt that I’m sincere.

    Perhaps, as Xopher said, people will one day look back and drop their jaws at how misguided I was back in 2009. I certainly could be wrong; after all, I either was wrong ten years ago, or I’m wrong now. But this is what I think.

  238. You lose me as soon as you start calling divorce “easy” and abortion “convenient.”

    I don’t mean that they aren’t emotionally wrenching. I mean that they are legally easy, and having that alternative tempts people to throw away marriages and even their unborn children’s lives instead of working through their problems.

    I’ve seen the easy availability of divorce undermine the marriages of couples in my extended family, my neighborhood, and my co-workers. I’ve seen it in the attitudes of divorced women telling their sister (not my sister, but a woman I was close to), “What are you hanging on to him for? Get over it already!”

    The vast majority of abortions in this country occur because the mother (or the mother’s parents) feel like having a baby would make it difficult to go to school, continue a career, etc. I don’t mean to trivialize their experience or their problems, but they aren’t life-and-death issues.

  239. I’m sorry to break this into three posts, but I forgot to respond: I felt that I demonstrated how weak the institution of marriage has become in post 260. If the definition given by Iowa is all there is to marriage, then I’m not sure why the state has a vested interest in supporting it at all.

  240. Jake @ 265 —

    “It is harder to face real people — co-workers, friends, and former roommates among them — but I have done that occasionally, too. Of course they don’t like it, and therefore the topic generally gets avoided, but those who know me don’t doubt that I’m sincere.”

    I’m not talking about chit chatting with your liberal friends. I’m talking about addressing the issue with the individuals whose lives are directly and adversely impacted by the nonsense you are spewing. The fact that you don’t understand the difference underscores the problem.

    I’m more than happy to discuss the issue of gay marriage with anyone who claims to be directly impacted on either side. Are you? Because if so, I’d be happy to put you in contact with some of my friends and relatives who are gay, and who are married (for now, at least), or other gay friends of mine who didn’t get married, but would like to at some point in their lives. For some reason, they have all found it very difficult to get people like you to talk to them directly about why they shouldn’t have rights. They just want someone to come tell them, to their face, why their commitments to one another aren’t worthy of social recognition. Would you mind doing that, please?

  241. Jake (@260),
    I can understand your arguments about the current state of marriage in the U.S. (though I don’t agree.) What I don’t understand is your belief that same-sex marriage is a symptom of the weakening of marriage. Thousands if not millions of people are fighting to make lifelong commitments to each other, to have governmental protection for the products of their “fecundity”, to raise their children “in a supportive legal and societal environment”, and you think this means that marriage is weaker? Marriage is weakened by its denial to those who wish to join it, not by their joining.

  242. I didn’t make myself clear, LB, but I meant gay people who fit all three of those categories, including one who considers himself married to his partner.

  243. Jake: The weakening of marriage has already happened; the quest for gay marriage is an understandable reaction to it, and is a symptom rather than the problem.

    weakened compared to what? Compared to when women were treated as property? Compared to when women had to marry to have rights via their husband? Compared to when women knew their “place”? The entire basis of your argument comes down to an emotional appeal to the “good ol’ days” of marriage, which never actually existed.

    What statistics are you using to compare today’s “weakening of marriage” to something from the past?

    Jake@90: removal of the stigma against single parenthood

    Yeah, because, you know, the thing a single mom needs is a stigma around raising a kid by herself. That’s what would really help single mom’s around the world: the threat of a public stoning if they bear a child out of wedlock. What we ought to do is make some laws that put single moms in prison and take their child into protective custody, just so they know what they’re missing about the “good ol’ days” of married bliss.

    Tell me, did the low divorce rates of yesteryear have everything to do with everyone being in a state of married bliss? Or was it more realistically a function of the stigma that people like you were more than willing to assign to people who got divorced? More realistically a function of the functional issues that came from women having far fewer choices in getting jobs?

  244. Jake: I’ve seen the easy availability of divorce undermine the marriages of couples in my extended family, my neighborhood, and my co-workers. I’ve seen it in the attitudes of divorced women telling their sister (not my sister, but a woman I was close to), “What are you hanging on to him for? Get over it already!”

    Better to stay in a marriage that makes everyone miserable? Better to give them a “stigma” for getting divorced?

    Do you realize that you are sitting back and rendering absolute judgement about what is best for everyone in every situtuation because you say so, rather than letting the individuals deal with their individual circumstances?

    It depends on who you ask but there are psychologists and such who think that some relationships are such that divorce is the best case scenario of a bad situation. And here you are wanting to put a “stigma” around a woman’s neck because her husband is a bastard?

    You want me to believe that the “good ol’ days” of marriage never had bastard husbands or bastard wives??? I don’t believe it. I believe that what you call the good ol’ days had husbands and wives who were just as much bastards as husbands and wives are bastards today, but back then, self-righteous people like you would happily stigmatize, ostracize, banish, and even kill people who didn’t carry on what you decide is the “proper” way for a husband or wife to act. So, people trapped in shitty, abusive, marriages had to choose between abuse from their spouse or abuse from the self-righteous like you.

    I certainly could be wrong;

    Uh huh.

  245. Jake F@266, etc.,

    Assuming that you are correct, how does the ‘problems’ of today’s marriage policies mean that the civil right of marriage, weak or strong, should be denied to same-sex couples?

  246. Jake @ 270 — “I didn’t make myself clear, LB, but I meant gay people who fit all three of those categories, including one who considers himself married to his partner.”

    If that’s true, then congratulations — you are a rare breed. One who actually has the intestinal fortitude to tell people to their face that they don’t deserve the same rights as you. Kudos for that. Because my gay friends and relatives are having an awfully hard time finding people like you. Maybe we Californians are just too darn friendly.

    I should note that you haven’t actually talked to a gay married couple — but if you’re in Jersey/NY, I suppose that’s forgivable, considering you’re not likely to encounter any in person. (Although if you’d like the opportunity, I know some who would LOVE to speak to you!)

    So, did you listen to what they had to say on the matter? Anything interesting? Did any of them happen to mention that your view that their desire to have appropriate social recognition of their commitment to one another is sympomatic of and furthering the “weakening of the institution of marriage” is not only incredibly insulting, demeaning, and offensive to them personally, but also constitutes a pretty sorry justification for depriving them of basic freedoms? Or maybe that preventing the theoretical erosion of an already flawed social construct isn’t a very good reason to perpetuate discrimination and deprive real, tangible, flesh-and-blood people of the ability to create legally recognized family units? Or anything along those lines?

    Do any of the “gay friends” you have spoken with on this issue have kids? (I know you “don’t like” IVF, but there are presently existing children who are the product of IVF and who seem to like being alive just fine — as well as a number of other circumstances that led to gay parents raising children). What do those kids have to say about your moral opposition to their parents being legally bound to one another to promote the security of their families?

    If you can have encounters of the sort described above, and still find yourself able to escape to the theoretical world you have articulated in your posts above in an effort to justify what you and people like you are doing to real, live individuals and families throughout America, then maybe you are not a coward. But you are a sociopath.

  247. KatG@244

    Gay citizens who want to enter into this contract with someone of the same gender can’t in most of the country, so the battle is not about love, but rights. Yet, most of the gay citizens who want to marry want to do so because they love someone of the same gender. So Scalzi’s title is perfectly appropriate.

    So, then, you agree. Part of marriage is about love.

  248. @Jake, #266

    I wouldn’t consider divorce legally easy. Many people are simply separating and not bothering to end their marriage in a legal sense. Others are not getting married at all, which is probably the simplest legal answer. I do know several couples that are avoiding getting married despite being in a long-term relationship simply due to their experience from a previous divorce.

  249. I am rapidly running out of time for this discussion this evening, although I’ll try to get back to it later. I thought I’d address this point, though, because it frames the discussion so well: Do you realize that you are sitting back and rendering absolute judgement about what is best for everyone in every situtuation because you say so, rather than letting the individuals deal with their individual circumstances?

    No, I’m not. I’m discussing what the state should officially sanction and promote. That limits the discussion by quite a lot, because there are an infinite number of activities in which people will engage, for better or worse, and the state shouldn’t officially sanction or promote very many of them. Most of the time, in my opinion, the state should just get out of the way.

    I’m not asking for a return to sodomy laws or hoping that women will “stay in their place” or hoping that I’ll be able to beat my wife without legal ramification. I’m also not endorsing some abstract ideal as the only way that people should live — absent active persecution, people will live as they choose, regardless of what the state sanctions.

    I am saying that the watered-down version of “the purpose of marriage” in the Iowa lawsuit looks like it could be applied to teenagers going steady, a pair of business partners, old army buddies, or any other group of two or more people, especially because it can be broken off at nearly any time for nearly any reason. And that seems like a weak shadow of what we’ve called “marriage” for thousands of years.

  250. Jake

    I don’t mean that they aren’t emotionally wrenching. I mean that they are legally easy, and having that alternative tempts people to throw away marriages and even their unborn children’s lives instead of working through their problems.

    Have you had a divorce? Do you actually know what one has to do to go through one? Have you sat in front of a judge and tried to explain exactly why you feel your promise to each other is no longer a going concern, that there is absolutely no possible way of going on together? Have you had that judge say “Have you tried counseling? Have you tried taking some time and talking about your problems? Have you actually tried to solve your issues? Or are you just giving up for no reason?” and you look that judge in the eye and feel the entire weight of your broken promise come to bear on your shoulders and know, still, that this is the right decision even if it feel wrong? And that’s a amenable one. Then you wait a number of months until it is complete, and you have to divide your friends, and you look and feel like a complete loser. Divorce is not easy, by any means. Even the mechanism is set up to make you think about what you are doing before you go through with it. It is necessary, but not easy.

    I’ve seen the easy availability of divorce undermine the marriages of couples in my extended family, my neighborhood, and my co-workers. I’ve seen it in the attitudes of divorced women telling their sister (not my sister, but a woman I was close to), “What are you hanging on to him for? Get over it already!”

    So? What does this have to do with same-sex marriage? You say this, but it has absolutely no relevance to the topic at hand.

    The vast majority of abortions in this country occur because the mother (or the mother’s parents) feel like having a baby would make it difficult to go to school, continue a career, etc. I don’t mean to trivialize their experience or their problems, but they aren’t life-and-death issues.

    Citation needed. Also, so? What does this have to do with you? Again, what relevance does this have to same-sex marriage, other than none at all?

  251. On the “ease of divorce”….

    About the only good thing I can say about the years that my parents’ divorce dragged on is that by the time the horror show finally concluded, my brother was several years past his majority and thus custody was removed from the issues on the table.

    (He was fourteen when it started.)

  252. Jake 260: Xopher, I don’t expect you to believe me, like me, or agree with me, but I should say this officially once: You are made in the image and likeness of God, and are worthy of honor and respect.

    Then by what possible argument do you feel it’s appropriate to deny me basic rights? Do you feel that you’re doing what Jesus would do in this situation? Do you think you’re doing justice, and loving kindness, and walking humbly with your God (Micah 6:8)? I rebuke you: you are not. You are being unjust, because you have given no cause why I should be denied these rights; you are being unkind, because you know your view, if adopted, would cause suffering to many people, as well as real economic harm; and you are being prideful because you think you know what’s best for those of us who are struggling for these rights (or just don’t care, which goes back to unjust and unkind).

    Don’t tell me I’m worthy of honor and respect and then treat me (and the entire class to which I belong) with dishonor and disrespect. If nothing else, it tempts me to show my respect for you with a large dead fish (floortch on the side of your head, Don Martin style).

    ____ 267: If the definition given by Iowa is all there is to marriage, then I’m not sure why the state has a vested interest in supporting it at all.

    Yet I note you don’t argue for the abolition of the legal institution of marriage.

    ____ 270: Then tell the one who’s a “friend” from me that he’s a total wimp to go on considering you a friend. You would not be friends with someone who told you to your face that you were inferior and not entitled to fundamental rights. My guess is that your friend is suffering from internalized homophobia. I’m not surprised that you want to keep on reinforcing that, because he’ll never speak to you starting the day he grows a pair.

  253. I’m discussing what the state should officially sanction and promote.

    Which has nothing to do with the topic of this discussion. The Iowa Supreme Court did not say “Hey, our state should officially sanction and promote same-sex marriage.” It said that the current marriage laws which ban same-sex marriage violate the Iowa state constitution. That’s a legal conclusion, not a statement of values.

    And actually, Jake, when you want to get marriage back to what it’s been for thousands of years, you are saying that you want your wife to be legally inferior to you and under your control. That’s what marriage has been for thousands of years.

  254. Actually, my divorce from my ex wife was relatively easy. It was getting to the point where we both decided it was necessary that was tough. And yes, we did have counseling, and no, it wasn’t helpful. An additional legal battle just to do the hing we both wanted to do would have beenthe state telling us we were bad people for getting divorced, and neither of us were bad people. We just weren’t compatible anymore.

    The ease at which one can be laid off has been a lot more damaging in my life than the ease at which one can get a divorce.

  255. MasterThief @249:

    The Iowa Supreme court did not “create new rights”. What it did was apply garden-variety Equal Protection analysis to ask “does this law comport with our state Constitution?” The answer was, no, that law did not; therefore the law was unconstitutional as written. So the Iowa Supreme Court did exactly what the judicial branch is supposed to do, and did not usurp the legislature’s role. (I was an officer of my law school’s Federalist Society chapter, fyi.)

    If you scored an A in Con Law, then you are familiar with Marbury v. Madison, which I presume you believe was correctly decided. If you made law review, you’re presumably smart enough to know that you do not judge the validity of a legal decision on “do I agree with the result?”, but on whether the judges applied the law correctly.

    So, given all that: what exactly is your problem with the Iowa decision? It can’t be “federalism”, since the decision was simply evaluating the constitutionality of a law – an entirely appropriate exercise of judicial power.

    The charitable interpretation is that you haven’t bothered to read the decision, and therefore don’t know on what it was based, so you assume because the result is “gay rights” it must of COURSE have been judicial activism; you’re mixing up the process and result you mention in your post.

    The not-so-charitable interpretation is that you know very well that there is nothing improper about the decision, from a federalist’s perspective, but are throwing around talking points because you don’t approve of same-sex marriage.

  256. greg: Do you realize that you are sitting back and rendering absolute judgement about what is best for everyone in every situtuation because you say so, rather than letting the individuals deal with their individual circumstances?

    Jake: No, I’m not. I’m discussing what the state should officially sanction and promote. … I am saying that the watered-down version of “the purpose of marriage” in the Iowa lawsuit looks like it could be applied to teenagers going steady, … And that seems like a weak shadow of what we’ve called “marriage” for thousands of years.

    Uh, yeah, that sounds exactly like you’re rendering your moral judgment about what “marriage” means based on the last thousand years, rather than what’s best for each individual, actually alive and dealing with a relationship, you know, today.

    What you say the state should “promote” is simply very thin cover for your personal moral judgment about what marriage should be based on the last thousand years, and that’s got fuck all to do with people who have children, today, and who can’t guarantee who will get custody when they die because they’re gay and because certain shitheads have taken it upon themselves to thrust their self-righteous nose into their lives and tell them what they can and cannot do.

    Fuck the last thousand years. Living people, real flesh and blood human beings, are getting screwed over today because assholes think it more important to hold to some fairy tale fantasy of what marriage means to them than to acknowledge that the last several thousand years were ruled by homophobic, sexists, racists, bastards who ruled by sword and the “divine right” of kings. You want a morality based on the last thousand years? The stonings, crucifixitions, burnings at the stake, witchhunts, and inquisitions will resume at 3 pm.

    You want a morality based on the last thousand years, that’s what you get. You want marriage based on the last thousand years??? You’re smoking some serious weed over there.

  257. Josh@284 – It is true that some states have easier divorce laws and procedures than others, and it is also true that an amicable, or at least agreed upon, divorce is procedurally easier.

    All we had to do, my ex-wife and I, was pay an exorbitant sum to the Florida gov, fill out the paperwork in which I had no assets and she pretty much got everything, and sit in the court for a couple of hours until the judge ruled on the thing. Then we had to wait 30 days until it was legal.

    But the reason it was so simple was because A) we had the money – $300, B) I had the time to get the paperwork, C) We had no shared assets, and D) I had the time to sit in court and wait for the judge. These are all set up as obstacles for many couples who can’t pay the fees or have property and other assets to split, etc. We were actually anomalous in that context. From the paperwork, it was obvious that, had we anything at all to disagree on or things to split, we would have been in court for months.

  258. rick 276: Thanks for that! It gets very near the heart of the matter, yes. And sung so sweetly!

    mythago 285: The not-so-charitable interpretation is that you know very well that there is nothing improper about the decision, from a federalist’s perspective, but are throwing around talking points because you don’t approve of same-sex marriage.

    Not unlike being a ylvat fnpx bs fuvg.

    Wind. Wings.

  259. Any sort of disputed contract is going to be tedious to bring to an end, marriage is no different. But $300 isn’t a vast sum. If you can’t afford that, you can always separate, wait, and save until you have it. It’s not like remaining married on paper is such a horrible fate.

  260. Xopher – glad you enjoyed it! A friend sent it to me and I immediately thought of this discussion… :)

  261. Josh@289 – That was my point. Divorce is not “easy” – in certain cases it is easier than others. But you don’t just get a divorce like you get a Slurpee, the way Jake makes it sound.

  262. Bah, can we take marriage back two thousand years to when the Romans would marry two people regardless of their sex. If we’re appealing to tradition and all.

  263. A straight couple decides to solemnize their bond. They go to a court and sign a license; they may or may not go to a church and have a fancy ceremony. By virtue of submitting one piece of paperwork, their bond gains a panoply of rights under state and federal laws.

    A gay couple decides to solemnize their bond. They go to a court and, except in a few places, have the option of a “civil union,” if even that. They may or may not go to a church and have a fancy ceremony. Depending on their state laws, they may have almost all the same rights as straight married couples, or they may have nothing more than a fancy certificate saying they swore a vow to each other. It’s a dead certainty, however, that at many times during their lives together, they will have to defend their union from the ignorant who claim that they aren’t “really married” — or, if they’re really unfortunate, from family members who refuse to accept their union as legitimate and level legal challenges to it that would be thrown out of court prima facie if the same challenge were leveled at a straight married couple.

    In America, we do not perpetuate injustice simply because it’s traditional. I have never heard an argument against gay marriage that did not boil down to “I don’t want them having this special thing that I have.” The echoes of privilege in that comment are distasteful and a poor substitute for compassion.

  264. Andrew – also, that “Civil Union” is only valid in a few states, Many others have laws claiming that none of those rights are allowed to be extended to same sex partners. So if they get into a car accident in, say, Florida, the hospital ER nurse can (one a whim) deny the other the right to make medical decisions only a spouse can just because he or she is a bigot.

    It’s happened.

  265. Slightly off-thread: WAY TO GO VERMONT VETO OVERRIDE!!

    Sorry for the all caps, but come on, I think they’re justified here.

  266. So if they get into a car accident in, say, Florida, the hospital ER nurse can (one a whim) deny the other the right to make medical decisions only a spouse can

    Yes, but the founding fathers didn’t intend gays to be married, and the idea of “marriage” for the last several thousand years didn’t have gays be married. It’s much more important to hold to a definition held by dead bigots than to allow equality to living human beings.

  267. Oh for the love.
    I was so excited about the WSJ email alert I got that it never occurred to me that the new post of yours I saw in my reader was about this. Now I feel foolish.
    Wait — who cares? YEAAA IOWA AND VERMONT!

  268. “Being long-winded is not generally a Malleting offense.”

    Phew! Dodged a bullet there, then. :)

    Corby Kannard — My marriage is about love, but someone else’s may not be. The government can’t regulate love for two citizens, nor should they. Marriage under the law is a legal contract. Anything beyond that is the choice of the people in the marriage.

    Jake Freivald — Ah, I see, the marriage is already morally degenerated, so of course the gays want in view. Generally known as the why do women have to have rights that are not granted by my church argument. Or to put it another way, you’re saying marriage’s purpose is to sanction natural procreation, which is known in many circles as the women are cows philosophy. As has been noted previously, marriage was for thousands of years the purchase of a woman as property for the purpose of a man wanting to have babies, like a cow, and it is still that way in many parts of the world. (That’s why many marriages were not officiated by priests, as it was a simple purchase contract.) Over time, in some countries, women became property with some rights, then they got to give consent to the marriage but were still property when they were married — they must have sex with their husbands and bear his children (as is going on now in Afghanistan.) In most cultures, men could divorce a woman, but a woman could not leave the marriage. If a woman had children out of wedlock, she was not only stigmatized but forced into penury, along with her children. If a man had children out of wedlock, nothing happened to him. Because women are livestock, inferior, whose main purpose on this Earth is to bear children.

    So now, in the U.S., most of the time, a woman has control over her own body. She legally cannot be forced to get pregnant or bear children. She can marry without being forced to have children. She can have children and raise them without having to be married — without the ownership and social/legal sanction of a man. She can work in whatever profession she chooses and can manage. She can own property and assets and buy and sell them. She can terminate a marriage because her husband is abusive, a drug addict, unfaithful, or just because they are making each other miserable and can’t change it. She can vote and not at her husband’s designation. She is no longer property. She decides what her own marriage is going to be about. She is a citizen, a person, with full rights equal to a male citizen.

    So in the words of our fellow Greg, screw you and the horse you rode in on if you’re going to tell me that my marriage is supposed to be about procreation just because you think so, and that if I disagree, this is just another sign that marriage has deteriorated as an institution. Marriage has evolved in this country, so that it is no longer about men breeding women like cows, so that it is about choice, not punitive laws.

    Divorce is not legally easy unless both parties getting divorced are willing to make it so. I have a relative who is going through hell, in large part because of the laws. Abortion is not primarily done by women who care more for their careers, and it is typical of people who view women claiming their rights as degenerate behavior to assert that this is the case. The majority of women who get abortions are poor, single, young, uneducated, and cannot financially support a kid or a pregnancy. A certain percentage of them have been raped. Some of them are drug addicts. But whatever their reasons, you can think whatever you like of them, but you don’t have the right to legally dictate to them how they live their lives and what they believe. (At least for the moment.)

    Abortion and divorce have nothing to do with rights to gay marriage. But the view of women as morally degenerate because they do not live their lives according to someone’s view of how they should act is relevant. This is the argument being made against gay marriage — their life is not how I feel people should be. The justification for the argument is that the gays are a threat, either directly (will molest or recruit your children,) or indirectly (if they can marry, it will allow the government to destroy my church, or my state government to have less power, etc.) It’s the same argument that is made for each civil rights battle.

    Here’s the deal — you can call them morally degenerative all you like, because in this country, we have free speech. They’re still going to fight for their equal rights. And they’re winning. Go Vermont!

  269. Still waiting for one of the IM IN UR COURTS ISSUING YR ACTIVIST RULINGS crowd to explain exactly why the Iowa or California rulings overstepped the bounds of judicial authority and intruded on the province of the legislature.

    Since none of them has bothered, I’m going with the explanation that they’re just making shit up.

  270. I backed out of this thread for a sanity check, and to get some paid work done. But I see there’s more that needs to be said. So…

    @285, 300 Mythago: Please read my post @54 above. TL;DR version: I can’t complain much. The Iowa Court tried to act like a court by considering evidence and constitutional fact, the CA and MA just sent down fiats. (Since the Iowa Court is elected, there’s always going to be a temptation for it to be political and insert itself into policy questions – elections inevitably mean some political choice, even without party labels. Even so, there’s a way to decide cases that is based on law first, result second, instead of the other way around – which is what the CA court did, which is why Iowa was unanimous and CA was 4-3.)

    @248 Greg: It’s not a question of what you can do “in good conscience.” It’s a question of what your neighbors and fellow citizens will accept. In a word, the question is “legitimacy.” (A.K.A. “Oh yeah? You and what army?”)

    To run with your example of slavery, Given the long-standing and very determined opposition to civil rights for African-Americans among Southerners, there were only three ways possible to get it done and have it stick:

    1. Convincing them to pass it through laws (which was not going to happen).

    2. Assemble a supermajority, and override the Southern state’s legal process through a Constitutional one. (This is what ended up happening with the Reconstruction Amendments. As a side note, one of the key divides between the North and South is that the South believed that the states could nullify inconsistent federal laws, while the North did not. That’s part of the reason why there was a Civil War, and why there will never be one again. In that case, the answer to the legitimacy question actually involved an army.)

    3. Impose it through courts. The North recognized that this was a bad idea, profoundly undemocratic, and would never be accepted as a legitimate result by the losing side – abolitionists no doubt felt similar feelings when Dred Scott was handed down. (Heck, even Lincoln recognized that forcing anything through courts was a bad option. As a contrast, note that the right to abortion is a textbook example of #3. 35 years later, the country is still divided over the issue.)

    So that left option 2. And guess what? It worked. Nobody questions that African-Americans can vote anymore. (Aside from the whole “it actually took an army” thing, but again, that was probably inevitable.)

    @253: Here you accuse me of irrational bigotry, yet you produce nothing but invective as evidence.

    Yes, I am trying my damndest to be rational on this issue. (And if you want the long version of what I think about gay marriage and why skepticism of the idea is both warranted and != bigotry, this covers 99.44% of it.)

    @255: Again with the slavery example. Again, a misreading of history. One way or another, for reasons economic and demographic, slavery in the South was on the way out. When Lincoln was elected, the South realized this, and that they were definitively in the minority. And then THEY were the ones who broke the rules through secession to preserve their “peculiar institution.” And then the whole analogy breaks down.

    @256 Mark Moskowitz: Just because two things are similar does not mean they should be regulated the same way and under the same standards. (e.g. Car travel is very loosely regulated; air travel is so heavily regulated that the government can, and has, simply ordered all planes out of the sky without further explanation.) Additionally, I’m not sure how you arrive at the conclusion that saying same-sex relationships are different then opposite-sex relationships is homophobic. Recognition of difference does not necessarily imply superiority or inferiority. And at the risk of contradicting Brown v. Board (IMO right decision, badly reasoned), separate does not necessarily mean unequal. I have many similarities with my female friends, but I do understand that there are immutable differences between us in physiology and temperament, and we will never be truly “equal” in absolutely everything. But does this mean I am a gynophobe? I don’t think so. (At least, I hope not!)

    @261 LB: Justice Baxter’s dissent in that case did a perfectly adequate job in demonstrating how the majority in the case DID legislate from the bench. I don’t see what more I can add.

    I think this covers everyone. (Seven response posts in one!) But one quote from Lincoln’s speech linked above seems relevant to end with, especially in the context of the later post on Vermont:

    Why should there not be a patient confidence in the ultimate justice of the people? Is there any better or equal hope in the world? In our present differences, is either party without faith of being in the right? If the Almighty Ruler of Nations, with His eternal truth and justice, be on your side… that truth and that justice will surely prevail by the judgment of this great tribunal of the American people.

  271. MasterThief @301 – It’s pretty obvious that you have not actually read In Re Marriage Cases, since you claim that the Iowa court relied on amicus briefs that the California court didn’t. That is false.

    Here is the opinion in HTML format; I refer you to footnote 59, referencing and quoting from the briefs you laud the Iowa court for citing.

    So: having established that you didn’t read the ruling, and your claim in @54 about the difference between Iowa’s and California’s rulings was wrong, what now is your objection?

  272. @302: The briefs shared authors, but they were cited for entirely different propositions. The California Supreme Court cited them in fn. 59 for the proposition that gay marriage imposes a disparate treatment on gay individuals.

    The Iowa Supreme Court cited these same authors for the proposition that there is no scientific evidence to back claims that a gay marriage is an unhealthy environment for children, in the context of finding that that the Iowa legislative classification was underinclusive. (Slip op. at p. 11 fn. 3, p. 54 fn. 26, p. 57-59.) That is an entirely different, and (to me) far more relevant point.

    Upon review, my point @ 54 stands.

  273. MT: Justice Baxter’s dissent in that case did a perfectly adequate job in demonstrating how the majority in the case DID legislate from the bench.

    So, of all the judges, a minority of them thought the majority was wrong. Duly noted.

    I don’t see what more I can add.

    In all your boogity-boogity, you never actually mention what it is your insane worship of the process over all else is supposedly protecting the US from. If a judge rules that the constitution says “BLAH” and this law violates “BLAH”, then ruling the law unconstitutional is the judge’s job. What exactly, specifically, in concrete terms do you think you’re protecting us from such that you’re willing to allow real people to suffer harm right now?

    It’s not a question of what you can do “in good conscience.” It’s a question of what your neighbors and fellow citizens will accept. In a word, the question is “legitimacy.”

    Screw you. Seriously. You just made the argument that THE MOB WINS, that rights spelled out in the constitution MEAN NOTHING if the MOB (your neighbors and fellow citizens) vote against those rights.

    Tell me what exactly is the purpose of the Rights spelled out in the constitution if my neighbors and fellow citizens are a bunch of bigots and want to discriminate against some member of a minority group?

    You just made the argument that “legitimacy” which is now indistinguishable from “mob rule” is more important than human rights. And you’re a fucking coward to hide that level of fascism behind your bullshit propaganda term of “legitimacy”.

    First, you portray your bullshit as defending the “process” and now you’re making up complete bullshit about “legitimacy” and defining it to mean what you want everyone else to do, and your “legitimacy” sure as hell isn’t in the process.

    You’re a bigot and a hypocrite.

  274. MT@250: I do actually give a rat’s ass about separation of powers

    MT@301: It’s a question of what your (bigoted) neighbors and fellow citizens will accept. (A.K.A. “Oh yeah? You and what army?”)

    So, which is it, MT? Do you give a rat’s ass about separation of powers? If the citizens pressure their representatives to pass a law that is unconstitutional, can the judiciary branch tell them to fuck off?

    Or, is it about “legitimacy” which you then explain means that whatever the mob wants, the mob gets? And to hell with the judiciary, because anything they say will always be opposed by the bigots who want the status quo?

    You’re a bigot and a hypocrite and the evidence is right there.

  275. MT, you say you give a rat’s ass about separation of powers, which I would take to mean that the judiciary would have the power to strike unconstitituional laws.

    And yet this concern for separation of powers stops at the point of “you and what army”. As far as I can see, this means your concern for separation of powers is useless in the face of a mob, which is the only place constitutional rights are actually needed.

    To me that means you’re not interested AT ALL in the process, the checks and balances, and such. You’re interested in appeasing the mob in order to avoid violence.

    But the violence isn’t directed at you. It’s directed at the gays and lesbians who end up dead being the victim of a hate crime.

    You’re concern, as stated by your rather long pontification about slavery, is about a civil war? Or that the mob might get so angry that it somehow harms you?

    Do you realize that you are in effect asking gays and lesbians to continue to suffer under unfair laws so that you don’t end up suffering some consequence yourself?

    You’re not interested in the separations of powers at all. You’re interested solely in protecting your own interests. And you’re willing to allow others to suffer because you don’t want them to rock your boat.

    That’s about as neutral of a tone as I can muster to describe what you’ve just said.

  276. Insisting on Majority Rule over all else is unAmerican.

    Our Constitution (the seminal founding document of our nation) was designed to strike a balance between rule of the majority and protection of the rights of the minority.

    That’s why we have a Bill of Rights. Hell, that’s why we have a House of Representatives AND a Senate.

  277. MasterThief @303: California already had a domestic partnership system in place which allowed same-sex couples to share households, adopt children and become second parents of their partner’s biological children. So it’s a little hard for the State of California to say, with a straight face, that the court needs to figure out whether a same-sex couple ought to be legally recognized because what about the children? So there was no need to decide whether or not same-sex unions are OK for kids. California decided yes it is OK, and did so long before In Re Marriage Cases.

    Now. You know, and I know, that you are changing the subject. You have been complaining that the California court overstepped its role as a court by holding that California’s marriage law conflicted with the state’s Constitution. You keep saying this by fiat, without explaining what, precisely, the Court did wrong.

    Both Iowa and California’s courts looked at the marriage laws, determined that they were problematic under their state’s constitution, and that the state’s justifications for the law did not overcome the constitutional issues. This is basic Equal Protection analysis, as you know, because you were a stellar Con Law student. So, I ask again:

    1) What precisely did the California court do that overstepped its judicial role?

    2) What did Iowa do differently that made it OK?

    And please don’t try to handwave everybody with the APA brief. You know, and I know, that if any court ever said “Hey, screw this Constitutional stuff; gays can raise kids, so they should be allowed to marry, end of story” that it would be judicial activism and overreaching.

  278. MT @ 301 —

    “Justice Baxter’s dissent in that case did a perfectly adequate job in demonstrating how the majority in the case DID legislate from the bench. I don’t see what more I can add.”

    Judge Baxter’s dissent — which I respectfully disagree with — does not support your suggestion that members of the majority on In re Marriage Cases made their decision based on what they believe the law should be, rather than their good faith view of what the law is.

    You have stated the following:

    “Their [the Cal Supreme Court's] job, again, and to paraphrase John Marshall, is “to say what the law is,” and not what the law SHOULD be. Otherwise, they’re not really a court. They’re just a backup legislature.””

    I agreed with that statement and claimed that the Cal Supreme Court, in the context of In re Marriage Cases, was absolutely faithful to that principle, and that your suggestion to the contrary, made without any supporting evidence, is highly inappropriate.

    You now claim that Baxter supports your view that the majority in In re Marriage Cases was out of line, and pursuing their policy preferences rather than faithfully interpreting law. While I can see where you might get that idea — some of Baxter’s language is stronger than one typically sees in an opinion (even in a dissent) — it simply isn’t the case that Baxter was suggesting that the Cal Supreme Court wasn’t faithfully executing its duites.

    Baxter’s major objection is to the majority’s apparent use of the fact that California had already granted the rights associated with marriage to same-sex domestic partnerships as evidence that the legislature has already recognized a right of equality in marriage. Baxter’s quarrel with this analysis is that it circumvents the legislature’s inability to overturn statutes enacted through the initiative process. And, in all candor, he makes a fair point in that regard — one that I might find more persuasive if I thought that reliance upon California’s civil union laws were necessary to establish that a right to equality in marriage exists and has been adequately legitimized — which, of course, I don’t.

    In his discussion of this issue, Baxter does make some comments suggesting that he thinks the majority is overreaching. However — and this is important — at no point does Baxter suggest that anyone in the majority did not honestly embrace the legal analysis set forth in the majority opinion. Baxter’s opinion, of course, was that the majority’s analysis was flawed — but Baxter did not accuse the majority of deliberately ignoring an indisputable legal principle in favor of a policy preference, as you have done. He certainly argued that the RESULT was an overreaching of authority on the part of the judiciary — based on his legal analysis and opinion — but the accusations that you are making are not accusations that Baxter made, or would make.

    You might argue — as Baxter did — that the effect of the In re Marriage Cases ruling was in excess of the judiciary’s power. I would disagree with you, as I disagree with Baxter’s analysis in that regard. But that would at least be a valid and respectable (albeit, in my view, badly misguided) opinion. What is not a respectable opinion is to suggest that the majority disregarded their duty to interpret the law, and instead instituted a policy preference that they knew was not supported by legal authority. To suggest as such is a direct insult to the members of the California Supreme Court in the In re Marriage Cases majority, and not something that should be stated lightly or without a great deal of supporting evidence. You have no supporting evidence. Thus, your suggestion that the California Supreme Court isn’t doing its job is inappropriate.

  279. By the way, MT, just out of curiousity — what do you think of District of Columbia v. Heller? Surely that, too, must be another ugly example of judicial activism…right?

  280. LB – I just want to say that I love the way you write. 312 had me going “damn that’s good!”

  281. LB, for real judicial activism it’s a toss-up between Employment Division v. Smith, and pretty much any civil forfeiture case in the 1990s over the proceeds of alleged drug crimes.

  282. Many of the posts against me essentially use more or less hyperbole to imply two things:

    1. That “doing things as we’ve always done them” is no reason to do anything

    2. That an appeal to tradition means that I must be willing to accept all of a tradition, including women as chattel, stoning of unwed mothers, and a host of other evils.

    Yet gay couples themselves prove that these two things false.

    1. If marriage as a traditional institution were meaningless, then gay couples wouldn’t want it. But they want something that is “doing things as we’ve always done them”. In fact, they’ve gone so far to say that equal legal standing (civil union) is irrelevant, and that it’s the traditional and normative aspect of the word “marriage” that they’re fighting for.

    2. If wanting a tradition implies wanting all the baggage that has ever been associated with a tradition, then gay couples wouldn’t want marriage at all because it’s oppressive to women and homosexuals. But they do want it, provided that as an institution it incorporates their view of civil rights.

    So we all agree that marriage as a traditional institution is a Good Thing, even though not everything about every marriage or every legal implementation of marriage has always been good.

    The Iowa ruling bothers me because it shows how minimal that Good Thing has become. As I said earlier, “If the definition given by Iowa is all there is to marriage, then I’m not sure why the state has a vested interest in supporting it at all.” Xopher said, “Yet I note you don’t argue for the abolition of the legal institution of marriage”, and he’s right, I haven’t argued for it yet — but I do fear that that’s where my logic ultimately leads.

    While I was away from my computer, Jane Galt has done a great job of discussing some of the issues that surround changing social institutions and the breakdown of marriage. It even deals with some of the other comments directed toward me, such as the stigma attached to unwed motherhood and the relative ease of divorce. I roughly agree with everything she said.

    LB asked me about talking to gay people about views on gay marriage. I shouldnt’ make more of that then there was: They disagree with me, and I admit that the conversations tend to be short, but they don’t seem to think I’m a bigot. None of them have kids. (I did have an extended conversation with a gay man who was once married to a woman, adopted children, and later divorced her and lived with a male lover. I don’t count him in this list because he wasn’t independently a friend of mine; he certainly had no respect for my opinion.) I could, of course, pass on to them the fact that Xopher thinks they’re spineless because they don’t think that I’m not worthy of being their friend, but it’s a little ironic considering the fact that non-judgment of individual relationships is part of the issue here.

    It should be noted that I “don’t like” IVF in the sense that I believe it’s the direct cause of the manufacture and foreseeable death of many dead children. The fact that it’s also the source of some living people is, in that sense, immaterial. It’s also part of the way that we’re screwed up as a country (yes, I’m talking the US here) with respect to reproduction: the abortion, adoption, and divorce comments were also all related to that.

    I said, “I’m discussing what the state should officially sanction and promote.” Xopher replied, Which has nothing to do with the topic of this discussion. The Iowa Supreme Court… [gave] a legal conclusion, not a statement of values. But I’m not arguing with the Supreme Court; I’m saying why I think same-sex marriage is probably not a good idea.

    I think I have to be done with this conversation, folks.

  283. Jake @319, good hyperbole, but no. On your first two points:

    1. The past has a vote. It just doesn’t get a veto.

    2. “Traditional marriage” is a larger package of cultural traditions and legal mores than one-man-one-woman marriage. Using the term ‘traditional’ is intended to bring up a whole bunch of warm, fuzzy nostalgia and to imply that there is a hallowed way of doing things. You can’t, then, turn around and complain that you should be allowed to surgically excise all the inconvenient parts of “traditional marriage”.

    And of course, it’s precisely the discarding of traditional marriage that led to the possibility of same-sex marriage. Once you’ve gotten rid of centuries of Anglo-American legal and social tradition than put the husband as the master of the house and expects that the purpose of marriage is to produce children, you kinda lose your credibility to talk about tradition and how marriage always has been and so forth.

    Your counterpoints are equally silly: you pretend that same-sex (not always “gay”) couples wanting marriage means they want traditional marriage. Yet you’ve already defined traditional marriage to mean man/woman, so how can this be? Do you think that wanting the legal protection and social sanction of marriage really means wanting every “tradition” that goes with it? I suppose you would ask newlywed couples which of them is going to wear the pants in the family.

  284. JF @ 319:

    “(I did have an extended conversation with a gay man who was once married to a woman, adopted children, and later divorced her and lived with a male lover. I don’t count him in this list because he wasn’t independently a friend of mine; he certainly had no respect for my opinion.)”

    Gee, I wonder why.

    FWIW I disagree with Xopher’s stance that your gay friends (to the extent they are in fact your friends) are spineless for not disowning you. To the contrary, it is admirable on their part that they are willing to put up with you, to look past your ugly opposition to their right to simply be themselves and have their relationships be treated with equal dignity to ours. Hell, they are saints. I hope you appreciate that.

    The comments I made @ 200 still apply. It is fortunate that the tide is turning, and ideas like yours are becoming a thing of the past. I look forward to the day when folks like you will find yourselves either apologizing for the suffering you have caused, or trying to pretend like you were on the right side all along. I’m guessing you’ll be an apologizer. But I suppose I could be wrong…

  285. Meh, why is that Jane Galt essay getting the play it is? It’s persuasively written, sure, but the social science is just poor.

  286. Jake: Yet gay couples themselves prove that these two things false.

    Uh, no, they don’t.

    1. If marriage as a traditional institution were meaningless, then gay couples wouldn’t want it.

    What. The. Fuck.

    Gays want “marriage” because bigots try to find loopholes in “civil union” bullshit. Someone mentioned a gay partner in a civil union being denied the ability to make medical decisions for an unconscious spouse because a nurse didn’t think they needed to respect “civil union”.

    Some companies extend benefits to married spouses but not civil union spouses. all manner of bigoted bullshit like that, where bigots insist on “separate but equal”, where bigots insist on “civil union” not “marriage”, where bigots insist on civil unions being the same thing, except, surprise, they’re not the same. And anyone who believes a bigot when the bigot says “separate” can still be “equal” is a moron.

    But they want something that is “doing things as we’ve always done them”. In fact, they’ve gone so far to say that equal legal standing (civil union) is irrelevant, and that it’s the traditional and normative aspect of the word “marriage” that they’re fighting for.

    Yeah, because “separate but equal” (“civil unions” instead of “marriage”) is bullshit and the only ones who believe it are the bigots and their fools.

    I said, “I’m discussing what the state should officially sanction and promote.”

    You’re choices are:

    (1) get the state completely out of the business of marriage, civil unions, and any other such relationship. Then everybody is treated equally. This ain’t gonna happen since marriage property laws and custody laws are things that no husband/wife would ever want to give up, which is exactly what husband/husbands and wife/wifes want. Straights will never give this up, so this is a bullshit option.

    (2) push for separate but equal. Push for “civil union” for gays and “marriage” for straights. And pretend that Separate But Equal is really equal. The bigots and their fools will love you for this. Everyone else will know this is a bullshit option.

    (3) push for marriage for straights and gays. The bigots won’t like it. But, they’re bigots, so screw em.

  287. Jake @ 319 – In fact, they’ve gone so far to say that equal legal standing (civil union) is irrelevant, and that it’s the traditional and normative aspect of the word “marriage” that they’re fighting for.

    There are no Civil Unions in the US that grant the same rights as marriage. Even in states like CA where they’re required by law to gran those rights, you can’t pack them up and take them cross country. So that’s a red herring. The anti-same sex marriage crowd isn’t *offering* something that grants all the same rights either.

    You’re sadly ignorant if you think no one notices that Civil Unions are inferior to marriage. So of course we’re not interested. You made an attempt at a bait and switch, but you got busted.

    And if that’s the point on which you were resting your argument, you fail.

    I think I have to be done with this conversation, folks.

    You come in on a fail, you go out on a fail.

  288. I realize that Jake (who, with all his flaws, is still better than Vox Day) has Flounced, so he won’t see this, but here is the Final Report of the New Jersey Civil Union Review Commission WARNING: PDF

    Comments, from Civil Unions Don’t Work.com:

    Making its final recommendation, the New Jersey Civil Union Review Commission says the civil union law “invites and encourages” harm to same-sex couples and their children. The commission cites “overwhelming evidence” the civil union law will never provide equality with the passage of time

    The 13 Commissioners include not only LGBT leaders, but also a right-to-life Republican, plus two clergy, plus six government officials representing an Administration that had opposed marriage equality in the courts.

    If Civil Unions were really treated like marriages, the commission would have come to very different conclusions. Also Jake would oppose them.

  289. Jake Freivald — My angry post to you was that you had clearly expressed that you think things like unwed mothers and divorce are, with gay marriage, the symptoms of the disease that marriage has become. The cause of the “disease” is that women have fought for and obtained more legal, equal power in marriage and their life choices. You disapprove of these things, of women being able to make those choices. You made claims that women get abortions to further their careers and that women encouraged other women to just shrug off their divorce like it was nothing because obviously they don’t respect marriage. So you saying that you of course disavow the old marriage idea of women as chattel and lacking in power doesn’t hold much weight with me. Your views about how marriage should be handled to not be diseased mean women would be inequal under marriage law.

    And marriage is about law, not morals. Marriage is not a traditional institution and that’s not why gays want to have the right to do it. It’s a legal and financial contract making the two people who sign that contract a legal and financial unit partnership. Your stuff is now shared with me. I have legal say in our joint transactions. I am legally responsible for our children and for our children if you become incapacitated. If you die, I inherit our property. Marriage gives legal rights and powers to the participants and their families. Marriage as a legal contract protects the legal rights of families as spouse and dependents.

    Domestic partnerships and civil unions are a separate but equal sop for people too threatened by the idea of gay citizens having equal legal rights to the marriage contract. They seldom provide the same legal rights as marriage contracts do, and even where they might come close, they can be easily ignored, as has been noted.

    Only if gays have the right to enter into a marriage contract are they legally protected and entitled to the same legal powers as their fellow heterosexual married citizens. They are discriminated against on the grounds that they do not qualify to become legal and financial units, just as blacks were discriminated against by being forced to stick to selected schools, hospitals, and other facilities in the U.S. South as not qualified to use white facilities.

    The law is secular. The law is for all citizens. And the law is not about what you morally believe to be right lorded over your neighbor, keeping him from making a legal contract that you can enter into. It’s the equivalent of saying that you can buy a house, but gay citizens can’t. They can buy a tent maybe, but not a house.

    As long as gay citizens cannot enter into a civil marriage contract, we are causing them not just emotional harm, but financial and legal harm. We are threatening their partners, their children. We are depriving them of the right to decide their own finances, to receive medical care, and a host of other ills. All because some citizens disapprove of people being gay, and decide to use the law to force others to follow their beliefs instead of a baseball bat. (Though some have been known to use the bat.)

    That’s injustice. That’s hatred. And that is a far more horrible and pernicious disease than what you think has happened to marriage.

  290. Coming in very late to this discussion (though I did read it, mostly), this caught my eye:

    FWIW I disagree with Xopher’s stance that your gay friends (to the extent they are in fact your friends) are spineless for not disowning you. To the contrary, it is admirable on their part that they are willing to put up with you, to look past your ugly opposition to their right to simply be themselves and have their relationships be treated with equal dignity to ours. Hell, they are saints. I hope you appreciate that.

    Along with the various other comments about maintaining friendships with anti-gay people. This made me think of a particular experience of mine. My only sibling is an older sister who has been in the rather conservative/evangelical Christian camp for a very, very long time (since she was a teenager). Me coming out and having a relationship with another woman did not go over particularly well. The “scorched earth” approach would have been for us each to write each other off, but neither of us did that. We just sort of muddled through. Even though she opposes the way I live, she treats my partner with respect, and that is the important thing.

    Yes, it hurts knowing that she would most certainly vote in favor of things like Prop 8, even knowing (and loving) me.

    A few years ago, after 10 years together, my partner and I hit a really bad rough patch and separated for a few months. It looked for a while like the relationship was going to end. I put off telling my family about this for a few weeks, afraid they would secretly be happy. My non-religious, but always weird-about-the-gay-thing parents were not particularly helpful during this time (they never liked my partner). My evangelical sister was incredibly supportive, and not in a “thank god you’re out of this relationship” sort of way. She actually referred to our breakup as a Divorce and she compared it to the recent divorce of one of her long-time friends.

    I was terribly sad at the prospect of this relationship ending, but even so, I saw this as a tiny victory. My relationship was legitimate enough in her evangelical Christian eyes to give its ending the name “divorce.” Even with all her opposition to gay marriage (which, to be fair, I mostly assumed — we stopped talking politics long, long ago), she still DID regard my long-term relationship as a marriage, at least at its end. Yes, I realize in some ways this is a sad commentary that I found some small solace in my marriage’s recognition coming as it did at the end, but still.

    Happily, my partner and I managed to resolve the issues that were causing the breakup and we got back together, and are now approaching our 13th anniversary this summer. Last summer we had talked about taking a trip to California this year and getting married even though it wouldn’t mean anything where we live, but of course Prop 8 killed that. Alas.

    Anyhow, sorry for the ramble, but I did want to make the general point — I don’t think a scorched-earth policy with regard to friends and family members is a good idea. Someday, my sister may truly come around and support gay marriage…she’s given small signs of this already. Jake’s friends perhaps are not “saints” but are people who like him for other reasons, and perhaps hope that their example might someday bring him around.

  291. I am not a saint. I am not as good a person as SaraS. I have learned that a scorched-earth policy with family members leads to regret. I reconciled with my father well before his death, but we missed years.

    You don’t get to pick your family. You’re bound to them, like it or not, so finding some accommodation (unless they’re really so toxic that your mental or even physical health depends on excluding them from your life) is desirable.

    You do get to pick your friends.

    I do not think I have lost any friends with my stance on same-sex marriage and friendship. I have friends with whom I do not discuss the issue, in part because it just never comes up with them, and partly because I suspect they may feel obliged (for religious reasons) to take a position in conflict with their hearts’ dictates.

    In one sense, it’s logically impossible for me to LOSE a friend to this cause, because someone who believes I should not have the same rights as a straight citizen, or who believes that my relationship is undeserving of the honor bestowed on a straight relationship, is already no friend of mine.

    But I’m making a stronger statement: I have made my position abundantly clear among my friends, and never yet have I had to sever the ties of friendship with a single one. Perhaps that means I lead an insular existence, surrounded only by libruls; I don’t know. I think it means my friends are all people of empathy and compassion who have a strong sense of justice.

  292. Xopher – you make good points about the difference between friends and family. Now that I am thinking about it, I have not lost any friends due to this issue either, and for the same reasons as you*.

    I don’t know what side of this debate all my friends fall on, because like you say, it doesn’t come up. But yes, I do expect my friends to treat my relationship the way they would a heterosexual marriage. (Incidentally, that is *also* why my sister and I were able to get along, because she did the same, regardless of how she personally might have felt about it.) Of course I could not be friends with someone who treated my partner (or my relationship with her) with contempt. If I ever meet a Maggie Gallager-type in person, I imagine any potential friendship there will end before it has the chance to begin!!

    And I really, really, did NOT mean to imply that I’m better than you in any way, shape or form.

    *As an aside, I HAVE indeed lost friends merely due to being gay…but that was years ago during the initial coming out process. I’m sure most of us have had that unfortunate experience as well.

  293. I didn’t think you were implying that you were better than me. That was my own opinion, based on your story.

  294. FYI, everyone, that smirking bitch Maggie Gallagher was a single mom herself. Had a baby out of wedlock. *cking hypocrite.

  295. Scorched earth is not best, no. Your interaction with your sister helped her learn to have a compassionate view of you as a person in a relationship like her own.

    Sociologist Paul Saltzman, who studies prejudice, said of it: “Prejudice is always based on disinformation and sweeping statements that define all people according to one rule.” One of the best ways to stop this is for people to get to know gays in their lives — how present they are as 10% of the population, how they are as varied in their behavior and lives as straight people, how they are family, friends, neighbors, service people. It’s a lot harder to maintain bigotry toward someone who you interact with on a regular basis, a lot harder to declare someone you know evil.

    As long as we’re talking, whether that is verbal confrontation or verbal discussion, we may get somewhere. At the least, it makes people aware that they have to share the planet/country with people whose views and lives they don’t like, rather than try to force those people to hide or stay in their own little corner.

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