The Massachusetts Supreme Court on Gay Marriage and Children

I’ve got to run and do some chores, but I wanted to post this section from the Massachusetts Supreme Court’s decision. It’s become clear that the anti-equality bigots (I’m sorry to use such language – some of the anti-equality bigots are people I respect and consider friends – but there are times when we should call a spade a spade) who oppose gay marriage have fallen on “marriage is about the children” as their last pretense at a rational reason to oppose gay marriage.

Anyhow, the Massachusetts court decision does a wonderful, succinct job destroying the anti-equality case. Although some of the argument is specific to Massachusetts law, much of it is generally applicable.

Our laws of civil marriage do not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy and every other means of creating a family. General Laws c. 207 contains no requirement that the applicants for a marriage license attest to their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may be and stay married. See Franklin v. Franklin, 154 Mass. 515, 516 (1891) (“The consummation of a marriage by coition is not necessary to its validity”). People who cannot stir from their deathbed may marry. See G. L. c. 207, § 28A. While it is certainly true that many, perhaps most, married couples have children together (assisted or unassisted), it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage.

Moreover, the Commonwealth affirmatively facilitates bringing children into a family regardless of whether the intended parent is married or unmarried, whether the child is adopted or born into a family, whether assistive technology was used to conceive the child, and whether the parent or her partner is heterosexual, homosexual, or bisexual. If procreation were a necessary component of civil marriage, our statutes would draw a tighter circle around the permissible bounds of nonmarital child bearing and the creation of families by noncoital means. The attempt to isolate procreation as “the source of a fundamental right to marry,” post at (Cordy, J., dissenting), overlooks the integrated way in which courts have examined the complex and overlapping realms of personal autonomy, marriage, family life, and child rearing. Our jurisprudence recognizes that, in these nuanced and fundamentally private areas of life, such a narrow focus is inappropriate.

The “marriage is procreation” argument singles out the one unbridgeable difference between same-sex and opposite-sex couples, and transforms that difference into the essence of legal marriage. Like “Amendment 2″ to the Constitution of Colorado, which effectively denied homosexual persons equality under the law and full access to the political process, the marriage restriction impermissibly “identifies persons by a single trait and then denies them protection across the board.” Romer v. Evans, 517 U.S. 620, 633 (1996). In so doing, the State’s action confers an official stamp of approval on the destructive stereotype that same-sex relationships are inherently unstable and inferior to opposite-sex relationships and are not worthy of respect.

The department’s first stated rationale, equating marriage with unassisted heterosexual procreation, shades imperceptibly into its second: that confining marriage to opposite-sex couples ensures that children are raised in the “optimal” setting. Protecting the welfare of children is a paramount State policy. Restricting marriage to opposite-sex couples, however, cannot plausibly further this policy. “The demographic changes of the past century make it difficult to speak of an average American family. The composition of families varies greatly from household to household.” Troxel v. Granville, 530 U.S. 57, 63 (2000). Massachusetts has responded supportively to “the changing realities of the American family,” id. at 64, and has moved vigorously to strengthen the modern family in its many variations. See, e.g., G. L. c. 209C (paternity statute); G. L. c. 119, § 39D (grandparent visitation statute); Blixt v. Blixt, 437 Mass. 649 (2002), cert. denied, 537 U.S. 1189 (2003) (same); E.N.O. v. L.M.M., 429 Mass. 824, cert. denied, 528 U.S. 1005 (1999) (de facto parent); Youmans v. Ramos, 429 Mass. 774, 782 (1999) (same); and Adoption of Tammy, 416 Mass. 205 (1993) (coparent adoption). Moreover, we have repudiated the common-law power of the State to provide varying levels of protection to children based on the circumstances of birth. See G. L. c. 209C (paternity statute); Powers v. Wilkinson, 399 Mass. 650, 661 (1987) (“Ours is an era in which logic and compassion have impelled the law toward unburdening children from the stigma and the disadvantages heretofore attendant upon the status of illegitimacy”). The “best interests of the child” standard does not turn on a parent’s sexual orientation or marital status. See e.g., Doe v. Doe, 16 Mass. App. Ct. 499, 503 (1983) (parent’s sexual orientation insufficient ground to deny custody of child in divorce action). See also E.N.O. v. L.M.M., supra at 829-830 (best interests of child determined by considering child’s relationship with biological and de facto same-sex parents); Silvia v. Silvia, 9 Mass. App. Ct. 339, 341 & n.3 (1980) (collecting support and custody statutes containing no gender distinction).

The department has offered no evidence that forbidding marriage to people of the same sex will increase the number of couples choosing to enter into opposite-sex marriages in order to have and raise children. There is thus no rational relationship between the marriage statute and the Commonwealth’s proffered goal of protecting the “optimal” child rearing unit. Moreover, the department readily concedes that people in same-sex couples may be “excellent” parents. These couples (including four of the plaintiff couples) have children for the reasons others do — to love them, to care for them, to nurture them. But the task of child rearing for same-sex couples is made infinitely harder by their status as outliers to the marriage laws. While establishing the parentage of children as soon as possible is crucial to the safety and welfare of children, see Culliton v. Beth Israel Deaconness Med. Ctr., 435 Mass. 285, 292 (2001), same-sex couples must undergo the sometimes lengthy and intrusive process of second-parent adoption to establish their joint parentage. While the enhanced income provided by marital benefits is an important source of security and stability for married couples and their children, those benefits are denied to families headed by same-sex couples. See, e.g., note 6, supra. While the laws of divorce provide clear and reasonably predictable guidelines for child support, child custody, and property division on dissolution of a marriage, same-sex couples who dissolve their relationships find themselves and their children in the highly unpredictable terrain of equity jurisdiction. See E.N.O. v. L.M.M., supra.

Given the wide range of public benefits reserved only for married couples, we do not credit the department’s contention that the absence of access to civil marriage amounts to little more than an inconvenience to same-sex couples and their children. Excluding same-sex couples from civil marriage will not make children of opposite-sex marriages more secure, but it does prevent children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of “a stable family structure in which children will be reared, educated, and socialized.” Post at (Cordy, J., dissenting).

No one disputes that the plaintiff couples are families, that many are parents, and that the children they are raising, like all children, need and should have the fullest opportunity to grow up in a secure, protected family unit. Similarly, no one disputes that, under the rubric of marriage, the State provides a cornucopia of substantial benefits to married parents and their children. The preferential treatment of civil marriage reflects the Legislature’s conclusion that marriage “is the foremost setting for the education and socialization of children” precisely because it “encourages parents to remain committed to each other and to their children as they grow.” Post at (Cordy, J., dissenting).

In this case, we are confronted with an entire, sizeable class of parents raising children who have absolutely no access to civil marriage and its protections because they are forbidden from procuring a marriage license. It cannot be rational under our laws, and indeed it is not permitted, to penalize children by depriving them of State benefits because the State disapproves of their parents’ sexual orientation. [...]

The department suggests additional rationales for prohibiting same-sex couples from marrying, which are developed by some amici. It argues that broadening civil marriage to include same-sex couples will trivialize or destroy the institution of marriage as it has historically been fashioned. Certainly our decision today marks a significant change in the definition of marriage as it has been inherited from the common law, and understood by many societies for centuries. But it does not disturb the fundamental value of marriage in our society.

Here, the plaintiffs seek only to be married, not to undermine the institution of civil marriage. They do not want marriage abolished. They do not attack the binary nature of marriage, the consanguinity provisions, or any of the other gate-keeping provisions of the marriage licensing law. Recognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race. If anything, extending civil marriage to same-sex couples reinforces the importance of marriage to individuals and communities. That same-sex couples are willing to embrace marriage’s solemn obligations of exclusivity, mutual support, and commitment to one another is a testament to the enduring place of marriage in our laws and in the human spirit.

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44 Responses to The Massachusetts Supreme Court on Gay Marriage and Children

  1. 1
    Annie J. says:

    I just simply don’t understand people’s fear of “allowing” gays the RIGHT to marry.

    Are we not dealing with consenting adult citizens of the United States?

  2. 2
    Simon says:

    Oh, right on. Especially this: “Recognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race.”

    I do not understand the fear of the diminishment of marriage that some people have.

    One quibble, which only reinforces the point. The court writes: “The ‘marriage is procreation’ argument singles out the one unbridgeable difference between same-sex and opposite-sex couples, and transforms that difference into the essence of legal marriage.”

    But even that isn’t an unbridgeable difference, for – as the court pointed out earlier – many opposite-sex couples are as unable to coitally procreate as same-sex couples are.

  3. 3
    John Isbell says:

    “the anti-equality bigots.”
    Amen. We hold these truths to be self-evident: that all men are created equal…

  4. 4
    lucia says:

    But even that isn’t an unbridgeable difference, for – as the court pointed out earlier – many opposite-sex couples are as unable to coitally procreate as same-sex couples are.

    Yep. Me for example. I’m married.

  5. 5
    dragon says:

    cheers to go massachusetts!

    and why do those same people who make the ‘for children’ argument, oppose gays adopting??!!!

    anyways, i think legality or benefits should not be based on marriage. there’s an underlying assumption here by the state that everyone should or will be married!

  6. 6
    Scooter says:

    Re: anti-equality bigots. I gotta admit to preferring just plain “bigots.” There are just so many things they seem to be anti- besides just equality. The Constitution, for one thing. They really seem to hate that one.

    And of course, they’re anti-gay most of all.

  7. 7
    Ampersand says:

    Scooter, I just prefer to frame this issue as being for or against equality. To me, that’s the central issue, and we have to fight attempts by the right to ignore this central issue.

  8. 8
    Scooter says:

    Ampersand sez: “Scooter, I just prefer to frame this issue as being for or against equality. To me, that’s the central issue, and we have to fight attempts by the right to ignore this central issue.”

    Well, as long as “bigots” is somewhere in the descriptor, I reckon I’m happy. :)

    Personally, I think the best way to beat the right-wing on this issue is to tie Bush’s anti-gay, anti-equality bigotry to Fred Phelps’ anti-gay, anti-equality bigotry.

  9. 9
    Lis says:

    Personally, I think the best way to beat the right-wing on this issue is to tie Bush’s anti-gay, anti-equality bigotry to Fred Phelps’ anti-gay, anti-equality bigotry.

    Turning your argument on its ear, Scooter, sell a positive message and tie the Democrats to equality and fairness and justice and freedom. [And while we're at it, maybe we can pry the libertarians away from the GOP.]

  10. 10
    JRC says:

    Hooray for Massachusetts!

    Even in these dark and depressing political times, it’s good to keep in mind that in the long run, I think we’re winning on social issues. Gay folks are more accepted now than they were 20 years ago. . .and to all appearances, they’ll be more accepted still in another 20. The same is true of interracial couples, women in the workforce, etc. Progress is slow, and I would never pretend that we’re where we need to be yet, but it IS happening, thank the gods.

    —JRC

  11. 11
    Amy Phillips says:

    Lis: The way to pry libertarians away from the GOP isn’t to sell a message of equality, fairness, justice, and freedom. It’s to actually be in favor of those things, which the Democratic Party often isn’t, at least not in the way libertarians define them. You can’t be wholeheartedly for fairness while simultaneously promoting programs that favor unequal treatment based on race. You can’t be wholeheartedly for freedom while favoring restrictions on businesses, zoning, and commerce. I do believe that the Dems are more in favor of many important values than the GOP is, but if you really want to lure libertarian voters, you need to actually make moves to compromise with us, not just pay lipservice to the values we hold in common.

  12. 12
    Simon says:

    Amy Phillips: I presume you’re opposed to golf handicaps as well?

    Turning a blind eye to minorities not being given an equal start in life, and then not giving them a leg up in matters you have a control over, isn’t my idea of “fairness.”

    And allowing large corporations unfettered rein over people’s lives isn’t my idea of “freedom.” Zoning, you say. I want the freedom to live quietly in my house with the assurance that nobody’s going to build a giant boiler factory next door.

  13. 13
    lucia says:

    Simon,

    You and Amy vmay very well may disagree on an enormous things. But, your response to her isn’t going to make libertarians throng to your cause.

    If I understand Amy correctly, she is saying is that as long as Libertarians and Democrats disagree on many, many things, the Democrats are unlikely to lure Libertarians over to the Democratic camp.

    Her observation is correct.

    Answering back “But I’m right and you Libertarians are wrong” isn’t going to make the Libertarians suddenly flock over to your side! Not even if you are right and the Libertarian’s are wrong.

    (Threatening to actually build a nuclear power plant by her house might do it….! :D )

    As to the gay marriage thing…. I know a few of libertarian type conservatives. I’d say I’m sort of a libertarian conservative.

    Many either don’t care one way or the other about gay marraige. If pressed, many would probably say “Go ahead and let them get married! Why not?”

    I have to admit, for me the big question is:

    Why NOT let them get married? What’s the big deal? For my part, I’ve never heard a good reason!

    Still, I don’t think it’s an issue that’s in the forefront of the Libertarian’s mind. Whether they are right or wrong, there are other issues they care about more.

  14. 14
    Phil says:

    Good for Massachusetts, and good for writers who aren’t afraid to condemn what amounts to one of the last “acceptable” bigotries of American culture.

    The mainstream Dem candidates may feel the need to treat homophobes with kid gloves, but they shouldn’t set the example for the rest of us.

    As a post-script, I’ll also say that I was rubbed the wrong way a little bit by your use of the phrase “call a spade a spade.” I know that this phrase pre-dates the racial epithet… I guess it still just leaves a bad taste in my mouth, especially in the context of the current discussion.

  15. 15
    Lis says:

    Even though many people in many places have pointed out the flaws in that model, I’ll point you to the four-quadrant political map. Speaking in broad generalities:

    • Libertarians favor self-governance of personal matters AND self-governance of economic matters.
    • The current crop of conservatives favor self-governance of economic matters, but oppose it for personal matters.
    • The current crop of liberals favor self-governance of personal matters, but oppose it for economic matters

    Neither of the major parties is absolutist, but to me, it seems like the libertarians choice is which is more important, the personal or economic.
    I tend to focus more on the personal issues — drug rights, free speech, gay rights, etc — and thus have a real hard time understanding how or why libertarians ally themselves with the religious right, since their philosophies on personal governance seem so diametrically opposed.

  16. 16
    Jake Squid says:

    Lis,

    I have a theory. Which is mine. Ahem, ahem!

    Anyhoo, most people vote economics before social policy. They may not say so and they may have other reasons that they give, but…. “If Gore wins I’m going to lose my vacation home,” was something I heard multiple times. Social freedom doesn’t really matter if you’ve got no money so…. people vote money first. And if you truly think that you are among the wealthiest in this country (and an awful lot of folks do, mistakenly) then you vote for the policies that make the rich richer. And that is why many (if not most) Libertarians vote R.

    That’s my theory anyway. Anybody got a better one?

  17. 17
    lucia says:

    My first thought about the difference between valuing self governance in personal vs. economic matters is that you can’t always tell which one a person cares about based on their position in a particular matter.

    Let’s look at the example at hand. The Mass. Sup. court identified a major economic inequity that arises when gays can’t marry. If they can’t marry, the gays are barred from numerous monetary benefits, some bestowed by the goverment, some by employers. This has a negative economic impact on the gay couple and their children.

    In their ruling, the Mass. court does not seem to be tremendously worried about that preventing marriage between gays might prevent gays from having sex, living together or anything else. Those are are clearly personal, not economic, choices.

    Although one might see this as a case where personal liberty is at stake, there is a huge economic!

    In fact, in many cases where we find, or found, vast social inequity, the social inequity was maintained through direct or indirect governmental control economic choices.

    In many situations that arise in life, a person might reason:

    If I can have economic liberty, I can better achieve persona liberty. So, I must be vigilant when the government seeks to take curb economic freedom.

  18. 18
    Simon says:

    But lucia, I didn’t just say “I’m right and you’re wrong.” I explained briefly what was wrong about it.

    Sure, I’m in favor of self-determination and freedom and all that in economic matters. I just want to maximize it for everybody. It shouldn’t go just to the people with the most money.

    I think it was Anatole France who said, “The law, in its impartial majesty, forbids rich and poor alike from sleeping under bridges.”

    A libertarian who allows people to do anything they want, so long as they have the money, has uncomfortably much in common with a conservative who says that gays are free to marry: they just have to marry people of the opposite sex.

    Liberals, be cautious of allying yourselves too closely with libertarians. As Teresa Nielsen Hayden wrote, “Just because you’re on their side, doesn’t mean they’re on your side.”

    Another wise person once wrote, “Libertarians are not, as liberals sometimes suppose, liberals who just happen to get weak in the knees at the thought of giant corporations. Libertarians are actually conservatives who want to grow their own marijuana.”

  19. 19
    John Isbell says:

    Politicians may have to make concessions to win votes. I don’t. I like it that way. I am delighted with Affirmative Action and with government regulation, and regret we don’t have more of both.
    Be glad I’m not president. Very glad. To start with, I’d take a long hard look at the death penalty and the Second Amendment. Then the size of the defense budget. And I’d see what we could do about gay marriage nationwide.
    Not all feasible, I know, but that’s page one of my to-do list.
    Oh, and transform campaign financing and PACs. And maybe launch a US BBC equivalent, or transform PBS.
    I suspect I wouldn’t get a big libertarian swing vote.

  20. 20
    John Isbell says:

    Man, I forgot to mention I would shackle a helpless America with universal healthcare. I can’t believe I forgot that Stalinist plan I have.

  21. 21
    lucia says:

    Hi simon,

    But lucia, I didn’t just say “I’m right and you’re wrong.” I explained briefly what was wrong about it.

    Did you? I know you think you did, but did you do it in a way that addresses the concern of a libertarian?

    Specifically, you provided two very brief examples and solutions. For some people, your response does not address the a political issue Amy described. The political issue: Should we use of affirmative action in employment and college admissions?

    Like you, I, abhor the fact that some people are born to economic and social disadvantage to others. It’s a bad thing.

    It doesn’t immediately follow that I support affirmative action. So, simply identifying the social ill we both despise is not an “explanation” brief or otherwise.

    As it happens, I am not a full-fledged libertarian, but I am inclined that way. I don’t absolutely hate affirmative action.

    Nevertheless, I don’t see affirmative action as a reliable solution to the problem of racial inequity and I recognize the inherent inequity in the program.

    I certainly don’t see affirmative as the the most effective solution to this problem. I don’t thin it makes sense for affirmative action to exist perpetually. Since it is a fairly ineffective remedy to the social ill and it is also inequitable, which I also dislike, I tend to oppose it.

    You may find the following surprising, but I see school vouchers as a better solution to the persistent problem of economic and social disadvantage associated with racial prejudice.

    Following your example, I will fail to elaborate further. My “brief” argument is then:

    Some people are born to social, economic and political disadvantage. Therefore, we should have school vouchers. .

    Have I failed to convince you? Are you thinking thats not an explanation? (It’s not. Your wasn’t either.)

    Most Americans are support maximizing self-determination and freedom. We often have different opinions as to how to do it. We are willing to make different compromises to maximize self determination and freedom.

    On to another point:

    A libertarian who allows people to do anything they want, so long as they have the money, has uncomfortably much in common with a conservative who says that gays are free to marry: they just have to marry people of the opposite sex.

    In this, I think you may misunderstand the point of view of many libertarians regarding economic freedom.

    You perceive my argument to be:

    “People should get to do anything they want if they have enough money.”

    I percieve my argument to be:

    “When the government gains monetary control, they tend to use it take away people’s personal freedom”.

    Read political arguments between social conservatives and liberals. As a liberal, you will often notice the social conservatives do band together and try to use the power of the government to curtail personal freedom. Being inclined to the libertarian position, I see that both conservatives and liberals do this when they can!

    Ok.. I have to laugh…
    Another wise person once wrote, “Libertarians are not, as liberals sometimes suppose, liberals who just happen to get weak in the knees at the thought of giant corporations. Libertarians are actually conservatives who want to grow their own marijuana.”

    Strangely enough…. I don’t wanna grow my own marijuana. Strangely enough, I’ve never smoked marijuana. Don’t know why not…

    In closing, I do want to caution liberals who think they can convert libertarians easily that it’s not that easy. People do have different primary values. These difference exist within individual political camps and between them.

    “Converting” someone usually requires recognizing what that persons primary values and speaking to that!

    Sometimes, the primary values are in conflict; sometimes they aren’t!

    Too bad I’m incapable of brevity… sigh….:)

  22. 22
    Simon says:

    But lucia, I didn’t say, “Some people are born to social, economic and political disadvantage. Therefore, we should have affirmative action.” Which is the exact wording-equivalent of what you said would be a bad argument from the other side.

    I was replying to Amy’s statment that “You can’t be wholeheartedly for fairness while simultaneously promoting programs that favor unequal treatment based on race.”

    So I said, “Turning a blind eye to minorities not being given an equal start in life, and then not giving them a leg up in matters you have a control over, isn’t my idea of ‘fairness.’”

    See, this was a more general statement of principle. Sometimes a compensatory inequality is necessary to achieve a greater fairness for all. That’s why I mentioned golf handicaps.

    Now, what policy would that be, and how should it be pursued? That’s another matter. If you want to talk about the specifics of affirmative action vs. vouchers, we can do that. Vouchers, after all, are not a race-neutral system: as a rule, more inner-city blacks than outer-city whites are going to want to use them to opt out of public schools, and they’re going to need more money to do it. On affirmative action you might find me surprisingly conservative. I believe affirmative action should be based on income, not specifically race, because income tracks more closely than race to the kinds of problems that affirmative action is designed to solve. But the fact that blacks will still be vastly over-represented in the result, and that racial discrimination is a major cause of this, should not be ignored.

    You say, “When the government gains monetary control, they tend to use it take away people’s personal freedom.”

    Oh, indeed. And when they said that eternal vigilance is the price of liberty, this is exactly the kind of thing they had in mind for us to have eternal vigilance towards. Believe it or not, you will find liberals in the forefront of any fight against excessive government powers.

    But here’s the thing: we’d broaden your statement. “When ANYBODY gains monetary control, they tend to use it take away people’s personal freedom.” That includes giant corporations, and even tiny ones. Against them, the vigilance must be just as strong. I see libertarians as kind of ignoring that part. So long as there is no legal coercion, they see all people as free. But they’re not. I refer you to the collected works of Scott Adams. Dilbert does not work for the government. He works for a profit-oriented corporation.

    What do we have to set against corporate power? Not other corporations. In many situations, there is no effective choice. (There’s a monopoly, or you need a non-existent local alternative.) In others, the competitors work dismayingly in tandem. And the right of the consumer to say “I’ll buy from someone else” is sometimes impractical (it’s hard to keep changing your insurance provider), and is otherwise only a midge of an annoyance to the corporation, like the right of the stockholder to vote against the board’s proposals.

    So what have we got? Well, we’ve got the government. It can issue regulations that all corporations must abide by. Nobody else can do that. Surely you don’t think corporations would have invented air pollution regulations, or car seat-belts, by themselves? They had to be pushed every step of the way, and pushed by people acting through government. You’d think that corporate executives have to breathe the same air, and risk the same auto accidents, as the rest of us, but somehow this doesn’t bother them.

    The government doesn’t have to worry about making a profit, so its decisions won’t be distorted by that. And it comes with 535 ombudsmen who are startlingly eager to please their constituents, and not just a little complaints department in the basement that nobody listens to.

    The government deserves unfettered power no more than anybody else. But it has its uses.

  23. 23
    Trish Wilson says:

    Simon: “The court writes: “The ‘marriage is procreation’ argument singles out the one unbridgeable difference between same-sex and opposite-sex couples, and transforms that difference into the essence of legal marriage.” But even that isn’t an unbridgeable difference, for – as the court pointed out earlier – many opposite-sex couples are as unable to coitally procreate as same-sex couples are.”

    Yup. If marriage was based on procreation, infertile and elderly straight couples would not be permitted to marry.

  24. 24
    lucia says:

    But lucia, I didn’t say, “Some people are born to social, economic and political disadvantage. Therefore, we should have affirmative action.” Which is the exact wording-equivalent of what you said would be a bad argument from the other side.

    I was replying to Amy’s statment that “You can’t be wholeheartedly for fairness while simultaneously promoting programs that favor unequal treatment based on race.”

    So I said, “Turning a blind eye to minorities not being given an equal start in life, and then not giving them a leg up in matters you have a control over, isn’t my idea of ‘fairness.’”

    See, this was a more general statement of principle. Sometimes a compensatory inequality is necessary to achieve a greater fairness for all. That’s why I mentioned golf handicaps.

    Well.. I will concede you inferred something in what Amy said (which mentioned “race” and not minorities… )and I inferred something what you said.. which was that you were talking about affirmative action, when all you said was “give them a leg up” because they hadn’t been given an equal leg up?

    As it happens, I’m all for handicaps when people get together to for friendly game of golf or bowling competitions. It can make the challenge fun for more people. Although, maybe Amy is totally against them; she’ll have to speak for herself.

    However, I don’t think they use them during the Masters competition. Do they? I imagine they wouldn’t use them if golf or bowling were part of the Olympic either.

    I could speak to the whole business regulation topic, but as I said, I am not a complete, unsullied libertarian, and I do recognize the need for some government regulation of businesses.

    As a general point of principle: Yes, we do need to regulate business to some degree.

    However, I have libertarian tendencies, and tend to look at government regulations with a more jaundiced eye than many other people would. I think sometimes, government regulations go too far, are too expensive , too confusing, are constantly modified and sometimes have little tangible benefit for anyone.

    Today’s Wall Street Journal tells me they are going to change the regulations regarding nutrition labeling YET AGAIN because they think American’s find the current ones too confusing. (They are proposing making manufacturers people list the calories in the whole package even it the whole package is say, a 2 gallon container of ice cream.)

    I ask you, do we need to Government to not only require these nutrition labels but keep changing the regulations twice per decade? (I am btw, and avid reader of nutrition labels… but why keep changing them?!)

    And here I am.. still not brief. I probably still have missing and extra words. Heaven forbid I should proof-read! :)

  25. 25
    Simon says:

    Lucia: I meant minorities as a synonym for race here. As far as I can tell, the difference doesn’t affect the point. I was thinking of affirmative action … but it doesn’t have to be affirmative action, if you can think of another way to achieve the goal.

    No, they don’t use handicaps in the Masters competition. But I bet many of the people there had them on their way up.

    “Sometimes government regulations go too far.” Also true. But the way to fix that is through competing forces in government. To listen to businesses bleat, every government regulation ever invented is a horrible burden. Yet, they usually manage to adjust.

    Also, it is worth noting that the chief political proponent today of decreasing government regulation is Rep. Tom DeLay, who found them too intrusive in his career as a businessman.

    But what was his business? He was a pest controller. His business was to send trucks hauling dangerous chemicals around Houston, and to have his employees spray these chemicals about. I would dearly hope that he would find his government regulations intrusive. They’d damn well better be.

  26. 26
    lucia says:

    “Sometimes government regulations go too far.” Also true. But the way to fix that is through competing forces in government.

    Doesn’t this just mean we should elect some people who agree they go too far? That’s my plan!

  27. 27
    Simon says:

    We have more than enough of those, thank you. We’ve had more than enough of them for the last 22 years or so.

  28. 28
    Morphienne says:

    I notice when I’m reading the words of the Massachusetts Supreme Court I’m hearing them in the voice of Galadriel…

  29. 29
    alp deniztekin says:

    I found the arguments of the dissenting judges more rigorous and compelling than the majority opinion. I wish you all would comment on the 4-3 decision on its merits and on whether opponents of gay marriage really need a Federal Marriage Amendment to stop it. Can the Mass. Legislature trump the decision of the Supremes?

  30. 30
    Bigott says:

    I disagree with the ruling. God specificly says in Genesis 2:24 that ‘For this reason a man will leave his father and mother and be united to his wife, and they will become one flesh.

    (and yes, my last name is Bigott)
    Bigott>

  31. 31
    Dan J says:

    And the Book of Genesis has what exactly to do with equality of rights within the American judicial system?

    Aside from that, though, the Bible isn’t really a reliable source… it was first passed on orally for centuries, with all of the margin of error that entails, and then it was written down in a language that no one truly understands (the Hebrew language in use today has been modified). Aside from that, all things in the oral Bible, even the ones that confused the people writing it down or seemed to contradict other things that were said, were left in the final written document. The way a language is used also changes over time; go read some Hawthorne, or even some stuff from the 50′s. You’ll probably understand what’s basically going on, but some things will seem like a different language altogether. And then in the end there’s the changes that occur during the process of translation.

    This in no way suggests that God isn’t reputable, just the written record of interactions available in the Bible.

    Regardless of all that, it has nothing to do with the making of US law, or with making sure that those laws cover all people equally, which is at issue here.

  32. 32
    mymazza says:

    I live in Australia and our government quite often follow the American laws….which is a shame, I don’t think they know how to think for themselves anymore. Now with so much going on (or off) with bigots and gay marriages in the USA, we will be targets next. We (my partner and I) live a quite openly lesbian life. We are respected in our town and they know us well. Pity about our government though, as they cannot think for themselves, they will be sending out leaflets or they will have a reforendum (no, that would cost them lots of dollars) or they will be voting against legalising gay/lesbian couples. My partner and I had a VERY open Commitment Ceremony in our town, with a picture of us in the local paper. We were congratulated by strangers!!!! Come on world, wake up! We are here to stay. Legalise our “couples” because we are not going away. We cannot be pushed under the carpet any longer.

  33. 33
    p obregon says:

    TS Eliot once said “this is the way the world ends this is the way the world ends, not with a bang but a whimper.”

    Self indulgence is not civilization. Why don’t all you gays and sterile folks found a colony on some dead planet?

    Why won’t the experiment last? Think!

  34. 34
    JRC says:

    For not the first time, the quality of our enemies convinces me of the righteousness of our cause.

    If incoherence and bigotry are all they have to offer in response, how could we be wrong?

    —JRC

  35. 35
    a supporter says:

    I am not lisbian, I’m heterolsexual. I would like to say I have no problem with same sex marriages. They create no harm to me or anyone else for that matter. People can think for themselves. If I see someone gay It is not going to make me want to leave my man an go find a woman and it doesn’t bother me that they love each other. That is what marriage is about two people who love each other not about anything else. Love is a powerful thing. People need to stop “playing God!” It is not our right to judge. Only to love or hate. I choose to love. And I support anyone who is in love.

  36. The Mass. decision’s timing is unfortunate, with the state legislature about to vote to delete that pesky equality provision from the state constitution, as was done in Hawaii. However, if I have the facts right it takes several years to change, though the usual process. (I’ve seen one unconfirmed report of a Mass. constitutional convention being called, which might be quicker.)
    State constitutions are a wonderful source of the sort of rights that interest both libertarians and (some) liberals. When was the last time you read your state bill of rights?
    I wrote my llm thesis on state constitutional protection of democratic pluralism. (note to self – put that online somewhere.)

    There seems to be little insight here as to why it is so important to social conservatives to use coersion to prevent lifestyle choices besides heteromonogamy. Didn’t you guys read “compulsory hetrosexuality” in gender studies 101?
    Nuclear families are hard to do. Raising the next generation of cannon fodder and taxpayers is hard work, a chore the many will shirk if given options,leading to the decline and fall of civilization. Something like that. In my experience, gay culture is actually better at perpetuating itself than libertarian culture is.
    As someone who sees libertarian theory as correct, it is problematic that fundamentalists and communists seem to do a better job of reproducing their memes in subsequent generations.
    Aside to lucia: interesting thoughtful posts here, about the possibilities of libertarians and liberals beig able to communicate with each other, while over at wil’s site your posts are dogmaticly liberal party line, like simon’s here.

  37. 37
    Tim Jones says:

    If the phrase “equal protection under the law…” rings a bell… just what part of EQUAL don’t you understand??? It’s not a LIFESTYLE, It’s MY LIFE!

    tjones PHX

  38. 38
    Corwin says:

    Objetctions to gay marriage are now beside the point.

    http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2004/02/12/GAYMARRIAGE.TMP&type=universal

    According to demagouge at blogspot,

    “However, I nearly cried when I read and saw the picture of the first gay couple to get married in the United States is Phyllis Lyons and Del Martin, ages 79 and 83. They’ve been together for 51 years and have been bravely working on gay and lesbian civil rights for just as long. They’re so “old school” that most younger GLBT people don’t know who they are. Lyons and Martin helped establish the Daughters of Bilitis, the first lesbian rights group, in 1955.”

  39. 39
    V.L. Carey says:

    Regarding the Bible and homosexuality being a sin, and thus opposing gay marriage, the “Christian” right has it wrong.

    I invite you to read: “Connecting the Biblical Dots: Why Jesus Is For Same-sex Marriage.” It’s a biblically grounded paper that gives a convincing argument why homosexuality is not a sin to God and why marriage, including same-sex marriage, is the acceptable standard. You may read it here: http://www.purplepew.org/biblical_dots.html

    Kind Regards,

    V.L. Carey
    The Purple Pew
    Stand Up For Truth
    http://www.purplepew.org

  40. 40
    Tara says:

    I also want to add that even if you read the Bible as, um, translated, multiple interpretations are possible when it comes to same sex marriage.

    At the very least, despite the passage quoted, we do not *force* men to leave their mothers and fathers and cleave to a woman.

    Can you imagine? Mandatory marriage at… 21 so that men can fulfill the commandment of cleaving to a woman, at the expense of all the women who are really free to stay single if they want??

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