(Crossposted on Alas and on TADA. Arguments in against recognizing SSM legally should be taken to TADA, not posted on Alas.)
1) First reaction: HELL fuzzy yes!
2) As nice as this feels now, like Scott Lemieux, I’m not optimistic about where this case is going. In the end, the Supreme Court will decide, and the Court historically tends to be a follower rather than a leader on civil rights. (For example, interracial marriages were already legal in most of the US when the Court ruled on Loving vs Virginia).
3) Speaking of the Court, Dahlia Lithwick argues persuasively that Judge Walker wrote his opinion primarily for an audience of one person, Anthony Kennedy. The rest of us are all just sort of reading over Kennedy’s shoulder. “I count—in [Walker's] opinion today—seven citations to Justice Kennedy’s 1996 opinion in Romer v. Evans (striking down an anti-gay Colorado ballot initiative) and eight citations to his 2003 decision in Lawrence v. Texas (striking down Texas’ gay-sodomy law).”
4) Speaking of Judge Walker, right-wingers are saying that Walker only ruled against prop 8 because he’s gay. (Walker, who was nominated to the bench by Ronald Reagan and then by George Bush sr., was at the time opposed by Democrats who believed Walker was anti-gay.)
5) The award for least reality-based reaction goes, not for the first time, to Maggie Gallagher, who predicts this result: “Parents will find that, almost Soviet-style, their own children will be re-educated using their own tax dollars to disrespect their parents’ views and values.”
6) Speaking of stupidheads1 without coherent positions, President Obama is still acting like a stupidhead without a coherent position. (Not exactly a shock, I know.)
7) The cliff notes versions: A Quick And Easy Summary of Perry v. Schwarzenegger. Or, for a more detailed nutshelling of the ruling, try Prop 8: The facts vs. the fears. And in either case, I’d recommend reading the take on it at Hunter of Justice, as well.
8) I entirely agree with the legal basis of this ruling. The opponents of SSM marriage have failed, once again, to establish a rational basis for barring same-sex couples from equal treatment by their government.
In the end, it always comes down to one question: “How will straight, married couples be harmed if same-sex couples can also marry?” And in the end, opponents of equality are unable to come up with any reasonable, fact-based answer to that question. Because they are so unable to make a reasoned argument, in the long run equality will win.
Unfortunately, that may still be a decade or two away. And a loss in the Supreme Court at this point could push that eventually victory further down the road. I desperately hope I’m wrong, but I think that a few years from now we’ll be wishing that this particular lawsuit hadn’t been brought.
On the bright side — as Scott said, I think — even if the Supreme Court strikes this decision down, all that really means is that we’ll be doing this fight state by state, instead of in Federal courts. And that’s where we are right now, anyway.
- I’m using the term “stupidhead” in honor of my niece and nephew. Also, I don’t want to use either “douche” or “dick,” and I can’t really think of a satisfying substitute term.
22 Comments
(Transferred from “Alas.”)
@2, yes, this is heading for fast cert and a bitter 5-4 decision that will probably not leave gay rights advocates happy.
@8, “How will straight, married couples be harmed if same-sex couples can also marry?”
Single peoples’ willingness to pay tax subsidies in order to promote family formation and procreation will dwindle, and straight married couples will pay more for their children.
I’m willing to tolerate an imbalanced tax system that favors parents (and was as a single nonparent) over nonparents. I’m not really willing to tolerate it if parent-favoring (which is the de facto tax effect of gays not being able to marry) is to be replaced with couple-favoring. There are coherent arguments for parent-favoring. There are no such arguments for couple-favoring. Accordingly, political support for the subsidy will dwindle and the subsidy will be reduced or erased via the political process.
So, prospective loss of subsidy is the harm that straight couples would suffer.
(Transferred from Alas.)
Also, and I’ve broken this out into a separate comment to avoid derail, I’m not sure that lack of demonstrable harm is really much of an argument. How are married couples now harmed if you let me marry my sister?
Robert – the incest issue is a red-herring, but also, harm is easy to demonstrate: inbreeding will harm the offspring. Yes, you cannot say “this offspring will have this disease”, but on a statistical level, such offspring will be MUCH more likely to have genetic diseases *AND* will suffer damage due to loss of genetic heterozygosity such as reduced immune function, smaller size, shorter lifespan, lower reproductive output, etc.
There are some slippery-slope arguements about that, but I’d say the slope changes pretty dramatically between sib-sib inbreeding and, say, having a child when over 50. Sib-sib and parent-offspring inbreeding are just about the most genetically dangerous things possible in a species that doesn’t have self-fertilization capacity – the appropriate comparison would be banning couples from having children if they start every day with a heaping bowl of Urani-O’s.
The issue of harm is important, as I understand it, because the defenders of Prop 8 argued that there is a rational basis for the government to provide fewer protections to gay couples than straight couples. Part of their argument was that this discrimination is justified because marriage equality hurts straight couples. The judge found that the facts presented did not support that arguement.
If you’re concerned that the government gives you fewer protections because it irrationally refuses to recognize a reciporical-dependency relationship between you and your sister, put a legal team together and challenge the status quo. Many people would agree with your case. However, that has nothing to do with the lawsuit at hand.
I’m replying to Robert’s comments on the Alas thread here;
Evidence, please. Gay marriage has been legal in many different places, both within the USA and in other nations, for some time now. Surely one of these places will provide evidence that this example of harm is real and not just a hypothetical thing you made up on the spot?
Irrelevant. There is no class of people who are harmed by laws preventing marriage between siblings, because there is no class of people who are exclusively interested in marrying siblings; people who would like to marry a sibling can instead shrug and go marry someone else. Therefore a law against sibling marriage doesn’t violate equal protection, and the violation of equal protection is the reason why bans on gay marriage are unconstitutional.
So yeah, you can drop the whole incest argument. It’s also really fucking offensive to compare someone’s inherent attraction to only one gender (a trait I assume you yourself also possess) to hypothetical incest.
Single peoples’ willingness to pay tax subsidies in order to promote family formation and procreation will dwindle, and straight married couples will pay more for their children.
Heh? Why? I’m not seeing the argument except that you seem to be saying that anecdotally you’d be less willing to pay taxes if gay couples can get married and raise their children (of whatever biologic origin) together. Personally, I’d be more willing to pay taxes to support people raising children if those taxes went to support all families with children not just the “conventional” ones. But who knows where the “average” person falls between those two anecdotes.
Also, what tax subsidies to single people pay to support married people? I thought married people paid more taxes because their income is considered to be of a single household rather than belonging to each individual thus putting them in a higher tax bracket than each might have been individually.
Dianne – no. Married couples file together but at a proportionally lower rate than single people, plus they can take advantage of income disparities – eg. if one spouse doesn’t earn much and the other earns quite a lot, the high earner gets to take advantage of the low earner’s exemption & standard deduction to offset their taxable income. (Obviously this is less applicable if both spouses earn a similar amount. Couples with similar incomes also get thoroughly shafted by Social Security – this is an area in which US law clearly requires some work.)
Married couples also get to claim double on some tax credits even if only one of them really qualifies for it (Obama’s new Making Work Pay credit, for example – it’s 6.2% of your income up to a maximum of $400 per person (so, $800 for a married couple). Say we’ve got an unmarried person who earns $20 000 a year. She gets a $400 credit to add to her refund. Her live-in girlfriend earned $1000, so only gets a $62 credit. That’s $462 between the two of them. If they’d been legally allowed to marry, they’d be able to add their income together to make $21 000 and thus claim the maximum amount of $400 each = $800.
The real killer when it comes to tax credits is EIC, which is based mostly on having income in a certain range (not high, but not too low either) and having children (three of them, for preference). Childless people subsidise people with children via EIC. Marital status is relevant to EIC but not nearly as much as having children is, so forgive me if I feel that ‘single people’ who bitch about it are possibly not mentally putting themselves in the same category as the singleton down the road who has three children.
[Apropos of nothing, the phrase 'tax credit' is absurd, especially for 'refundable' ones like MWP and EIC. It's welfare. It's direct income redistribution, you know, like you guys accuse The Socialists of doing. Yes, Nixon started EIC, and the American right loves the phrase, but the neat verbal cover does not change what it is.]
Ah, but I have no problem with you marrying your sister either.
(Granted, you end up with an eight-pound horseradish with a lisp, but I think the number of siblings who mutually want to marry is so vanishingly small that society can whether the resultant lisping horseradishes. It’s hard for me to apply a similar argument to SSM.)
You know where I see this sort of argument? Wikis. It takes the form “well, we have page X that says Y, so it’s equally justified to say Y’ on page X’” when in fact neither is justified. There’s not, for several reasons, a huge movement for incest rights, but I can’t think of an actual reason that taboo needs to be enforced by law. And I’m really not compatible with my sister.
Oh, Robert, you rode in on your white horse too late. When Judge Walker asked the principal Yes on 8 lawyer how same-sex marriage would harm the ‘procreative purpose’ of marriage, he replied “My answer is, I don’t know. I don’t know.”
(Let us pause in silence for a moment while all the lawyers here have a quiet, internal moment of sobbing horror at the prospect of appearing in front of a Federal judge and having to answer a pointed question from the bench with “I don’t know.”)
Robert’s “couple-favoring” argument makes no sense in California where same-sex couples can become legal parents of the same child. That is, they may adopt, or if female one of them may bear a biological child, or one may become the legal parent of the other’s biological child under certain circumstances, etc. As such, recognizing same-sex marriages furthers the parent subsidy.
As for incest, I’m sure Robert can explain to us why ‘blood relatives’ is a suspect class requiring heightened Constitutional scrutiny, and why California has shown it has no state interest in, say, limiting the ability of fathers to impregnate their minor daughters and then give themselves parental permission to marry them.
Let us pause in silence for a moment while all the lawyers here have a quiet, internal moment of sobbing horror at the prospect of appearing in front of a Federal judge and having to answer a pointed question from the bench with “I don’t know.”
Wow. A position so illogical that it forced a lawyer to say “I don’t know” to a federal judge in court. That alone should be a fail forever for prop 8.
@Mokele -
Society has decided that it doesn’t really have the right to prohibit people from reproducing, even if they know their children are likely (or likelier) to have problems. 50, still menstruating, and want a baby? Go crazy. So the “you’ll inflict us with mutants” harm is one that we’ve seemingly decided to accept. We DON’T ban the Urani-Os family from having babies.
@Marmalade -
In general I agree. Harm has to be shown and the Prop 8 people didn’t do that. In general, I agree with Amp that there isn’t any harm. There are some “harms” like the theoretical tax problem, but I provided that as a logical response to Amp’s semi-hopeful assertion of an absolute. It’s not that there are NO harms or arguments, it’s just that they’re all pretty weak.
@Thene -
Yes, we’ve been getting gay marriage rights in some states for some little while now, and at the same time the resistance to taxation and social programs – most of which benefit *other people’s children* – has shot up in the US. I can’t speak knowledgeably about what’s going on in any other countries; here, people are really pissed off about their taxes.
I don’t have survey data; here’s a newly commissioned survey, N=1.
Q: Mr. Hayes, if gay people can marry across the US, how do you feel about that?
A: Well, I am not unalterably opposed, and if it happened there would be some happiness in my heart b/c of the happiness of people I care about. I have a lot of governance concerns, as I do with any issue where our structure of rights changes. Those are probably manageable.
Q: If gays could marry, how would you feel about the tax treatment of married couples in the US?
A: Well, I think I would feel even more strongly that any credits or subsidies should be applied directly to children, not to relationships. I think it is worthwhile to subsidize children. I don’t think we should subsidize simple coupling. For many years we have subsidized many childless couples, whether through choice, infertility, age, etc. as a side effect of intending to help children through tax policy. I think it’s time to refocus our tax incentives on children, and pay less attention to the private, consensual relationships of those childrens’ parents, straight, gay, or neuter. Gay marriage in that sense has clarified the issue; we have realized that the government should not stand in the way of relationships, but it should not valorize through tax policy certain classes of relationship either. It should valorize and support children, the direct subjects of government interest.
Q: But isn’t that going to screw over gay couples? They’ve been hoping to get married, now they are, and bam – in Hayes’ world, they have fewer benefits than they expected.
A: Not if they have children. Gay couples with kids should be treated exactly as every other couple (or single or triplet or whatever) – as the responsible heads of their particular household.
Q: What if they don’t have kids?
A: Then the government has no interest, positive or negative, in their arrangements.
It’s also really fucking offensive to compare someone’s inherent attraction to only one gender (a trait I assume you yourself also possess) to hypothetical incest.
Sigh. I compare, not the nature of attraction or the erotic status of a relationship, but their status under the law, which at the moment and in many places are similar (banned, or tacitly tolerated but not officially accepted). Your assumption is presumptuous, immaterial, offensively irrelevant, and wrong. I would add “so you can fuck right off”, but that would hypotheoretically break one of Barry’s Unknowable Laws, besides, I’m not really angry, just rhetorically.
Thank you for providing the very useful brief rundown of the tax benefits.
@Hershele -
I appreciate your tolerance. My sister and I will send you a card.
@Mythago -
I think there’s a deeper legal game being played. They didn’t want their arguments introduced at this level, they want to introduce them at the Supreme Court. So they took the punch with “oh noes we didn’t prepare well enough…we’ll do better on appeal we promise!” Just a hunch.
(Although also, the argument from harm is, as I concede, weak.)
I recognize that SSM furthers the parent subsidy in that it adds the (smaller but by no means insignificant) proportion of gay parents to the tax subsidy schemes. It does that at the cost of adding thousands/100Ks/millions of non-procreative gay couples to those subsidies. I have no quarrel or bitterness towards my non-procreative gay couple amig(o|a)s out there, but I don’t think they should get a tax break just for being married. (Nor should the straight ones.) Rather, the tax breaks should go directly to and only to the kids.
Gay marriage advocates are owed sincere thanks because their efforts have clarified an inconsistency in our tax subsidies that really does need to, and probably will, be fixed.
Sorry for the novel, but the mods have expressed a preference for encyclopedic responses over multiple responses.
Robert @12: there’s a little problem with that hunch, and it is contained in the phrase uttered by many appellate courts over the years: “As appellant did not raise this issue below on appeal, we need not consider it here.” And you can’t bring up new facts on appeal, either; that’s the whole point of having a trial court.
There is no deeper game being played. The Yes on 8 people had a very weak position and, if I may use technical legal language here, their ‘expert witnesses’ were a joke.
at the same time the resistance to taxation and social programs – most of which benefit *other people’s children* – has shot up in the US. I can’t speak knowledgeably about what’s going on in any other countries; here, people are really pissed off about their taxes.
That’s because Americans are stupid. The US could use a good, honest tax increase if we only had a politician somewhere with the gonads to propose one. Oh, right, that would be Mondale and we elected a demented ex-actor instead of him. Well, you get what you pay for and we’ve got a dysfunctional country that regularly starts aggressive wars but can’t be bothered to educate its kids or take care of it sick.
“So yeah, you can drop the whole incest argument. It’s also really fucking offensive to compare someone’s inherent attraction to only one gender (a trait I assume you yourself also possess) to hypothetical incest.”
Wooah!!
Who said anything about attraction here? – we’re talking about the procurement of a license. Maybe I want to get a license with my sister so I can finally get the health insurance I need? Offensive? I love my sister, we’ve had a deep and binding commitment to each other all our lives, and I’m tired of archaic, knuckle-dragging, close-minded bigots like you thinking you’re somehow better than me because of who I’ve loved all these years. Or that society should somehow honor your loving relationship more than mine. I demand you show me, and the person I love, some respect, instead of treating any mention of me and those I love as somehow offensive to you.
All the best to the two of you, Robert. And your horseradish.
(Emphasis mine)
I have no problem with that. Enough of the thousand-odd legal benefits of marriage* have some actual paractical advantage for couples** that those that are mere carrots are superfluous. But that’s the next step, maybe even the one after that; once same-sex and different-sex couples are on the same footing on the Federal level, we will know which old structures, if any, no longer (or never did) do what they were intended to do.
*”Rights,” mariage-equality advocacy usually calls them; as oposed to social benefits, most of which nowadays accrue to cohabting couples and in any case don’t require a legal marriage.
**And should not be denied people in permanent*** relationships because someone disapproves of the gender, number, or declension.
***At least, intended to be.
I read that other thread that said a 1 million $ household had a 30% income tax. And a 50k$ single person about 17% tax.
Now come in Canada, where 50k$ household is 35% tax and where a 1 million $ household is 45% tax (but this person will probably find a fiscal paradise like many rich people do for their nest). And we don’t complain about taxes as much as Americans do, funnily enough.
Robert:
So…you mean states with same-sex marriage are becoming tax-resistant at a faster pace than states without same-sex marriage? Opposition to EIC and other child-related tax benefits is rising more sharply in states with same-sex marriage? Is that what you mean? And if this is not the case – if anti-tax views are rising as much, or more, in states that do not have same-sex marriage – I guess that means same-sex marriage doesn’t affect people’s attitudes to taxation in the least?
Where’s your proof?
This is not evidence. You’re saying that gay marriage could be blamed for opposition to taxation without providing any evidence that this is the case. Once again, until you show us some proof, I am going to assume you made this up on the spot and it has zero basis here in realityland.
There has been more than enough time for evidence of this supposed harm, or any other harm, caused by same-sex marriage to be demonstrably proven. You don’t appear to have knowledge of any such proof, but you’re assuming that the Yes on 8 legal team are keeping it up their sleeves and are ready to whip it out at the next trial! This is, get this, another totally hypothetical belief of yours for which there is no actual evidence in reality. In reality, it appears that the Yes on 8 folks have no idea what harm is done to straight people by allowing queers to marry.
If you think there is no proof that same-sex marriage harms straight people, then say it; same sex marriage is not proven to harm straight people. Just think, once you’ve said it you’ll never have to engage in such a pointless massive derail ever again!
No they don’t have the same status under the law because people who engage in incest are not and never will be a protected class of people in any legal jurisdiction anywhere. This is in addition to the fact that here in the real world most incestuous relationships are founded in abuse and rape.
Then get out there and campaign to end tax benefits for all childless couples. Go on, we’ll still be here when you get back. If you don’t want to do that…well damn, I’m going to assume that you don’t think that queer couples and straight couples should be entitled to the same legal rights. Maybe you really are more interested in the contents of that legal package than queer equality of access to it – but that a) you don’t seem to be DOING ANYTHING to further the first issue, and b) in spite of your inaction you claim the former issue outweighs the latter one, and therefore you should continue to actively oppose equal access to marriage, makes it seem otherwise.
“No they don’t have the same status under the law because people who engage in incest are not and never will be a protected class of people in any legal jurisdiction anywhere. ”
You couldn’t be more wrong. It isn’t for you to say who protected classes are and who might someday be – such lofty matters are solely the province of judges, because their years of legal training and political networking has freed them from the cheap bigotries of the common citizen. And our esteemed jurist, having said that arbitrarily denying licenses to some pairs can only be based on prejudice and ignorance, has likely freed himself from the traditional bigotry that considers love and commitment between relatives somehow less worthy of social recognition than the love and commitment of non-relatives. Your view that two relatives who wish to enjoy the tax, inheritance and insurance benefits of marriage must necessarily involve ugly abuse is just the sort of retrograde bigotry that the good judge enjoins us against. The love between blood relatives is often more persistent, constant, and forgiving than the sometimes fleeting and unpredictable love of the unrelated, and so it is odd that the latter is considered less worthy of promotion and celebration. It must be just bigotry – after all how does my enjoyment of my sister’s, and my spouse’s quite generous employer-subsidized insurance benefits as her legally recognized spouse harm you?
Using the venerable judge’s reasoning, there is no rational basis for denying any willing combination of adults all the rights and privileges of marriage. No new marriage of any sort can harm those now married, and the government has no rational basis for denying a license and any corresponding benefits to any group of willing adult people.
Correct me if I’m wrong, Robert, but it sounds to me more like you’re arguing against allowing marriage between people who are infertile or not interested in having children more than against gay marriage. I could get behind that, if it were applied fairly: To obtain a marriage license you must present evidence of a child in your near future (pregnancy of 20+ weeks, adoption certificate, etc). It’s a little problematic, but much fairer at least than the current system which allows infertile heterosexual couples to marry but penalizes gay parents. I suppose also that couples should have an automatic divorce when they’re oldest child hits 18. It’d be a different way to organize society, but could probably work.
You’re wrong. As is plain, I have no interest in disallowing relationship. Marry whomever you wish and do, or don’t do, whatever procreative path suits your fancy.
Marry whomever you wish and do, or don’t do, whatever procreative path suits your fancy.
Then I don’t think we have any substantive differences since I also support your right to think gay marriage is icky as long as you don’t try to force that view on others.
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