From the San Francisco Chronicle:
Sacramento — The state Assembly, in a stunning victory for the gay rights movement, approved a landmark bill allowing same-sex marriage Tuesday night and sent it to Gov. Arnold Schwarzenegger.
The measure, which passed with no votes to spare, marks the first time that a legislative body in the United States has approved a bill that legalizes gay marriage. Schwarzenegger has not taken an official position on the legislation but has hinted that he would veto it.
Regardless of Schwarzenegger’s probable veto, this is a notable achievement. And sooner or later, a pro-gay Democrat will wind up elected to the Governor’s office.
The funny part is that Schwarzenegger has said that he’ll veto because he thinks this is a decision properly made by the courts or the people – not by the legislature. As Fred Vincey of Stone Court points out, “Governor Schwarzenegger seems to have forgotten to check his talking points with the anti-SSM establishment.”
Of course, it’s not hypocritical for Schwarzenegger to disagree with the conservative consensus (Schwarzenegger has always been a bit from Bizzaro-world anyway; remember his statement that “gay marriage is something that should be between a man and a woman”?).
So who are the hypocrites? The thousands of anti-Same Sex Marriage (SSM) folks who, after the Massachusetts Goodridge decision, screamed loudly that SSM is a decision for the legislature. I bet that not more than a handful of them will object to a legislature’s decision being vetoed in deference to the Courts.
I’ll object to it. Schwarzenegger is wrong. This is not a matter for the courts. To be legitimate, any introduction of gay marriage to a polity must be initiated by a democratic body, not an autocratic one. The legislature is fine; a popular referenda is fine. If he wants to veto it, he should veto it on the (honest) grounds that he doesn’t like the bill and he’s the governor so neener neener, not on the specious grounds that the courts should decide. He should be slapped upside the head for saying that.
It’ll be interesting to see how this plays out. I suspect the popular referendum banning gay marriage will also pass, but California politics are pretty unpredictable.
Okay now I’m perplexed. I thought Republican’s were against ‘activist’ judges. I just can’t keep up these days.
I am with both Robert and Kim on this. Arnold does not want to take the responsibility and would rather point to the courts and have deniability. The problem is when courts do the work the electorate should, you end up with Roe and a constant threat of reversal as opposed to laws that settle the issue. Arnold is a “girly man” to use his own words when it comes to bucking up and backing up his words. (Actually if he was a woman the issue probably would be signed.) Blessings.
Been there, done that with proposition 22 which passed in an embarassing, 52 out of 58 counties several years ago.
Arnold is an asshat. But you know the adage, Liberal actors mouth off on politics as conservatives whine that they should just stick to what they know, acting. However, conservative actors run for office, rather than sticking to what they know, bad acting.
Fred Thompson
Fred Grandy
Clint Eastwood
Sonny Bono
Arnold Ass-hat
ETC…..
The funny part is that Schwarzenegger has said that he’ll veto because he thinks this is a decision properly made by the courts or the people – not by the legislature.
The “courts” part is definitely – different. But in a state with a referendum process, I suppose one could argue that this issue would be a better fit for a referendum than for a legislative bill. I’m not saying that I agree with such an argument, just that it is defensible.
On the other hand, though, didn’t the people of California recently pass a referendum declaring that marriage is “between a man and a woman?” It could be argued that, seeing as the people declared their desires through a referendum, the only proper way to change this policy is through a referendum.
My personal feeling – I am opposed to the recognition of same-sex marriage. Having said that, I do think that legislation such as that in California is a better way for those in favor of same-sex marriage to go about it.
Most importantly, doing this legislativewly is superior because it allows the legislature to avoid some of the “slippery-slope” issues. The only way for courts to mandate same-sex marriage is esentially to argue on grounds of discrimination being unconstitutional; and such an argument logically also leads to legalizing, e.g. brother-sister marriage and polygamy. (Put another way, if marriage to whomever you wish is a fundamental right, you cannot pick and choose based on the notions that polygamy, e.g., is bad for society while same-sex marriage isn’t, because you would still be depriving someone of a fundamental right). To decide it in the legislature, however, allows the legislature to still keep laws against, e.g., brother-sister marriage and polygamy, because it does not establish marriage between any two people as a fundamental right (which has implications outside of same-sex marriage) but rather is limited entirely in its application to the case at hand (same-sex marriage).
I’ve said this before here, but honestly I just simply do not buy the whole “we need to the people to agree” (whether that be legislative or via referendum) approach to civil rights. If you have a right to something it really doesn’t matter what the politic thinks, as the legal system we all exist under gives me that right, exogenesis to what “the people” think. Hell, most of the civil rights advances in this country have historically come from the courts.
lol, that’ll teach me to hit “submit” too quickly … *grin*
I just wanted to say WOOHOO GO CALIFORNIA!!! Let’s just hope the Governator has the balls to sign it.
(oh, and PS Glaivester, that referendum was about 5 years ago, and it didn’t even make a 2/3 majority, and you have to admit, there have been a lot of large LARGE changes in the gay marriage opinion demographics in that 5 years, especially in a state as liberal as CA … but again, I stated my opinion on civil rights and them not being a popularity contest above).
Sarah, do you believe that marriage to whomever you wish is a basic civil right?
No, because strawmen, by definition, are arguments that your opponent does not believe in.
Now put down your three-year-old cousin, Sarah, and dig the box turtle out of your panties.
I drew a cartoon about this once.
But Goodridge didn’t say “marriage to whomever you wish is a fundamental right” – and nor is that what pro-SSM lawyers have been arguing in court – so your entire argument is specious.
I also dislike your argument because its only makes sense if we accept that it’s okay to deny same-sex couples and their children rights in order to protect the republic against some other ill. This “gays as condoms” argument implies that same-sex couples and children should be seen as tools to be used for our collective benefit, rather than as people whose rights are as important as those of any citizen’s.
The reason Courts should force recognition of SSM is that there is no rational basis for government to oppose marriage equality for same-sex couples. If there is a rational basis for not recognizing polygamous marriages – if, as you say, “polygamy… is bad for society” – then let the courts find so, and strike down polygamous marriages (or not) on their own merits. The two are, and should be treated as, distinct issues.
[Edited the last paragraph to make it clearer -Amp]
The reason Courts should force recognition of SSM is that there is no rational basis for government to oppose marriage equality for same-sex couples.
Nonsense. There is no basis that you recognize as rational. That does not mean there is no rational basis – it means that you’re an ideologue.
Nothing wrong with that, but let’s not pretend that there’s a consensus rationality that the courts can draw on to make this decision without all that messy democracy.
“Alas” readers are (in my opinion) smart people, Robert, who (in my opinion) are fully capable of recognizing when I state an opinion without my having to state “in my opinion” every single time.
For that reason, (in my opinion) your objection was unnecessary. It would (in my opinion) have been better if you had concentrated on a more (in my opinion) substantial response.
Sorry, I thought that was your most substantive point.
I also dislike your argument because its only makes sense if we accept that it’s okay to deny same-sex couples and their children rights in order to protect the republic against some other ill. This “gays as condoms” argument implies that same-sex couples and children should be seen as tools to be used for our collective benefit, rather than as people whose rights are as important as those of any citizen’s.
The reason Courts should force recognition of SSM is that there is no rational basis for government to oppose marriage equality for same-sex couples. If there is a rational basis for not recognizing polygamous marriages – if, as you say, “polygamy… is bad for society” – then let the courts find so, and strike down polygamous marriages (or not) on their own merits. The two are, and should be treated as, distinct issues.
My point is that I think that I think it would be easier for legislatures to deal with the two as separate issues than it would be courts. Granted, I need to take a better look at the Goodridge decision to see the exact arguments.
The thing that needs to be considered about the courts, in any case, is that they are somewhat limited in their capacity to determine social policy. Unlike the legislature, they can’t decide a case on their personal view of the merits of a law; a case must be decided based on what the law as it stands means, and based on whether or not the law violate the state or federal constitutions. It is not enough for the judge to determine whther or not it is rational to deny same-sex marriage; there has to be a clear constitutional reason why the state is not allowed to do so, and it may be difficult to do so in such a way that restricts the precedent to the issue at hand. Therefore, I think that it would be more difficult to achieve policy through the courts without setting precedents that would make it hard to separate issues.
Unless, of course, the belief is that courts should have the right to make policies based on the judge’s notions of social justice regardless of the law or the constitution, which I think sets a dangerous precedent in terms of judicial power.
(oh, and PS Glaivester, that referendum was about 5 years ago, and it didn’t even make a 2/3 majority, and you have to admit, there have been a lot of large LARGE changes in the gay marriage opinion demographics in that 5 years, especially in a state as liberal as CA … but again, I stated my opinion on civil rights and them not being a popularity contest above).
Sorry. I remembered reading on a blog that they had passed such a measure, and I didn’t bother to check the actual date. In any case, I am not actually arguing the merits of the referendum per se, just that if one wants to argue against the bill on procedural issues, there is a basis for doing so that is not inconsistent with the belief that SSM is a legislative rather than a judicial issue.
One point I wanted to make after the blah-biddy-blahing about marriage not being a civil right, and the notion of gays having ‘equal’ status in that they can marry heterosexually as well is this:
This country was founded upon equality and non-interference of church and state. Whenever I hear the arguments made that ‘well, gays do have the right to marry, just not each other’ or varients, I have to wonder – what if this were religion we were talking about.
‘You do have a right to choose your religion, as long as it’s Christianity’ – all other religion would be ‘amoral’, but you can be ‘non-religious’ and still be practicing your right to choose your religion.
I get very tired and offended of the comparison of relationships that are considered illegal without marriage being the trumped up version of analogies, rather than the one that fits best – which is heterosexual relationships that are normal and functioning.
Disagree with the fact that I have gay family members that are married if you like, but other than that it’s none of your damn business. My husband and I don’t go around trying to dictate the amorality we see in many marriages of people who oppose gay marriage and nor do his mother and her wife, and by virtue of that we DEMAND the same courtesy for our families.
And yes, as long as rights are afforded for no other reason than being in a stable committed relationship that acts as an underpinning for a stable society, marriage is a civil right that should be afforded to all consenting couples that are considered otherwise legal.
This country was founded upon equality and non-interference of church and state.
No it wasn’t. It was founded on political, religious, and (to a lesser extent) economic liberty.
I have to wonder – what if this were religion we were talking about.
If it were religion that we were talking about, we’d be pointing to the clauses in the Constitution that talk about religion – specifically, the ones forbidding religious tests, and forbidding the state from establishing a particular sect as a state religion.
There are no such clauses regarding sexuality, although the Founders were perfectly aware that homosexuality existed, and undoubtedly (on statistical grounds) some of them had homosexual inclinations.
My husband and I don’t go around trying to dictate the amorality we see in many marriages…by virtue of that we DEMAND the same courtesy for our families.
Saying “I don’t get all up on their face because he solicits prostitutes, so they should leave me alone while I [whatever]” is not a compelling argument for state recognition of prostitutes, or [whatever].
There is a compelling libertarian argument to be made that reproductive arrangements and family structures should not be within the purview of the state. That argument convinces me despite my personal moral opposition to homosexuality, polyamory, and other transgressive behaviors. Your live-and-let-live argument coheres nicely with that philosophical framework. It does not cohere with the framework that calls for affirmative state sanction of certain relationships.
Within that framework, the arguments that are material are those which go to state interests. You and your husband’s partial abdication of the obligation to participate in creating the community’s moral framework does not speak to what moral frameworks, if any, the state should buttress or institutionalize.
marriage is a civil right that should be afforded to all consenting couples that are considered otherwise legal.
If it’s a civil right, then a statutory act by a legislature cannot legitimately over-ride it in the absence of a compelling state interest. But you are asserting just that.
It is legal for me to couple with multiple women. Accordingly, your construction leads us to the conclusion that polyamorous marriage is a civil right.
It is not legal for me to couple with my 2nd cousin. Accordingly, your construction leads us to the conclusion that cousin marriage is not a civil right.
Prior to the Supreme Court’s affirmation of that case in Texas, I think it was, in some states it was legal for me to couple with a man, and in other states it was not legal. Your construction leads us to the conclusion that (before that decision), gay marriage is a civil right if the legislature says it is, and isn’t if it says it isn’t.
Your construction, in other words, is incoherent. If it’s a civil right, then it’s a civil right regardless of what the legislature has to say.
It appears that you are trying to have it both ways. You want a libertarian moral culture that is permissive of everything within the boundaries of adult consent, but you also want a prescriptive state culture that delineates special privileges for particular couplings. I don’t think this particular circle can be squared; you have to go with one, or the other.
If the first, then I welcome you to join us wacky right-wing libertoids in seeking to remove state power from the marriage bed. If the latter, then you can join with the legions of other seekers of political advantage, and try to convince a plurality that one additional flavor ought to be added to the Baskin Robbins menu of state-enforced privilege. Trying to argue for state-enforced privilege from a leave-me-alone perspective is a non-starter.
How about Poke her?
Not to be a blog-whore (well, not to be a big one) but I’m up for a columnist position at my campus newspaper. It’s paid and everything :D. So, my sample column is up at my livejournal, and since I respect people here so much, I was wondering if anyone would be willing to give it a once over, see what you think.
http://www.livejournal.com/users/antigone_reborn/26714.html
Please be kind, this is my first time doing any kind of professional writing. And please comment on my blog, I don’t want to eat up Amp’s comments.
Oh, ps, ignore the first part…it’s the part at the end that’s important.
Robert –
Sarah, do you believe that marriage to whomever you wish is a basic civil right?
Okay, my first problem with that statement is the fragment “basic civil right” as that is HIGHLY redundant, as if something is a civil right, it by definition IS basic. Similarly with the oft used “fundamental civil right”.
But, semantics aside, that question is an INSANELY obvious straw-man, so I won’t answer it, because there’s no way it isn’t going to be pretty.
What I will say that the right to monogamously wed a consenting adult exists as a fairly solid institution in our society for an individual. Contemporary constructions of marriage exist within this right.
Please note, this DOES NOT include marriages to more than one person, nor does it include children or animals. The slippery slope argument was used against giving women the vote or owning property, enfranchising people of colour, etc, etc and it has NEVER come true. It’s a hollow scare tactic and says more about the argument of those using it rather than anything in regards to that which they are arguing against.
First Robert, I’ve never claimed it wasn’t a civil right all along. I’ve claimed that it’s a civil right for couples who are in legal relationships. Also, the polyamory concept again falls flat, because we’re talking about a ‘couple’. For what it’s worth, however, I wouldn’t have an issue with familial contracts that would include polyamory as well as relationships like Barry, Charles and Sarah. They are for all intents and purposes a legitimate family and contribute to society as a whole in their relationship as a family. They support one another in ways that might otherwise burden the state, if not for each other. This is what such contracts are used for. Being that it would involve more than two parties, however, it is not automatically apparent that it qualifies as marriageable, as it would be a 3+ way contract and would vary significantly from the 2 way contract of ‘marriage’. That said, a marriage contract between a heterosexual and a homosexual have zero legal differences, and both are considered legal relationships to have.
As for the religious argument, the analogy is if the government were to ‘only’ allow religious freedom to be Christian, not that it does. If we were to use that as a premise of the logic behind the anti-same sex marriage argument, the glaring discrimination and interference is far more evident.
Finally, you’re arguing semantics as if somehow that changes the point, which it doesn’t. The government was founded upon equality and freedom (for the white man at any rate). You’re being tiresome in your attempt to try to earn points by scoring that sort of shit up with me. I debate daily with people who are far superior in the bullshit use of semantics and have come to the conclusion that as a legitimate form of argument semantics loses time and time again to just plain ole thinkin, and really have very little use for it as a means of debate.
Look, here’s Arnie’s dilemma: the people of California passed an initiative defining marriage as one man and one woman. The legislature doesn’t have the authority to overturn that law, only the people through another initiative or the Supreme Court (for the whole state) or an Appeals Court (for its district.) Right now, a Frisco county court has ruled that it’s unconstitutional, but that court doesn’t have the authority to strike down the law.
So does Arnie sign the bill, creating a legal morass that has to be resolved by the Supreme Court, or does he veto the bill and let the Supreme Court sort it out anyway?
Either way he goes, there will be another ballot initiative to amend the constitution to make marriage one man, one woman so the whole exercise is nothing but politics, regardless of how you feel on the actual issue itself (I’m for gay marriage because I think gay divorce will force the courts to get serious about equal rights for parents of any gender.)
Politically, Arnie has to veto the bill because the people’s wish is still law, although I believe Arnie himself likes the gay people and others of that nature, having sold a lot of gay porn over the years.
But this is such a classic California battle it’s fun to watch, regardless of how you feel about the actual issue.
One point I wanted to make after the blah-biddy-blahing about marriage not being a civil right, and the notion of gays having ‘equal’ status in that they can marry heterosexually as well is this:
Well, to be pedantic, technically not allowing same-sex marriage does not discriminate on the basis fo sexual orientation, but on the basis of sex. That is, a gay man has the same marriage rights as a straight man, but not the same marriage rights as a woman.
There is no basis that you recognize as rational. That does not mean there is no rational basis –
“Rational” does not mean “somebody can make a semi-plausible argument out of it.” It means that the law must be rationally related to a legitimate government purpose (lowest level of legal scrutiny).
See, in California, we have all these laws letting same-sex couples adopt and become domestic partners, and we allow people who flat-out admit they aren’t a child’s parents to be, in some circumstances, regarded as a child’s legal parent. So there is nothing in the law to support the usual “rational” arguments anti-SSMers make about biology-is-destiny or being around queers warping children for life.
Oh, and then there’s the whole problem of gender discrimination. This isn’t “gay marriage,” people. It’s same-sex marriage. Do we need to go over the whole Loving thing again for people who had their fingers stuffed in their ears last time?
Well, it looks like the Governator is going to veto the bill, citing its conflict with the expressed will of the populace. That’s much better than saying the courts should control it.
Sarah:
What I will say that the right to monogamously wed a consenting adult exists as a fairly solid institution in our society for an individual. Contemporary constructions of marriage exist within this right.
So you are appealing to tradition and history as the basis for what creates a marriage?
Kim:
you’re arguing semantics as if somehow that changes the point, which it doesn’t.
I’m arguing fundamental points of view. You can be a libertarian. You can be a statist. You can be something else. Your expressed commentary is appealing to state power on libertarian grounds for the privileging of a particular viewpoint. That doesn’t work. It’s a nonfunctional, incoherent argument.
The government was founded upon equality and freedom
Well, you’re getting closer to right! But “equality” as you reference it doesn’t enter into it. The kind of equality envisioned by the founders was formal equality – of the type that annoys SSM advocates by pointing out that both gay and straight women are free to marry men, and thus have equality under the law.
The type of equality you are appealing to as a value is not a consensus American value. It’s an outcome-based equality – something the founders would specifically reject. You can certainly argue, with democratic legitimacy, that the founders were wrong and your mode of outcome-based equality ought to be the consensus ideal, and you can certainly work to enact that in our framing documents and in the national discussion. But it isn’t a type of equality that a majority of the populace currently endorses. You’re using your conclusion as a premise; doesn’t work.
Look, the goal of America was to create a society where individual liberties are respected above government interference and that every citizen have equal treatment under the law. An adult citizen should be free to “marry” any other adult citizen or citizens in any configuration they choose. As long as the parties involved are in agreement, the government should have no say in limiting them, except with respect to incest, which can be viewed as a genetically unsound practice.
The fact is that there is a fundamental right to designate one’s own spouse(s) and the government’s only role should be to recognize that relationship. They need to either open it up to everyone equally or get out of the marriage business altogether.
I would have no objection if they wanted to decalre a “marriage” to be a religious practice, and get states out of it completely – no tax breaks, no favoritism under inheritance law, etc. However, marriage was not invented by Christians, so it would be inaccurate to say it is only a religious practice. There have been many societies where a marriage only signified an agreement to share the same living space, and “divorce” involved taking your belongings and going elsewhere.
As to hypocrisy, I’ve come to the conclusion that it is impossible to be a Republican and have a functionaly super ego. If you have a conscience, care about being consistent, honest, or moral, you simply can’t do it within that framework. Arnold’s job as a Republican is to do what the party wants, and the party says gays can’t marry. Therefore, Arnold will say whatever it takes to oppose gay marriage. If the legislature approves it, claim it should be decided by the courts. Conversely, if the courts approve it, call them activist and demand it be left to the popular vote. Ultimately, it should be up to neither the legislature, the courts, or anyone except the individuals involved.
The Constitution clearly states that all rights not specifically addressed wothin it are reserved to the people. Marriage rights were not addressed, so it is up to the people to decide how they will approach marriage. Personally, I think that those thousand-plus laws are that favor married couples are
unconstitutional. I don’t agree that the nuclear family benefits society, nor that there is a compelling interest in the state supporting it.
Most families are extended, and have been throughout history. The idea of mom, dad and a couple fo kids only is a modern myth that rarely occurs in any stable form now. Most adults practice a form of serial monogamy, and most children have at least one primary caretaker who is not a biological mother or father. It would make far more sense to have each individual exist as a separate entity in the eyes of the government, and to have health care, child care and education provided equally across the board. We already have structures in place to deal with child custody – why should the legal relationship betweeen the child’s custodians be an issue in determining what is best for the child?
To borrow a quote fromBill Maher “We’re either drinking from the same water fountain in this country, or we’re not.” It is time to put an end to the special rights of heterosexuals.
Robert –
So you are appealing to tradition and history as the basis for what creates a marriage?
Oh, come on Robert, that’s a pathetic statement, and COMPLETELY contrary to everything I have said previously, not just the statement of mine that you are quoting (how on EARTH did you get “tradition and history” from “contemporary”? And what colour is the sky in that world?).
Are you trying to be deliberately obtuse?
Okay look Robert – lets try this one out for size. You’re being a patronizing and semantic *edit for Amp’s sake* and I really have no desire to fling the semantic crap back and forth for your own mental masturbatory pursuits. How’s that for clarifying? It’s a typical style of obfuscation employed by the right to minimize the impact of controversial issues. I’m not going to play the game.
Now, on to something important:
http://www.governor.ca.gov/state/govsite/gov_contacts.jsp
That is Gov. Schwarzenegger’s contact site. Please go drop him an email objecting to his threats of veto.
PS: Yikes, I posted this as Amp for a minute – that was actually me, I had gone in earlier to edit mode which can only be done on Amp’s account and somehow it kept me logged in again. Gotta be more careful than that.
Sure, Kim, I understand. You hold a fundamentalist religious position. It can’t be argued; any contrarian view is offensive and stupid. I get it.
Sarah:
Are you trying to be deliberately obtuse?
No, I’m trying to determine where you believe the right to SSM is derived. You won’t answer questions about the philosophical ground you want to stake out, so I’m dropping back to a position of trying to discern it from what you will say.
And what you did say implied that what we think of as marriage rights derive from the history of people having the right, an empirical position. If that isn’t what you meant, I apologize for my obtuseness.
But it would be a lot easier to know where you’re coming from if you would answer questions about it.
Robert asks from where the right of marriage is derived? I guess is part of the right of association between consenting adults + the right of religious freedom (what about religions or churches that want to recognize gay marriage), isn´t it?
Robert –
Okay, the right to marriage, and marriage itself, are two different things.
The right to marriage is a fairly well established thing of the last couple hundred years. However, how marriage itself is manifest, ie the form that the right exists within, is excessively historically variable. This is why arguments based on ‘tradition’ and ‘history’ (aside from virtually all being inaccurate descriptions) fall flat, as they are predicated on a ‘stable’ construction that has never actually existed.
Marriage, as it currently (ie contemporarily) exists EASILY encompases SSM. I’ve actually stated such repeatedly on this blog.
So, not only do we have an establish recent history of a right to marriage (and reinforced history, given rulings regarding marriage in the last half century or so) we also have a contemporarily located definition of marriage that easily includes SSM.
This is, of course, leaving aside all the arguments based around social-justice.
I apologise if I didn’t state that clearly enough above..
I find myself in a quandary, I understand Robert’s argument and it is a valid response, however I am in favor of SS unions.
The research I have done doesn’t bode well for SSM in the historic context; there has been no use of the term marriage for anything other than a man and a woman for any of the researchers I followed, going back a few thousand years. There was a time where “brotherhood” ceremonies were performed to unite men in Christian brotherhood, but there is no indication that it was akin to marriage. This alone however should not be a major issue as for many hundreds of years polygamy was OK and collectively most folks do not hold to that position now, in fact many laws prohibit it. (Times change.)
Contracts defining any and all desired relationships and relating it with marriage does not sit well either though. It is OK to do the contract thing for whatever one wants, however a contract alone does not make it a marriage, which is unique. Marraige has meant more or less the same thing for a very long time, good ones and bad, warm or cold, adding a new set of relationships to the institution that do not fit the accepted definition does not make sense to many folks.
I have been proposing to my religious friends and fellows since many marriages do not have a faith base, many are in fact civil ceremonies and do not seek any spiritual association, (Something that is difficult for me to grasp personally as I see a profound Spiritual response.) than why shouldn’t the state recognize civil unions for folks of either gender? The laws now leave to many ethical dilemmas needing to be codified whether one likes it or not simply because the situations with multiple paternity/maternity etc. are here now. It is crazy to pretend that the situation does not exist. Some folk live wishing things were different and try to ignore the realities, that IMO is a risky way to live.
If we recognize that the institution is no longer only for having kids, that love and commitment are the primary motivators, than why not? If one believes that children are being brought up illegitimately out of wedlock in a SS household, why not sanction it and take away the former stigma? The world will not fall down or go away if we recognize that Gay and Lesbian people are no less human than anyone else. More people attempting the at times tough road of monogamous and long term commitment sounds good to me. Call me old-fashioned but I like the idea of more folks in lifetime relationships, it seems to be much better for kids, and many other aspects of our community.
The argument that it should be a religious domain and not legally recognized is weak in that it requires a person believe in a religion, not a lot of freedom in that. Part of the issue is legal recognition and the privileges and pains that come with it, the church can’t help there. Also it sort of lands the issue into the church, where it has not had the sole prevue for quite some time. Personally whether or not churches choose to participate in the unions ought to be up to the doctrines of the individual churches themselves.
One last thing, the elected representatives chose to pass a law regarding the rights of their constituents, what is wrong with that? If folks do not like it vote them out. I would have liked to see this work its way out. This way they just dodged another bullet… there are more coming. Blessings.
Rock, you might be interested in my epic series on SSM, and why the state should butt out of marriage altogether.
I don’t think that most SSM opponents have Robert’s delicate sensibilities about government intervention. I think most of them just plain don’t want same-sex couples to marry, and they don’t give a damn about how it’s stopped, so long as it is.
Certainly, I doubt that a single one of them is pushing for the government to get out of the business of straight marriages. Think of all the goodies you’d have to give up were that the case !
So Ahnold’s a shithead, but he’s hardly unique. We have our very own home-grown shitheads right here in OR. Though our Governor isn’t an outright shithead, more like an clueless, opportunistic cold fish. Business as usual.
Here’s an interesting column about the SSM issue in Florida. I like the term “ballot bait” a lot. I think Ah-nold just wishes the whole issue would go away. Doesn’t he have to sign a referendum if it passes to turn it into law? I think there’s a next step in there somewhere, but I don’t remember the Cal. process very well.
Robert, you know the source of the right to marriage. As you say, y’all could avoid the issue by getting the state out of marriage altogether. But you won’t, because many hetero couples would get upset at the seeming disrespect.
Human rights should not be left up to the majority to determine; Human rights codes exist specifically to protect the minority from the majority’s opinion. Remember when the majority of the population thought that black people were property? that women were? Where would we be if they’d taken a referendum on the rights of those groups?
Ali’s comment reminds me of a statement made by a Canadian politician (I wish I could remember his name) shortly after their House of Commons approved same-sex civil unions… something to the effect that a referendum on this issue would have been inappropriate because the majority of the people should not be deciding which rights a minority of the people should have. It was one of the most sensible things I’d heard on this subject.
Let me reinforce what Ali and Dave above has just said. As I stated way above, civil rights should not be a popularity contest. It simply isn’t, and shouldn’t be, up to the majority to decide which rights minorities should have access to.
Robert,
I am interested, I cannot access the link provided, could you supply an address? Thank you, blessings.
Not sure what happened to the link; perils of commenting late when tired, probably.
http://www.legendgames.net/myblog.asp?view=plink&id=398
So who are the hypocrites? The thousands of anti-Same Sex Marriage (SSM) folks who, after the Massachusetts Goodridge decision, screamed loudly that SSM is a decision for the legislature. I bet that not more than a handful of them will object to a legislature’s decision being vetoed in deference to the Courts.Square on point and entirely correct. Except for one thing; this does not remove the ability of the legislature to make this decision, it just makes it more difficult.What the Gov. of Calif. might better have said is, “I think that this measure is ill-informed and extreme. So I will exercise my Constitutional right to veto this measure and force the legislature to confirm it by passing it with a 2/3 majority. Let’s see if there are enough of them who feel it’s the right thing to do and are willing to risk the disapproval of their constituents.”Essentially, the Executive authority has a right to decide that a simple majority is an insufficient margin to confirm the correctness of a legislative act and can force the Legislative authority to pass a measure by a 2/3 majority. This doesn’t remove the right of the legislature to make the change, it just makes them have to be more emphatic about it. I wonder if the Federalist Papers state why the Executive was given this power?
Look, the goal of America was to create a society where individual liberties are respected above government interference and that every citizen have equal treatment under the law.I follow you so far. An adult citizen should be free to “marry” any other adult citizen or citizens in any configuration they choose.But I don’t see how this is derived from your previous statement. For one thing, marriage as defined at law (which is what we’re talking about, not what happens in church) is equally applicable to all citizens. Everyone has the right to marry someone of the opposite sex. The fact that homosexuals (understandably) don’t wish to do so doesn’t mean that they are being treated unequally. The law makes no recognition of sexual desire or love between the married couple. Married couples are free to have sex, or to not have sex, as they choose (we’ll leave rape out of this, that’s a crime). And people who are not in love are free to get married because of economic convenience, or because their parents have arranged the marriage and they don’t know each other (and I’ve met at least one couple whose marriage was contracted on that basis). The law has not up to this point provided that the basis of marriage must be sexual or emotional attraction between the parties, so why should it then take notice of it now?As long as the parties involved are in agreement, the government should have no say in limiting them, except with respect to incest, which can be viewed as a genetically unsound practice.Or in case of being below a certain age. Or in case of the wish to involve more than two people in the marriage bond. Or in case of a first-cousin relationship (in many states). It seems that the government has quite a bit of say in limiting marriage.If you are given the opportunity to do something, but don’t wish to do it because you have no desire to do that and want to do something else, that doesn’t mean that you are being treated unequally from the people who do want to do it.
I’d rather see legislatures legalize SSM than leave the job to the courts, much like I find it desirable that legislatures would legalize voting by blacks. But the fact that a legislature would not legalize SSM does not lead me to conclude that SSM should not be legal, any more than the fact that a legislature would not legalize voting by blacks would shake my faith in the franchise.
Robert makes a good point that the libertarian rationale for SSM conflicts with appeals to the worthiness of SSM, even if they both support the same policy. I quibble with some of the details, however.
I don’t understate the basis for this statement. I doubt that the founders would have said that a policy of imposing federal taxes exclusively on Maryland was consistent with the Equal Protection clause, merely because the same test – “Do you live in Maryland?” – is applied uniformly.
The Equal Protection clause presumably does not rely on “consensus.” I understand the clause to protect the rights of minorities, whereas a “consensus” requires the consent of a majority.
Also, I don’t understand SSM to rely on “outcome-based equality” such as a demand that a specified percentage of all marriages be SSM. To the contrary, the defense of SSM relies on plan ol’ Equal Protection formalism: The state should not discriminate based on a suspect category (such as gender) until the state identifies a rationale basis nexus between the discriminatory policy and the state interest, and then the discrimination must be narrowly tailored to promote the interest.
Under Equal Protection jurisprudence, the burden to identify the rationale basis, and the nexus, is on the defenders of the discriminatory policy. In short, we presume that there is no rational basis for discriminating on the basis of suspect categories – that’s what it means to be “suspect” – until someone demonstrates the contrary. So as a formal matter, Amp is entitled to his presumption.
Medium Dave: I believe you’re thinking of the Justice Minister – Irwin Colter. I was extremely impressed with him as well, through the whole aggravating battle here. His oft-repeated point was that you can’t pick and choose which rights you respect and which ones you ignore. I’m looking for a link to a quote, but I’m not having much luck at the moment. (goddess help me if I have to search the Hansard.)
(And yes, I’m Canadian, and queer.)
An interesting argument against queer marriage here.
I personally think the easiest way to do is simple. Get rid of state sanctioned marriage altogether… allow everyone (opposite sex and same sex couples) civil unions with the various benefits that we provide married couples today. Reserve marriage ceremonies for religous communities, so those who want to have a traditional religous marriage can. People are free to observe their own religous traditions (if you are a pastor who believes homosexuality to be a sin, you’re not likely to get many homosexual couples asking you to perform their ceremony, if you are a pastor who believes it not to be a sin, you can perform as many as you like and if you don’t want any religion in your union at all, you can just leave it as a civil union). As far as encouraging people to have children, we have child tax credits and the like already… those couples that choose to have children can benefit from this under both the system we have now and the system I’m proposing.
That’s pretty much my position too, Julie.
Julie’s suggestion is pretty close to what I accept as well. However the state sanctioning brings with it all kinds of legal protections and remedies that need to be in place to make the issues that arise in the vagaries of life navigable and somewhat predictable. The distribution of property, child custody, etc all is invoked when the marriage is sanctioned by the state. (As I understand it.) The Issues are getting more and more challenging as time goes on, and we need to come up with ethical and legal remedies as the world continues to become more difficult to navigate. For instance a recent case argued in the courts involved two women who decided to live and raise a family together. One was infertile the others uterus was unable to bare a child. So ones egg was implanted in the others womb and sure enough a beautiful blond girl was the product of their love. Unfortunately they decided to part a few years later. The standard paper work eliminated any claim to the child by the donor, and the bearer of the baby was not in a mood to share. (I believe both finally were awarded custody.) Were they married the guidelines would have been clear. Or, how about twisting your mind around paternity of a child from a deceased sperm donor… life gets more complex all the time. The years of marriage law have helped to sort these things out. This could and should benefit all legal unions.
I am one who believes strongly in the “two shall become one flesh” and hope as many as possible come to experience that Spiritually and physically, however for those that do not share my vision, civil unions should be made available. Blessings.
Rock Writes:
However the state sanctioning brings with it all kinds of legal protections and remedies that need to be in place to make the issues that arise in the vagaries of life navigable and somewhat predictable.
Julie addressed that in her post:
Get rid of state sanctioned marriage altogether… allow everyone (opposite sex and same sex couples) civil unions with the various benefits that we provide married couples today. Reserve marriage ceremonies for religous communities, so those who want to have a traditional religous marriage can.
So, two people who wished could form a civil union that would allow them legal benefits. The whole “marriage” thing would then be just a religious ceremony that folks who believe in that sort of thing could do in addition to the legal “civil union”. The best of both worlds in my opinion.
Actually, I don’t know why the religious types aren’t all for the idea. Without the state involved in “marriage”, it would be a church thing. They would be free to practice their discrimination and hypocrisy openly rather than hiding it. They could deny “religious marriage” to all those folks they hate. They could feel all superior and special. I would think they would love the idea.
Great post, Julie. Reasonable and full of common sense.
I agree 100% with Julie…my position too.
Get rid of state sanctioned marriage altogether… allow everyone (opposite sex and same sex couples) civil unions with the various benefits that we provide married couples today. Reserve marriage ceremonies for religous communities, so those who want to have a traditional religous marriage can.
Um, the only diference between that and what we have now is that we exclude same-sex couples. “the various benefits that we provide married couples today” include state-sanctioned benefits. You do not have to have a religious marriage to be married.
of the type that annoys SSM advocates by pointing out that both gay and straight women are free to marry men, and thus have equality under the law.
Au contraire! This is exactly the argument that supports SSM. It’s not about gay or straight (again, bisexuals don’t exist….sigh). It’s about gender, which is a protected category. Not sexual orientation, which isn’t.
I know this is an inconvenient argument, but that doesn’t make it any less the case. The ‘right to SSM’ stems from having the right to marry. Especially if you live in a state like, oh, California, where gender is subjected to strict scrutiny, and the laws do not reflect any public policy against same-sex couples forming households and rearing children.
Thanks mousehounde!
Mythago: I am well aware that there are state sanctioned benefits given to married couples today are not given to same sex couples. That’s what I’m saying should be fixed. It seems to me like the big hang up all of a sudden is on the word marriage. So get rid of it, let any couple who wants to have a civil union have one and save the institution of marriage, persay, as a religous ceremony for only those who want it. That way everyone can keep their own religion while at the same time, SS couples can have all the benefits that go along with marriage.
Julie: I personally think the easiest way to do is simple. Get rid of state sanctioned marriage altogether… allow everyone (opposite sex and same sex couples) civil unions with the various benefits that we provide married couples today.
It’s a very, very USian solution, in a nation where the vast majority of people don’t have passports. Because, of course, if the US abolished marriage, replacing it with civil unions, it would then be entirely up to all countries where USians travel whether they wanted to recognise “state-sanctioned civil unions” as a legal equivalent to civil marriage. But in a nation where the vast majority never do leave the country, that wouldn’t be important to most people, perhaps.
But in any case, this tactic is just another “let’s deny same-sex couples marriage” argument, since in the real world, no state is going to remove the right to marry from heterosexuals. “Separate but equal” – which is where same-sex civil unions or civil partnerships are for – doesn’t sit well with Americans who are accustomed to that argument being used to justify “separate but unequal” facilities. That leaves one option for the US: same-sex marriage.
May or may not happen, but the whole “straight folks shouldn’t be allowed to get married either” is nothing but a red herring.
I’m actually in favour of universal civil unions, as I think in the long run it would actually result in a better system. However, I honestly don’t think it is practically possible. For a couple reasons.
First off, and most majorly, can you imagine the rhetoric/propaganda that would come from the other side? “OMG, THE GAYS ARE TRYING TO TAKE MARRIAGE AWAY FROM YOU!!”. It’s been rather vividly shown that Mom and Pop in rural Bumfuck can’t tell the difference between civil marriage and religous/private marriage, thanks to the lie machine that the other side so effectively uses. So, if “THE GAYS!!” ARE actually effectively taking away marriage, then there will be a backlash that made the recent constitutional ammendments look like merely a blip. It would simply turn into a political cluster-fuck.
Secondly, the core of most of the bigots doing the mobilising is not “marriage” per sae, it’s ANY recognition of gay and lesbian relationsip as valid. Civil unions to these people are a disgusting pill that they will swallow in order to ensure that our relationships aren’t equated with theirs at the civil level, ie marriage (that’s why the “seperate but unequal” arguments that we use don’t work, as that’s what they actually want). If everyone is given civil unions the same problem will exist for them, and so they will mobilise against it and use precisely the same scare tactics (ie my first problem) in order to get those for whom it wasn’t about equality being the problem, it was (and this I’ll never understand mind you) it was the word ‘marriage’.
As I said above, I think universal civil unions are an excellent solution, possibly the best one, but it’s simply not going to work as an effective political strategy.
Oh, just as an afterthought … it’s like Betamax vs. VHS, IS-120 vs. Zip-Disks, USB 2.0 vs. Firewire … sometimes the patently better option simply won’t win.
Oh, I agree Sarah. I’m sure that everyone would be up in arms if we tried to actually implement it. It’s just my thinking outloud, if you will. I personally could care less if my marriage (I’ve been married for four years now) was a civil union or a marriage. I still would’ve chosen to have a religous recognition, because I am like that and it’s personally important to me, but if we just divorce religion from the state sanctioned part and make universal civil unions, I am one straight married Christian who would be just as happy. The problem is most of the really right wing Christians would never accept that.
Jesurgislac:I don’t understand how it’s a seperate but equal thing. There are plenty of churches out there willing to recognize the legitimacy of SS couples, so if they wanted the relligous part, they would be just as able to get them as OS couples. There would be equal benefits for all under a system like this and everyone would have the same thing, so I don’t understand how it would be seperate at all? Everyone would have the exact same thing! If you mean that it will never happen b/c most straight people would flip out, then yes I agree. I’m not saying it’s going to happen, or even that I think most people would accept it, but it’s just my personal viewpoint.
Oh, and I should actually add that I have no problems with SSM in general, I’ve never understood how the gay men or women down the street getting married has any effect on my marriage whatsoever. My outloud thinking is more of a trying to find a solution to the problems that we are seeing today. And, yes, I could see SS couples getting a little pissed about only be allowed civil unions where OS couples are allowed marriage and all it’s benefits. Again, if we take religion out that which is state sanctioned, then I think it’s the best of both worlds. There are a lot of things that I don’t do/believe in because of my religion, but I don’t have any desire to force those beliefs on others. Last I checked, we don’t live in a Christian theocracy.
The decision for Arnold is easy. He needs to support the Bush Administration right wing agenda. That’s why I will never ever again vote for a Republican, no matter whether they call themselves moderates, centrists or even liberals. Republicans all say one thing about being the party of inclusion and then after they’ve included all the votes on their side of the ledger, theyproceed to exclude people. Firs,t the Republicans say that they can’t have activist judges re-defining laws and that the laws are made by the legislature. When they disapprove of the laws the Legislature enact, they then say that the courts should decide the laws. The fact is Republicans want to dictate morality or at least their version of morality. Arnold in spite of his rhetoric is just a girlie man who has to hide under the apron strings of Papa Bush. If he believed in equality for all citizens, he approve the same sex marriage bill because it is the right thing to do.
Mousehounde,
Please forgive the seeming redundancy; I looked at “Benefits” as taking advantage of joint insurance, tax benefits, etc. I only restated to imply that all the other ramifications of the legal status of current marriage law be applied also, of which some can be viewed as not so much benefits but are part of the process as well as protections, some of which are intrusive. Blessings.
It seems to me like the big hang up all of a sudden is on the word marriage. So get rid of it, let any couple who wants to have a civil union have one and save the institution of marriage, persay, as a religous ceremony for only those who want it.
Do you think people will stop calling it “marriage” because you change the name on the county form? Do you think all those laws that use the word “marriage” will now apply to “civil unions” without buckets and buckets of lawsuits? (Answer to both: No.)
Everyone has the right to marry someone of the opposite sex.
That was the same argument the State of Virginia used to justify laws against interracial marriage. “Nobody has the right to marry someone of another race, and everybody has the right to marry someone of their own race, therefore no discrimination!”
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“Nobody has the right to marry someone of another race, and everybody has the right to marry someone of their own race, therefore no discrimination!”
That is really a scary sentence, what makes it equally absurd is it was not that long ago.
Lets pray and work for the day so soon the rational for prohibiting SS folks equal rights sounds as heinous as the statement on race to all as well. Blessings.
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Regarding the argument about whether this is an issue for courts or legislature or popular referendum to decide: it doesn’t matter who decides it as long as it’s decided correctly to not discriminate.
If couple A has the right for their union to be recognized by the government, then so does couple B; to do otherwise discriminates not only by sexual orientation but by religion (the government accepts all marriages that meet mainstream Christian standards, but not all marriages that meet, say, Pagan standards (any loving couple) or some liberal Christian standards (UU & UCC, for example), not to mention there are couples who don’t care what ANY religious body has to say about their union, and it’s a violation of the first amendment to force any of them to conform to mainstream Christian standards in order to have their union recognized).
A court decision on gay marriage is either just (upholds the rights of gay & lesbian couples to be treated the same as heterosexual couples), or unjust (denies gay & lesbian couples equal protection under the law).
A legislative decision either fairly grants rights to all its citizens, or unfairly grants those rights to only some of them, for no good reason.
Popular referendums involve the dangerous outcome of the majority speaking for the minority (when all those anti-gay-marriage state amendments were passed, it was widely commented that “the people” don’t want gay marriage, implying that all the people had the same views as the majority), and human rights should never be dependent on public opinion. Heterosexuals have no more right to deny homosexuals the right to marry than homosexuals have to deny heterosexuals the right to marry.
Julie: There would be equal benefits for all under a system like this and everyone would have the same thing, so I don’t understand how it would be seperate at all?
If same-sex couples can have civil unions, and mixed-sex couples can have marriages, then clearly what you have is a “separate but equal” (or a “separate and unequal” system).
If (in a fantasy universe) the US government decides to abolish marriage and have everyone in the US compelled to have civil unions equivalent to marriage, that would be equality in the US. The only difficulty would be that US citizens wanting to live in other countries would be dependent on other countries agreeing to recognise American civil unions as an equivalent of legal marriage. This they might well do, in the long run, but it would require either legislative or court action, and of course there would be no compulsion on any other country to do so. But, as I said, this is (a) a truly USian solution – an introspective country where the vast majority have no passports and would not care that, outside the US, they are not married: (b) a fantasy solution, because no US government is ever going to take the right to be married away from heterosexuals.
It’s a red herring. It’s a way of bowing down to the bigots who think gays ought not to be allowed to be married, because you know perfectly well that the US government is never going to abolish marriage, so it’s okay to claim they ought to so that same-sex and mixed-sex couples can be equals in non-marriage.
Either support same-sex marriage or don’t. But don’t make up fantasy solutions that you know will never happen.
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Barry writes:
It wasn’t vetoed in deference to the courts, but in deference to Proposition 22. There’s nothing hypocritical about criticizing the Massachusetts courts for encroaching on the lawmaking powers guaranteed to the Legislature by the Massachusetts Constitution, on the one hand, while also criticizing the California Legislature for encroaching on the lawmaking powers guaranteed to the people by the California Constitution. Quite the contrary, both objections have a common thread: respect the separation of powers. The only wrinkle is that such separation happens to be a three-way split in one state and a four-way split in the other. You can argue that granting the people that much power is a bad idea, but until that changes, the law is the law.
Even if the California Constitution permitted the Legislature to amend or repeal initiative statutes, which it emphatically does not, your comparison would still be invalid. Simply put, there is no legal, moral, or other equivalence between judges striking down laws they don’t like and governors vetoing bills they don’t like. The former is an affront to the democratic process; the latter, an integral part of it.
Sarah in Chicago Writes:
I’m not sure what your point is. For one thing, five years is not a particularly long period of time, and if there has been any huge shift in public opinion here during that period, as you claim, I’ve not seen it. For another, voter initiatives do not generally have expiration dates, and Prop 22 is no exception, so until the voters repeal it, the law is the law. AB 849 sponsor Mark Leno knows that and, I suspect, also knows he wouldn’t have a prayer if Prop 22 were up again for a vote. If he thought he could win that battle, which he knows is the only legal way to enact gay marriage in California, he’d have put it to a vote, as the Constitution requires.
Or maybe not. Maybe Leno didn’t really want gay marriage after all. Maybe he just wanted to embarass the governor by making him veto it. Or maybe all he really wanted was to savor the delicious irony of having California be not only the first state in the country to have its legislature pass a gay marriage law, but also the first jurisdiction in the world to have a gay marriage law struck down by a court.
Actually, there was no point there, as I stated. NUMEROUSLY.
What part of civil rights not being a popularity contest did you have a problem with understanding? Just because a majority of a population think a particular way does not make it correct, particularly when it comes to the rights of a minority.
In posting those details I was merely giving Glaivester a bit more background information (which we like to do here) NOT trying to make a point. As to changes over the past year in opinion polls, they have all been showing pretty much the same thing in CA; namely that not even 2/3 majority has remained and things are fairly split down the middle, much like the legislature funnily enough. And as to prop 22, from all indications, it looks like it’s going to be overturned as unconstitutional, as lower state courts have already ruled if I am remembering correctly.
But again, the stats of the opinion polls are meaningless in this debate.
Simply put, there is no legal, moral, or other equivalence between judges striking down laws they don’t like and governors vetoing bills they don’t like.
What is wrong with a judge striking down a law that is unconstitutional? That’s part of the whole separation of powers thing, y’know. A judge who says “I don’t like this law, it should go away” is rightly condemned. A judge who says “this is unconstitutional, but you know, the people voted for it” should also be condemned–as the state and U.S. Constitutions are *also* a reflection of the will of the people.
The only difficulty would be that US citizens wanting to live in other countries would be dependent on other countries agreeing to recognise American civil unions as an equivalent of legal marriage.
No, that would be far from the ONLY difficulty.
Sarah,
What part of civil rights not being a popularity contest did you have a problem with understanding?
Actually, if you have problems convincing at least 50% of the voters that protecting civil rights is worth their vote you have other problems. It may not be a popularity contest, but a majority is a far better protector of minority rights than minorities. History shows us that the more concentrated the power (in fewer hands), the fewer civil rights are protected.
And as to prop 22, from all indications, it looks like it’s going to be overturned as unconstitutional
Its actually got a pretty good record. Its held up in state and federal court, but you are right it only takes one judge with authority to over rule it. There has been a judge to rule it unconstitutional, but he didn’t have the authority to do so. It is awaiting appeal in a court that does have the authority to declare the law unconstitutional.
There are also two constitutional referendums that if either of them pass in spring will return the people’s ability to decide the matter for the courts, instead of the other way around.
Mythago,
May the shade always fall on your shoulders…
I think judges should be able to strike rules down as unconstitutional. However judges should not be the ultimate arbiters in the matter.
Thank you.
Mythago: No, that would be far from the ONLY difficulty.
No: if we pretend for the sake of argument that the US is totally behind the idea of taking marriage away from mixed-sex couples so that both same-sex and mixed-sex couples have civil unions instead, then all the (massive) difficulties of implementing this decision – changing state and federal law – become time-consuming challenges to resolve, but are resolveable. Given the political and national will to change. This is fantasy, yes: it’s a ridiculous notion that it could ever happen.
But assuming for the sake of argument that it did, that would still leave that one difficulty: US couples would not be considered legally married in other countries unless other countries chose to pass a law (or a court agreed) that US civil unions would be regarded as a legal equivalent to marriage.
Well, if you believe that’s wrong, you ought to be supporting SSM. Obviously, the right to marry would bestow a great deal of power on same-sex few,” or so SSM opponents belieive. Otherwise, the opponents wouldn’t be so obsessed with keeping it from the grasp of same-sex couples, using any and every tool they can devise. All are justifiable because opponents sincerely believe that this “power” is for them alone. All the dithering about judges vs. voters, etc. is nothing more than a bullshit smokescreen to conceal the bigotry that goes hand in hand with treating The Bible as a club to beat your neighbors with.
The continual attempts to keep folks in same-sex relationships from marrying is already the triumph of a few well-heeled and motivated religious extremists over millions of citizens that don’t give two shits and fuck about mean-spirtied, highly selective interpretations of what was written in Leviticus well over a thousand years ago. It shouldn’t matter if there’s enough committed same-sex couples to fill Madison Square Garden or ten thousand buildings its size. They are tax-paying citizens and consenting adults, and if you cared so much for minority rights, you’d be foursquare behind them.
Thanks for providing my first laugh of the day, Caslim.
US couples would not be considered legally married in other countries unless other countries chose to pass a law (or a court agreed) that US civil unions would be regarded as a legal equivalent to marriage.
That’s making kind of a large leap about what the laws of ‘other countries’ say, innit?
Alsis,
Peace be to you.
You are very energetic in your cause against christianity!
Actually, if you have problems convincing at least 50% of the voters that protecting civil rights is worth their vote you have other problems. It may not be a popularity contest, but a majority is a far better protector of minority rights than minorities. History shows us that the more concentrated the power (in fewer hands), the fewer civil rights are protected.
First, let me reiterate alsis’s great response to the last sentence.
Second, I never said that having a majority supporting a minority didn’t matter. I just said it didn’t matter on the issue of whether the right existed. The right exists, and so we should have it. Sure, it would make things a hell of a lot easier, but in the end whether they support it or not isn’t really relevant to whether or not we should have the right.
There are also two constitutional referendums that if either of them pass in spring will return the people’s ability to decide the matter for the courts, instead of the other way around.
But the majority shouldn’t have the right to curtail the civil rights of a minority in the constitution. This is what is referred to as the “tyranny of the majority” and things were very strongly put in place to prevent such.
Caslim, don’t flatter me so. I’m blushing. For me to make anti-Christianity my “cause,” I’d actually have to pay even more attention to it then I already do, and since it’s the default faith in this culture, avoiding it is tough enough as it is. I might just as well try to avoid the air and sky. Besides, Fundies in general have problems with queers being treated as full-fledged humans. Christian Fundies only have the market cornered in the good ol’ U.S. because they’ve got the market cornered on all other cultural issues, as well.
Certain Christians are quick to invoke the martyrdom rained down on them in their early history, when they, too, were minorities. Sadly, this didn’t seem to endow enough of them with compassion toward their minority successors once Christians replaced Romans as the primary inflictors of boot-to-the-neck syndrome.
mythago: That’s making kind of a large leap about what the laws of ‘other countries’ say, innit?
Not at all. It would be making kind of a large leap to just assume that all other countries would immediately (or ever) change their laws to accept American civil unions as equivalent to marriage.
I am making no “large leaps” at all: I’m merely looking at the status quo in other countries and presuming that, whatever fantasy scenario is envisaged for the US that makes it possible to abolish marriage, it wouldn’t affect the rest of the world.
It would be making kind of a large leap to just assume that all other countries would immediately (or ever) change their laws to accept American civil unions as equivalent to marriage
But you’re starting with the assumption that other countires’ laws automatically rely on the US’s use of the term ‘marriage’ specifically and that those other countries would formally have to pass laws to accomodate it.
Before we even worry about *that*, I think it’s more useful to look at the giant clusterfuck why-don’t-we-merely-call-it-something-else would have on our own laws.
Mythago: But you’re starting with the assumption that other countires’ laws automatically rely on the US’s use of the term ‘marriage’ specifically
No. You’re starting from the assumption that the US’s use of the term “marriage” or “civil union” is something special and unusual.
It isn’t. It is generally presumed – worldwide – that a couple who are lawfully married in the country where they wedded, are lawfully married in other countries. It’s a nice reciprocal arrangement, and ever since civil unions began (Denmark, 1989) it’s been made clear that it does not apply to civil unions, no matter how close to marriage they approach. If a country decides to recognise another country’s civil union, it does have to pass a specific law saying that it will. Otherwise, it doesn’t. If the US decides to abolish marriage, countries all over the world will get to decide whether or not they want to pass a law recognising US civil unions as an equivalent to marriage in their country.
Before we even worry about *that*, I think it’s more useful to look at the giant clusterfuck why-don’t-we-merely-call-it-something-else would have on our own laws.
As I’ve already pointed out twice on this thread, it is absurd to suppose that the abolition of marriage everyone-can-have-a-civil-union could ever happen at all: it’s a fantasy that people who don’t have the guts to stand up for same-sex marriage indulge in.
I am merely pointing out that, were the US to enter fantasyland and abolish marriage, even if the people who fantasise this suppose that it would somehow work in the US, the US is setting up a whole new problem for itself with other countries not compelled to recognise US civil unions as legally equivalent to marriage in their own countries.
My last post because I am getting so fraking annoyed with this. I never said I supported civil unions for SS couples and marriages for OS couples. If you would take the time to read what I wrote, that would be apparent. Marriages would be available to all that wanted them as would civil unions. I do support SSM, and I don’t appreciate the nasty tone that is being thrown at me because I dared to think outloud about a solution that I didn’t even come up with… I heard it mentioned elswhere and thought it was a good idea. Pardon me.
Julie, I hope you will check back, but I wanted to say I knew you supported SSM, and like me considered universal civil unions a wonderful ideal, if impractical. I just wanted to say thanks simply for your support hon :)
If a country decides to recognise another country’s civil union, it does have to pass a specific law saying that it will.
Again: that depends very much on the country in question. Which is the only point I was making.
Even in fantasyland, before a US citizen steps across any border, there are a hijillion laws at the state and Federal level that use the word “marriage”–and as marriage is defined AT THE STATE LEVEL, you would have to rewrite or amend 50 states’ and one federal govenrment worth of laws, regulations, etc.
Mythago: Again: that depends very much on the country in question.
No. There is no country in the world that must automatically change its laws the instant the US changes its own for the convenience of US citizens.
and as marriage is defined AT THE STATE LEVEL, you would have to rewrite or amend 50 states’ and one federal govenrment worth of laws, regulations, etc.
Of course. But all of these are things that (in the fantasyland where “abolish marriage” has gained sufficient political grounds to be accomplished) can be accomplished.
Changing the law in other countries is something that the US government, at federal or state level, has no power to do.
No. There is no country in the world that must automatically change its laws the instant the US changes its own for the convenience of US citizens.
Ah, I see why we’re talking past one another. I’m not referring to other countries changing their laws, but what those laws are. It’s not the case that every other country has a fixed definition of what type of legal union they will recognize if those unions are undertaken in another country, is all.
Mythago: It’s not the case that every other country has a fixed definition of what type of legal union they will recognize if those unions are undertaken in another country, is all.
Very few countries do recognise civil unions undertaken in another country. In order to do so, they have to pass legislation saying that they will. (For example, the Scandinavian countries all passed a law recently agreeing that they would all mutually recognise each other’s civil unions.) From 5th December, the UK will recognise any civil union (that follow certain specified criteria) as an equivalent to UK civil partnership. (Though in the UK, only same-sex couples can have a civil partnership, so mixed-sex American couples with a civil union would still find themselves at a loss.)
I do not know of any country that recognises a civil union undertaken in another country as equivalent to marriage in their own country.
So, if the US abolishes marriage, while there might be some countries where US civil unions would be recognised as legally equivalent to the civil unions of that country, there would have to be special legislation passed if other countries wanted to recognise US civil unions as legally equivalent to marriage. And let’s face it: there are plenty of countries that just wouldn’t want to do the US any special favors…
Sarah in Chicago:
The part that says judges get to short-circuit democracy and strike down any law they don’t like simply because someone went out and declared the underlying issue a “civil right.” Real civil rights didn’t come about that way; in fact, it took four separate constitutional amendments to abolish slavery, prohibit Jim Crow laws, guaranteeing former slaves and their issue the right to vote, and extend the same franchise to women. The last example is perhaps the strongest, as the 14th Amendment – the same one gay marriage advocates typically point to – existed long before the 19th, yet it still took a separate amendment to secure what is now a basic civil right. To claim today that you can do by judicial fiat what others needed not only a majority but four separate supermajoritues to do in the past is arrogant in the extreme. Do you really think gay marriage today is that much more important than ending slavery and Jim Crow or establishing universal suffrage was then?
This is the second time (at least) in this thread you’ve used the phrase “not even” in connection with a 2/3 majority. Is there some kind of a point buried in there? Ballot initiatives, including constitutional amendments, need only a simple majority to pass, not a supermajority, and it is rare for an initiative to pass by more than a 60-40 margin, which is actually quite decisive. Of the 20 propositions that appeared on the March, 2000 ballot, only 2 received more than a 2/3 majority. And so far you’ve yet to cite a single poll indicating that Californians views on gay marriage have budged at all since 2000, even while overall voting trends here have remained largely stagnant (e.g., Gore carried the state 53.5% to 41.7% in 2000, while Kerry carried it 54.4% to 44.4% last year, despite Bush having come out in favor of the Federal Marriage Amendment in the interim). If you think attitudes really have changed that much, feel free to sponsor an initiative to repeal Prop 22. That’s the only legal way to get rid of it.
If by “all indications” you mean “gee, I really hope so,” then perhaps you’re right. But if you really think you know that much more about my own state than I do, now’s an excellent time to put your money where your mouth is. In fact, just to be a mensch I’ll offer you 4 to 1 odds, in your favor. If this case is ultimately appealed to the California Supreme Court, $100 to a charity of your choice says that at the end of the day, Prop 22 will be upheld as constitutional, either because the Supremes expressly ruled that way, or because the Court of Appeal did so and the Supremes opted to let the ruling stand. Conversely, your $25 to a charity of my choice says the opposite: either the Court of Appeal will uphold the trial judge’s ruling and the Supremes will deny cert, or the Supremes will invalidate Prop 22 themselves. If no one appeals the case to the Supremes, all bets are off. Deal?
So what’s your point? That the Constitution is itself unconstitutional?!
Mythago:
Nothing, if the law really is unconstitutional, as is AB 849 for example. But a judge who offers some phony baloney about emanations and penumbras as an excuse to strike down any laws he doesn’t like is no better than a judge who simply stands up and says “who cares what the law and the Constitution say, I’m a judge and I’m going to do what I want, dammit!” If anything, I’d have more respect for the latter judge, who is at least open and honest about what he is doing.
Xlrq: Do you really think gay marriage today is that much more important than ending slavery and Jim Crow or establishing universal suffrage was then?
You appear to be arguing that equal civil rights for LGBT people is somehow of less importance than equal civil rights for black people or for women.
But a judge who offers some phony baloney about emanations and penumbras as an excuse to strike down any laws he doesn’t like is no better than a judge who simply stands up and says “who cares what the law and the Constitution say, I’m a judge and I’m going to do what I want, dammit!” If anything, I’d have more respect for the latter judge, who is at least open and honest about what he is doing.
Ah, I see. So, if a judge uses the law to strike down a statute they’re imposing their personal beliefs (particularly so if it disagrees with your own opinion of the law) and that’s bad , but if they openly state that they are striking down because of personal beliefs, that’s okay (if still wrong, according to your opinion of the law).
Right.
To claim today that you can do by judicial fiat what others needed not only a majority but four separate supermajoritues to do in the past is arrogant in the extreme. Do you really think gay marriage today is that much more important than ending slavery and Jim Crow or establishing universal suffrage was then?
Well, I’ll run with Jesurgislac’s insightful reply above in regards to the attempted catch-22 final sentence.
But in regards to the former part of the portion I honestly do think it’s perfectly reasonable and not arrogant in the slightest. I would argue this on the basis of judicial precedence. Law is an evolving construct, decisions today being based on decisions prior. It is not arrogant to think that we should be arguing at a differing position to those that argued for civil rights half a century ago, simply because we are not that that point thanks to that half century of legal development. In fact, I would say that saying that we have to begin at precisely the same point, ignoring precdent, is actually the arrogant position to take.
Furthermore, I do think a constitutional ammendment push could be deemed unconstutitional if it does not fit coherently with the rest of the constitution, but that’s for constitutional scholars to debate and decide fully. But to have a legal document that is beyond challenge or question is just asking for abuse in my opinion. Which, I would argue, is precisely what these ammendments banning SSM are.
But there is no way in all the blue hells that I would do something so inane as to bet on that outcome, or somehow think that putting money on it is an indication of the secureness of my opinion in this matter. That kind of posturing is pathetic.
But a judge who offers some phony baloney about emanations and penumbras as an excuse to strike down any laws he doesn’t like
What about a judge who refers to binding Supreme Court precedent on emanations and penumbras? Should a lower court judge decide that he just doesn’t like Griswold or Eisenstadt and he’s going to ignore them, screw that whole “binding precedent” or “stare decisis” claptrap?
But you needn’t worry about phoney baloney, because if you’d read the California lower-court decision finding the current marriage laws unconstitutional, you’d know that there is nothing about penumbras or “but I think”s or any other phoney baloney. It’s a very straightforward and, dare I say, somewhat dull examination that re-interprets nothing and sets no new precedents, other than the result.
Which I suspect is what really pisses off anti-SSM activists. They can’t waggle their fingers about Judge Kramer’s liberal record, they can’t accuse him of making new law, they can’t argue about penumbras and emanations, so they go on about “judicial tyranny”–because, y’know, if courts are allowed to review laws we like, the terrorists have won.
No, I wasn’t arguing that at all. As a matter of fact, I do think that modern society’s reluctance to create a brand-new “right” that has never existed before, and which most gays didn’t even want for themselves as recently as a decade or two ago, is nowhere near as serious as people owning other people as slaves, “separate but equal” schools, forcibly segregated cities, or the intentional disenfranchisement of one-half of the adult population. But what I think is neither here nor there, nor does it answer my question. Assuming for argument’s sake that all of these issues are equally important, so what? That still doesn’t explain why one group should get to march into court and demand that a judge amend the Constitution by judicial fiat, while every other group had to petition Congress and the state legislatures to get their laws changed the old-fashioned way.
Sarah in Chicago:
Translation: you’ll dodge the question, too. Consider me unsurprised.
No it’s not; it’s a completely frivolous position no two serious constitutional scholars would ever bother debating to begin with. To the extent that a constitutional amendment can be construed harmoniously with the pre-existing provisions, then it will be, of course, but if the amendment conflicts with the older provisions of the Constitution, the newer provision wins every time. And we’re not talking about a hypothetical possibility, either; we’re talking about the norm. Show me a constitutional amendment that doesn’t conflict with the constitution as it existed immediately before ratification, and I’ll show you a toothless “amendment” that doesn’t really amend anything. Indeed, the fact that you are even discussing something as far-fetched and illogical as the notion that part of a constitution can be “unconstitutional” (where both references are to the same constitution) pretty well gives the game away. From now on, you can scream the word “Constitution” at the top of your lungs as often as you like, but we’ll all know that what you really mean is “Sarah’s preferences,” not any actual constitution. Case in point:
To those of us with any real legal training, such documents are typically referred to as … um … constitutions. One minute you’re straining that a constitution is such a wonderful thing that we should stretch it to invent a “right” its framers clearly did not contemplate; the next, you’re arguing we shouldn’t have one at all. Which is it?
If “all indications” (your words, not mine) really did suggest that Prop 22 was going to be overturned on appeal, taking that bet would have been the rational thing to do even if I had only offered 1-1 odds. That I went off the deep end actually offered 4-1 odds in your favor should have made it a no-brainer. The fact that you neverthless declined the bet, coupled my long-standing belief that actions speak louder than words, leaves me little choice but to conclude that for all your own pathetic posturing, in your heart of hearts you know the odds are at least 5-1 that you are full of crap.
Mythago: since you seem to be so sure this dull judge’s dull opinion is so wonderfully sound and perfectly true to existing precedents, perhaps you’d care to take the bet instead?
To those of us with any real legal training, such documents are typically referred to as … um … constitutions. One minute you’re straining that a constitution is such a wonderful thing that we should stretch it to invent a “right” its framers clearly did not contemplate; the next, you’re arguing we shouldn’t have one at all. Which is it?
Actually, I never stated that the constitution needed to be ‘stretched’ to include a right (I love how you reveal rather blatantly your own prejudices with the use of quotes marks) as I honestly don’t think the right to such needs to exist therein, as I stated above, if you would actually read what I wrote rather than just assuming. Further, I personally feel that rights CAN be guaranteed outside of a constitutional framework, as I have lived in a couple different countries before coming here where rights were such without the existence of a constitution.
My point, since I seem to need to spell this out for you, was not about us being included in the constitution, but rather, an objection to the inclusion of discriminatory provisions therein. Oh, and I actually do know of a number of constitutional law academics that are arguing the ability of such to occur in a very serious manner, as I have sat in on their seminars, and they were referencing others suchly. But that said, anecdotes are hardly data, so take that with the grain of salt I am sure you will.
Oh, and as to my reply to your rather juvenile attempt to get me to ‘bet’ on something and then go ‘penis-waggling’ when I decline the stupid offer, all I can say is, that it’s hardly surprising given the circularity of your rather simplisitic attempt at logic. You’re barely hiding, if at all, your bigoted views, and honestly, I’m not going to communicate with you anymore.
While I may wholehearted disagree with such people that hold differing opinions such as Robert here, at least from him I can expect respect, intelligence, and a basic grasp at the rules of logic. You, on the other hand, are just apparently a waste of my time, and despite the calls of ‘coward’ or variations thereon that will undoutedbly emerge from you because of such, it’s really unsurprising how little that even bothers me.
Gay marriage should be between a man and a woman. Gay means “happy”!
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Silly me, I must have confused you with the other Sarah in Chicago, who posted this:
and this:
in this very thread, and, lest anyone mistake the “things” that were supposedly “very strongly put in place” for anything other than a constitution, took me to task for equating a judge who cloaks his personal preferences in a strained interpretation of the Constitution with a judge who makes no bones about the fact that he’s ruling on his preferences rather than the law.
What you call my “prejudices” are simply the law, nothing more and nothing less. Gays have a right (no quotes needed) to marry in Massachusetts, at least for now, due to an extremely strained court ruling in that state. They also have a legitimate right to marry in Spain and a few other countries, due to duly enacted statutes. They also have quite a few rights in California, including, I suspect, more than a few that they don’t have in Illinois. Under our liberal domestic partnership law, they have damned-close-to-marriage rights, but they do not have a right to actually marry. Maybe they will someday, but they don’t for now, and until they do any references to a hypothetical, as yet nonexistent “right” should properly include quotation marks.
I guess that’s supposed to gain you some kind of street cred among your fellow lefties, but it won’t work with me. I’ve lived in three foreign countries myself and traveled to a couple dozen more, but none of that caused me to lose sight of the fact that the supreme law of this country is our own Constitution, not your personal views (or mine, or Kofi Annan’s, or anyone else’s) on what should or should not be considered a “right.”
Seeing as you haven’t provided any names, dates, transcripts, or any other means to corroborate your assertions, then as an attorney who attended one of the most liberal law schools in the country, and almost certainly would have heard such arguments if they existed, I’ll take that with a very big grain of salt indeed. Either your “constitutional scholars” aren’t, or they are, but they didn’t say what you think they said. Perhaps they were discussing a conflict between two constitutions, e.g., where a state constitutional provision is held “unconstitutional” due to a conflict with the federal one. Or, perhaps they were talking about a purported constitutional amendment that did not actually amend the Constitution because the proper constitutional amendment process was not adhered to. Or maybe, just maybe, they were talking about a hypothetical amendment to the federal Constitution that would deprive a state of its equal suffrage in the U.S. Senate without its consent – the one and only substantive constitutional Amendment that Article V prohibits. But if they are remotely serious legal scholars, the one thing I can be sure of is that they were not saying anything that would remotely support your assertion that an amendment to either constitution can be invalidated on the basis that it “does not fit coherently with the rest” of that same constitution.
The only thing “stupid” about the offer is that you know damned well that you’d lose. Either that, or that you are so insanely risk-averse that you can’t bear the possibility that you might lose a bet which could potentially result in you having to donate twenty-five whole dollars to a charity, despite the probability you’d instead earn four times that amount for a charity you support. Rather than call people names, how about either showing that they are wrong, or admitting they are not?
I have demonstrated plenty of intelligence and a solid grasp of logic, thank you very much, and unlike you, I actually know something about California law and both the federal and state constitutions, to boot. I won’t pretend I’ve shown you a hell of a lot of respect, however, because frankly, respect is something that has to be earned. There are many ways one can earn my respect, but making wild, outlandish, unsubstantiated claims, and then responding to anyone who calls you on them with nasty names and gratuitous anatomical references, is definitely not among them.
So little, I see, that you’ve just expended 18,192 perfectly good ones and zeros to scream at me, call me every childish name in the book short of Hitler, make repeated, irrational excuses as to why it would be “stupid” for you to take a bet you supposedly couldn’t lose, and do just about everything else except demonstrate that anything I’ve said is wrong. I’m sure the missing Hitler reference was just an oversight, which will be made up for shortly in your next petulant rant, in which you’ll again claim to be soooo much smarter and better informed than I am about a subject you clearly don’t know the first thing about, and that this time you really aren’t going to communicate with me after all. Or perhaps, just once, you’ll actually take this golden opportunity to prove me wrong on something, and actually let the matter drop. We’ll see.
Xrlq: That still doesn’t explain why one group should get to march into court and demand that a judge amend the Constitution by judicial fiat, while every other group had to petition Congress and the state legislatures to get their laws changed the old-fashioned way.
I think you misunderstand how civil rights work. ;-) Really, I would recommend you go read some contemporary stories of the civil rights movement in the US prior to the passing of the constitutional amendments, and go look up some relevant court cases, if you really think that what happened was that black people and women petititoned Congress and the state legislatures to get the laws changed, end of story.
Furthermore, judges amending law is “the old-fashioned way”: I’m just saying.
You’re right that judges distorting the law is not new. However, you’re wrong if you think that has generally been a good thing from a civil rights perspective. When courts were asked to handle slavery, they gave us Dred Scott. When the country fought a bloody civil war over slavery and pushed not one but three amendments to put blacks on equal footing, courts turned around and gutted the privileges and immunities and equal protection clauses in The Slaughterhouse Cases and Plessy v. Ferguson. It was very thoughtful of them to finally give us back the equal protection clause half a century later, but they never did give us the P&I clause back.
Courts have a better record on more recent civil rights cases, but in most of these cases, the courts are acting to enforce a statute passed by Congress, not merely striking down whatever laws some judge can be persuaded to oppose as bad, unfair, or whatever.
Xlrq: When courts were asked to handle slavery, they gave us Dred Scott.
Indeed: and that was when an “activist judge” would have come in handy, would it not, rather that the judges in the Dred Scott case, who compliantly gave a verdict that corresponded to the popular will?
When the country fought a bloody civil war over slavery and pushed not one but three amendments to put blacks on equal footing, courts turned around and gutted the privileges and immunities and equal protection clauses in The Slaughterhouse Cases and Plessy v. Ferguson. It
And then Brown v. Board of Education, and Loving v. Virginia. The problem with the system has never been the “activist judges” who look at the Constitution, see that it requires equal civil rights, and apply them – regardless of whether that’s the popular will – it’s judges who compliantly go along with the popular prejudices of the day. And the judges in the cases you cite did exactly that: whether it’s turning down the right of a US citizen to ride in a train carriage for which she or he has bought a ticket, or turning down the right of two US citizens to get married. “Activist judges” are judges who uphold the law against the popular will: all the cases you cite are not “activist judges” but “compliant judges”, who would happily go along with popular prejudices against despised minorities. These days, that would mean striking down same-sex marriage.
It takes no political courage at all these days to be against slavery or votes for women. It takes considerable political courage to be for same-sex marriage, or for a woman’s right to choose abortion. “Activist judges” are those with sufficient political courage to stand up for equal rights for all, regardless of the popular prejudices of the day.
It takes no political courage at all these days to be against slavery or votes for women
Ah, that should have been “to be against slavery or for votes for women”. PIMF
As a matter of fact, I do think that modern society’s reluctance to create a brand-new “right” that has never existed before
You really should read the court decisions that you are condemning. Judges are not “creating a new right,” or finding a penumbra that grants same-sex marriage. They are not “amending the Constitution.” They are looking at Constitutional provisions and holdings that already exist, and applying them to the marriage laws as written. What’s your problem with that, other than not liking the result?
since you seem to be so sure this dull judge’s dull opinion is so wonderfully sound and perfectly true to existing precedents
Other than the fact that you don’t like the outcome, what is your view on the opinion itself? I mean, you have read Judge Kramer’s opinion, haven’t you? I’d hate to think that you were deciding a judicial opinion was activist, amending the Constitution, and otherwise badly reasoned if you’d never read it.
You really should read the court decisions that you are condemning. Judges are not “creating a new right,” or finding a penumbra that grants same-sex marriage. They are not “amending the Constitution.” They are looking at Constitutional provisions and holdings that already exist, and applying them to the marriage laws as written.
If it not creating a new right, its at the very least a significant change in a long established legal, cultural, and and traditional human relationship, one that transends national boundaries, and has no long standing historical basis. It is in essence a redefinition of marriage from a male female relationship, to one of “two persons”.
A judge could just as easily find a right already exist for polygamy, perhaps on religious grounds.