Alas, a Blog

In a post I also quoted in my previous blog entry, Eugene Volokh writes:

It’s unclear from this if Professor Volokh also objects to the Goodridge ruling in Massachusetts (since those judges weren’t federal) – but even if he doesn’t, many other folks have, on grounds similar to those suggested by the Professor here. Although legal equality is a noble goal, it should happen through the normal democratic process, not through judicial rulings.

I’m sympathetic to this – ideally, all changes would happen through respectful debate in the marketplace of ideas, which would lead citizens to band together behind the stronger idea.

Nonetheless, that’s not exactly how things are happening. So what should judges do? Suppose for a moment that the four Goodridge judges were acting in good faith. To the best of their understanding of the Massachusetts Constitution, the state may not discriminate against same-sex couples when issuing marriage licenses.

What then?

I’m not sure that I like the idea of judges saying, “well, in the best understanding of the law I can muster, equal protection means that marriage discrimination of this sort is unconstitutional. But it’s wrong for changes like this to come from the bench. Therefore, I’m going to vote to support a law I believe is legally unconstitutional.”

Maybe this is overly idealistic of me, but I’d prefer judges to decide what is constitutional based solely on their good-faith understanding of the law and the Constitution. To make Constitutional decisions based on anything else seems, somehow, to be stepping outside the bounds of a judge’s proper role.

Nonetheless – if we assume that the Goodridge judges acted in good faith – that’s the sort of decision-making process that many of their critics must be advocating..

Eugene Volokh – who favors same-sex marriage – offers a typically well-written post arguing that it’s not clear that same-sex couples have an equal protection right to get married. Here’s a sample:

The problem with this analysis, as I see it, is that it fails to acknowlege that men and women are individuals, and should be given the opportunity to live their lives as individuals, not just as representatives of their sex.

Suppose for the sake of argument that Eugene is correct that behaviorial differences between women and men (such as they are) are rooted in biology. So what? When Jane Roe marries Joan Doe, the two individuals are the ones getting married, not a statistical average. Even if it is true that “mom and dad” make better parents on average than “dad and dad” and “mom and mom” (a dubious proposition, which is not supported by any social science evidence), that doesn’t tell us that anything about what Jane Roe and Joan Doe will be like as parents. Forbidding Jane and Joan to marry based on the (alleged) insufficientcies of mom-mom parenting, on average, is pure sex discrimination.

Galois makes a similar argument (although he states it better):

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Please go and vote, folks..

Here are some of the links about gay marriage on my desktop right now… Many of these links are a few days old, but they’re still cool.

• Everyone’s linked to this Onion article, and with good reason.
  BOSTON?Justices of the Massachusetts Supreme Judicial Court ruled 5-2 Monday in favor of full, equal, and mandatory gay marriages for all citizens. The order nullifies all pre-existing heterosexual marriages and lays the groundwork for the 2.4 million compulsory same-sex marriages that will take place in the state by May 15. […]

  Hundreds of confused but vocal protesters lined the street outside the statehouse Monday night, waving both American and rainbow flags. Their chants, which broke out in pockets up and down the street, included, “Hey hey, ho ho, homophobia’s got to go, but frankly, this is fucked up” and “Adam and Eve or Adam and Steve, but not Adam and Some Random Guy.” Others held signs that read, “On Second Thought, Boston Christians Are Willing To Consider A Compromise.”

  According to police reports, demonstrators were vocal but orderly.

  “The unholy union of people of the same gender destroys the only type of romantic love sanctioned by Our Lord in Heaven: the love between a man and a woman,” 54-year-old protester Rose Shoults said. “Me and my new partner Helene are going to fry in hell.”

  The much-anticipated order sets the stage for Massachusetts’ upcoming constitutional convention, where the state legislature will consider an amendment to legally define marriage as a union between two members of the same gender. Without the order, Rep. Michael Festa said the vote, and his personally dreaded wedding to House Speaker and longtime political opponent Thomas Finneran, would be delayed.

  “This is a victory, not only for our state, but for America,” Festa said. “Simply allowing consenting gay adults the same rights as heterosexuals was never the point. By forcing everyone in the state into a gay marriage, we’re setting the stage for our more pressing hidden agendas: mandatory sodomy and, in due time, the legalization of bestiality and pedophilia.”

• Everything at Galois is worth reading, but if you have time for just one post make it this one: Is [Same-Sex Marriage] a Civil Rights Issue?
• I’ve been looking at a lot of online galleries of the weddings in San Francisco. It’s a healthy reminder of what this is really about. The San Francisco Gate has a gallery up, which calls what happened “The Valentine Day’s Revolution,” which strikes me as a cool name (via A Fortiori).

  Another wonderful photo gallery of San Francisco is Emphemera.org’s Justly Married.

• In the unlikely event that viewing the above photos leaves you dry-eyed, head on over to My So-Called Lesbian Life and follow the links to various essays by folks who got married in San Francisco.
• Language Log’s post “Defining Marriage” is one of the more original pro-SSM posts I’ve read lately.
  I’ve noticed that I twitch a little each time I hear someone talking about how what we’ve got to do is pass a law, or a constitutional amendment, that defines marriage as being between a man and a woman, as if something lexicographical was at issue. Yesterday we were treated to the most egregious case of this, when our president told us solemnly that he was “troubled by activist judges who are defining marriage,” because “Marriage ought to be defined by the people, not by the courts.” And I realized why this kind of talk was making me twitch. This issue is being represented as linguistic, relating to a democratic right of the people to stipulate word definitions, when it’s nothing of the kind.

  As we bloggers say, read the whole thing.

• Oxblog has been compiling a list of Senators for or against the Anti-Equal Rights for Gays amendment. Currently it’s 44 against, 29 for – which means that it’s not possible for the amendment to pass the Senate.
• Elizabeth at the Family Scholars Blog responds to my comparison of her anti-cloning argument with her anti-SSM argument. I might blog more about this later, although I suspect Elizabeth and I have reached an impasse.
• Also on the Family Scholars blog, Tom Sylvester has a well-argued post regarding same-sex marriages alleged effects on children:
  There’s one key question that I, as pro-marriage advocate, struggle with continuously: At what point does promoting the intact, married mother-father ideal hurt the interests of children overall by neglecting those in other family types? An extreme pro-marriage position–e.g., cutting off all welfare payments to single parents to discourage out-of-wedlock childbearing–would hurt children far more than it would help them. The ideal is not to be promoted at any cost. So, would gay marriage weaken the normative ideal of children growing up with both their mother and father? Though the actual negative impact is likely to be small, yes, gay marriage would weaken that ideal. But the fight against discrimination, and the fight for equal human dignity, is worth it.
• The American Anthropological Association weighs in:
  The Executive Board of the American Anthropological Association, the world’s largest organization of anthropologists, the people who study culture, releases the following statement in response to President Bush’s call for a constitutional amendment banning gay marriage as a threat to civilization.

  “The results of more than a century of anthropological research on households, kinship relationships, and families, across cultures and through time, provide no support whatsoever for the view that either civilization or viable social orders depend upon marriage as an exclusively heterosexual institution. Rather, anthropological research supports the conclusion that a vast array of family types, including families built upon same-sex partnerships, can contribute to stable and humane societies.”

  The New York Times has an interesting article describing how folks on both sides of the SSM debate are trying to get endorsements from black ministers.

  …the prize often generically referred to as “the black church” is actually a diverse collection of historically black denominations and congregations that covers a wide range of theological and social beliefs.

  Advocates of gay marriage are appealing to those on the left end of that spectrum to show that the issue is really about civil rights. Those opposed are courting more conservative blacks as evidence that they are not bigots for suggesting the issue has nothing to do with civil rights. The resulting alliances are often used publicly to imply backing of “the church” as a whole.

  A quote that I bet not many SSM-opponents will be using: “If the K.K.K. opposes gay marriage, I would ride with them,” said Rev. Gregory Daniels of Chicago.

• An article in the San Francisco Chronicle compares and contrasts interracial and same-sex marriage laws.
• A quote found on Andrew Sullivan’s Daily Dish:
  “The right to marry whoever one wishes is an elementary human right compared to which ‘the right to attend an integrated school, the right to sit where one pleases on a bus, the right to go into any hotel or recreation area or place of amusement, regardless of one’s skin or color or race’ are minor indeed. Even political rights, like the right to vote, and nearly all other rights enumerated in the Constitution, are secondary to the inalienable human rights to ‘life, liberty and the pursuit of happiness’ proclaimed in the Declaration of Independence; and to this category the right to home and marriage unquestionably belongs.” – Hannah Arendt, Dissent, Winter 1959.

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