From the AP:
A Michigan appeals court ruling that bans public universities and state and local governments from providing health insurance to partners of gay employees has alarmed gay rights advocates nationwide.
They fear the decision could encourage similar rulings in 17 other states whose bans on gay marriage could be interpreted to prohibit domestic partner benefits for same-sex couples.
Michigan last week became the first state to rule that public employers cannot offer health benefits if the benefits are based on treating same-sex relationships similar to marriage.
This is disgusting, scary, and doubtless what some of the supporters of those bans had in mind all along. And, of course, the conservative Christian leadership is eager to demonstrate that they have absolutely no compassion for lesbian and gay families:
“This is pretty unprecedented,” said Jeffery Montgomery, executive director of the Triangle Foundation, a gay rights group in Michigan. “It just seems like such a needless slam on gay and lesbian families. The health and livelihood of their families is at stake in this ruling.”
Conservatives, however, are lauding the decision and say the amendment’s wording was clear.
“Since two-thirds of all the marriage amendments are more similar to Michigan’s language, who’s to say that the Michigan decision won’t be the prevailing precedent in the future?” said Gary Glenn, the president of the American Family Association of Michigan who helped write that state’s measure.
Warren at Daddy, Poppa and Me has a must-read post on the subject. Here’s a sample, but go read the whole thing:
Marriage equality opponents claim they are only putting these anti-gay amendments on the ballot to limit marriage, not to take away rights or change what rights gay and lesbian people already have. And then as soon as the amendment passes, the very same groups start law suits to take away already existing rights based on the amendment.
Classic bait and switch. That’s why these amendments must be stopped. They not only limit my family’s rights, they take away any we might already have.
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the opinion is a bitch to find.
Having tracked it down, here’s a direct link to the PDF version of the opinion. I haven’t read it yet but I tend not to trust summaries–they’re too often wrong.
So here it is: National Prode at Work, Inc. v. Governor of Michigan.
oops: “Pride” not “Prode”
OK, I read the case. It’s actually not a bad ruling from legal standpoint. The amendment sucks ass and should never have been passed but the ruling seems a reasonable application of it. I’m happy to explain issues if folks don’t understand the ruling itself.
Hopefully this will galvanize folks to eliminate the amendment. God, Michigan SUCKS. I’m so glad I live in Mass.
*Sigh.* I’m a graduate student in Michigan. My gf has been receiving domestic partner benefits from through my university since she left her PhD program before finishing her dissertation. Since an MA in the humanities is pretty useless for getting a job, she decided to go back to school full-time and get a more useful bachelors degree.
The university is allowed to keep providing the benefits for the rest of the year, and the university has had some talk with the graduate student union about changing the rules for domestic partner benefits if they were ever seriously threatened by the ballot proposal. But of course, they didn’t give us any guarantees. And if getting around the ballot proposal meant opening up benefits in some extreme way, I just don’t know if they’d do it.
Right now GF and I are trying to gauge how much danger we’re in. The decision is going to be appealed, but if that takes more than a year, what will we do in the mean time? Michigan public universities have also recently been involved in a string of court cases about a new ballot proposal which passed in Nov. that outlaws affirmative action. At first the universities were granted permission to keep the same admissions standards for the rest of the 2006-7 admissions cycle. But most recently another court ruled against the universities and ordered them to stop affirmative action in admissions that very day. So GF and I are a little worried about that kind of possibility–that a court could say “the benefits have to stop, and they have to stop TODAY.” I suspect since this is a health insurance issue and the courts would be understanding about how time sensitive that is–that people need time to get other health insurance. But who knows what they’ll do?
The irony of all of this is that since my gf has made almost no income in the last year, she’ll be eligible for a very low income state funded health insurance program in our area. I wish I could calculate out the cost to taxpayers of my university paying for her health insurance (I get taxed at the federal and state level on those benefits as if they are income) vs. the state funded medical insurance paying for her. I’m guessing the latter would come out as more (especially when you add in all of the court costs!). Maybe one strategy for opposing these kinds of ballot proposals would be putting things in monetary terms for voters. Maybe if human dignity and compassion don’t move them, their pocket book will. *Sigh*
Sailorman, your link didn’t work for me. I’ll try reposting the one I have: http://aclumich.org/pdf/marriageamendmentopinion.pdf
I skimmed the ruling a few days ago. It all seemed to come down to the fact that the court found the wording of the amendment to be obvious in its meaning. Since it was obvious in its meaning, the court said it didn’t have to bother looking at what the voters actually intended.
Now my question is what are the judicial standards for determining when the wording of an amendment is obvious?
Can the standard be simply “well we justices read it and we understand it”? There is a lot of documented evidence in which those who got the amendment on the ballot, those who funded it, and those who campaigned for it explicitly denied that it would have any effect on domestic partner benefits. I believe even the attorney general who originally brought up the idea that the amendment invalidated domestic partner benefits had denied this before the amendment passed (not sure about this though).
I mean, it seems like what the court is saying is that it doesn’t have to consider any evidence which would show that the meaning isn’t obvious unless they already think that the meaning isn’t obvious. But why would they *think* that the meaning isn’t obvious before they’ve looked at the evidence?
Marriage equality opponents claim they are only putting these anti-gay amendments on the ballot to limit marriage, not to take away rights or change what rights gay and lesbian people already have. And then as soon as the amendment passes, the very same groups start law suits to take away already existing rights based on the amendment. … They not only limit my family’s rights, they take away any we might already have.
There is no right to health insurance benefits, so no rights were taken away. The State of Michigan does not grant it’s employees health insurance benefits because they have a right to them. They grant them health benefits to be competitive in the marketplace of skilled employees. Subsidized health insurance is a benefit that the State has the power to increase, decrease, or take away entirely. A benefit was taken away, certainly. But talk of “rights” here is off base.
Marriage equality opponents claim they are only putting these anti-gay amendments on the ballot to limit marriage, not to take away rights or change what rights gay and lesbian people already have. And then as soon as the amendment passes, the very same groups start law suits to take away already existing rights based on the amendment. Classic bait and switch.
Are you sure about that? Here is an article published before this amendment passed that makes it pretty plain that at least someone realized that action such as this was part and parcel of this amendment:
The amendment would prohibit Michigan from having civil unions. It would prevent local governments from providing domestic partner benefits. Cities like Ann Arbor and Kalamazoo, which currently provide such benefits to their employees could no longer do so. The amendment would prevent school districts from offering domestic partner benefits to its employees (both Ann Arbor and Birmingham school districts currently provide such benefits). State colleges and universities would also be prohibited from recognizing domestic partners of both employees and students. Recognition of domestic partners by employers frequently includes health care coverage. Children who live with a gay or lesbian family member will be at risk for losing health care coverage.
I’m seeing a lot of commentary in gay web sites that the supporters of the amendment promised that this would not happen (or at least was not the point), but I’m not seeing any actual quotes or links.
Well of course the glbt groups knew what was happening!
Here are some links. (The actual organization that got the amendment on the ballot and campaigned for it no longer exists so they don’t have a webpage to find info on):
http://media.www.michigandaily.com/media/storage/paper851/news/2005/03/10/Opinion/Letters.To.The.Editor-1429333.shtml?sourcedomain=www.michigandaily.com&MIIHost=media.collegepublisher.com
http://www.umich.edu/~hraa/ssdp/ssdp%20appeal%20brief%20amicus.pdf (see page 16-17)
http://www.michiganfamily.org/special-protectmarr/documents/faq-prop2.htm
(This one is the closest to actually admiting the amendment *could* take away benefits (though I don’t know when these FAQs were put online in this form; they could have been put on only after the court cases started), but it concludes this is horribly unlikely. And they just outright lie in saying that “no child will lose coverage.” Clearly if it’s possible that a same-sex partner will lose coverage it’s possible that the children of that partner will lose coverage. Since no jurisdiction in MI is currently allowing 2nd parent adoptions, it’s actually very, very likely that children of domestic partners will lose health insurance, and they knew that.)
Oh, thank god we have a smart may-un here to explain all these difficult things to us. What ever would we do without him?
Kill your children and practice lesbianism, obviously.
Although of course I may be off base, I think that what Sailorman was offering to deploy on your behalf was his law degree and legal experience, not his penis. But hey, who am I to judge?
This is just what a state with 7% unemployment (last I checked) needs to do to attract talented and creative people. At least the private sector is still smart enough to keep the benefits in place. I wonder of the state could do something easy like allowing anyone to buy into the system at the marginal cost. Than instead of ‘benefits’ they could give the cost of the ‘benefit’ in money. (many things to consider texes etc. )
Why does the state get to decide what is and isn’t a marriage anyway?
From the Associated Press, 10/19/2004, “Domestic partner benefits involved in Proposal 2 debate”:
Also from the AP, “Poll: Voters favor banning gay marriage in Michigan,” 9/20/2004:
From Crain’s Detroit Business, “Businesses unclear on effect of Proposal 2 on partner benefits,” October 4 2004:
Note that Gary Glenn later sued to eliminate the benefits that he originally claimed his law would not effect.
oops. thanks!
here’s the thing: we/they don’t really KNOW why people voted for it.
We know what the major talking points were in the news. We know the views of those who proposed it, those who openly opposed it, etc. but for probably 95% of voters (who approved it) we don’t know. even for those who spoke–we don’t know if they spoke and changed their mind (one way or another), if they had hidden, unspoken motivations, etc.
So the only thing we really know with certainty is what the words say. We know what amendment was passed. the role of the court here is to be bound by the language, and they were.
That’s why all that matters is what’s on the printed page at the end of the day. Only if that is really confusing and unintelligible doe the court try to’guess’ what folks “really meant.”
Incidentally, the legislators surely knew that. anyone who claims not to is lying or an idiot.
Mind you, i hate the result. but I like the security of hoping that this court would ALSO feel bound to follow the words if the state passed a very beneficial-to-gays amendment:
It’s probably safe to say, for example, that the folks who wrote the mass constitution didn’t think about of gay marriage and would not have supported it if they considered it. fortunately, that debate is irrelevant since the constitution–intentionally or not–DOES require gay marriage. (ka-ching!)
If one were to ask courts to go for “intent” and not the words which were written, then Michigan isn’t the only place that would change.
Why does the state get to decide what is and isn’t a marriage anyway?
As far as socially, it doesn’t. If you and someone of your same gender go to a cooperating church, have a ceremony, and call yourselves “married”, the state won’t do a damn thing, and you and your friends and any other like-minded individuals can go merrily along.
However, when it comes to granting benefits, privileges, powers, money, etc. to groups of people, it can determine on what basis those are allocated and the associated definitions for the legal statuses involved.
Thanks for the references!
Marlene Elwell, campaign manager for the pro-Proposal 2 group, Citizens for the Protection of Marriage, has said opponents are distorting her group’s objectives. She says the amendment wouldn’t affect private employers and may not affect public ones, either, depending on what court challenges are brought if the amendment passes.
So Marlene, responding to an unstated allegation (maybe that the amendment would affect same-sex benefits, maybe that the proposers intended it to affect same-sex benefits), says that she didn’t know if it would affect public employers, and that it would depend on how the courts interpreted it. That’s neither a statement that it wouldn’t affect public employer benefits nor a statement that the supporters didn’t intend for it to affect public employer benefits. That’s a statement that she didn’t know whether it would or not, and doesn’t address intent at all.
University of Michigan President Mary Sue Coleman last week sent an e-mail to faculty and staff, saying the school does not believe Proposal 2 would be relevant to decisions about the benefits offered to employees and their dependents. But Coleman acknowledged the possibility of a legal challenge if Proposal 2 passes.
Which has nothing to do with what the intent of the supporters of the amendment was, and was pure speculation on the part of President Coleman to boot.
Gary Glenn, president of the American Family Association of Michigan, said … voter approval of Proposal 2 will not affect public employee benefits included in existing collective bargaining agreements.
“Existing collective bargaining agreements” is a pretty limited phrase, and one that should have raised people’s bullshit antennae at the time. Did he mean that it would not affect union contracts until those contracts were up? What effect does the court’s ruling have on existing union contracts? And he doesn’t address non-unionized public employees at all. But I’ll agree that this statement is, shall we say, carefully crafted.
Kristina Hemphill seems to have taken the same tack. ‘’There’s nothing in this amendment … that will erase anything on the books,’’ What books is she talking about? Law books? Were same-sex couples guaranteed certain benefits under the law that this amendment revoked, or are we talking about purely administrative decisions with no force of law which this amendment DID revoke? And she was dead on about this: “Future effect is speculation, she said, and falls to the Legislature and judges to interpret.”
The spokesman for the Archdiocese spoken in kind. He essentially said that his intent was to retain the existing definition of marriage, and that decisions on benefits, etc., was something for the courts to decide. He most definitely did not say that his group wanted to retain same-sex benefits, nor that the amendment would not cause any change to them.
I’m guessing in context that the debate about the amendment was concentrating on the definition of marriage, when opponents decided to bring the issue of same-sex benefits into the debate. That’s fair enough, certainly. But based on what I’ve read above, it’s not fair to say that the framers of the amendment claimed that it wouldn’t affect same-sex benefits; it seems to me that they didn’t want to talk about that at all (no surprise there) and that they all said that it would be up to the courts to decide. Which it has.
That amicus curiae was interesting. It spent 13 pages arguing about the unfortunate effect that they thought would occur if the Court interpreted the amendment in a particular fashion, and 8 pages on the actual legal foundation as to why they should not do so. Maybe they should have concentrated on the latter, rather than the former.
Ronf:There is no right to health insurance benefits, so no rights were taken away. The State of Michigan does not grant it’s employees health insurance benefits because they have a right to them. They grant them health benefits to be competitive in the marketplace of skilled employees. Subsidized health insurance is a benefit that the State has the power to increase, decrease, or take away entirely. A benefit was taken away, certainly. But talk of “rights” here is off base.
As I responded on my blog to RonF (daddy, papa and me):
…a bit picking at nits (and just plain wrong) to say health benefits and other domestic partnership rights and obligations aren’t rights as RonF does. It is my right to be treated equally as a citizen and employee. Thus in these cities and universities, LGBT citizens fought hard and long for that _right_ to be treated equal in at least this one aspect, equal partnership benefits to health care in a piecemeal city by city, employer by employer manner. It’s our _right_ to be treated equal, it was granted and now that right has been taken away.
But why would they *think* that the meaning isn’t obvious before they’ve looked at the evidence?
Because they read the amendment and they consider it evidence enough, plainly self-evident. They address it in this section of the opinion:
“Because article 1, section 25 is unambiguous and plainly precludes the recognition of same-sex domestic partnerships or similar unions for any purpose, this Court need not look to extrinsic evidence to ascertain the voters’ intent. American Axle & Mfg, supra ta 362. We therefore decline plaintiff’ invitation to consdier the circumstances and public debate surrounding the adoption of the admendment.”
What they’re saying is that they’ve read the amendment and it seems quite plain to them what it meant. Don’t forget that at this point in the opinion, they’ve read the amicus curiae and defendant’s briefs, who have plenty of opportunity to state what they think the amendment means. They see no reason to examine newspapers, TV transcripts, blog postings and press releases.
activistgradgal said:
There is a lot of documented evidence in which those who got the amendment on the ballot, those who funded it, and those who campaigned for it explicitly denied that it would have any effect on domestic partner benefits.
So far all the links people have shown me read that the amendment supporters said their main thrust was to ensure that marriage continued to be defined as limited to disparate-sex couples only, and that it’s interpretation regarding public employers’ provision of benefits to same-sex couples would have to be left up to the courts. I don’t see anything that anyone’s posted so far that said that “this amendment will not affect public provision of benefits to same-sex couples”, with the possible exception of one person who limited his discussion to union contracts.
Although I would say that the Michigan Family Forum’s FAQ was partly off base:
“Q. Will this take away existing health benefits from children of same-sex partners?
A. No. While opponents claim this will be a significant problem, no child is in danger of losing benefits.”
I do wonder – since children of same-sex couples obviously must have at least one biological parent that’s not a member of that couple, could benefits be available to the child through that parent (if the parent is known)?
I also wonder if this will cause same-sex couples who are both employed by the State to have a harder time adopting now?
Q. Will unions or businesses be prohibited from negotiating contracts that offer benefits to same-sex partners of employees.
A. No. Nothing in Proposal 2 can reasonably be interpreted to interfere with the right of a union or private business to negotiate benefits with their employees. Proposal 2 only prohibits the legal recognition of same-sex unions by the state. The state of Michigan will be prohibited from providing benefits to same-sex partners of state employees if those benefits are provided based on marital status, as most are.
That’s true. So far.
Q. Will public universities be prohibited from providing benefits to partners of employees?
A. Legal experts disagree on how much this may restrict public universities. The Michigan Constitution grants universities significant autonomy to govern themselves through their elected Boards. It is reasonable to assume that state funds will be prohibited from from going to same-sex partner benefits while other funding sources, such as tuition, fees or donations, will be allowed to pay for same-sex partner benefits.
Well, people have always told me that to “assume” generally makes an ass out of u and me. Anyone reading this who took it at face value wasn’t thinking very well. The first sentence is a clue that the rest is bull$hit.
I’d say the first and third statements here were very unwise. Whether it was deliberate deception would have to be predicated on how predictable you think the Court’s decision was.
I’d like to veer a bit off topic here and suggest that we SOLVE THIS ENTIRE PROBLEM by getting rid of the current American health care “system” (ha ha if this is a “system” I’m an elephant) and institute something that will cover all residents for basic health care, free at point of service, be they gay or straight, married or single, rich or poor, kids or adults.
Then we can all stop tearing each other up over who gets what should be a BASIC RIGHT ANYWAY.
We can then deal with homophobia on some other issue or something. Not this one.
Trey, can you give me the link to the posting I made on your blog that you said you responded to there? Because I don’t ever recall even being on your blog, never mind posting on it.
…a bit picking at nits (and just plain wrong) to say health benefits and other domestic partnership rights and obligations aren’t rights as RonF does.
It’s not picking at nits. It’s key. You cannot be denied your rights. If this was a question of free speech, etc., that would be one thing. But it’s not. It’s a privilege, one that can be taken away as well as granted.
It is my right to be treated equally as a citizen and employee.
The 14th and 15th pages of the opinion address the “equal protection” aspects of this case. Suffice it to say that the Court said that it didn’t apply; that the law has the right to discriminate among individuals and among groups of people as long as that discrimination is not “arbitrary and invidious”. They give the example that the amendment forbids the State from providing marriage benefits to unmarried heterosexual couples as well. Rather than get going on a 2 page discussion, I invite you to take a look at it.
Thus in these cities and universities, LGBT citizens fought hard and long for that _right_ to be treated equal in at least this one aspect, equal partnership benefits to health care in a piecemeal city by city, employer by employer manner. It’s our _right_ to be treated equal, it was granted and now that right has been taken away.
No. It’s not your right, and it never was. People convinced cities and employers to grant same-sex couples a particular privilege that had been previously been limited to married couples. That privilege has been taken away. But it was never a right. All the benefits pertaining to married couples can be taken away as well – it’s not their right, either. They are privileges granted to married couples because the State thinks it’s in the State’s best interests to do so. Just because the legislature has passed what’s commonly called an “entitlement” doesn’t mean that you’ve been granted a new right.
RonF,
sorry, said that a bit confusingly… I responded to your comments HERE on my blog THERE. Wasn’t meaning you commented on my blog. The link is the one ampersand links to.
Well, this is what it boils down to doesn’t it?
No. It’s not your right, and it never was. People convinced cities and employers to grant same-sex couples a particular privilege that had been previously been limited to married couples.
You don’t believe my relationship or I am equal to your relationship or you, thus you are entitled to certain privileges and I am not. Thus I am denied my right to equal treatment, because, in this view, I am not equal.
You don’t believe my relationship or I am equal to your relationship or you, thus you are entitled to certain privileges and I am not. Thus I am denied my right to equal treatment, because, in this view, I am not equal.
Regardless of what my beliefs are, the point is that privileges extended to married couples and privileges extended to same-sex couples are just that; privileges, not rights. They can be rescinded at any time with no Constitutional problems.
It is the will of the voters of the State of Michigan that the relationship between two people of the same gender, regardless of the level of commitment that the two have expressed, is not due the same legal recognition and the same set of privileges as that of disparate gender couples that get married. They are equal to those of disparate-sex couples that do not get married. And it’s also their judgement and will that same-sex couples can never get married, that their relationship can never be equal to that of a married couple.
You are equal to me in that your individual rights outside of your relationship to anyone else are the same. However, your relationship to a same-sex partner is not identical to the relationship between me and my wife. There are intrinsic differences. It has been stated by the voters and upheld by the Courts that those differences make it not in society’s best interests to treat them as equal, and under the legal principles of equal protection those differences are sufficient that there is nothing in the Michigan constitution that requires them to be treated as equal.
Now, if you want to talk moral rights, and what you’re morally entitled to (as opposed to legal rights and what you’re legally entitled to) that’s a different story. You can go ahead and argue that you have a moral right to have your relationship recognized as equal to mine. In that case your statement is plainly true: I don’t believe that the two relationships are equal, and quite frankly I’ve argued it here and elsewhere and I don’t think either of us are going to change each other’s minds.
RonF –
Clarification about what (I think) Trey is saying:
Group A is granted Privilege X.
Groups A & B have a right to equality under the laws.
In order to protect this right to equality, the government extends Privilege X to group B.
Later, the government recinds Privilege X from group B.
I hear you arguing that group has not been denied any rights because X was always a privilege, not a right. But Trey is saying that it is not X that is the right being denied, it is the right to equality. The government could recind Privlege X from both groups A & B without denying either any “rights”, but to recind the privilege only from group B recinds not just the specific privilege, but the right of eaulity as well.
RonF –
Sorry, we cross posted. I see you are entirely aware of your belief in the inequality of group B.
Furthermore, I would argue that a right to equality is inalienable, and that although governments may or may not recognize it, it is a fundamental human right.
Furthermore, I would argue that a right to equality is inalienable, and that although governments may or may not recognize it, it is a fundamental human right.
Define equality.
I don’t agree with RonF’s point of view at all, but I believe that what he’s saying is that you can’t say that Group A (married het couples) is equivalent to Group B (unmarried gay couples). Instead, you’d have to compare UNmarried couples, both same-sex and different-sex. And in this case, their privileges are still equal, so they’re still getting “equal treatment” in the eyes of the law.
Of course, the reason this is so crappy is that the state won’t ALLOW gay couples to get married, so there’s no way to ever compare them on an equal footing with (married) heterosexual couples. Which is why it’s so important to legalize gay marriage, and why civil unions just won’t cut it — until the conditions are identical, the state can promote any sort of unequal treatment it wants.
Ron has stated the matter clearly.
1. Trey has no legal right, as the laws now work (including the Constitution) to have his relationship treated the same as mine (I’m a heterosexual married woman). Oh, and by the way, as Ron points out, any privileges my husband and I enjoy as a result of our marriage could be revoked at any time.
2. Similarly, not so long ago in a lot of southern States, a white woman and a black man (or, vice versa) had the same legal disability as Trey’s. Very long ago, before the War Between the States, not even the Constitution supported any such legal “right” to marry between such people.
3. The laws referred to in #2 were supported, in their day, by good Biblical arguments. In fact, looking at the Bible literally or even semi-literally, both New and Old Testaments, the South had much the better argument concerning the permissibility of human bondage.
4. In due course, the laws referred to in #2 were changed. They were changed because enough Americans came to believe that these laws were morally wrong or at least impractical.
5. When enough Americans come to believe, as I believe, that the inability of Trey and his partner to marry is a moral injustice (or at least that the State does not and should not have the task of policing such matters), the laws to which Ron refers will be changed. I hope and believe that despite setbacks that day will not be postponed much longer.
6. As for what the Bible says, if anyone here cares about that, I would point out that anyone who is relying on that source for their view of Trey’s family should certainly also, and on much better textual evidence, be in favor of human slavery.
7. Any church which is unhappy with the marriage of Trey should bethink itself that we long ago attempted to separate church and state in this country, that there are already marriages (as between previously divorced heterosexuals) which are not recognized by various churches (eg, the Roman Catholics), and that this is perfectly OK. Churches are entitled to make such rules for their members as please them (within certain very wide limits); however, it would cause nothing but injustice (not to mention confusion) if the state made any attempt to follow all these disparate ecclesial rules.
If things turn out as I hope they will, Ron will retain his right to privately feel that Trey’s marriage isn’t “as good as” his own, just as strict Roman Catholics do not view re-married people as “really” married, believing instead that these people are living in a state of continuous adultery. No one can compel belief, and no one should be able to.
Which is why it’s so important to legalize gay marriage, and why civil unions just won’t cut it — until the conditions are identical, the state can promote any sort of unequal treatment it wants.
Andrea: I’ve been a “Civil unions are maybe a little problematic but really they’re just fine” person up to now. I think this incident may have just pushed me to taking a strong stand on that line, though I still find it unlikely that many of the countries with progressive civil union laws (UK, etc) are likely to fuck this up the way the US is doing.
the point is that privileges extended to married couples and privileges extended to same-sex couples are just that; privileges, not rights. They can be rescinded at any time with no Constitutional problems
Would it be Constitutional for the government to allow a $500 tax deduction for white people only? After all, it’s a privilege that can be rescinded at any time. The answer is (duh) “no”, because the issue is whether the privilege is bestowed in a Constitutional manner. The government can decide to give a $500 tax deduction to everyone, or to nobody; it may set criteria for that tax deduction that are Constitutional. (For example, ‘you get a $500 deduction if you earned less than $20,000.’)
The short version is that right-vs-privilege is red herring.
However, your relationship to a same-sex partner is not identical to the relationship between me and my wife.
My relationship between me and my husband is not identical to the relationship between you and your wife. Does that mean it would be OK for the government to give me special benefits but not you?
mythago, that would depend on the nature of the difference between the two relationships and whether that difference would justify the different treatment. In the case of Trey, the law currently is that the difference in his relationship is so different than your and my relationships means that they can legitimately be treated differently
No, mythago, it’s not a red herring. A right is something that is inherent. It’ s not something that the government grants, it’s something that according to the Declaration of Independence is granted by God (I know, that’s not a legal document, but it clearly states the philosophy upon which the founders of this country acted) and that the government is charged with protecting. A privilege is something that is not a right, but can be removed at will.
In the case of the tax deduction, the government can grant or withhold a tax deduction within certain constraints. As you note, the Constitution requires that such a thing cannot be restricted or apportioned on the basis of race. But that’s because race is not a class that it’s legal to discriminate against. It is entirely Constitutional to discriminate on the basis of marriage status, however, which is why married couples can be taxed differently than unmarried ones or single people. That $500 tax deduction can be granted to every married couple tomorrow, and all the single people and unmarried couples (gay or straight) can’t do a thing about it. It’s a privilege, not a right.
Same-sex couples claim that they are discriminated against and are being treated unequally because they cannot marry the people they love. But the marriage laws in this country are not based on love. In the eyes of the law, gay people are as free as straight people to enter into marriage with someone of the other sex. The fact that they would not want to is immaterial to the law, since the desire to do so based on sexual or emotional attraction is not part of the definition. What gays and lesbians want requires a redefinition of marriage not just to permit same-sex coules but to redefine it to be based on desire. The majority is not willing to grant this.
Ron, your analysis bites its tail just a bit.
Since you brought it up, let us take slavery for an example, just because it’s easy. It is true that the Declaration of Independence states that “all men (sic) are created equal, and are endowed by their Creator with certain inalienable rights, including life, liberty and the pursuit of happiness,” but it is also true, as you recognize, that the Declaration of Independence is a political pamphlet and does not – and never did – have the status of law. It is also true that the men who wrote it had no intention whatever of putting those words into practice where the slaves were concerned. And that human beings were held in legal bondage, deprived of those “rights,” for another 89 years in this country.
So, which is it? As a practical matter, is liberty a privilege granted by government, or is it an inherent right? Depends on who you ask, no? and when you ask them.
All this is just a fancy way of saying that the government of this country (and of all others) may not, at any particular time, be following what one may call the will of God (or whatever you want to call it) in this matter.
Surely you are not saying, when you say that “But the marriage laws in this country are not based on love,” that these “inherent” rights really are granted or denied at the pleasure of the sovereign, or, as you later call it, “the majority.” That whatever the government of the moment decides is by definition morally right. That, in fact, might makes right.
In fact, I think we are all assuming here, or I HOPE we are all assuming here, that human beings DO have basic “rights” which may, in any particular situation, be denied by particular governments, those governments being morally wrong to do so. (If you think the contrary, I suppose you would have to support the actions of Germany in the 1930’s or the Russian government during the same period. Or the government of the United States in 1820. Governments, right? They give or withhold “rights” as it pleases them and that’s OK? Surely not.)
So, which is it, Ron? Are we waiting for “the majority” to be “willing” to grant basic rights? In some ways we are, in the same way in which the African slaves were waiting for 89 years for the government of this country to wake up and “grant” them the right to liberty. But in another sense, “rights” are not given or withheld by governments, as Jefferson wrote so eloquently. “Rights” are recognized or trampled on by governments. Our rights as human beings are not dependent on the will of the majority or on the pleasure of the dictator. I believe.
That’s what Trey is saying, if I understand him correctly. He’s saying that he and his partner and their daughter have an “inherent” right to be considered a family by the government, a right which is currently being denied.
Your answer to this is apparently to quote him the current state of affairs in this country, where this alleged right is not being recognized. But we know that already. That’s not responsive. The question here is not, “Are gay couples currently unable to marry legally?” We all know that they are unable to do that. What are you saying? That what the government (here styled “the majority”) is morally right whatever it does??
The question here is, “Does this current state of affairs violate the fundamental right of Trey to marry as he chooses, to confer legitimacy on his daughter, and to function as a family in society?” The answer to that question depends on whether you think such a fundamental right exists. Trey (and I, and many others) think it does. You think it doesn’t.
But your alleged “majority” opinion is irrelevant to this discussion. If we’re right, the United States is morally wrong on this point, as we were wrong in 1820, as Germany was wrong in 1940, as vari0us governments have often been wrong.
A right is something that is inherent.
Indeed, which is why courts speak of marriage as a fundamental right. Neither you, nor I, nor trey has a right to spousal health insurance, or preferential tax treatment; those are benefits of marriage.
Constitutionally, in the case of same-sex marriage, states are discriminating based on gender. (And please don’t dust off the old ‘everybody is discriminated against so nobody is’ argument.)
And actually, RonF, the majority is perfectly happy for marriage to be ” based on desire”, as long as we limit it to heterosexual desire. Nobody suggests that my mother’s marriage to my stepfather is so fundamentally different than mine that she should not be allowed to marry in the first place, or that she should have some limited “civil union” that isn’t up to the full standards of marriage.
mythago says it shorter. Everything else being equal, shorter is better.
Get off it, Ron, you’re smarter than you’re pretending to be. Stop willfully confusing inherent human “rights” with what this particular government is willing to acknowledge right now. You know better than that.
In a *headdesk* kind of way, the Michigan ruling is a perfect example of what happens when we have voters who whine about “I didn’t know that’s what it said! I thought I was just voting against gays marrying, I don’t care if they have something else but don’t CALL it marriage!”
We could come up with some sort of “not a marriage” that’s treated the same as marriage in the law. But the social conservatives don’t want that. They want whatever it is that gays have to be obviously less than marriage because they don’t like homosexuality. They think it’s bad. A bunch of them got together in Michigan and decided to do something about it.
I think it was Madison that wrote about they tyranny of the majority. I doubt he had this in mind when he did, but it seems an apt way to describe it.
It is also true that the men who wrote it had no intention whatever of putting those words into practice where the slaves were concerned.
Some did. Some didn’t. They tried to set the debate aside in the interests of getting the Union formed, hoping to settle the matter later. That’s what Jefferson meant when he said “I tremble for my country when I reflect that God is just.” I think that the Civil War probable fit exactly what he was thinking of; the viewpoints on slavery were too mutually exclusive to admit of compromise. One had to win, and the right one did.
That’s what Trey is saying, if I understand him correctly. He’s saying that he and his partner and their daughter have an “inherent” right to be considered a family by the government, a right which is currently being denied.
Yes, I’m sure you’re right. I’m sorry. I’m trying to talk about moral rights vs. what are legally recognized as rights at the same time, and perhaps not as plainly as I thought I had.
No, I don’t think that the government (hah!) or the majority (double hah!) always get it right. It is certainly a tenet of conservtivism that the government’s involvement in defining what’s right and what’s wrong should be limited to the bare minimum so as to guard against it being wrong. I am convinced that in this particular case they both have it right; that there is no inherent moral right to marriage for same-sex couples and that the State is right in refusing to recognize such. And I’m well aware that the majority on this blog disagree with me. I talk about definitions and such because it seems to me that people try to shift definitions to shift the basis of the debate – a good example is using “homophobia” to denote simple dissaproval of homosexual behavior.
So to say that same-sex couples have a right to marriage is the same kind of thing, because marriage is a bond between a man and a woman, and thus by definition cannot involve same-sex couples. To create same-sex “marriage” means that we have to throw out not only the legal definition of marriage but the moral one as well and redefine the very basis of the term. To say that same-sex couples have a “right” to marriage as it stands is a non-sequitir.
Now, those who argue for civil unions seem to me to be approaching this more straightforwardly; they are saying that same-sex couples deserve the same privileges that accord to married couples. That’s a topic worthy of debate and approaches the topic from what I consider at least to be a more honest direction. Instead of saying, “Heterosexual couples can marry the person they love, we should be able to as well”, when the right to marriage is in fact not based on love but on different factors, they say “We think that it will have as much benefit to society to grant same-sex couples the privileges that pertain to married couples”.
The difference is that in one case, you’re saying “This is something that other people get – we are essentially the same as they are and we are being unfairly discriminated against”. In the other case you’re saying “Here’s a new thing that we think we have a right to have.” To argue the former you have to change the definition of marriage; not just the legal one (which perhaps I overemphasized), but the moral one as well. To argue the latter you have to prove your case from scratch.
I think it was Madison that wrote about they tyranny of the majority. I doubt he had this in mind when he did, but it seems an apt way to describe it.
If you ask the proponents of this amendment, they’d say that they were looking to override the tyranny of a minority. The actions of the Massachusetts Supreme Court were looked upon with horror by a great many people in this country; a very small number of unelected people overthrew the existing law and demanded that the legislature make new law that would conform with their interpretation of Massachusetts’ constitution in a fashion that by no means accorded with what was meant by either it’s authors or just about anyone else who had ever read it. They imposed their minority will on the majority of the population.
You obviously are in favor with their intrepretation. Fair enough. But this is what is meant when you read their statements and see that they keep talking about making sure that the various State’s Supreme Courts couldn’t override the will of the majority, why DOMA laws were insufficient.
So to say that same-sex couples have a right to marriage is the same kind of thing, because marriage is a bond between a man and a woman, and thus by definition cannot involve same-sex couples.
I really expected better from you than a tautology.
Now we’re getting down to talking sensibly. Finally.
I too am a political conservative, so I will certainly eagerly go along with your feeling that we should pull out the “big gun” of government only as a last resort. Especially when we want the government to enforce our particular moral or religious beliefs, an attitude which is problematic at best anyway, given the Constitution’s attempt to separate church and state.
You refer to “moral” rights, and surely you know that there are very few “moral” tenets which are universally accepted in so pluralistic a society as ours. Some believe abortion to be a woman’s “right,” others think it is murder. Some believe that homosexual behavior should be criminalized – until fairly recently this was the majority view – and others, obviously, do not agree. Some think it criminal the people of different races can marry, though I’m hoping that this opinion is on the wane.
I am assuming, in your favor, that when you refer to a “moral” consideration, this is not merely for you a short way of saying “What RonF thinks is best in his unsupported whim,” but that you are rather at least attempting to refer to some kind of over-arching standard which is or should be accepted by all right-thinking people. If you are a Deist (which I do not know) you could refer to the Will of God, which makes more sense logically than just pulling moral judgments out of thin air, but which gets us into the further insoluble tangle of, “how exactly do we figure out what the Will of God is in this case?”
Whether Trey has a “moral” right to marry his partner is a conundrum. You think he doesn’t, based on something or other; I think he does, also based on something or other. If what we’re talking about is either our several opinions about what “moral” standards we ought to pull out of the air, or, alternatively, what God wants, we can argue all day and not get anywhere. That’s why your “best” argument, as the shrewd mythago points out, is merely a tautology. (Translated, “I’m right because the definition of ‘right’ is that I’m right.”)
Given all that, and moving right along, as a political conservative I would submit that it is out of the State’s proper purview to make a “moral” judgment in this matter. The State (quite properly) penalizes murder and theft and the like because someone gets hurt in those cases, but it’s hard for me to see who would be hurt if Trey got married.
The State’s appropriate interest in this matter, in my opinion, is in furthering stability in families, in assisting families in keeping their finances in order as amongst themselves, in predictability (for everyone’s sake, there’s enough uncertainty in the world as it is), certainly in assuring that children have such security as is possible and that they not become public charges and that they are, hopefully, raised to be honest, productive citizens – like that. Therefore, as a general thing, stable, committed families where the members take care of each other are much in the State’s best interest, if only so the rest of us don’t have to pick up the pieces.
It follows then, “morals” aside (and we do agree, don’t we? that we’re not going to make the State the arbiter of what God thinks?) I believe that the State’s proper stance on this issue is to say, “OK, what we support (and benefit in various ways) are people who commit to each other and to their children if any to form family units which they and everyone else can rely on. We, the State, are not in the business of enforcing RonF’s or Susan’s or mythago’s private opinions on morals. Therefore, come forward to be married, all those of you who want to undertake these responsibilities. We will give you official recognition (conventionally denominated “marriage”), we will hassle you if you decide to break up, we will force you to support each other financially even if you no longer get along smoothly together, we will give you and your children mutual rights of access and support, and oh maybe you’ll get a tax break or two along the way.”
(And if RonF believes that those who are of the same gender who respond to this call are not “really” married or shouldn’t be “really” married or are sinners or immoral or whatever, he is well within his rights to believe that. He can form the Church of RonF (or, join any one of many established religious organizations) and thereafter tutt-tutt at Trey to his heart’s content. And maybe be right even.)
Therefore, come forward to be married, all those of you who want to undertake these responsibilities.
Exactly.
The ‘babies’ argument pretends that we only care about children being raised by their biological parents–that adoptive families, or stepfamilies, do not need from nor benefit from the support given to couples where each person is the biological parent of all the children in the household. Surely nobody is arguing that we need to encourage people to breed, but we don’t care if they stay together, and we don’t care about the fate of children living with someone other than their biological parents.
I’m still waiting for someone to explain why my mother’s marriage is just as good as mine–she and my stepfather can’t possibly have any children, she’s not married to my biological father and neither I nor my brothers get any benefit from their marital status.
Surely no one here has the nerve to argue right up front that the (actually quite numerous) children of gay couples should be cast adrift, out of the protections afforded children (even adopted or step-children) in heterosexual families? I once visited the Metropolitan Community Church of a Sunday, and there was a whole crowd of kids around, all of them the children of gay couples. These kids don’t count?
Actually, that is the argument (though disguised) but it’s hard for me to see much sense in it. And on the other side, as the always pithy mythago points out, when did we start requiring all married couples to have children as a condition of marriage, and refusing marriage to those who cannot or will not? That would be a novel position. I cannot right away remember any time in Western (or human) history when any society required that as a condition of marriage.
Or is this argument perhaps only a make-weight, dreamed up on the instant to justify behavior which lacks logical standing?
It’s actually not a novel position–it’s a very old position, and it used to be the law that such marriages were ‘voidable’ or could not be undertaken in the first place. (One of the points raised in Baehr v. Lewin was that Hawaii used to require prospective marrieds to sign an affidavit saying they were neither infirm nor impotent–after all, such people could not consummate the marriage and have babies.)
We don’t like those rules anymore, because nowadays we think it’s okay if octogenarians and the disabled and the childfree to ahead and marry. So we cling to opposite-sex-only marriage even though we’ve gutted the rationale for it.
mythago, interesting. I know that the old Catholic position was that if the people married had the intention not to have children, the marriage was void. Actually, that’s still the Catholic position. This notion is unknown to the Old Testament, however; stories of “barren” couples abound, though this is always blamed on the woman, ha ha, as though the people in these societies couldn’t add two and two and make four. (One guy has three wives, no kids, you think the neighbors didn’t figure out what the problem was?) However, there is no suggestion that the marriage was not valid in such cases.
In fact, going back to morals and laws, the modern trend – a good one, I believe – has been to get the State out of the morals business. This is not, I believe, because we are less moral than our ancestors, but because we are more realistic. Adultery, for example, used to be illegal (still is in some places) but although most people still think it’s immoral, we’ve figured out that such laws are unenforceable as a practical matter. (And that that level of State snooping wouldn’t be a good idea anyhow.) In the early part of the last century we experimented with outlawing alcohol, with calamitous results. (I’m still waiting for us to catch on re marijuana.)
In fact, RonF may well be right about the morals of homosexuality. (It really won’t do to say that it’s perfectly OK to screw around but sinful to marry, by the way, and I don’t think Ron is taking that position.) Since I do not have a direct line to God I don’t know His opinion on this for sure, and if Ron is just making this up out of his head (the other alternative) how can I say that he’s incorrect? I can’t. Not on that showing.
I do think the State should get out of enforcing this particular moral position ASAP, regardless of it’s Rightness In the Eye of God, and confine itself to the matters more appropriately addressed by State action.
A question for RonF:
My best friends parents are both middle-aged, divorced from each other, and remarried. Both of the new couples support their children from their previous marriages, physically and emotionally, take care of each other (there are chronic health problems in both new families), and share their belongings and homes and most other aspects of their lives. I’ve been very close to both families for years, and although there are definitely differences in financial well-being, I’ve never been able to detect a difference in the stability of either relationship. Both couples are clearly emotionally committed to one another and to their families.
So tell me, which one of these couples is gay? If you can’t, can you tell me which aspects of “marriage” I’ve missed that would explain why the state has an interest in preserving one of these marriages and nullifying the other?
This wasn’t passed because people wanted to limit the power of government. This was passed because people don’t like gays.
Right, Joe.
Similarly, mandates that the races be treated equally (eg, Brown v. Board of Education) were the “tyranny of the minority” in Georgia and Mississippi (indeed, in the 1960’s you couldn’t even find this minority because they were all hiding in bomb shelters. And those mandates were opposed on that ground exactly.
But the real reason was racism, not some high-minded intellectual consideration for majority rule.
In fact, one of the VITAL underpinnings of our democracy is the rights of minorities. The Fathers understood very well that equating majority opinion with God’s opinion was a quick route to disaster. (In a way, this is the battle in Iraq. These folks think the majority (or, whoever has power for whatever reason) has the right to murder the minority. We cannot plant “democracy” in any place that thinks this.)
And, as I’ve argued, the urge to “limit the power of government” goes quite in the other direction from policing the alleged morals of marriage.
mangala, Ron can’t answer your questions, at least not so he makes sense, because his real arguments are not rationally based. He’s not interested in family stability, even in heterosexual family stability. (If he was, he’d be ranting and raving about the divorce laws, not the gays.)
I challenge you, Ron, to come out in the open and admit to us that you think homosexual sex is wrong. (Or disgusting or whatever.) That’s an opinion, and you’re entitled to your opinion. But after you do that, please to explain why the State should support this opinion of yours by force of law.
No more tautologies, we’re bored with that here now.
O.K. I’m out of town for a week taking a training course and am doing this during a presentation that my company is paying a large amount of money for me to listen to. So:
There’s lots of things that I could rant and rave about. Abortion and divorce laws are on the list, but they aren’t the topic of this thread, and I’ve done enough inadvertent hijacking of threads in the past to be sensitive of doing it again.
Yes, I recognize that what I think is moral isn’t necessarily what should be enacted into law. I recognize that there are things that people have thought were moral imperatives in the past that were actually great wrongs (and were thought to be great wrongs at the time by other people), and that the law (and society) has been improved by recognizing that.
I also recognize that our method of government is set up to balance majority rule against the rights of the majority. So while yes, I think that homosexual behavior is immoral (this is news?), I agree with the Supreme Court decision that recognized that under the Constitution, it is perfectly legal. During the colonial period, the Commonwealth of Massachusetts printed money that had on it the motto, “Mind your own business”, a maxim that I would apply to government most of all. It’s nobody’s business what goes on in someone’s bedroom (or the kitchen or living room, for those of you a little more adventurous), as long as it’s voluntary and doesn’t frighten the horses.
But same-sex marriage goes beyond that to ask the state to first change the basis on which it sanctions a link between two people and then to broaden it to include same-sex couples. I agree that the government should not have the power (not the right, government has no rights, only people do) to penalize homosexual behavior. I do not agree that the government should have the power to encourage and support it.
Government does not grant rights. Government has the function, granted by the right of the governed, to perserve rights. The problem comes when the electorate is asked to state what is their perception of what rights God has granted are (you may not agree with the premise, but it is in fact the premise that this country was founded on). There’s going to be disagreements on that. Majority rules. Once the majority rules, the right of the minority to exercise these rights in a fashion that the majority disapproves of must be inviolate. It’s important to note, though, that there is no right for the minority to do something where it is not legally recognized as a right (as opposed to a privilege) to begin with.
I disagree with pretty much everyone here that same-sex couples have the right to have their unions supported by the State, because 1) I think such a thing is wrong, 2) I don’t view them as equivalent to disparate-sex unions, and 3) I don’t view marriage as a right available to any couple at all, but one that is a privilege that is granted under certain legitimately established conditions (and you have a right to marriage only if you meet those conditions). And I think that this is what the law states, especially in those States that have passed marriage laws or constitutional amendments.
Most of you all think that I’m wrong on all those points. Under the law, point 1 is immaterial (although it would inform my vote if a same-sex marriage law or amendment ever comes onto the Illinois ballot). Fine. That’s as it should be. I don’t expect to be able to argue point 1 here.
The Massachusetts Supreme Court especially found that under the Massachusetts Constitution, I’m wrong on point 2 (and probably 3, I should re-read the decision). What we’re really talking about is points 2 and 3. I think that the State should support my opinion in that regard because that’s what I view as the proper interpretation of the law. But that’s going to be adjudicated in various courts. One of these days, someone’s going to take a “same-sex marriage” to the Federal Supremes under the “full-faith and credit” clause of the Constitution. They’ll give their opinion. If it overturns existing law, then there will be a drive for a Constitutional amendment, and we’ll see how it goes.
And now I’ve gotta go. Sorry if I haven’t adequately responded to everyone. I can’t promise that I can get back on until next Monday; most of what’s been presented so far has been review for me, but now we’re getting into new material and I have to pay attention, as my company expects me to teach this stuff when I get back. Managala, et. al., I’m sorry, but on that basis I have to punt.
“…there is no right for the minority to do something where it is not legally recognized as a right (as opposed to a privilege) to begin with.”
Legally recognized by whom? If by the majority, the minority will be found to have no rights. Only “privileges,” which the majority will be eager to revoke.
The real point here is number 1. Ron thinks same-sex unions (and, I presume, same-sex sex) “wrong”, by which I take it he means “morally wrong.” Whether such unions are “equivalent” to heterosexual marriages is in the eye of the beholder, of course, and marriage (elsewhere in the law called a “fundamental right”) becomes here a “privilege” because that’s the first step on the road to denying this alleged privilege to some people (yesterday, racial intermixes, today, same-sex unions). But the only reason Ron is anxious to deny this “privilege” in this case is that he thinks such unions morally wrong.
Now, as I’ve said before, I don’t know what God thinks about this, so Ron may be right or he may be wrong who knows. The question presented, however, is a bit different: “To what extent will a self-proclaimed political conservative violate his own principles to such an extent that he wants the State to enforce his own views of the immorality of other people’s behavior?” To the extent that the behavior in question is harmful to an innocent person, (murder, even abortion maybe) OK, but in this case? Who is the alleged victim of Trey’s marriage?
I may not have Ron right here, but if I do, he is in the same position as an old-fashioned blue-nosed Protestant who believes that playing cards is immoral. Not content to stay away from the gaming tables himself, he wants to outlaw cards for everyone.
Will he get away with it? For a long while the cards-folks did. Then wiser heads (in my opinion) prevailed. I’m hoping that wiser heads will prevail in this case as well.
Hm. An interesting question, to which I don’t know the answer.
Let us assume, per impossible that we really KNEW, for sure, that,( pick your own) [playing cards] [drinking] [having heterosexual relations before marriage] [gay marriage] [dancing] are, although victimless crimes, nevertheless morally wrong, a stench in the nostrils of God the Most High.
If we knew this, is it the State’s job, therefore, to prohibit these behaviors by force of the law, which means in the last analysis, force of arms? To what extent is the State properly in the business of enforcing the Will of God?
To this question fanatical Muslims have an answer, and that answer is, Yes, it IS the business of the State to enforce the Will of God, even as to matters of dress and comportment.
Historically, with many fits and starts and reversals, we in the West have come up with a different answer. We believe that the State is properly confined to the business of assuring order and of defending us from foreign enemies; that it is not the proper business of the State to police moral behavior.
Even if RonF really thinks that homosexual behavior/marriage is wrong.
Whether such unions are “equivalent” to heterosexual marriages is in the eye of the beholder, of course, and marriage (elsewhere in the law called a “fundamental right”) becomes here a “privilege” because that’s the first step on the road to denying this alleged privilege to some people (yesterday, racial intermixes, today, same-sex unions).
The law only recognizes marriage as a right to specific classes of people. For example, various levels of blood relationships are forbidden to marry. Various ages are forbidden to marry, or are qualified by getting a 3rd party’s approval. The law does not recognize it as a fundamental right to any two people who show up. Yes, the law was wrong to withhold it from interracial couples, but that was an innovation of racists (not something of ancient lineage) and it was properly overthrown. But even now it is limited for various reasons. Right now the law includes the genders of the two people involved as a proper reason.
Point 1 is the reason I’ll vote against it. The opinion of lawmakers and judges of points 2 and 3 are, however, relevant as to whether judges or the legislature can/will interpret the Constitution to permit/require it.
Historically, with many fits and starts and reversals, we in the West have come up with a different answer. We believe that the State is properly confined to the business of assuring order and of defending us from foreign enemies; that it is not the proper business of the State to police moral behavior.
I wish such were the case. That’s the ideal. But a lot of the West seem to be hell-bent on making the State the guarantor for your housing and job and to be legislating such moral issues as “hate speech”.
law does not recognize it as a fundamental right to any two people who show up. Yes, the law was wrong to withhold it from interracial couples, but that was an innovation of racists (not something of ancient lineage) and it was properly overthrown
So if the racists could have pointed to an ‘ancient lineage’, then in your view they would have had a point?
Obviously, Mythago. “We’ve done it this way for [x] thousand years” is not an absolute, or even overwhelmingly powerful, argument, but it obviously is an argument. Empirical survival is an excellent guide to the viability of an idea.
Sometimes we must discard even ideas which have stood the test of time, because the fail some other test, such as moral acceptability. That doesn’t make the test of time worthless.
In the case of the interracial marriage bans, of course, no such claim to historicity could legitimately be made. It was, in fact, an innovation – and as such could be more easily recognized as a mistake, and discarded.
No, the test of time is not worthless, but I’d be careful when using that argument.
For an easy example, human bondage has quite a long history, back into the deeps of time in most cultures, and it’s still alive today, out in the open, in some places in Africa. Empirical survival makes it viable? Well, yes, but that doesn’t make it right. Similarly corporal punishment, infanticide of the disabled (or simply of a child no one wants particularly), criminal punishment for the mentally ill (a practice not yet deceased) and any number of other ideas which have a long long history.
When proponents of discrimination against gays use the “well we’ve been beating you over the head for x thousand years and that makes it OK” argument, they are not making a very strong case, especially in light of these other examples. I’m suspecting that this argument is being used a lot these days because these folks are sort of scraping around the bottom of the barrel for arguments.
Similarly corporal punishment
Hm. I’m no fan of flogging, but sometimes I think a day or two in stocks in the public square (or shopping mall, these days) might be a more effective deterrent for some minor crimes than what we’re using now. ;-)
No, the test of time is not worthless, but I’d be careful when using that argument.
Granted!
Any church which is unhappy with the marriage of Trey should bethink itself that we long ago attempted to separate church and state in this country, that there are already marriages (as between previously divorced heterosexuals) which are not recognized by various churches (eg, the Roman Catholics), and that this is perfectly OK. Churches are entitled to make such rules for their members as please them (within certain very wide limits); however, it would cause nothing but injustice (not to mention confusion) if the state made any attempt to follow all these disparate ecclesial rules.
I would agree that the last thing in the world we’d want is for Roman Catholic/Anglican/Baptist/etc. clerics to have seats in our legislature on the basis of their clerical positions and be able to form legislation, nor do we want legislation to have to be submitted to some body for examination for it’s conformance to a given holy text (and that body’s interpretations of same). That would be an “establishment of religion”. But it’s perfectly legitimate for a given group of people, be they clerical or lay, to vote in accordance with their own religious beliefs and to urge others to do the same. That’s not a violation of either separation of Church and State or the First Amendment. Although the former group, if acting in their official capacity, might have to abandon their tax-free not-for-profit status.
I am baffled at the notion that people in favor of segregated marriage laws were newfangled wackaloons who just made it up, whereas the old, hallowed legal tradition was freedom to marry across racial lines at will. Talk about scraping the barrel…
The foundation of western law is Greek and Roman jurisprudence. They did not have laws against marriages between races; there were some laws, particularly in the Roman Republic, that restricted marriages between social classes, but race was largely immaterial.
(OK, a digression for the most obscure joke ever to be posted on Alas:
The Roman patrician said to his plebeian lover, “Alas, the law forbids it; I cannot marry you.” She replied, “oh yes you can, you liar!”*)
/digression:
Medieval law, including English common law, is silent on the question of mixed-race marriages; they didn’t care. Admittedly, this may be because there wasn’t that much racial mixing going on in pre-colonial days, but regardless. The first law against mixed-race marriage that I can find was in Maryland in 1664; the idea spread through North America, although civil rights activists of the 19th century fought against it, and even achieved some limited successes in overturning such laws in liberal bastions like Massachusetts.
The laws never got a foothold in South America; it was an innovation peculiar to America and Canada. The laws were overturned finally in 1967 in the aptly-named Loving decision.
So: Ancient period, no anti-miscegenation laws. Medieval period, no anti-miscegenation laws. Modern period, about three centuries of anti-miscegenation laws, which were finally chucked out after some effort.
So be baffled all you like – but an innovation dreamed up by some wackaloons that broke a tradition of race being a legal irrelevance to marriage is, in fact, the way it was. The fact that it was settled law when our grandparents were young doesn’t make it Dawn of Time stuff, as easy as it is to fall into that error; the pedigree is comparatively recent, local, and now-discredited. (Hooray.)
* It’s an inter-lingual pun, and a pretty good one. The Lex Canuleia – pronounced, pretty much, “les can you liar”, was a popular law passed in 445 BC that overturned one of the Republic’s foundational laws and legalized marriages between plebeians and patricians.
All this just proves what we knew already: that the age of an idea is hardly a certain indicator of its worth. That allowing women to vote is an idea of very recent vintage does not make it a bad idea; that human slavery is a very very old idea does not make it a good one.
When arguments against gay marriage boil down to: “we’ve never done it this way before,” I am accordingly somewhat underwhelmed.
The foundation of western law is Greek and Roman jurisprudence.
Actually, the foundation of American law includes a rather large strain of English jurisprudence.
Modern period, about three centuries of anti-miscegenation laws,
Only three centuries? Why, that’s like we invented it yesterday! Next you’ll be telling me we should really think about overhauling the sillier parts of the Bill of Rights, it being all newfangled and at odds with millenia of all men not being equal.
Three centuries in a legal tradition that spans three millenia is, pretty clearly, a temporary departure from the mainstream.
Robert, you’re really stretching. It’s obvious you’re really stretching. Do I have to waste time pointing that out?
You can spend your time as you like. You’ve been demonstrated to be wrong on the facts, and now you’re trying to spin the interpretation. But it’s quite clear. Bans on interracial marriages, are, as a matter of historical record, a relatively recent innovation (and one which was in due time rejected), not part of the structure of marriage law from early days.
The Bill of Rights is a “relatively recent innovation”. The ability of women to own property in their own names is a “relatively recent innovation”. The abolition of slavery is a “relatively recent innovation”. The existence of the United States as an independent nation is a “relatively recent innovation”.
You’re twisting yourself into knots to pretend that three hundred years of American legal tradition is a blip that can be breezily dismissed when you don’t like the results. The idea that we can ignore any law less than half a millenium old is one even the crustiest Fourth Circuit judge wouldn’t try to float.
And all of those things are, in fact, relatively recent innovations. What’s your point?
I’m not trying to pretend anything, Mythago. I’m trying to make an accurate description of a legal regime – and to draw a distinction between something that’s a bedrock foundational principle of same, and something that isn’t. Some things about our marriage laws are foundational – there from the beginning. Other things are not.
If people are going to use “this is traditional and maybe we shouldn’t change it willy-nilly” as an argument – and they are, because that’s a valid argument in many cases – then we have to know the difference between what really is traditional, and what is of more recent vintage.
Anti-miscegenation laws are of relatively recent vintage, and are not part of the foundational jurisprudence concerning marriage and family laws. You can disagree, and you can be wrong.
I’m done arguing with you on this one; it’s a question of fact, not of opinion, and the facts are known. You’re wrong.
Anti-miscegenation laws are of relatively recent vintage
You keep hoping that nobody will notice that ‘relatively’ part. Of course it’s a question of fact; when you start with false premises, the ‘facts’ follow naturally when you line them up just so.
You keep hoping that nobody will notice that ‘relatively’ part.
Right. That’s why I keep using the word.
I’m done arguing with you on this one
Heh. Thought so.