Congrats to Eve Tushnet for her article in the National Catholic Register, “Defending Marriage, After Massachusetts.”
About half of Eve’s case is the familiar “marriage-is-about-heterosexual-reproduction-because-I-say-it-is” argument. First, though, comes a relatively new twist – what Eve terms the “bait and switch” argument.
There’s just one problem: When Massachusetts legislators voted for these laws, they were assured again and again that same-sex marriage would not be the result. There is virtually no chance that these laws would have passed if voters and legislators had believed they would lead to the radical redefinition of marriage.
The Massachusetts court is saying to citizens, “You all go ahead and vote for the laws. Then we’ll tell you what you really voted for. Don’t expect it to look much like what you thought you agreed to.” The rule of law requires that laws be predictable and stable – that laws not be yanked out from under citizens like a carpet in a Tom and Jerry cartoon.
How many premises of Eve’s argument are wrong?
1. Did the precedents Eve mentions really lead to gay marriage?
First of all, Eve implies that these precedents (hate crimes, the ERA, anti-discrimination laws) were essential – or at least important – to the Goodridge decision. In fact, they barely mattered at all; to claim they led to gay marriage is either deceptive or wildly mistaken.
Perhaps Eve needs to reread the decision. The Massachusetts equivalent to the ERA isn’t even mentioned in the majority opinion (it comes up only in a concurrence); and the hate crimes and anti-discrimination statutes Eve refers to are an extremely minor part of the decision (they are mentioned just once, as part of a list of laws; by word count, they constitute one-third of one percent of the majority’s opinion).
The fact is, the majority decision barely mentioned these laws, let alone relied on them to make its case. Even if legislators had voted against hate crimes and employment rights for gays, the Goodridge decision would have been the same – except a few words shorter.
But what about Justice Greaney’s concurrence? It referred to the ERA-like provision of the Massachusetts constitution quite a lot; and since the court’s decision was decided on a 4-3 vote, Greaney’s concurrence was essential.
Again, reading the actual text deflates this argument. Greaney begins his concurrence by stating, “I agree with the result reached by the court, the remedy ordered, and much of the reasoning in the court’s opinion. In my view, however, the case is more directly resolved using traditional equal protection analysis.” It is only in this “more direct” alternate reasoning that the ERA-equivalent comes up at all – but, given his agreement with the result, the remedy, and much of the reasoning, it’s plain that Greaney would have voted the same way even if the ERA-like law had not existed. In fact, Greaney himself says so, in a footnote:
So the legislation that Eve is worried led to Goodridge? She needn’t worry – Goodridge would have happened with or without that legislation. It is thus inaccurate to claim that this legislation led to gay marriage.
(For a similar argument, check out Mark Barton’s post on MarriageDebate.)
2. Did the voters have no idea that gay marriage might result?
For the sake of Eve’s argument, let’s ignore reality for a moment and pretend that the legislation Eve discusses did lead to Goodridge. For Eve’s point to stand, we’d still have to buy that the voters were deceived – that is, they had no way of knowing that the ERA and laws recognizing that gays deserve human rights might lead to gay marriage.
Which is absolute bunk.
First of all, in all the cases Eve mentions, opponents argued that the proposed legislation would lead inevitably to same-sex marriage (and thus, they seemed to think, to the collapse of civilization). So the voters were faced with contrary expert opinions, some arguing that this legislation could someday lead to gay marriage, some arguing the opposite. Given this history, it’s ridiculous to claim that voters weren’t aware of the possibility of gay marriage.
Secondly, in the case of the ERA, even some of the ERA’s feminist supporters argued that the ERA could lead to same-sex marriage – but in their view, the potential for same-sex marriage was a feature, not a bug. (Of course, some feminists argued the opposite – feminists were split on both what the ERA would mean, and on how to argue for it. For a detailed discussion of that split, I recommend Why We Lost the ERA.)
Eve’s story of tragically ignorant voters, who were simply never told that same-sex marriage was a theoretically possible outcome of the ERA and other changes, is compelling – but it’s also fiction.
3. The U.S. is ruled by a Constitution – not by a majority.
I wonder what Eve would say if a majority of voters – in a referendum, say – passed a law denying gays and lesbians the right to free speech? The courts would (I assume) overturn such a law on Constitutional grounds. Would Eve object, on the (correct) grounds that the framers of the First Amendment didn’t foresee it being used to give equal rights to gays, and therefore this is a case of the courts changing what the legislature voted for?
It’s not as if the framers of the Fourteenth Amendment envisioned Loving versus Virginia (which made it unconstitutional for states to outlaw mixed-race marriages) – or even Brown vs Board of Ed (which found that separate is not equal). Yet I doubt that Eve would argue that these decisions were blows to democracy. Most Americans, with the benefit of hindsight, seem to agree that these decisions corrected major injustices.
Eve seems to miss out on the logic of Constitutional rights. Where an individual’s Constitutional rights come into conflict with the majority’s prejudices, it’s essential that the Constitution hold sway. No one’s constitutional rights should be held hostage to what the majority likes or dislikes – or even to what the majority has liked or disliked historically. As Justice Greaney wrote,
UPDATE: Edited later to change “legislators” to “voters,” since apparently the ERA in Massachusetts was enacted by voter ballot..
Excellent. Great stuff.
Feel free to read my recent http://ludicrosity.com/ posting on the matter; I hadn’t seen this posting before writing otherwise I would have quoted from it. :)
Sheesh:
The Massachusetts Constitution was never meant to create dogma that adopts inflexible views of one time to deny lawful rights to those who live in another. The provisions of our Constitution are, and must be, adaptable to changing circumstances and new societal phenomena, and, unless and until the people speak again on a specific subject, conformable in their concepts of liberty and equality to what is fair, right, and just.
That really just says that the Court is free to change the meaning of the constitution from time to time.
So, impeach a couple judges, change the law, that’s ok.
It is not. How would you feel if the Court suddenly said, “hey, times have changed, women shouldn’t have civil rights after all?” Would you blithely go, “hey, that’s ok.”
I hope not. There is a social compact that acts like this undermine.
There is a steady evolution towards gay rights. Acts like this solidify the opposition and create lasting barriers, much like Roe v. Wade stopped the trend towards abortion acceptance cold and will probably yet lead to a loss of abortion rights. It would only take one judge.
That really just says that the Court is free to change the meaning of the constitution from time to time.
If by “change the meaning” you mean “interpret the constitution as they see fit” then yeah. That’s one of the major reasons there’s a judicial branch.
Actually, the Legislature changes the Constitution, through the amendment process. Doesn’t it? I mean, I’m not a lawyer or anything, so maybe I’m wrong.
Gay Marriage
Gays who covet their neighbor’s wives seem ironic because marriage was once the target of no boundaries groups. Gays have successfully dominated the older culture and religious tradition that transmitted marriage to this century, making it almost fashionable to come out with openly gay lifestyles. Marriage, once the target for rule breaking, is called in for re-making. Mainstream gays demand changes to the established order. They want the blessing of society and a bigger piece of the American pie. Gay couples feel cheated assuming the obligations of a spouse without the financial advantages given to male and female partners. They say they pay taxes too and besides, many heterosexual marriages end in divorce.
The Catholic Church, one of the oldest and largest moral authorities in human experience, insists that homosexual acts are disordered. The word moral has a stigma now but it means what is “good” not what is “wrong.” So moral is good for mankind.
Gay demands represent a shift in emphasis away from procreative interests toward sensual and emotional priorities. New attention is focused on sexual action as the core value in relationships. It represents a change in the order of priorities away from the life-giving in favor of the prurient. This is a proposal for new morality.
There are many kinds of friendly and emotional bonds between people, from family ones like cousins, uncles, and brothers, to ones outside the family like teachers, teammates, and caregivers. There are many expressions of love by taxpayers. The sexual behavior of homosexuals is the only thing that distinguishes them from other groups of cohabitating people who love each other. Rewarding only couples doing adult things together would be unfair to groups who don’t participate in these activities. The community is asked to make private gay behaviors a group priority.
Marriage was granted special legal status for the one main reason, because men and women have children. The privileges for couples were never intended as a reward for having marital relations. Tax benefits, life and health insurance, were not perks you got for sleeping together.
It is remarkable to me as the father of five children that others fail to acknowledge the different value of having children versus the value of having relations. Parenting is a contribution that is better and different than someone who lives with someone else and wants insurance.
Michael,
Marriage is the joining of two lives into one (as commonly stated in ceremonies). It is not the mating of two people to create more people (I never hear that at weddings). If marriage was meant solely as “special legal status for the one main reason, because men and women have children”, then marriages would not be allowed to be granted until there were children in existence.
Do you understand how misguided your explanation is? Do you see that the facts of marriage as it exists in the USA (and has always existed in the USA) are against your interperetation?
If you insist that you are correct, could you please show me one place in American law where, “The privileges for couples were never intended as a reward for having marital relations. Tax benefits, life and health insurance, were not perks you got for sleeping together,” is written (or other words to that effect). If you can’t show me that, kindly find a more logically & factually correct argument to support your prejudices.
How is marriage a “special status” for anyone? Any two people of the opposite sex who are of consenting age can get married at any time for any reason. There’s nothing particularly special about that. It’s a legal status. That’s it. And it’s being arbitrarily denied to a significant portion of the population, in flagrant violation of equal protection guarantees that exist in this country.
To clarify, I think that my marriage is one of the two most important relationships in my life (three if you count my God, but not everyone would, and that’s not a legal relationship in the sense that I mean legal anyway). It is that way because I make it that way, not because of some broader societal endorsement. I know that marriage is a different kind of relationship than just a long-term, monogamous, co-habiting relationship, but only because that’s what I have made it through personal effort. In my opinion marriage is a higher level of relationship than a monogamous LTR, though I’ve heard many respectable arguments to the contrary. And if being in a monogamous LTR isn’t good enough for me, then why must we send the message that being in a monogamous LTR is good enough for some people, who would rather be married, because of something they can’t control?
Allowing same sex couples to marry does not in any way redefine what marriage is. I wish people would stop acting as though it does.
And for the record, neither my wife nor I ever mentioned children anywhere in our vows.
So moral is good for mankind.
Whose morals? They’re not objective, contrary to popular belief. For example, my morals dictate tolerance and love over discrimination and hate. Don’t yours?
Gay demands represent a shift in emphasis away from procreative interests toward sensual and emotional priorities.
1. Does it? I doubt heterosexuals will suddenly decide to stop having children just because we allow SSM. 2. Homosexual couples can raise children, too, either through adoption or by the usual means. 3. Why should we prefer “procreative interests” to “sensual and emotional priorities” in the first place? 4. If “procreative interests” are important, then shouldn’t we require all married couples to have at least one child? 5. Since when did “sensual and emotional priorities” become “prurient”? I thought they were healthy and beneficial to the tenor of society. If there were no “sensual and emotional priorities,” there would be no one to get married and have children.
Rewarding only couples doing adult things together would be unfair to groups who don’t participate in these activities.
But that’s what marriage currently is: heterosexual couples doing adult things together in a way that’s unfair to those who don’t participate in heterosexual behavior. Right?
Micheal,
If you base your support for marriages on the idea that marriage perks make it easier to raise kids, would you say same-sex couples with kids should be given marriage perks?
Terry31415
Hello, my name is love man. Good site. my regards. im not sex. love man Thank you very much.
Very good idea. thank you free group sex pics free teen sex pics adult site free video and photo free porn e free group sex pictures ee Free Lesbian Sex Stories www
Pingback: Galois
Pingback: NegroPleaseDotCom's peripheral vision
Pingback: Fried Man