Marriage is not an individual right

Marriage is not, and never has been, a personal right.  In Western society, it operates at two levels.  First, it functions at a religious level.  This is a deeply personal level, because in every religion, marriage is, or is equivalent to, a sacrament.  In America, you have the Constitutional right to be married in the church of your choice — if the church doctrine allows your type of marriage to be performed.  A further Constitutional right is that the state cannot force a church to change its doctrine to accommodate your desires.

Second, marriage functions at a state level.  The state has an interest in encouraging marriage because a dynamic state needs a growing population, and the best way to assure that is to have men marry women and have babies.  (Even polygamy has that point behind it:  in ancient times and primitive cultures, with excessively high maternal and child mortality rates, you wanted to ensure that as many women as possible are breeding.  Polygamy advances that cause with a vengeance.)  Married men are also a more stable population:  they are more likely to defend, rather than attack, the home front, because they have acknowledged children to protect.  (You see, marriage means that a man knows who his children are.)

To advance the benefit it receives from married couples — increased children, and a stable male population invested in protecting the country — states create marriage incentives.  They embrace religions that advance marriage and they give financial incentives and status recognition.  These perks are not for the individual’s benefit or freedom; they are for the state’s benefit and strength.

The problem arises when people conflate the deeply personal nature of the religious marriage ritual with the highly political nature of the state’s interest in productive heterosexual marriage.  When this happens, they suddenly start babbling about personal rights in and from the state where none existed before.

The state can, of course, determine that its interest is served by any marriage and that encouraging gay couples to settle down will advance some state interest.  But when I say “the state can,” I really mean that, in a democratic society, “the voters of the state can” determine that it is in their collective interest to extend to all comers the right to a state sanctioned marriage.  The one thing that should never happen is that judges, to advance their own personal biases, create a personal right where none has ever existed before.

Two further points regarding this issue.  First, read Stuart Taylor’s excellent explanation of why the California Supreme Court decision was a strikingly dishonest piece of judicial activism.

Second, if this judicial activism offends you, vote for John McCain.  And don’t fall into the trap of thinking that, because only liberal justices are old enough to leave the Court, Obama won’t be able to harm the Supreme Court if he’s elected for four, or even eight years.  Bad things happen.  It is entirely possible, although God forbid it should be so, that right in the middle of the Obama presidency, Roberts, Scalia, Alito and Thomas could all drop dead from freak accidents or illnesses.  Even if that happens to only one of them (again, God forbid), Obama will have the ability to change the Court in ways that will certainly affect the Court into your grandchildren’s lifetimes, and possibly change the separation of powers forever.

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  • echeccone

    Which part of the Equal Protection Clause do you not understand, Bookworm? The judicial activism would be occurring if the courts were trying to justify unequal treatment, by reading inferences about state interest in baby-production into the clause. Religious marriages are not a personal right, but state and federal laws regulating everything from taxes to inheritence, adoption to hospital visitation rights cannot discriminate against homosexual couples. This is the law, and your curious explanation on “the state” in “Western society” changes nothing about what the US Constitution says about civil rights in these United States of America. If you do not like the result of the EPC, then amend the Constitution. Organize voters to amend the document to say that not everyone should be equally protected under the highest law of the land. Framed in an honest way, this debate would get no traction since American’s while sometimes ignorant and biased are ultimately a fair group of people and would reject such a proposal–your utilitarian, socialist mumbo-jumbo notwithstanding.

    By the way, we have a Constitution and a Bill of Rights to limit tyranny of the majority, so your argument that voters of a state can pass any law that is in their collective interest is not true and, as a lawyer, you likely know this. Fareed Zakariah, editor of Newsweek, that newsmagazine you hate so much, wrote a wonderful book about the paradoxical tyranny built into Western democracies that prevent certain rights from being taken away even when approved by the majority. Clearly, equal protection under the law is one of those rights that is inalienable and, therefore, cannot be abridged by the social engineer (who wants more babies) or even a majority of citizens regardless of their interest.

  • echeccone

    Here’s a thought for you. Suppose the US declares an interest in having more high-IQ babies–you know, to compete against China (whose citizens score 6 points higher on standardized intelligence tests). So the state might look at statistically significant differences in IQ amongst races in the US and thus pass laws limiting procreation by some racial groups while subsidizing it for others. I wonder how long that program would be supported by Americans. Now this program actually does exist in Singapore, now a part of the West culturally, and was proposed by the Nazi state (also in the West) during WWII. Luckily, while some states in the West have gone down this social engineering path, we have a Constitution that prevents such an ill-conceived program from occurring here. And it is the very same EPC that would overturn such a dangerous government program that is designed to protect homosexuals from unequal treatment under the law. You should get on the right side of this issue, because in 20 years you’ll be looking like old Strom Thurmond and his segregationist buddies…

  • 11B40

    Greetings:

    Many years ago, while I was running a civilian printing plant for the US Navy, I was sent to a Labor Management training program to prepare me for upcoming union contract negotiations. The training was divided up into one week of classroom work followed by a week long practice against the Navy’s labor negotiators. We were assigned to five member teams and I tried to convince, unsuccessfully, our team to focus on one issue to win as I had no great expectation of success against experienced negotiators. Our team ended up losing every issue.

    With the arrival of this new marriage law, we are now coming to the end of the homosexual rights salami and I am again feeling unfed. This fight was lost long ago, probably when the American Psychological Association VOTED (no science involved, feelings) to remove homosexuality from the diagnostic manual. Once that went unchallenged and uncorrected, we were on the slippery slope where an organized, determined and economically affluent minority gained the negotiating advantage and were able to impose their will on an almost unwitting majority.

    Back in the Bronx, the folk wisdom was that “an a**hole is not a peehole.” The problem with homosexual rights is the homosex. As the H-word was purged from public discourse, the fundamental argument for sanctioning homosexual behavior was taken off the board. I don’t believe that the switch to “gay and lesbian” was made for any other reason than to downplay or erase any consideration of the sexual aspects. And this effort was successful throughout the depths of the AIDS epidemic.

    There used to be a joke in Army circles about the difference between the Army and the Boy Scouts. The Scouts, you see, have adult supervision. A large part of the reason for the current age of the tyrannies of the minorities, is that we have been failed, for one reason or the other, by our political leaders. The benefits of assisting or kowtowing to minority rights groups far surpasses the downside of protecting the rights of the majority. So, we see a mayor (Newsome) who will marry whom he is pleased to and a state senator (Leno) who introduces a bill to increase the amount of child pornography one may possess.

    It seems to me that the game is pretty much over.

  • echeccone

    I came upon this incisive editorial only after I left my post:

    http://www.salon.com/opinion/greenwald/2008/05/22/wittes/

    His explanation of the issue is far more eloquent than mine but drives home the same point.

  • http://bookwormroom.com Bookworm

    And, e, which part of fundamental rights do you not understand? The equal protection clause applies to rights, not desires.

  • echeccone

    Bookworm, you must be kidding. You did study constitutional law when you went to law school, right?

  • echeccone

    The legal privileges enjoyed by married heterosexuals through civil marriage but denied homosexuals are not desires but Constitutionally protected rights. So what, exactly, is your point, Bookworm?

  • Ymarsakar

    Which part of the Equal Protection Clause do you not understand, Bookworm?

    The part that says you are omniscient, EC, and thus must be obeyed in all things. That’s the part Book doesn’t understand.

  • echeccone

    That bit, I’m afraid, is not in the EPC. Nice one, Y.

  • Ymarsakar

    You’re just going to accept that a lot of people living a life produced from classical liberal philosophies, neither adhere to such philosophies nor would they find such ideas and values valid.

    On the surface, EC seems to be saying the same thing as what classical liberals are saying. But when you dig a little deeper, Book, you find out the truth. You find out the gross incompatibilities.

  • echeccone

    Y, you (still) misunderstand. It’s not about philosophy but about the law, what it says not what you want it to say.

  • Ymarsakar

    Oh, btw, Equal Protection doesn’t mean I get to fly and other people can’t.

    Equal protection means any man can marry any woman, except in the case where laws that apply to the man also apply to the woman. Equal protection does not say, I, a man, can marry a man, and thus a homosexual man can also marry another homosexual man. The reason it does not say so, is because I, a man, cannot marry another man, and neither can a woman marry another woman.

    If gays were getting discriminated cause the heterosexuals could marry a person of the same gender, but gays couldn’tt, then EP would apply. But it doesn’t apply.

    discriminate against homosexual couples. This is the law,

    No, you see, the real law is that individuals have rights. Couples, groups, or collectives do not have human rights.

    Classical liberals value the individual rights and dignity of humanity. Statists prefer attributing rights to groups, systems, hierarchies, and aristocratic classes.

  • http://bookwormroom.com Bookworm

    E: Walk me through the Constitution. Where is marriage a protected Constitutional right?

  • echeccone

    Ok, Bookworm, here goes…

    There are two legal arguments supporting that marriage discrimination is unconstitutional. First, the Equal Protection Clause, which provides that it is unconstitutional to treat similarly situated people differently based on a group characteristic without compelling reasons for doing so, thereby preventing marriage discrimination against same-sex couples. Second, based upon the Supreme Court ruling in Loving v. VA, marriage is a fundamental right of all citizens, which right can’t be denied without compelling reasons.

    To understand the first argument, one must understand the Equal Protection Clause of the U.S. Constitution, which dictates that if the law is going to treat people differently they must actually be different in ways that are relevant to the aim of the law. For example, the law can treat blind people differently with regards to driving, but not with regards to voting, because the ability to see matters for purposes of driving but not for purposes of voting.

    In the context of same-sex unions, at issue are those laws affording some 1,400 rights and benefits to some couples, but not to others, even if both groups demonstrate the same level of commitment; these include:

    The right to inherit in the absence of a will.

    Preference in being appointed the personal representative of a deceased spouse’s estate.

    The right to bring wrongful death or loss of consortium lawsuits.

    Homestead rights.

    Access to forms of property ownership that provide protection against creditors and allow automatic inheritance of property.

    Under equal protection doctrine, the differences between same-sex and opposite-sex couples must be relevant to the ends sought to be achieved by these laws in order to justify treating the couples differently with regards thereto. Taking just one example, intestacy laws (which provide for inheritance in the absence of a will) were designed to prevent escheat of property to the state and to give effect to what would most likely have been a deceased’s wishes. Where couples have demonstrated a certain level of commitment, intestacy laws recognize that it is reasonable to assume that the deceased would have wanted at least some of his estate to pass to his spouse. In resolving whether it is constitutionally permissible to afford this protection to opposite-sex couples, but not to same-sex couples who have demonstrated the same level of commitment, courts must ask whether the differences that exist between the two groups are relevant to the purposes of the law – preventing escheat of property and accomplishing a deceased’s wishes.

    It was this analysis that faced the Vermont Supreme Court in State v. Baker, one of the state court decisions that prompted the recent spate of marriage amendments. Relying on the Vermont counterpart to the Equal Protection Clause, the court held that the state had not demonstrated any differences between similarly situated same and opposite-sex couples that were relevant to the purposes of the various laws at issue. As such, the state was required to afford equal protection to same-sex couples so long as they otherwise met the requirements imposed on opposite-sex couples.

    In summary, EPC says that the law cannot “see” the differences between same-sex and opposite-sex couples if those differences are irrelevant to the aim of the law at issue.

    For a look at the Court’s view of marriage as a Constitutional right, it is helpful to look at the parallel to interracial marriage. The first state marriage law to be invalidated was Virginia’s miscegenation law in Loving v Virginia (1967). Mildred Jeter, a black woman, and Richard Loving, a white man, had been found guilty of violating Virginia’s ban on interracial marriages and ordered to leave the state. The Court found Virginia’s law to violate the Equal Protection Clause because it invidiously classified on the basis of race, but it also indicated the law would violate the Due Process Clause as an undue interference with ‘the fundamental freedom” of marriage. Later, in Zablocki v Redhail (1978), the Court struck down a Wisconsin law that required persons under obligations to pay support for the children of previous relationships to obtain permission of a court to marry. The statute required such individuals to prove that they were in compliance with support orders and that marriage would not threaten the financial security of their previous offspring. The Court reasoned that marriage was “a fundamental right” triggering “rigorous scutiny” of Wisconsin’s justifications under the Equal Protection Clause.

    Now, the highest court in the state of WA denied the state constitutional right of same-sex couples to marry, arguing that gays are not a “suspect class” that would trigger scrutiny under the state’s version of the EPC, and that while marriage is a fundamental right gay marriage is not. The first prong of the analysis is interesting because the court relied largely upon the assumption that homosexuality is not an “immutable” characteristic but a behavioral choice. As I’ve continued to say all along, as the scientific data proves otherwise, it will be increasingly difficult for this court (which held 5-4) to maintain that position. The main rationale for the second prong is the one that you, Bookworm, raised about child-rearing. The problem with this argument, however, is that the courts have consistently upheld heterosexual marriages that clearly were not intended for child-rearing purposes (for example, the Supreme Court has defended the constitutional right of prison inmates serving lifetime sentences the right to marry).

    Alan Dershowitz has argued that the solution here should be to make marriages a religious rite that can be defined however a given religious group chooses, while all legal marriages should be civil unions that preserve the legal rights flowing from them equally. This would also strengthen the separation of Church and State. I think this is a good idea, given the inexorable movement (VT, MA, CA) toward granting full civil rights associated with legal unions to everyone regardless of race, religion or orientation. Thoughts?

  • Ymarsakar

    California’s Supreme Court has already effectively destroyed any ability on the part of the majority to make laws to cater to gay orientations. The same legal protections as married couples get, except you get called domestic partners, isn’t enough.

    And this has always been true for the win at any cost crowd that treats life as a zero sum equation, in which it is kill or be killed, live or die, win or lose. The idea of compromise or exchanging power in a cycle, is foreign, alien, and unConstitutional to such folks.

    In the context of same-sex unions, at issue are those laws affording some 1,400 rights and benefits to some couples, but not to others, even if both groups demonstrate the same level of commitment;

    What this makes perfect sense in is that by striking down attempts to achieve parity between civil unions and marriages, the courts are rendering laws designed to benefit gays Constitutional or not. However, they could just as easily go over marriage laws and strike them down as being unConstitutional because gay couples aren’t included in such laws. But they don’t and they don’t do so for the precise reason that there is more power and ego to be had in destroying the efforts of others than it is to look over a fait accompli.

    The fact that a person ostensibly for transfering marriage laws over to gay couples will also support the Cal Supreme Court’s destruction of benefits for gay couples, is one of the supreme ironies of our special interest and identity politics status quo.

  • Ymarsakar

    Y, you (still) misunderstand. It’s not about philosophy but about the law

    I believe you are the one that still refuse to understand. Your inability to comprehend what philosophy is at work on these topics also does not help.

  • suek

    ec…

    I think that what Y is saying is that there is no accommodation in the Constitution for marriage. It’s left up to the states. The states have determined that certain privileges should be allowed to married couples in order to encourage a stable, productive society, which legislators have decided are a social benefit. Your argument is that homosexuals are entitled to the same benefits. There are two choices here…actually three. a) deny homosexuals any of the benefits granted to married couples. b)grant homosexuals all of the benefits granted to married couples. (in which case, I wonder how long it will be before the state is sued because it discriminates against single persons) and c) deny all benefits to anyone on the basis of marriage. That too, would be perfectly legal.

    Would it satisfy you?

  • echeccone

    While the Supreme Court has recognized a fundamental right to marriage, I would agree that it is unlikely that the federal government could trump states’ rights on the issue. The only way I could think of is through the Commerce Clause and that would be a real stretch at a time when the Court is trying to narrow its reach. So I agree with Y, if that is what he is saying. (I didn’t follow his argument.)

    I don’t think there will be an uproar from single people if the rights in question relate only to marriage. The rights that accrue to single and married people should be no different in my opinion, other than the extent to which they are not similarly situated and there is a state interest to be furthered. For example, I personally think that tax incentives for marriage are a mistake and an intrusion on personal decisionmaking. That said, they can be constitutional (and appear to have been upheld as such). Hence, I don’t think there are many single people that would claim discrimination since the rights flowing from marriage are meaningless to a single person–like, for example, visitation rights to a spouse they do not have.

    There is another possibility, though, that you don’t mention. It could very well turn out that same-sex couples get some/most of the rights flowing from marriage but not all. A court could rule that same-sex couples do not provide a healthy environment for child-rearing so they will be treated differently for rights relating to adoption, for example. This would seem to satisfy the EPC, although it would depend on the state’s stance on marriage as a fundamental right. It is a fear of this outcome that perhaps causes rational same-sex couples who are interested in adoption to demand identical rights through an identical institution (i.e., not gay civil unions, but gay marriage). And I would tend to agree, mainly because I have seen no data suggesting that a same-sex environment is harmful to children or to any other function associated with marriage–although the existence of such data would change my mind–and also because I think it’s too easy to turn separate but equal into separate but unequal–which is what happened to Blacks under the period of segregation in this country.

  • http://ruminationsroom.wordpress.com Don Quixote

    Hi echeccone,

    Are you seriously suggesting that the legislatures (Congress and the state legislatures) that amended the Constitution to add the equal protection clause would have found a ban on gay marriages to be in violation of that clause? Of course they would not have.

    Ths argument is not a matter of who is right about the technical wording of the Constitution, but about how that document should be applied. Your argument is that those who added the equal protection clause to the Constitution were simply wrong in thinking that it did not apply to gay marriages. Perhaps (in fact, I personally agree with you and favor gay marriage), but who gets to make such a determination? Your position, apparently, is that the Courts should decide whether the meaning of the Constitution should be changed from the original intent of the drafters. Bookworm’s (and mine) is that the legislatures created the Constitution and they should be the ones who determine whether its meaning should change.

    When the Courts change the clearly understood meaning of the Constitution, they usurp the legislative function. In our system, this is not their appropriate role and they should not engage in it.

  • echeccone

    When the EPC was added in 1868 via the 14th amendment, the idea of interracial marriage would also have been deemed anathema to the framers. So I guess, given the absence of legislative action on this issue–for it was resolved by judicial interpretation–you should be calling for the annullment of interracial marriages unless all 50 state legislature swing into action.

    Also, I find it amusing when Conservatives extoll the dangers of judicial activism when it comes to issues they oppose, but don’t question the ability of conservative justices like Scalia to contemplate so confidently how the framers would have viewed electronic surveillance, internet privacy and the like. And don’t get me started on how all SC justices reversed long-standing positions on states’ rights to rule in favor of their favored Presidential candidate in Gore v. Bush…

    To your question, of course, it will be up to the courts ultimately to decide this issue and they will have to impute what the framers would have thought; however, this does not doom the legalization of gay marriage even if they take such a narrow interpretation. Indeed, they also can recognize changed circumstances and new information (i.e., the framers of the 14th amendment could not have forseen new scientific data showing that homosexuality, like race, is a genetically pre-determined condition) and then analogize to a similar outcome (i.e., that denying an ability to marry–which Southern states disallowed at that time–because of skin color might also apply to orientation). To rule otherwise would render the 14th amendment, a law that takes precedence over state laws, meaningless in my view.

    But I’m curious what you think…

  • echeccone

    Also, you do agree that a legislature’s rights are not unlimited. The reason that the EPC was put in the Constitution was to prevent state legislatures from passing laws that treat minority groups unequally and thus unfairly. The only way around it would be to amend the Constitution, which is harder to do than pass a state law. The theory is that our democracy does not confer unlimited democratic power to the majority–lest we face a tyranny of that majority–but one that is limited by Constitutional protections, including those in the 14th amendment. I am pretty sure you understand and agree with this, but I wasn’t positive.

    As I understand it, your disagreement with me is that we need to judge whether gays are a suspect group deserving of treatment under the law, and whether there is a compelling state interest in justifying unequal treatment, solely on the basis of what a 19th century mind would have thought. Obviously, I have a different view but remain confident that such a mind, when given the additional facts of 21st century science, would agree with me. In the end, this will be the call of the SC rather than either of us.

  • Mike Devx

    Echeccone in #14 gives a very clear description of the liberal viewpoint on the right to gay marriage. Well done, but I don’t agree.

    The first paragraph is all I’ll comment on. It states:

    “There are two legal arguments supporting that marriage discrimination is unconstitutional. First, the Equal Protection Clause, which provides that it is unconstitutional to treat similarly situated people differently based on a group characteristic without compelling reasons for doing so, thereby preventing marriage discrimination against same-sex couples. Second, based upon the Supreme Court ruling in Loving v. VA, marriage is a fundamental right of all citizens, which right can’t be denied without compelling reasons.”

    As to the first argument, the State can in fact have a compelling reason to restrict marriage to a man and a woman. For one, it has been the law of the land since the founding, and the responsibility is on the plaintiffs to demonstrate an unconstitutionality, not the other way around. In addition, the purpose has always been to promote families as the basic unit of American life and society.

    You may not agree with either of these compelling reasons, but they ARE reasons, and many people do agree with them. Your disagreement gives you no authority to demand they be discarded.

    Your second argument is invalid; certainly Loving v Virginia did not grant the right to gay marriage. In fact in 1967 was homosexual activity legally allowed anywhere at all? You’ve created, out of thin air, quite an interesting result of that decision that appeared nowhere in the decision. Can you point it out to me in the text? Or perhaps you meant this: That in fact, a gay person CAN get married. A gay man to any woman, and a gay woman to any man. Who said marriage has to based on any compatibility or love? Many times in the past its been purely political or financial.

    The only reasonable route to gay marriage is the route that ALL controversial civil rights battles took. First you have to convince a majority of the people in a majority of the states that your cause is reasonable. Second, you also need a majority of the people of the nation to agree with you as well. (These two points are not the same thing.) In fact, you’ll need far more than a majority for the next step to occur, which is then, at that point, the Supreme Court decision. With only even a bare majority, the nation will be plunged into a huge controversy nevertheless.
    With a much larger majority, and with only a few resistant states, the decision is less controversial. I think the 1954 Brown vs Board of Education and 1967 Loving vs Virginia cases meet all of these conditions.

    Those agitating for gay marriage rights have totally and completely failed at even the first step: You cannot get even a majority of the people in ONE state to allow gay marriage. Not even one! Let alone twenty six.

    EVERY state is against you. If you think a Supreme Court decision can override that, you’re in for a horrifying awakening. Such a Supreme Court decision, in the absence of support anywhere in the country, guarantees a backlash that will set your cause back for decades at a minimum.

    I’m not saying you should go away and be quiet. Of course if you passionately believe you’re right, you should continue. But you have failed to do all the necessary hard work up front, convincing people. You simply want to ignore them, jump right past them, and shove a decision down their throats and make them accept it. That can succeed only when you do it to a relatively small part of the country; you cannot do that to all fifty states and expect to succeed. You will fail. It’s guaranteed.

    So do the hard necessary work of convincing the majority of people first. Else you’re simply lazy and you don’t really want to win the argument. If your cause is just, you just might win.

  • Mike Devx

    I wasn’t ignoring the EPC rights, by the way. I am perhaps cynical, but I don’t think there is any such thing as a new EPC right that is “naturally discovered”. Only in retrospect, after such a battle is won through a long, hard ground-fight, does the granting of such an EPC right by the Court succeed. And even then it can take years or decades for the initial furious surrender to the power of the Law to change into grudging acknowledgment and then over even more time into acceptance.

    Attempting to claim an EPC right IN ADVANCE is merely solace to the true believers, affirming your own sense of moral superiority. But it won’t sway your opponents one bit and I can assure you your opponents are as certain of the moral superiority of their position as you are of your own.

    I’ve got to say that I thank God that 11B40’s moral position has not won the day. He would have the APA reinsert homosexuality as a perversion; reenact all criminal laws against such private sexual behavior and even the admitting that one is gay regardless of any sexual act. He assumes that AIDS is by its very nature a gay disease – but what does that argument have to say about the spread of AIDS in the rest of the world? And he ties being gay with the possession of child porn. Nice. Very nice. It is surprising that bestiality did not make an appearance in his argument as well.

    It’s a good time to thank the large majority of Americans for the toleration and empathy that they have, that I see all around me that does allow gay people to function in society and function well. (And the more they hold to traditional values, the better they function!) Gay marriage is not worth losing their support. Finally, if you’re gay and young and reading this, then a simple warning: Stay out of the gay ghettoes; they’re filled near to bursting with ennui, hopelessness and despair, just beneath the glitzy, utterly shallow surface. Visit that ghetto if you must – many avant-garde, bohemian types even among straight people enjoy such occasional slumming – but under no circumstances should you JOIN IN and become one of the ghetto citizenry. You’ll find a much better life instead by surrounding yourself with good, strong, moral people. You’ll find these great folk around you wherever you are. They’ll be gay and straight. And taking that road will simply lead you to a much better life.

  • Ymarsakar

    EC needs to stop focusing in on legislative history because that’s just a convenient excuse to ignore individual human liberties in favor of EC’s statist liberties that can be given to groups and classes. Might as well go back to the day where commoners had different “rights” than nobles, because they were of a different group and class.

  • Ymarsakar

    Such a Supreme Court decision, in the absence of support anywhere in the country, guarantees a backlash that will set your cause back for decades at a minimum.

    My position is that the SC decisions, in combination with EC’s views, makes it so that states can’t provide gays with the legal perks and risks of marriage and then call it domestic partnerships or civil unins, as that is discrimination with no valid reason against gay couples.

    As such, creating a backlash and setting back the “cause” for decades is the exact primary goal of gay activists. If they actually allowed people or states to enact legislation that gives even a part of marriage benefits to civil unions for gays, then gays would feel far less of a need to ally themselves with gay activists and Leftists.

    The fact that gays aren’t asking to be married, in that they aren’t asking for the right to marry a person of the opposite gender, it is completely justified to call a new law and its protections for gays a “domestic partnership” or “civil union”.

    This isn’t discrimination based upon sex, this is giving gays what they claim they want. But giving a minority what they want is never in the benefit of those that control that minority and derive their power from that minority. You must always keep these people in the mud, forever bitter and full of grievances, as Arafat did to the Palestinians.

    As Saul Alinsky put it well, if you allow a compromise to be made with the “Other”, then your minority slaves will feel like there’s an actual solution to be had by negotiating and working with the “Other”. This means that they will look less towards you and more towards those that are trying to offer them real resolutions to problems. You can’t have that.

  • echeccone

    Thanks for the thoughtful post, Mike. I understand your argument but have a couple of problems with it: first, I believe it reverses the historical chronology of the civil rights experience, and second, I disagree with your assertion that rights that should be protected under EPC cannot be discovered. I will explain each and then hope you can address them in your next post.

    You state in your first post that the right way to do it is to win the support of the majority and then get a court ruling. But this is problematic for a couple of reasons. First, it did not occur that way historically. Brown v. Board was decided in 1954, well before the civil rights movement was in full swing. There was little public support in the Southern states for desegregation, much less majority support. Similarly, the Loving case was decided before there was majority support for interracial marriages in Virginia.

    But there is a bigger problem with the condition of majority assent you place in your first post: to require that would be to render EPC meaningless. Indeed, EPC is designed to protect a suspect minority class from the will of the majority when it is discriminatory (i.e., tyranny of the majority). Because groups that are acting in a discriminatory or tyrannical (in a legal sense) way rarely if ever can see much less acknowledge that behavior, the force of law from the courts is required. Now, the state can show that the suspect group is truly different in a meaningful way affecting a state interest and thus will be discriminated against; for example, blind people cannot drive (although driving is not a legal right, I use the example that assumes it is because it is a clear hypothetical) because they cannot see and thus are different, and the state has an interest in minimizing car collisions. The state would have to show that being gay make someone objectively different as it relates to one of the rights flowing from marriage. With the exception of child-rearing, I do not see any relevant ones at all; moreover, on child-rearing I have not seen evidence that a gay married couple will not on average provide a better home than single mothers, ex-convict mothers or foster parents. The state would have to argue otherwise, and even then could only discriminate vis-à-vis gays on the narrow subset of the 1,400 or so marriage related rights that relate to child rearing. I’d be curious what those other rights that gays could not enjoy because they objectively are different in a way that is relevant to them. For example, what about being gay would lead one to conclude that they should not be able to inherit property without a will from a common law partner?

    The second argument (or assertion?) that you make is that rights protected under EPC cannot be “naturally discovered.” I believe that they can be and would again point to Loving as an example of this. You would argue that the court did not “discover” in Loving that blacks should be allowed to intermarry with whites, but it is pretty clear (as Don Quixote argued in his post) that the courts would never have contemplated or tolerated interracial couples in the 19th century. It would take a 20th century mind to assent to this, but this does not mean that the right did not exist before, any more than it means that African Americans living under slavery did not have a right to their freedom. The 19th century mind that could not have contemplated it was wrong!! You would have to argue that slavery was a just institution in its day, to maintain otherwise. IMO.

    I’d be curious what your thoughts are on the significance of science increasingly showing that homosexuality is determined by genetics rather than personal choice, because to me this is very significant. It makes the same-sex marriage issue highly analogous to the race-based marriage cases, thus leading me to believe that in 20 year’s time those on the other side of this issue will look like those that resisted the courts in the 50s and 60s that started striking down racially discriminatory laws even before the majority opinion in those Southern states had turned.

    Mike, you should also read the article I posted earlier from Salon, which argues that a tolerant majority’s determination of what is a reasonable compromise on this issue is irrelevant to the debate because it is irrelevant to the law. It is worth a read. Even if it is on Salon. The author is a Constitutional legal expert.

  • echeccone

    And Mike, I do agree with your sentiments about 11B40’s comments and about gay ghettoes. Those are great points.

  • http://ruminationsroom.wordpress.com Don Quixote

    Hi echeccone,

    In asserting a “right” to interracial marriage, you state, “It would take a 20th century mind to assent to this, but this does not mean that the right did not exist before.” If you are talking about some sort of nature right, one that cannot be denied by any government, you may be correct. By we are talking here about Constitutional rights. A Constitutional right exists only when the Constitution says it exists. Equal Protection, as a Constitutional right, did not exist in any form until it was explictly added to the Constitution. The scope of Equal Protection is defined by what the drafters intended. It is not the proper place of the Courts to decide that new scientific information justifies changing that scope. This is a legislative role and Courts act improperly when they assume that role.

    In an earlier post in this stream you compared interracial marriage and gay marriage to “electronic surveillance, internet privacy and the like.” The analogy fails. Interracial marriage and gay marriage could have been approved by the drafters of the Constitution and its amendments. Multiple races and gays existed then. Electronic surveillance and the Internet did not exist. By definition, Court have no choice but to operate by analogy when faced with technologies and circumstances that did not exist in the drafters’ lifetimes. Courts must reach decisions and, in the absense of guidance from the legislatures, they have no choice but to guess at how the drafters of the Constitution would have wanted them to decide. As to gay marriage, the guess is easy; the drafters would not have approved. As to electronic surveillance, the guess is hard; it’s unclear what the drafters would have approved of. But the proper mission of the Court is always to determine what those who created the Constitution would have decided and to decide consistent with that determination.

    That does not mean, of course, that the Constitution will never change when times, circumstances and scientific understandings change. It does ensure that those changes are made by the people assigned by our system to make them — Congress and the state legislatures. I support the legality of interracial and gay marriage. I support legislation permitting such marriages. What I object to is the misuse of our judicial system to achieve the same end through the abuse of judicial power. The ends may be just, but the means still improper.

  • http://ruminationsroom.wordpress.com Don Quixote

    P.S. echeccone’s argument appears to be that if the drafters had known the scientific truths we know today they would have approved of gay marriage. Perhaps that is true. But it is for the legislatures, not the Courts, to say so.

  • Ymarsakar

    When the means are improper, the ends will never be just.

  • http://bookwormroom.com Bookworm

    It’s interesting your mentioning “means” and “ends,” Y. At lunch with DQ the other day, I said that it’s very important, in any debate, dispute or even harmonious relationship, that the parties involved clarify whether one person’s end is merely another person’s means to a different end. Put me with Dennis Prager, who prefers clarity to agreement: I’d like to know what your ends are before I agree to any means at all.

  • Ymarsakar

    Often people in this civilization of ours or in any high trust or society based off of compromise, rather than the law of the jungle, there is this tendency to believe that everyone is pulling together towards one common end goal. That has never been true. In any society, even one was harmonious and united as the US, not even “most” people are pulling in the same direction.

    The US system is a historic achievement because it uses the fact that people naturally have ulterior motives when they are supposed to be working as one team, to create more chances for unity. The US Civil War was born upon the winds of irreconcilable differences, yet it also brought about a true unity of America into one nation rather than 50 states inside a confederacy. While none of this was inevitable, it does speak of a system that uses the fact that people will naturally try to stab each other in the back, for a common good, so long as certain precautions or preconditions have been prepared.

    What would unbalance this kind of system isn’t treason, for Benedict Arnold and McClellan certainly tried to no great success. What unbalances the American system of life and government is one side refusing to react in a way normal humans would while the other side reacts entirely consistent with the savage and treacherous nation of humanity. In a sense, a system that expects treason from all factions breaks down when only one faction is being treasonous while the other tolerates this treason and tries to work with those folks like buddies.

    The deterrence now breaks down, for why should anyone now fear to act when their actions are without cost but with a lot of potential rewards?

    The greatest danger to democracy, thus, is when the tools designed to prevent total dissolution of the system is placed into the hands of those that have the most motivation in destroying the system. Freedom of the press to publish and be read by any citizen that so wishes, is now in the hands of totalitarian propagandists, either of the pro-totalitarian faction or simply purposefully blind to the realities of their actions. The Supreme Court, once used as a road block to the immense power of the Executive in league with the Legislative, now stands a pawn to foreign law and international values on human rights, or rather the international non-existent valuing of human rights.

    The process, while not complete and not inevitable, is still further along than at any other point in history. And it is in actual fact more damaging now, when people have more trust in their neighbors and fellows than it was back in Lincoln’s time, when suspicions and prejudices abounded along with violence amongst neighbors.

    The difference is simple. The higher a nation is on a civilization scale, the farther it has to fall. The farther it has to fall, the more time gravity has to make it slam into the ground harder.

    People might make the argument that in Sherman and Lee’s times, the newspapers were hardly any better than in today’s world. People might also argue that the times back then were full of evil acts and desperate actions like slavery or Sedition Acts or executions of spies and traitors. And so we get to the difference to today. In today’s world, we have just as many, if not more, problems and enemies as America’s ancestors did, yet we do not apply the solutions to such behavior.

    This is because while one faction in the struggle behaves like normal humans, meaning traitorous, selfish, not trusting in strangers and ideological/religious/political opponents, the other faction behaves in a manner more befitting the products of a truly enlightened society and nation: meaning no amoral familism or tribalism or factionalism.

    This is why democracies will fall further the more successful they become. For more and more of the population now forgets the Hard Times and what human beings are capable of, in this free, trusting, peaceful, and secure environment called the United States. This allows snake oil salesmen to make a killing. This allows terrorists to make a killing. This allows pirates to flourish.

    The ancestors of America can rightfully say that they did not have the power to end slavery, piracy, evil, prejudices, or what not in their day given the resources and time they had. Yet they tried their best, even when they were sure of their limitations. Can the America of today rightfully say that they lack the resources and power to end Somalian piracy and alleviate evil in much of the world? America doesn’t lack the resources now a days so much as the will and interest. Folks are more happy locking blacks up again as slaves under the Democrats than they are interested in freeing more human beings from tyranny, oppression, and slavery.

    This is why history starts and ends in cycles and why human beings are ultimately flawed. Human beings will always either lack the power to accomplish any real lasting good or they will simply lack the interest and will to do so had they the power. Breaking Heisenberg’s Uncertainty Principle so that one could both have the power to affect things and the knowledge of what one needs to affect, is not within the mortal realm of capability.

  • Mike Devx

    EC, thanks for your reply in #26. I’d like to respond. You said,

    “You state in your first post that the right way to do it is to win the support of the majority and then get a court ruling. But this is problematic for a couple of reasons. First, it did not occur that way historically. Brown v. Board was decided in 1954…”

    I still think that across most of the country, there was more support for that decision than against it. There’s a reason why ‘Plessy vs Ferguson’ succeeded, led to separate but equal apartheid, and remained in effect for more than fifty years. The reason is “the reality on the ground”, and our system ensures that Supreme Court decisions don’t occur in a vacuum. The country has to be MOSTLY changed first, before any such decision can have the desired effect.

    I just think that that is the political reality of how things actually work. Wishing it were different doesn’t make it different. Abolitionists were firmly convinced slavery was an evil even before the Constitution set in writing the worth of a black person as 3/5 of a white person, even for the purposes of determining the numerical makeup of the House of Representatives. The rightness of the abolitionist cause – clear to them then, clear to *everyone* now – scarcely made a difference in its time. The groundwork must be laid, and the hard work must occur.

    There was a LOT of groundwork done between Plessy vs Ferguson in 1896 and Brown vs Board of Ed in 1954. A lot of effort and a lot of changing of minds. Only the South erupted into violent controversy after the 1954 ruling, and the civil rights effort in the fifteen years that followed was also centered in the South. That is what I meant when I said that a Supreme Court decision can shove its will onto only one relatively small section of the country, and succeed. It cannot succeed if it must do that within every state across the entire country. That simply will not happen.

    And I stand by that.

    The current situation on the issue of Gay Marriage is that there is not enough support in any state in the entire country to allow it to happen. (Well, I might give you two states. Maybe.) Because of that, the reality on the ground makes it inevitable that Gay Marriage will NOT happen.

    Second, you state:
    “But there is a bigger problem with the condition of majority assent you place in your first post: to require that would be to render EPC meaningless. Indeed, EPC is designed to protect a suspect minority class from the will of the majority when it is discriminatory (i.e., tyranny of the majority).”

    Well, that is exactly my point, I think. The majority does rule, and it is a tyranny, EXCEPT where there is enough political will to determine that a decision of theirs is discriminatory. My whole point revolves around how something is found to be discriminatory. In rare cases you can get a majority of the Court to make such a decision with only a small amount of support among the people. And if the opposition is much larger than the support, that decision will eventually be set aside, and often very quickly. Such decisions cause political earthquakes of huge magnitude, and the momentum behind the eventual rollback of the decision sets that cause back decades.

    That’s just the political reality, the truth of the reality on the ground. The sooner activists realize that you cannot subvert the will of people, that you have to change many, many minds FIRST, the better off we all will be.

    I still stand by the idea that an “EPC right cannot be discovered” until you do all the hard work to make a large number of people discover its validity first. And you haven’t done that with gay marriage, and that is why it deserves to fail. And it will fail even if judicial tyranny temporarily gets you some kind of ephemeral victory; you wouldn’t like the resulting backlash at all.

  • http://www.writingenglish.wordpress.com judyrose

    I have a question. Let’s say we legalize gay marriage because the state can show no compelling interest in limiting marriage to heterosexual couples. The previously accepted historical, religious, and social reasons for promoting traditional (one man + one woman + kids) families are too limiting, unfair, unconstitutional – however it is justified. But let’s also say that we don’t want to permit all sorts of crazy arrangements, so a new law states that marriages will be limited to two people who aren’t related to each other, and so forth.

    But let’s say three unrelated people who are in their 70s want to get married. They want all the legal protections of a family (inheritance rights, etc.) and they have no intention of having children. Just three nice retired people who love each other and want to be legally recognized as a family.

    Once we have accepted the interpretation that laws limiting marriage to one man and one woman are either discriminatory or unsupportable on the basis of state interest, what is the justification for not allowing three people to get married?

    I’m sure you get my drift, but it’s an honest question and not mere rhetoric. I want to hear how the state might justify saying no to these three people once they have gone ahead and allowed same sex marriages (once they have altered the traditional/limited definition of marriage). What would be the legal rationale for keeping this (two persons only) limitation?

  • Danny Lemieux

    DQ, there are NO scientific truths regarding the biological origins of homosexuality. There were a number of studies a few years back, published in Scientific American and other “scientific” publications (I put that in quotes because Scientific American is a popular journal, not a scientific journal), but they were never supported by subsequent research.

    Thus, although it is popular today to claim a biological origin to homosexuality and ergo to start with that premise in structuring one’s support for or opposition to gay marriage, such premise is not supported by scientific fact. And, unfortunately, the issue has become so hyper-politicized that it is highly unlikely that any such objective research into this issue will ever to be funded. I think that we would all agree that it is one of several central issues to the debate over gay marriage.

    Unfortunately, I fear that PC-mores will never allow a full airing of this issue.

  • http://ruminationsroom.wordpress.com Don Quixote

    Hi Danny,

    Thanks for your comment. I don’t have any idea what the state of the scientific art is in this area, and it makes no difference to my own position on gay marriage. I was simply accepting eche’s premise at face value and pointing out that, even if he is correct, the Court acted outside of its proper role.

  • Ymarsakar

    It is rather ironic, but oh so predictable, that in a Western decadent civilization, people would now favor their “genetic heritage” over the fate that they can shape with their own bare hands.

    Down goes individual free will and up goes sheep and elf syndromes. Thus the Cycle of Eons repeat once more, Danny.

  • Ymarsakar

    PS.

    I was simply accepting eche’s premise at face value and pointing out that

    If you keep doing that, Don, you soon won’t have anything to disagree about except on superficial details.

  • http://ruminationsroom.wordpress.com Don Quixote

    Only if you consider the courts’ usurpation of legislative power a superficial detail. I don’t.

  • Ymarsakar

    To EC, The courts didn’t usurp a power that the legislative had or rather the courts had to intervene because of the Constitutional position it holds.

    If you accept that premise, then the courts rightfully intervened, rather than usurped.

  • BrianE

    Whenever a discussion turns on legal arguments, I stay out of the way.
    This analysis makes sense from a layman’s perspective, especially since it fits my personal beliefs.

    Marriage – a Fundamental Liberty?
    Matrimonial Madness , Politics – California
    Hatched by Dafydd
    In short, no, it isn’t… and I don’t care what the Supreme Court (U.S. or California) says: Any claim that marriage is a fundamental right or liberty contradicts itself. For the most obvious examples, if it were a fundamental right, then how could it be illegal for a brother to wed his sister? Shouldn’t “strict scrutiny” apply to laws against consanguineous marriage, polygamy, polyandry, and even marriage with minors? After all, even kids have freedom of speech under some circumstances. Yet no court has ever even hinted at any such ruling. Any court that has ruled marriage a fundamental liberty is confused, contradictory, biased, bewitched, bothered, and bewildered…

    http://biglizards.net/blog/archives/2008/10/marriage_a_fund.html#comments