Saturday, October 28, 2006

Will Wisconsin become Jersey North?: Doyle and Falk

One of the interesting aspects of Lewis v. Harris, the New Jersey decision mandating same-sex marriage or its equivalent is the state's disavowal of any interest in acting to protect traditional marriage. The best arguments against same sex marriage are that it will undermine the social understanding of marriage as an institution to facilitate and establish rules and norms consistent with potentially procreative relationships and further erode the notion that, all things equal, children have a need and a right to live with their mother and father. It is the interest in preserving marriage as an institution whose rules and norms are defined by what will protect children and the interest in reinforcing ideal of both mother and father that justifies limiting marriage to heterosexual relationships.

But, in New Jersey, the Court did not even consider those arguments because the state refused to make them. It chose to fight with one hand tied behind its back and the other in a cast, arguing that its only interest was consistency with the laws of other states. As lawyering goes, this is pretty close to taking a dive in the third round.

So what happens if the amendment fails and the people who get to decide what arguments Wisconsin will make in defense of marriage are Jim Doyle and Kathy Falk?
In raising the question, I'm not saying that either would not act with integrity (in fact, I once litigated a case with Kathy Falk [who was then working for Doyle] in which she ably defended a position that I suspect she did not agree with), but will they vigorously advance arguments that they think are wrong?

Protecting marriage from further erosion requires a "yes" vote and, as a safeguard, votes for Green and Van Hollen.

6 comments:

amazon said...

Protecting marriage from further erosion requires a "yes" vote....

So it's equality versus marriage? If we treat couples equally it will harm kids? If heterosexuals are failing children now, we must save the kids by stopping gay people from marrying?

On the one hand, I admire the Shark for abjuring the homophobia that animates most of the "yes" crowd. On the other, I can't help but think that the "save the children" argument for discrimination is rather hollow and rests on an unsupported supposition.

In the end it's just a sophisticated (sophistical) argument for the bigotry of your bedfellows, Shark.

Dad29 said...

Amazon, you would propose that "equality" is a primary value. It is not; hetero-marriage is antecedent and fundamental.

Civil society (the positive law) cannot create nor enforce a state which is un-natural; and when it does so, it does so at the very significant risk that positive law will become irrelevant and encounter active mockery, if not dissent.

Without in the least disparaging the efforts and sacrifices made by homosexual couples in adopting/raising children, we are also aware that such practices are relatively new--less than 40 years old--and rare--simply not done other societies.

There are no longitudinal studies to support (or disprove) the value of homosex-couple-adoptions. Moreover, it is a practice which the vast majority of the human race does not tolerate.

And your introduction of "bigotry" is disappointing; a typical response from someone who has no argument.

Too bad.

Anonymous said...

"There are no longitudinal studies to support (or disprove) the value of homosex-couple-adoptions. Moreover, it is a practice which the vast majority of the human race does not tolerate."

Wow -- what a load of crap! My 21-year old adopted Korean daughter came to my wife (she's a woman, daddy, and I am a man) and I from a country where ADOPTION is "simply not done" and where the vast majority of the people "do not tolerate" it. Should she have been deprived of a loving home and should we have been deprived of the many pleasures of parenthood?

Sometime I think you simply blow this stuff out your ass. And some of your comments suggest a relatively unhealthy fixation with that particular orifice.

Dad29 said...

Speaking of "asses," Anonymous, look in a mirror.

Re-read my comment, this time for meaning--you know, look up all the words you don't know, like HOMOSEX-adoptions...

Get back to me when you've taken your chill-pills.

Rick Esenberg said...

Here's how the amendment would affect the ability of same-sex couples to adopt children.

No effect. This would continue to be a policy choice made by individual states. There is, of course, a huge difference between recognizing and encouraging intact families of origin and trying to find the best place possible for kids when this is no loger possible.

We have some inkling of how same-sex marriage would affect a view that, all things equal, a mother and father are best. In Massachusetts, Catholic Charities was driven out of the adoption business because it refused to let go of that benighted notion.

Anonymous said...

Rick,
How can you possibly sit here and write that the constitutional amendment will have no effect on same-sex adoption? Of course it will! You are institutionalizing bigotry in the constitution. Therefore, there is no longer a reasonable argument that unequal protection in unconstittuional.

And to Dad29-- get your facts straight. No matter how often you repeat it, it is simply not true that children fare worse growing up in same-zex households. Read the American Academy of Pediatrics (those crazy liberal doctors...)meta-analysis for starters.

I think you all should get your own house in order before attacking mine. You all have huge divorce rates, extraordinary percentage of children born out of wedlock, child abuse and so on and so on. Pass an amendment about that, why don't you?