Yesterday's decision by the California Supreme Court mandating same-sex marriage is probably unlikely to survive past November.
I haven't yet read the decision so I'll reserve commentary on it. As long time readers of this blog know, I oppose same-sex marriage on grounds that have nothing to do with moral judgments about homosexuality. Marriage is an institution with mores and legal characteristics that are rooted in the potentially procreative nature of heterosexual relationships and the resulting need to channel the rather different ways that men and women experience sexuality in a way that facilitates the raising of children. Love and intimacy are part of that, but not the whole of it.
It seems inconceivable to me, then, that you can take an institution that has evolved in a certain setting for a specific purpose and extend it to another setting involving a different set of relationships that, while similar in some ways, are not and cannot be the same without causing changes to that institution.
Part of my opposition is rooted in my Burkean nature. Part is informed by the fact that marriage can be adversely affected by things that are, in many ways, admirable (see. e.g., greater appreciation for individual autonomy and sexual liberation) and that these changes can have devastating social consequences (see, e.g., the stunning absence of fathers among the urban poor in the United States).
For that reason, I distrust rapid changes in marriage brought about by the application of abstractions about equality and individual autonomy. These principles may frame (parts of ) the discussion but they don't resolve it.
So the California Supreme Court has found that the state's constitution mandates a change in an essential and longstanding institution that virtually no one in any place or at any time would have dreamed of until, figuratively speaking, somewhere around last Tuesday.
This is why, contra Dahlia Lithwick in this hash of a column, I can call the court's decision activist. By this I mean that it cannot possibly be rooted in a source of authority other than the majority's policy preferences. You cannot reasonably conclude that the people of California intended their equal protection and due process clauses to require a result that, until a few years ago, virtually everyone, rightly or wrongly, would have thought preposterous. An interpretive method that allows you to reach such a result seems unlikely to have much in the way of restraint on judicial discretion.
I am sure, as Lithwick (who seems unable to grasp the concept of separation of powers) says, that there is plenty of "law stuff" in the decision. I'm sure there is. But, as Ed Whelan notes, "[i]t’s rather charming, I suppose, that after all the lawless rulings on same-sex marriage, one might be so naïve as to think that maybe, just maybe, there’s a right to same-sex marriage hidden somewhere in the penumbras and emanations of the California constitution ...."
I suppose that someone might - some day - prove that alchemy can turn coal into gold, but the presumption runs the other way.
50 comments:
"By this I mean that it cannot possibly be rooted in a source of authority other than the majority's policy preferences. You cannot reasonably conclude that the people of California intended their equal protection and due process clauses to require a result that, until a few years ago, virtually everyone, rightly or wrongly, would have thought preposterous."
Funny... I think you could travel back to the 60's and people would have made very similar arguments regarding interracial marriage.
If procreation provided the gateway for nuptials, what're poor eunuchs to do? And while grandpa may be frisky enough, alas poor grandma has nothing left in her. Too bad. What's years of solid foundation matter when biology's procreation odometer expires (or, in come cases, never starts ticking). [place long, drawn-out, apathetic shrug.]
Sadly, the argument from "procreation" is perhaps the most compelling one that can be made against same-sex marriage. But that argument stalls from the get go.
" I oppose same-sex marriage on grounds that have nothing to do with moral judgments about homosexuality..."
I doubt it. Your subsequent argument rests on the premise that allowing gays to marry will somehow cause otherwise straight people to go gay, reducing the number of babies born.
That premise is so absurd that I have yet to find a conservative defend it beyond the initial claim in 10 years of arguing about it.
It also rests on the premise that gays somehow have something to do with heterosexual marriage, as if any married hetero person takes homosexuality into account when it comes to the quality of their marriage (unless they cheated as a closet gay in which case why'd they enter a hetero marriage in the first place?). Even George Will once said it's silly to think gays are responsible for fixing hetero marriage.
Childcare is another area the conservative argument falls apart. Take a look at any dysfunctional hetero family and tell me what gays have to do with it - or better yet defend the idea that a dysfunctional hetero couple is better than a functional gay couple.
Your arguments make so little sense that in the end it always boils down to the "ick" factor. Which last I heard conservatives argue on other issues is no justification for government involvement.
Frankly you all but admit you're for social engineering at the expense of individual liberty, which leaves you unable to make any credible future argument for individual liberty without resorting to hypocrisy.
Well said, anothertosavoter!
The way I see this is that the good people of California need to pay closer attention to who they put in their High Court.
This is nothing less then a lefty attempt to subvert society norms even more. There is no logical or moral justification for it. You cannot say they're the same as a hetro-sexual couple because their not.
This hopefully will be one good motivator for people to get involved in the upcoming Supreme Court election her in Wisconsin. I would much rather have an honest person on the Court then one that subverts the longing standing principals and laws of our people.
The Chief Justice is, in your words, honest. So I'm guessing you'll vote to return her to the bench.
Your justification for opposition to same-sex marriage is based in mores and societal traditions.
Marriage is an institution with mores and legal characteristics that are rooted in the potentially procreative nature of heterosexual relationships and the resulting need to channel the rather different ways that men and women experience sexuality in a way that facilitates the raising of children.
Our government has no business legislating based on such mores or traditions. Our government should get out of the business of recognizing marriage as a binding legal contract for all individuals. Marriage should be a personal contract left to be recognized by societies seperate from our government. A civil union should be a contract seperate from a marriage that bestows the rights traditionally afforded only to married couples and should be available to all citizens that wish to enter into the union with another consenting adult regardless of gender.
So the "progressives" decline of the nation continues.
Who cares that there is no history, no law/precedent and no legislation to allow gay marriage, the progressive judge believes they're above the law and can do what ever they please.
The tactic of using the courts to get what you cannot get through legislation has to stop.
Knock Knock
Who there?
Satan
Satan who?
Satan, your evil lord and master, come to destroy American values by allowing virus of homo marriage to spread to California
My pastor told that one to me yesterday and I said, “well, that ain’t too funny,” and he said “no, it ain’t”. This is the kinda thing you get from appeasement. Instead of sending the National Guard into Massachusetts to enforce the rule of God’s Law, we sat by saying that it was just one state. Well, now it’s two states and it’s probably only a matter of weeks before the pink, jackbooted thugs of the homo agenda come breaking down your door to force you to get a divorce and marry a man just like the dumbo-crats planned all along.
The pink thugs want us to vote for the j*w*ss Shirley Abrahamson next year. I DON'T THINK SO!!! You libs aren't gonna fool us a fourth time!
And speaking of jews (and libs), happy birthday isreal! Thanks for keeping it real!
After all, The RIGHT Honorable President George Walker Bush is right. Barack Osama Homo bin Laden loves Nazis/gays/eco/vego wackos and any group that wants to destroy America. In his Happy Birthday speech in front of the Jews, President Bush showed just what a moron Homo bin Laden is. The left-handed negro would rather sell America out for thirty pieces of watermelon than displease his Muslim masters. The United States ain’t gonna negotiate with terrorists and thugs. We never done it before and we ain’t gonna start now. President Bush has always stood on the side of doing good things and protecting them that needs it. That’s the whole reason that we’re in Iraq to begin with – to stop the hurting. And if the Iranians is hurting under the iron, Jew-hating fist of Akmadinejerk then we’re gonna help them out, too.
To all you libs out there reading this, borrow a Bible from a Quaker/Unitarian atheist/friend of yours and read Revelations.
"It's all in there!"
Congratulations, Parker!
I am ashamed to be from the same Planet as you...
Who cares that there is no history, no law/precedent and no legislation to allow gay marriage, the progressive judge believes they're above the law and can do what ever they please.
No, the Republican judges reasoned that the artificial distinction between "gay marriage" and "marriage" is as invidious as "marriage" and "miscegenation" once was.
And the fact that the Book of Genesis was used to justify the latter distinction (cf. the "Mark of Cain"), just like it's now used to justify the former doesn't reflect well on the "traditionalist" argument.
Sven -
your arguement does not take away the fact that the court had nothing to go on but their own imagination...we do not need judges like that.
Um, no. They had Perez v. Sharp and Brown v. Merlo.
The only imagination at work is that of "conservatives" trying to picture what goes on in peoples' bedrooms. To what purpose I don't know.
Sven -
So it's your presumption that everyone since the founding of this country, including the 61% of people in California that voted to make it law that marriage is between a man and a woman, are wrong and these four judges that had no grounds (other than their own imaginations) are right?
Sorry Sven, but your argument is nothing but hogwash to me.
Anon asked:
So it's your presumption that everyone since the founding of this country, including the 61% of people in California that voted to make it law that marriage is between a man and a woman, are wrong and these four judges that had no grounds (other than their own imaginations) are right?
Yes. The majority is not always right. Our system is set up specifically to prevent that idea.
Federalist 78:
But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws.
...
Oh and by the way had a bunch of guys done in 1776 "what we've always done" like you want, you'd be hailing to the queen.
your comment, "I suppose that someone might - some day - prove that alchemy can turn coal into gold, but the presumption runs the other way." be lies your bigotry so what are gay people chopped Liver!!!! God I'm glad I left Wisconsin in 1981 to move to California. Amend the State Motto from Forward to backwards
Nick would have us understand juvenile sophistry to be weighty and intellectually compelling.
Dad:
Why do you think it's a stretch to imagine those who are opposed to gay marriage would have been opposed to interracial marriage back in the day? The arguments and mindset are nearly identical.
It's the same reason a fundamentalist Christian is just a fundamentalist Muslim who was born on a different continent and vice versa.
Let's see, Jefferson and Madison enacted the death penality for bigamy and polygamy and Jefferson proposed castration for sodomy.
Aren't these the two founding hero's of liberals?
Anothertosavoter - we are talking about a court here and not a legislature. Courts are to stick with what has always been law and historical precedent and not let their imaginations or fantasies rule for them.
"Let's see, Jefferson and Madison enacted the death penality for bigamy and polygamy and Jefferson proposed castration for sodomy."
And Jefferson had slaves and abortion was legal up to a certain point at our founding, no questions asked.
Your point?
"Aren't these the two founding hero's of liberals? "
I don't know, I'm not a liberal. Having lived in Virginia I remember how a Senator Allen claimed to be cloned from Jefferson's DNA so I guess it depends.
"Anothertosavoter - we are talking about a court here and not a legislature. Courts are to stick with what has always been law and historical precedent and not let their imaginations or fantasies rule for them."
Except in cases like this where Federalist 78 clearly envisioned a role for the courts in protecting minority rights from the majority.
Just because you want something to be true does not make it so.
Now get outside like I am before it rains - it's too nice for this.
So it's your presumption that everyone since the founding of this country, including the 61% of people in California that voted to make it law that marriage is between a man and a woman, are wrong and these four judges that had no grounds (other than their own imaginations) are right?
Yes, that's my presumption. And yours is exactly the same argument made about the laws that kept black and white people from marrying and exactly the same kind of whining about judges people made when such bigotry was struck down 60 years ago - the precedents on which this decision is based.
Anothertosavoter and Sven -
Why is it so important to you for the goverment to says that it's okay for you to be married? (I'm not saying that the goverment does, it's only a few judges that have) You cannot say that it's because you're the same as a hetrosexual couple because your not.
What is your objective and why hasn't anyone ever thought there would be a benefit to society? Many have argued that the way to destroy American society would be to pervert it's morals. It appears that the last 40 to 50 years would support that it's working.
Many have argued that the way to destroy American society would be to pervert it's morals.
That's what "many" said about black people marrying white people (and some still say that), "many" of them pointing to Scripture. And they also said interracial couple were "not the same."
Do you think judges' ruling on "interracial marriage" has contributed to the perversion of American morals over the past 40 or 50 years? Or is it just a coincidence you picked that timeframe?
"Why is it so important to you for the goverment to says that it's okay for you to be married?"
So that we can turn everyone gay and no more children are born. Then humanity will die out and we'll save the planet.
Is that what you want to hear?
I hate to break this to you but I am quite hetero and already married with children.
There are two reasons I think government should recognize gay marriages. One, I know gay people who would like to be able to have the legal protections and benefits I have. Two, I have yet to hear a single solitary opposing reason that makes any sense whatsoever.
"(I'm not saying that the goverment does, it's only a few judges that have)"
I hate to break this to you Sherlock but the judiciary is part of the government along with the legislative and the executive. You can look it up if you want.
"You cannot say that it's because you're the same as a hetrosexual couple because your not."
Of course a gay marriage would not be the same as mine, for the superficial reason that it's two guys or two women. So they can't naturally have children together. Last I checked I knew several hetero married couples who cannot or will not have children. I also know several hetero married couples whose marriages are quite different from mine - so different that it's certainly not an arrangement I'd want to enter into.
Marriage is a social construct. We are free to define it as we choose. If Frank and Al getting married would have an effect on your marriage then perhaps you're the one with the issues.
"What is your objective and why hasn't anyone ever thought there would be a benefit to society?"
There could be a benefit to society if the benefits of a marriage help tilt a gay couple towards staying together instead of practicing promiscuity - one of the same reasons we protect and encourage hetero marriage.
And again I can point to several hetero marriages that do more damage to society with their dysfunction than a solid homo marriage.
And once again I wasn't under the impression that conservatives favored social engineering for our own good.
"Many have argued that the way to destroy American society would be to pervert it's morals. It appears that the last 40 to 50 years would support that it's working."
People like you were saying in 1850 that the country had tanked over the last 40 to 50 years. In fact people have been saying the world is going to hell in a handbasket for, well, several thousand years at minimum. The funniest part is that people like you actually think everyone was as moral in the 1950s as they show on TV. You wish.
You know how Rush Limbaugh asks global warming nuts what the perfect temperature is and how we'd know it? Same question to you ace: what's the perfect moral atmosphere and how would we know it? Perfect in your opinion? Who are you to decide? And when will you seek help for your control issues?
By the way the best way to destroy America is to ensure we're in debt up to our eyeballs to other nations. Both your party and the other idiots are doing plenty well at that.
I have a simple request of those opposed to gay marriage.
Explain in detail how offering the same protections and benefits to gays and calling it "marriage" would affect your marriage or any other person's attitude about marriage.
Explain the importance of those reasons given that half of all hetero marriages, if they're not well-publicized celebrity marriages that last as little as 54 hours, end in divorce.
Thank you.
Rick said clearly that his decision has "nothing to do with moral judgments about homosexuality." I don't see how these libs can twist that into something other than what he said.
Personally, I oppose homosexuality because it is immoral and unnatural.
To attack the author and construing his words into thoughts that are not his is a cheap attack and so typical of the radical Left. Take a hike and push that garbage elsewhere.
TosaVoter, you should learn that there is a difference between 'essence' and 'accident.'
It's a distinction that Nick has trouble with, too.
"TosaVoter, you should learn that there is a difference between 'essence' and 'accident.'"
Explain it in detail as it relates to this issue.
"Rick said clearly that his decision has "nothing to do with moral judgments about homosexuality." I don't see how these libs can twist that into something other than what he said."
I don't think Rick puts forward these arguments while consciously thinking, "here's a bunch of crap I can use to hide my true opinion". He's smarter and more ethical than that.
I think however the arguments he and others have come up with, while they believe them to have merit, do stem from their opinion of homosexuality. If the issue was something he did not find morally repugnant I wonder if he'd be opposed to it at all.
"Personally, I oppose homosexuality because it is immoral and unnatural. "
That's your right. How you find it unnatural after thousands of years of human history is mystery to me but oh well. I find smoking unnatural and disgusting - shall we ban it? Shall we have different laws for smokers than for non-smokers? Shall non-smokers get additional benefits from the government?
Why do you favor social engineering in this instance?
"To attack the author and construing his words into thoughts that are not his is a cheap attack and so typical of the radical Left."
First of all partisan hacks left and right resort to cheap attacks. Mine is not a "cheap attack". I'm not accusing Rick of lying, I'm suggesting regardless of how genuinely he believes his arguments, those arguments are weak and the basis for them is his opinion of homosexuality whether he admits it or not.
And by the way I'm not left or right. If anything I'm a pragmatist or at worst a technocrat.
Care to take up my challenge and explain how redefining marriage would affect your marriage or anyone else's?
Anothertosavoter -
This is about a wayward court changing what has been commonly known about marriage since it's beginng as between a man and a woman.
Any principaled person can discern the difference and knows that this court had no authority to make this change.
Appointed Judges like this are a shame to our judicial system and are the reason that no changes should be made here in Wisconsin to how we elect judges.
Tosa, briefly, "essence" is that which is immutable--i.e., "male-ness" and "female-ness."
"Accident" pertains to color--black, white, yellow.
"Accidental" color does not change the "essence" of male/female, nor human being.
But "essence" cannot be changed.
The proposition that "accident" and "essence" are interchangeable is void, thus the argument that gay 'marriage' and miscegenation are identical is also void.
Another Tosa:
Your 'challenge' is a red herring.
It's not MY marriage, nor yours, nor Rick's.
It's the ecology of society. As Rick pointed out, 'no-fault' divorce does not "affect" his marriage (nor yours, I suspect) directly. But no-fault divorce DID have an effect on the social ecology as a whole.
It's not US we're arguing about; that "arguing over US" happens to be the fixation of those pushing gay 'marriage.'
It's the entire USA--or perhaps the West's social ecology.
General Ripper said,
"The proposition that "accident" and "essence" are interchangeable is void, thus the argument that gay 'marriage' and miscegenation are identical is also void."
That rests on the premise that sexual orietnation is strictly a choice, which has not been proven.
It also rests on the premise that whether it's an essence or an accident matters. I don't see how it does.
"But no-fault divorce DID have an effect on the social ecology as a whole."
But no-fault divorce currently only applies to heterosexuals, so where is the link with homosexuals?
How does preventing gays from getting "married" reverse the trends that have resulted from no-fault divorce?
You are linking hetero and homosexuals together when you consier the "social ecology", which leads directly back to my question: what affect on heteros either way would granting gay marriage create?
Anon said,
"This is about a wayward court changing what has been commonly known about marriage since it's beginng as between a man and a woman. "
So what. Courts have previously changed what was commonly known about interracial marriage or segregation. You need more than that.
"Any principaled person can discern the difference and knows that this court had no authority to make this change. "
I'm sorry but I reject out of hand the idea that anyone is genuinely principled when it comes to judicial activism. Find me a conservative that doesn't cheer it when it goes their way (Bush v. Gore? Could the Constitution be any clearer on the role of states in choosing electors?) and I'll show you an endangered species.
"Strict constructionism" and "activist judges" are partisan creations - prepackaged products to be sold to voters.
Would you like to take up the challenge Dad would not? Explain why granting gays marriage benefits would affect the downward trend of hetero marriage?
"But no-fault divorce DID have an effect on the social ecology as a whole."
But no-fault divorce currently only applies to heterosexuals, so where is the link with homosexuals?
The answer lies in the old double standard: Dad29 can make arguments from history, but you can't, you dirty hippie freak.
That rests on the premise that sexual orietnation is strictly a choice, which has not been proven
Wrong.
My statement does NOT "rest" on that premise whatsoever.
It rests on the physical realities. Beyond that, anomalies (whether physical or psychological) are irrelevant to "essence." Anomalies are "accidents."
But you now choose to deny that essence matters, as well. That's in the same category as denying gravity.
Your red-herring yammer about 'no-fault divorce' not applying to homosexuals is irrelevant, too. I never claimed that it DID apply to homosexuals.
Following your logic, I note that the sky is blue for all peoples.
That settles that!
I note that Jay is perfectly happy to wallow in non-sequiturs, too!
The ocean is wet, Jay. So homosexuals should not get married.
tosavoter -
I take it that you are raising your children to be whatever they want to be, hetro, homo, pedo, besto, biga, poly, etc..
There's no difference, right?
General Ripper said,
"Wrong.
My statement does NOT "rest" on that premise whatsoever."
Yes it does; it's the very reason you give why gay marriage and interracial marriage are different.
"It rests on the physical realities."
Like what? Ability to procreate? Hetero married couples often cannot or will not procreate. Are you prepared to deny them marriage benefits?
Gender? So what?
"Beyond that, anomalies (whether physical or psychological) are irrelevant to "essence." Anomalies are "accidents.""
And how are you certain an anomaly is involved.
"But you now choose to deny that essence matters, as well. That's in the same category as denying gravity."
Not if your definition or opinion of essense is irrelevant, which it is.
"Your red-herring yammer about 'no-fault divorce' not applying to homosexuals is irrelevant, too. I never claimed that it DID apply to homosexuals."
Then why did YOU bring it up? You say no fault divorce has led to moral decline and so would granting marriage benefits to gays. Hence the two must be linked somehow since apparently to you they're factors with some kind of similar property.
So again, actually explain how granting homosexuals marriage benefits would contribute to the moral decline of America by furthering what heteros have already done themselves?
FYI this is what I meant when I said people like you use very flimsy and illogical arguments to mask your base opinion. It's transparent whether you want it to be or not.
Anon asked,
"tosavoter -
I take it that you are raising your children to be whatever they want to be, hetro, homo, pedo, besto, biga, poly, etc..
There's no difference, right?"
LOL. The slippery slope fallacy. Seen it a million times.
As you consider my response ask yourself: who got the ball rolling on the slope of government benefits for different kind of relationships? It was us heteros of course.
Government treats us all as individuals and no gays or horse fetishists or TV-marriers are asking for any of this.
Of course there is a difference. The first two don't matter, the rest do.
Is that determination somewhat arbitrary? Sure. No less or more so than yours. You can claim yours has some kind of firm basis in religion but the fact is the religion you practice is as arbitrary as anything else.
Now I answered your question, how about tacking some of mine?
Explain in detail how granting marriage benefits to gays harms hetero marriage or the moral fabric of America. Be specific.
Thanks.
Wrong again, TosaMalignancy.
I make no claims about whether homosexuality is a choice.
My argument rests on the physical differences between girls and boys.
Your argument would seem to rest on the non-peer-reviewed theory that homosexuality is 'inborn,' or 'not a choice.'
In other words, Tosa, I believe my eyeballs. YOU believe in the Tooth Fairy.
General Ripper said
lol
tosavoter -
you did not answer my question; how are you raising your children?
Not once have I raised a religious viewpoint.
Tosamalignancy? Classy. I refer to you as a movie character and you refer to me as something deadly.
Anyway I find it odd that you say you make no claim about whether homosexuality is a choice and then you disparage the idea that it's not a choice.
And my premise rests on the theory that it doesn't matter whether it's a choice or not.
You still have not provided any reasoning behind your proclamation that granting marriage benefits and privileges to gays will have an effect the moral climate in the United States.
As I've been arguing this with people like you for nearly 10 years and not gotten an answer from any of them, I'm not holding my breath.
Anon 7:10 AM, with all due respect your question is irrelevant to this issue. Suffice to say that I'm probably going to raise my children to be as moral as you would yours, outside of any religious indoctrination.
Would you like to take at the question I asked first and which is relevant to this issue: on what can the claim that granting marriage benefits and privileges to gays will harm marriage as an instituion be justified?
tosa -
We both know why you cannot answer my question.
Your question is ignorred by everyone you ask because it's irrelevant. Homosexuals are not the same as hetrosexuals and do not fall under the same definition.
tosa -
We both know why you cannot answer my question.
Your question is ignorred by everyone you ask because it's irrelevant. Homosexuals are not the same as hetrosexuals and do not fall under the same definition.
tosa -
We both know why you cannot answer my question.
Your question is ignorred by everyone you ask because it's irrelevant. Homosexuals are not the same as hetrosexuals and do not fall under the same definition.
Rick -
I do not know why my comment showed up three times. You can delete a couple if you like.
Anon, Rick just dedicated a rather long post to my question because it is quite relevant.
I'm not sure how you find the temerity to suggest questioning how marriage is damaged is irrelevant when that's your side's main argument against extending marriage to gays.
Your question about my children is entirely irrelevant. Whether I or you teach my children that being gay is ok, or not ok, doesn't make a bit of difference in determining whether marriage rights should be extended. I plan to teach my sons that veganism is sick and wrong, but you won't find me advocating that it be banned.
Do you understand that?
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