Friday, August 13, 2010

Perry And the Definition of Marriage

In response to my earlier post on Perry, Sean Samis suggests that the question is not "what marriage is for" but whether we can justify excluding same sex couples from its scope. My view is that you can't answer the latter without addressing the former. Writing in Commonweal, Rob Vischer puts it well:

More broadly, if courts are to be tasked with charting the course of society’s foundational institutions by tallying “harms,” it’s important to ask what have we lost in the process. The question “What is marriage?” may not lend itself to easy answers or evidentiary proofs, but it is an essential question, one that societies have been addressing for centuries. Citizens today disagree with the views of earlier eras, just as citizens even ten years from now will likely disagree with ours. The cultural and ultimately political processes by which the history of civil marriage continues to unfold is messy, halting, and frequently infuriating to participants of all ideological stripes. But replacing those processes with one judge’s evaluation of a few expert witnesses carries a cost. Courts have played a role in shaping civil marriage in past eras, particularly regarding interracial marriage, but not in redefining an element of marriage deemed non-negotiable by a broad swath of society spanning many otherwise disparate historical eras.

Of course, Judge Walker adopted a defintion of what marriage is for based, as Rob puts it, on the testimony of a singular historian. I have read her testimony. It describes certain changes in marriage law. It hardly resolves the question of what marriage is for. In fact, it would seem that the more current actions of the political brances - and of the voters of California acting by referendum - would be more significant on that question.


Nick said...

Actually, I would argue that the definition of Marriage is mostly irrelevant to the debate.

The problem is not how you define marriage, but what rights, and benefits you grant to those who meet the definition.

After all, that is what makes "equal protection under the law" an important argument here. If Gay Marriage was ONLY about a label, then the argument would mostly be moot.

However, there are literally hundreds, if not thousands, of things in State and Federal law that DEPEND on the definition of marriage.

From tax law, to Social Security, to Medicare, there are many benefits that are granted to those who we call married.

So once again, I would argue that the problem is not the label, or the definition, but the benefits we give to those who are granted that label.

And do all those benefits require a male-female union to make sense... especially when it comes to Social Security or Medicare benefits.

Anonymous said...

Nick, your argument has nothing to do with Perry. California law provides for civil unions for gay couples, and the civil unions provide the same benefits under state law as its marriage laws provide to heterosexual couples. The lawsuit in California is only about the label.

Sue B said...

Anon @ 10:52am. State laws grant no federal benefits to couples who marry under state law where those marriages are not recognized at a federal level. Nick was talking about tax, Social Security, and Medicare, benefits of which are withheld even from those same-sex couples who have been married in Mass since 2001. I'd say to both of you that the label question means a great deal to some.

Anonymous said...

Judge Walker pulled back the curtain to reveal the truth: that opposition to same-sex marriage is built out of rationalizations on a foundation of prejudices and irrational fears. Legalized same-sex marriage is not an imposition on anyone and is an example of justice.

During the proposition 8 campaign which was funded largely by the Catholic and Mormon Churhes a number of commercials and flyer were mailed out suggesting gays are harmful to children in a very similar vein to the failed Briggs initiative in 1978 which would have banned gay people from being teachers. Anita Bryant used the Save Our Children campaign against gay people and this hateful rhetoric was repeated in the propsition 8 campaign. Ironically the Catholic Church has a stained reputation in how institutionally children have been protected by the clergy

Gay Americans have been the subject of bigotry and moral disapproval used to curtail basic human rights

Anonymous said...

Let us not forget how Senator Joseph Mccarthy persecuted gay people back in the 1950's with the aid of Roy Cohn who was a closet case himself. Wisconsin has a shameful history in its treatment of Gay Americans

Anonymous said...

"proposition 8 campaign which was funded largely by the Catholic and Mormon Churhes"

Let's not forget that Utah had to accept that marriage is only between one man and one women to become a State in 1878.

The issue isn't what marriage is in the US but if we want to change it.

Rick Esenberg said...


But how do you grant rights and benefits to those "who meet the definition" without deciding what the "definition" is? Traditionally, that definition has been one man and one woman. Proponents of SSM now want to say that this is not and should not be the definition because same sex couples form relationships that are equally entitled to whatever marriage confers. I don't see how you answer that question without deciding what marriage is for.

The evidence of animus in the sense of hatred or disgust seems to have been fairly weak. The only way you get to animus is to assume that a belief that homosexual unions and heterosexual unions are different in ways that relate to the purpose of marriage or that traditional religious views on homosexuality constitutes animus or prejudice.

Anonymous said...

"The evidence of animus in the sense of hatred or disgust seems to have been fairly weak"

The one thing Moslems, Christians and ultraorthodox Jews in Jerusalem agreed was to stop any type of gay pride or gay assembly.
I guess that wasn't due to prejudice or moral disapproval or a belief that gay people have are less than others..........

AnotherTosaVoter said...

Rick you're being too cute by half. The debate is going on over what marriage is...and that debate centers on whether it's just man-woman or if it might also include man-man and woman-woman. It's not a lot more complex than that. You and Douthat seem to want to come to some kind of consensus on what man-woman marriage is first, sort of a delaying tactic. Your goal, it seems, is that society define it as some utopian ideal (as defined by Douthat in his post) centered on heterosexuality and child-rearing. Then, lo and behold, those certain qualities cannot be met by homosexuals, so gee whiz look at that, we can't accommodate you. Tough break.

It's not going down like that, whether you wish it would or not. Gradually the younger generation is becoming more accepting of different types of marriage, including gay marriage. Your idyllic 1950s style definition isn't going to be accepted by my generation (Y) and those that follow, because your generation has fucked up heterosexual marriage so far beyond belief that the 1950s ideal is laughably unattainable so as to be a caricature more than a goal. We also are more comfortable with gays than your generation.

So now here is your generation, trying to tell us that somehow it's gays who would "ruin" marriage permanently, while refusing to relinquish the easy ways out of marriage you've brought about - no fault divorce and little or no consequences for adultery.

And you think that sells?

Again, when are you going to fight for banning divorce and outlawing adultery?

Anonymous said...

The Professor had a chance to defend marriage but blew it when he divorced Wife #1.

AnotherTosaVoter said...


"The evidence of animus in the sense of hatred or disgust seems to have been fairly weak."

The words of your client, Ms. Appling, along with your attempts to rationalize them, destroy your credibility on this argument.

Anonymous said...


The question of “what marriage is for” is irrelevant IN THIS CASE unless that purpose relates to what the ban on same-sex marriage is for; if the latter does not impact the former, then “what marriage is for” is irrelevant.

Judicial decisions like Perry may have a cost, but they ARE the cost of unjust regimes; and refusing to recognize the legal mandate for equal protection merely because some vague cultural process has yet to play out has costs too. Doing nothing is not free and it only seems preferable if you are not the one who’s waiting for your rights to be recognized.

As for courts “redefining an element of marriage deemed non-negotiable by a broad swath of society”; the judicial decision to constitutionalize interracial marriage involved an element of marriage for which some people were MURDERED. 14-year-old Emmett Till was lynched in 1955 merely for whistling at a white woman, much less marrying one.

So, it doesn’t matter that the witness testimony you referred to “hardly resolves the question of what marriage is for”; what matters is that no witness testified to some legitimate purpose for the ban; and after the years of controversy, if there is still no legitimate purpose for the ban that you can articulate, then the ban is reasonably regarded as unjustifiable.

You wrote to Nick “The evidence of animus in the sense of hatred or disgust seems to have been fairly weak”

Rick, the fact that opponents cannot articulate any rational reason for the ban, that they cannot show any harm or adverse impact from permitting same-sex marriage is strong evidence of prejudice. If the opposition to same-sex marriage is rational, where is the rational purpose? None has been found. If opposition to same-sex marriage does not appear rational, then what are the remaining explanations? “Hatred” or “Animus” may be unproven and a trifle strong, but prejudice is clear. “Traditional religious views on homosexuality” might not “constitute animus” but in a nation that recognizes religious freedom, to limit anorther’s rights only for religious reasons DOES constitute an act of prejudice.

sean s.

Anonymous said...

Anonymous 10:52 am;

Even if this lawsuit is “just about the label” then I have to wonder what the objection is. Why not call a same-sex marriage a “marriage”, why a “union” instead? What is the purpose of withholding the label? If it’s such a small thing, why not treat both unions the same?

sean s.

Dad29 said...

Your idyllic 1950s style definition isn't going to be accepted by my generation (Y) and those that follow,

Maybe. But evidently your generation is a distinct minority, voting-wise.

Nick would (like the politicians) prefer that the whole damn thing just go away--which is why the pols are floating "get the State out of the business of marriage" lines through all the usual columnists.

But at least the columnists begin with a definition of the term. Nick takes the Anthony Kennedy route: "whatever, man......"

Dad29 said...

the fact that opponents cannot articulate any rational reason for the ban,

Except that removing the ban is a de facto derogation of the practice recognized by ALL major world religions--and pre-religious societies, as well.

Man and woman are not "equal" except in the sense that they are all children of God. Otherwise, they are complementary. That's not "equal."

AnotherTosaVoter said...


1>Yes, we are, but not for long


2>Religious reasons are, thankfully, becoming less and less relevant.

Dad29 said...

You may disparage, or despise, religion.

But it is NOT "religion" which underlies marriage. It is nature.

(As I hinted when I mentioned "pre-religious" societies.)

And as the wise ones know, one does not mess with ma nature.

Anonymous said...


Legalized same-sex marriage will not abolish any part of marital law except that minor part limiting it to different-sex couples. Since that limitation has no rational purpose now (if it ever had one) the vintage and ubiquity of that practice is not a rational reason to continue the practice beyond the point where it serves some purpose and became unjust.

Whether males and females are “equal” or “complementary” is not relevant either; the question is whether homosexual males and females are equal to heterosexual males and females.

Legalized same-sex marriage does not disparage or despise religion; many same-sex couples consider themselves religious, and their relationships just as moral and holy as any different-sex relationship. Prohibiting same-sex marriage on religious grounds is a form of religious oppression.

Nature does NOT underlie marriage, nature does not care about marriage. Nature is just fine with promiscuity, open, informal sexual liaisons, or other non-marital constructs; as well as life-long monogamy, of the hetero- or homosexual varieties. Nature does not care. Legalized same-sex marriage does not violate any law of nature. As several nations and States have discovered, same-sex marriage does not alter the motions of the planets, or delay sunrise.

sean s.

Rick Esenberg said...


We have no way of knowing what the consequence of same sex marriage would be. We haven't enough experience with it.

I can articulate all sorts of potential harms. I can worry that the deliberate creation of families without fathers will further weaken fatherhood - an ongoing process that has caused more poverty and social misery than anything the left complains about. I can worry about the impact of a model of marriage in which love is not accompanied by sexual exclusivity (that stats on this for gay males - because they are males and subject to all the evolutionary psychology that we find in males - are beyond question) will have on the mores of heterosexual marriage. We assume that sexual orientation is fixed without reference to culture even as we don't know what causes same sex orientation. What if that's not so?

What I can't do is prove or disprove these concerns because we simply don't have the data to test any of them. Because I think that the push for same sex marriage is largely about validation, I am not willing to risk such a vital institution when I think that the validation is an interpretive choice and there are other ways to address the practical problems that people have.

Anonymous said...

Can you please articulate some other ways to address the practical problems that people have.

Anonymous said...

Having failed in the hard work of persuading the voting public that their position is right, SSM proponents fall back on finding judges like Walker to impose their position on the public. That's simply undemocratic.

AnotherTosaVoter said...


After thousands of years of human history, it ought to be clear by now that homosexuality is natural.

As for messing with ma nature, I can only assume this means you're in favor of anti-pollution laws, given that changing the carbon content of the atmosphere could have serious consequences; and Rick makes the case that even the possibility of serious consequences is reason to act.

AnotherTosaVoter said...

Anonymous 11 PM:

Again, there exists as yet no evidence that conservatives have any principled objection to the courts overturning laws passed legislatively or by referendum. Only those decisions which go against their opinion are considered "activist".

Anonymous said...


You articulate all sorts of “potential harms”, but admit you cannot prove any of them are real, or that any of them are exclusively related to same-sex marriages. You worry about the weakening of fatherhood, yet admit that weakening is an “ongoing process” even though same-sex marriage is unrecognized in most states and has only been recognized for a few years where it is. You worry about marital infidelity, which has been an issue forever, and unrelated to same-sex marriage. You worry that we “assume that sexual orientation is fixed without reference to culture even as we don't know what causes same sex orientation. What if that's not so?” So what?

What you never seem to worry about is the social impact of deliberately depriving an entire population of people of their equal rights for no better reason than, well, we’re not sure. What does it mean when we legitimize the prejudices of a majority against a minority when those prejudices are based only on doubts and unvalidated fears? Who else’s rights should be truncated because of mere uncertainty? Which of YOUR rights would you surrender because their exercise creates in the mind of some persons an indistinct fear of risks that these others consider insufficiently understood?

I stand by my argument: there is no rational reason to believe that same-sex marriage will harm different-sex marriage; there are only fantasies and dread of change - ANY change. Lacking a rational purpose, the ban is a deprivation of equal protection.

sean s.

Anonymous said...

Anonymous at 11:00 pm;

I will repeat what I wrote earlier: the whole point of individual rights (such as the right to equal protection) is that these are things no majority can take away. If a majority of voters decides to violate the rights of just one person, it’s the job of The Courts to stop them.

sean s.

Anonymous said...

If these folks are so concerned with "defending marriage," then why don't they stay married?

There are so world-class hypocrites on this issue lined up against same-sex marriage, including the owner of this blog, Charles "I Wed Three Wives" Sykes, the serial adulterer Newt Gingrich (who, upon converting to Catholicism at the behest of Wife #3 got his first two marriages annulled so that #3 would count for real!), and Rush Limbaugh.

When confronted with the opportunity to actually "defend marriage," these cowards cut and ran -- some of them multiple times.

We're not talking here about the theorhetical defense of marriage, but the defense of actual marriages.

What a bunch of maroons.

Clutch said...

Proponents of SSM now want to say that this is not and should not be the definition because same sex couples form relationships that are equally entitled to whatever marriage confers. I don't see how you answer that question without deciding what marriage is for.

What marriage confers and what it is for are clearly two different things. Marriage might be for -- ie, the State's interest in enshrining it might include -- the promotion of stable child-rearing environments, or the promotion of stable adult pair-bonding throughout society. What it confers, in the interests of promoting these or other ends, are such goods as social status, respectability, long-term security, mutual care rights, tax incentives, and others.

Now, we are getting to the crux of the matter. As a matter of palpable legal and social fact, the full legal status of marriage applies to huge numbers of actual unions that do not, and as matters of choice or brute biological fact could not, individually satisfy the broad socio-legal reasons for the existence of State-sanctioned marriage. Biologically sterile heterosexual couples can marry and enjoy all of what marriage confers. Couples whose marriages can be known with near-certainty to be unworkable can marry and enjoy all of what marriage confers. Whatever the broad state interests in what marriage is for, very large numbers of heterosexual couples whose marriages will not satisfy those ends are entitled to the status anyhow.

(This is wholly consistent with what marriage is for, moreover. The existence of the childless couple does not impugn the State's interest in extending a special status to married parents; the existence of the divorcée who remarries (perhaps multiple times) does not impugn the State's interests in promoting more stable unions.)

Enormous numbers of couples whose unions might -- might* -- not directly further all the broad aims of State-sanctioned marriage (even where they fail to further some of those ends as matters of biological necessity) are unquestionably allowed to marry and reap the goods conferred by that status. No appeal to "what marriage is for" motivates discrimination, therefore, against those couples whose unions might fail to satisfy some of those ends owing simply to their being same-sex couples.

What distinguishes the latter cases, in short, is not their arguably failing to advance some of the State's interests in sanctioning marriage. In that respect they are no different (and in many cases will be much, much better) than vast numbers of uncontroversially permitted marriages. What distinguishes them is just their being same-sex.

The choice seems to be either to ban all marriages that do not directly advance some hitherto purely notional specification of "what marriage is for" -- in which case the biggest losers will include large numbers of vocal conservative pro-marriage serial adulterers, whose current marital status is entirely an artifact of those tolerant American standards -- or to earn the judgement of sheer anti-gay bigotry by hand-waving about what marriage is for while seeking legally to debar only same-sex marriage. Since the former option is too crazy for most even to contemplate, and the latter option is the preferred one in public discourse, it seems that appeal to what "marriage is for" is not a bigotry-avoiding route to the desired conclusion.

*Because the most reasonable specification of those aims is itself uncertain, and there is almost certainly more than one such aim.

Anonymous said...

We have no way of knowing what the consequence of same sex marriage would be. We haven't enough experience with it. ..............What I can't do is prove or disprove these concerns because we simply don't have the data to test any of them. Because I think that the push for same sex marriage is largely about validation, I am not willing to risk such a vital institution when I think that the validation is an interpretive choice and there are other ways to address the practical problems that people have

Rick did you worry about risking such a vital institution when you got a divorce. Another a conservative who talks without walking the walk

Rick Esenberg said...


We are not depriving an entire class of people of equal rights. Gays and lesbians enjoy the full panoply of civil rights. What they cannot do is marry someone with whom they have an intimate relationship and I acknowledge that is a significant issue. But they are not prohibited from entering into that relationship and setting up household and publicly proclaiming their partnership. They are not precluded from entering into a variety of legal relationships to facilitate those relationships and there are certain reforms that I would support that would further their ability to do so.

I've read the testimony in Perry and I don't wish to minimize the complaints of the plaintiffs. But to draw an analogy between their plight and that of people who couldn't go to a decent school, couldn't stay at hotels or eat at restaurants, couldn't vote and would be lynched if they tried should cause one to blush.

Anon 9:57

First, as I have said before, the inability of people to honor a standard doesn't mean the standard is wrong. More fundamentally, you don't know me and have no idea why I got divorced. Find someone who does and ask them. Then I'll accept your apology.

Anonymous said...

You do not know the countless gay people whose rights you seek to curtail and deny. We are not some tidy legal abstractions. You were a part if an effort to deny domestic partnership.

Judge Walker exposed the discrimination against gay people fir what it is simple moral disapproval; that has often hidden in bigotry and homophobia.

AnotherTosaVoter said...

Rick: All of your arguments rest on tautologies.

"Expanding a right to a new group deprives the rest of us of our right to deny that right to others. If making a right less exclusive devalues it, then any extension of rights is an imposition upon those who were not previously excluded—i.e., women's suffrage makes voting less special for men.

Another objection holds that gay marriage would weaken the link between marriage and child-rearing, therefore encouraging out-of-wedlock births. If true, this would at least provide some weight on the scale against gay marriage. But it suffers from two massive flaws. First, it's hard to imagine how the tiny gay minority's behavior can materially influence the way the vast majority of heterosexuals view marriage."

There remains no credible argument against marriage equality.

Anonymous said...

Will SSM proponents write off the three judges on the 9th Circuit panel that stayed Walker's order (including two Clinton appointees) as mere "bigots"? Judge Walker's decision was an abortion that won't stand up on appeal. SSM proponents surely would have preferred to have beaten Proposition 8 at the polls in November 2008 but, failing to do so, are willing to live with judicial chicanery to achieve their goal.

Dad29 said...

There remains no credible argument against marriage equality...

He said, with a satisfied smirk and burp.

Except, of course, the argument from nature.

Anonymous said...

Dad, homosexuality exists in species after species in the animal kingdom. It is both natural and innate across many species, including homo sapiens. The only law of nature that justifies discrimination against gay people is the law of the jungle: the principle that the stronger can overpower the weaker. But in nature we also see empathy and the stronger members of the herd protecting the weaker from attack from predators. Ultimately the strength or weakness of that law of nature will be what determines whether our species survives, or blows itself up.

Dad29 said...

homosexuality exists in species after species in the animal kingdom. It is both natural and innate

Your argument is specious. You claim that homosexuality is 'innate,' but there is ZERO evidence to support that claim. Further, it is not "natural," other than the fact that it occurs. That is, it is actually un-natural; were it "natural," it would be predominant.

More important, you would then posit that since homosexuality is "natural," it follows that homosex marriage would also be "natural."

Wrong. Ontologically, marriage is open to conception/childbearing & raising children.

THAT is the nature of marriage. But single-sex coupling does not provide that by nature.

So which is it? Nature, or non-nature?

Anonymous said...

The evidence that homosexuality is not a matter of choice is overwhelming. Some of it was presented at trial. It was a basis for the judge's finding of fact no. 46. To think otherwise is to believe the earth is flat. That it is not predominant doesn't mean it is not natural. Albinism, green eyes, and left-handedness are natural traits, too.

AnotherTosaVoter said...

Dad, there is a delicious irony in your argument. It is that, homosexuality is not natural, therefore it cannot be allowed to participate in an institution that seeks to enforce something also unnatural: monogamy between humans.

I'm pretty sure even Douthat and probably Rick admit that lifelong monogamy among heterosexuals is unnatural, which is why we need "strong" social institutions like marriage to regulate our sexual behavior.

By the way, since you view marriage as centered on procreation, I can only assume you've written your legislators demanding that heterosexuals who cannot or will not procreate be banned by law?

Not worth it? Then why is it worth it to ban gay marriage?

And so, the circular argument by people like you continues.

There remains, as yet, no logical or rational reason to be against gay marriage. The only argument you have is based on emotion. You don't like it because it doesn't feel right. That's it. Nothing else.

Anonymous said...

Give teh Dad a break...he was unable to bring forth a male heir.

Anonymous said...


If I understand you correctly, although same-sex couples cannot get married, they are “not prohibited” from simulating marriage by setting up a common household and, through a number of legal maneuvers, setting up legal relationships like marriage does for different-sex couples. Although you will object no doubt to my characterization, you seem to be saying that same-sex couples get to “play house” with one another, and that should be enough. If they want more, they can do extra work that others are excused from, but that will only take them part way toward a complete simulation of marriage. Their “pretense” can never be complete, but you seem to think that’s good enough. Please tell me I’m wrong. If I am, please clarify why this would be satisfactory to anyone.

Please tell me how treating an entire class of people differently, requiring them to jump through extra hoops, or denying them otherwise common choices is not “depriving an entire class of people of equal rights”. If gays and lesbians can’t establish their most important life-relationships as simply and easily as heterosexuals, then it is simply not true that “Gays and lesbians enjoy the full panoply of civil rights.”

Requiring some people to perform extra work just so they can ALMOST be merely equal is the deprivation of equal rights. All this extra work has no purpose but to discourage people who are different from those who wrote the laws. In spirit, it is not different from making blacks or women fulfill extra requirements to become lawyers, requirements that white men need not fulfill, and requirements that have nothing to do with being lawyers.

Rick, you wrote that “there are certain reforms that [you] would support that would further” the ability of gays and lesbians to enter into “a variety of legal relationships to facilitate those relationships”. It’s good that you are willing to support “certain reforms” but that leaves the question of what reforms you would support.

More importantly, which legal relationships currently available to married couples should same-sex couples be denied? And why? You might not be prepared to answer this question at this moment, but that unpreparedness would be strange given how long same-sex marriage has been a prominent topic in our State and Nation. If you cannot be specific at this time, your attempt to sound supportive seems hollow.

This is especially interesting because, if I recall correctly, you opposed extending some benefits to same-sex couples after Wisconsin’s DOMA passed on the ground that they were contrary to that Amendment: an amendment you supported. How do we give same-sex couples the same legal relationships as marriage without creating an institution for them the same as marriage?

As you can tell, I don’t think analogies between contemporary prejudices against homosexuals and past prejudices against blacks are at all improper. They have much in common, especially the intransigent rationale that these prejudices are somehow “justified”. Moreover, physical violence against overt homosexuality was and is a feature of contemporary culture. “Gay bashing” used to involve baseball bats instead of mere harsh language. In some places, it still does.

One other thing I need to say:

Regarding the bashing that you and others have taken in the course of this debate: bashing about your personal marital history, I want to make clear that these comments did not come from me, that I think they are regrettable, and that I think they make this process harder than it needs to be. I completely repudiate such attacks and snide commentary as unwarranted, counterproductive and just-plain-wrong. There are no saints in the blogosphere, so such criticisms are wrong and hypocritical.

sean s.

Anonymous said...


Regarding your comment at 7:16 pm, I thought this part summed up the problem best:

“The ubiquity of [their] hollow formulation tells us something about the state of anti-gay-marriage thought. It's a body of opinion held largely by people who either don't know why they oppose gay marriage or don't feel comfortable explicating their case.
“In a liberal society, consenting adults are presumed to be able to do as they like, and it is incumbent upon opponents of any such freedom to demonstrate some wider harm. The National Organization for Marriage, on its website, instructs its activists to answer the who-gets-harmed query like so: ‘Who gets harmed? The people of this state who lose our right to define marriage as the union of husband and wife, that's who.’ Former GOP Senator Rick Santorum, arguing along similar lines, has said, ‘[I]f anybody can get married for any reason, then it loses its special place.’”

In other words, the only “wider harm” opponents of same-sex marriage can come up with is that they don’t want to share.

sean s.

Anonymous said...


You wrote: “Your argument is specious. You claim that homosexuality is 'innate,' but there is ZERO evidence to support that claim.”

Actually, there is lots of evidence that sexual orientation is innate, and there is ZERO evidence that sexual orientation is chosen. Discuss with any homosexual how they came to be homosexual, they nearly all report that it just happened, they just are innately homosexual.

Further, ask any heterosexual if there was ever a time in their life when they had “chose” their sexual orientation, and the vast majority will say “no.” Everyone I’ve ever talked to told me it just happened, they just are innately heterosexual.

Perhaps you are the exception, but so far as I’ve found, no one recalls “choosing” their sexual orientation. It is innate.

You also wrote that “it [homosexuality] is not ‘natural,’ other than the fact that it occurs. That is, it is actually un-natural; were it ‘natural,’ it would be predominant.”

Dad29; is left-handedness unnatural? Are green eyes unnatural? Is red hair unnatural? Is height in a woman above 6 feet tall unnatural? Is very high IQ unnatural? All these, and other things occur but are not predominant; are they, therefore, unnatural? Of course not. If it occurs in nature, that is one of the things that “natural” means. Homosexuality occurs in nature, therefore it is natural. QED. To argue otherwise is incoherent.

You wrote; “Ontologically, marriage is open to conception/childbearing & raising children. THAT is the nature of marriage. But single-sex coupling does not provide that by nature.”

Ontology has no necessary relationship to actual nature; it does not DEFINE what exists, it does not COMMAND or LIMIT what can exist, it merely attempts to describe and categorize what exists. In this, ontology is just an opinion about metaphysics; an incomplete and humanly limited area of scholarship. Arguing from ontology about what happens in nature is as foolish as using a dictionary to “prove” what can and cannot exist.

More importantly, ontology has no legal standing; there is nothing in Law that gives preference to mere metaphysical notions. There is no metaphysical reason that same-sex marriage cannot exist, so your “ontological argument” is nothing more than your frail attempt to impose your opinions on others and infringe our rights with your limited cognition.

Different-sex couples who cannot conceive or bear children can marry even if that condition is known; are such intentionally sterile marriages ontologically invalid?

In sum: your arguments are specious and incoherent, which makes them pretty normal from an opponent of same-sex marriage.

sean s.

Dad29 said...

there is ZERO evidence that sexual orientation is chosen

Are you contending that it is biological? Or psychological?

Dad29 said...

there is nothing in Law that gives preference to mere metaphysical notions.

Irrelevant and immaterial.

Positive law is not the Holy Grail of "what is." You would have otherwise. Good luck with that.

There is a crude analogy in the "global warming" battle. And rest assured, positive law will not "cure" nature there, either.

Your argument is with the nature of marriage, which entails marriage's ends by necessity. And those ends remain the same in ALL societies. Thus the appellation "natural law."

Finally, I suspect that you understand the difference between "accident" and "ontology," or you wouldn't have gone to such trouble to evade the question. Left-handedness is an accident. Being human is ontological. (Or, if you prefer, ens.)

But left-handedness, or pigmentation, or green-eyedness, or infecundity, is not, in itself, in opposition to ontology.

Homosex marriage IS in opposition to the ends of marriage.

Anonymous said...

Thank you, Professor, for taking up the Bigot Appling's cause yet again with the new lawsuit filed today.

From the Bigot Appling's press release:

“Our system of government serves no purpose if our elected officials can completely and capriciously ignore the will of the people with impunity,” said Appling. “A reasonable person observing this registry would easily conclude that it is intended to mirror marriage. It borrows the requirements and eligibility standards for marriage, even to the point of requiring that the price of the registry certificate be the same as for a marriage license.”

It was the Bigot Appling who, when shilling for the constitutional amendment, assured citizens that the amendment would be no bar to legislation protecting domestic partnerships. The Bigot Appling changed her tune right after the constitutional amendment was approved, and now the Professor is carrying her dirty laundry.

Anonymous said...

Dad29 asked if homosexuality is biological or psychological, given that there is no evidence it is chosen, The short answer is that it may be both. The causation of sexual orientation (Either One) is not established. What is established is that it is not voluntary. I anticipate that you will construe any uncertainty as support; that is a logical error. The proposition that sexual orientation is chosen is not the default, to be treated as true unless disproven. Calling your argument “ontological” does not prove it is true. That proof you must provide, and you cannot because such proof does not exist.

Dad29 also said that it is irrelevant and immaterial that “there is nothing in Law that gives preference to mere metaphysical notions” such as the ontological argument he gives.

Sorry Dad, but this is a LEGAL DISPUTE, the Law is supremely relevant and material. The Law treats ontology for what it is: bald-faced assertions gussied up with a fancy term. Calling your argument “ontological” is putting lipstick on a pig.

The question about same-sex marriage is a question about the Law, and the Law already provides for marriages that “violate” your ontological assertions. Nature, Science, Logic, Reason, and Reality DON’T CARE about ontology, and appropriately, neither does the Law.

Anonymous at 9:56 posted another of those regrettable comments which only make this argument harder to participate in. I really wish these would stop. They aren’t necessary and they don’t help anyone.

sean s.

AnotherTosaVoter said...

I think the true motivations of those opposed to marriage equality is exposed by the fact there's yet another lawsuit against Wisconsin's domestic partnership law.

Here is a law that doesn't grant full marriage rights or protections, but makes it just a little bit easier for gay couples. You know, cut some of the government red tape to which conservatives are always so opposed.

But no, can't even give them that either.


Dad29 said...

One may "advance" positive law to any number of ends, of course.

But only at great danger to the Rule of Law in general.

The force of law cannot, and will not, overcome the laws of nature; and your implication that the (positive) law will prevail is erroneous.

After all, George III also had positive law on his side.

Anonymous said...


Rick had an interesting line in his latest post (on the subject of building a Mosque near Ground Zero): “I am not comfortable with people being forced to back down from the exercise of their rights of free speech or religion as a result of public pressure and that applies to … systematic efforts to, for example, ostracize supporters of California's Proposition 8 … ”.

I agree completely that systematic efforts to ostracize opponents of same-sex marriage are improper, but since same-sex marriage is opposed on religious or ideological grounds, the same discomfort should apply to systematic efforts to oppress same-sex couples who only want to exercise the same rights different couples are able to; this oppression is something I’d expect Rick to not be comfortable with.

With regard to suits to block Wisconsin’s domestic partnership law, what will be telling is whether Rick says anything about this new suit and whether he supports or opposes it’s goals. Obviously he’s free to ignore it, but given his recent claim to support “certain reforms” to facilitate same-sex relationships, to say nothing when all reforms are attacked is leaves a reasonable person to conclude his “openness” was merely a gambit.


You wrote that “The force of law cannot, and will not, overcome the laws of nature”.

Very true. But since the laws of nature do not care about marriage in any form, overcoming them is not required to legalize same-sex marriage.

sean s.

Dad29 said...

sean s: you are now posting like a troll.

Anonymous said...

Dad29 wrote: "sean s: you are now posting like a troll."

Ah. Lacking any rational arguments, you fall back on insults? And "troll"? That's the best you can do?

Anonymous said...


Rick is one of the Alliance Defense Fund lawyers suing on behalf of Appling's organization.


Anonymous said...

From the press release linked above:

“Over 1.25 million voters legitimately amended the state constitution in a fair election. This registry is nothing more than political payback from Governor Doyle to those who helped him get re-elected in 2006 and a stealth attack on marriage by those who are determined to redefine marriage in the Badger State. The Governor and the legislators who approved the registry will not get a free pass for being obviously more concerned with advancing the agenda of a fringe activist group than representing the people who elected them,” noted Appling.

Plaintiffs are represented by Wisconsin ADF allied attorneys Richard M. Esenberg, Michael D. Dean with First Freedoms Foundation, and attorneys Austin Nimocks and Brian Raum with the Alliance Defense Fund, which is serving as lead counsel.

Its Rick against the gays (i.e. the "fringe activist group").


Anonymous said...


I haven't read the full complaint yet, but on the face of it, this does seem to be evidence of Rick lying. I await whatever explanation he might have, but the evidence should not be ignored.

sean s.

Anonymous said...

It is very interesting that the complaint in Appling's action suggests that she and another woman and three unrelated guys all live at 222 S. Hamilton, Suite 24, Madison. That is the address of the plaintiffs stated in the caption, as required by 802.04(1), Wis. Stats. I wonder why they were unwilling to state their actual residence addresses.

Rick Esenberg said...


I am sure that you agree that suggesting that someone is lying is a rather serious thing and should not be undertaken lightly.

I certainly can understand why you might disagree with me. I am at a loss to know why you would think I might be lying.

If the point is that my stated support for "other reforms" implies that I must believe that the state's domestic partnership registry is consistent with Article XIII, sec. XIII of the state Constitution, that simply doesn't track.

I have stated my support for things like reciprocal beneficiary schemes and expanded ability to enter into private arrangements that might resolve certain practical problems. I do not support the creation of "marriage-like" legal statuses. I am generally opposed to any form of domestic partnership predicated on any form of intimate relationship. I think same sex marriage would be preferable to that.

You may think that the domestic partnership registries are not "marriage like" statuses. Perhaps the courts will agree with you. But I don't think that representing clients who seek to raise the issue is "lying."

Anonymous said...

I think some folks think you are lying, Professor, because you are representing a woman to whom truth seems, at times, a totally foreign concept. She said a varation of what you are now saying -- that the constitutional amendment wouldn't jeopardize domestic partnerships -- and then she changed her tune as soon as the voters spoke. Harsh words, perhaps, but they fit your client like a glove.

The Governor proposed, the legislature agreed, and now you truck off to court.

"But I'm not opposed to reasonable protections," you allege, but all you do is say no.

If you have an ounce of sincerity (and wish to rise above the character of your client), maybe there is a way for you to do what you say you believe. Why don't you produce the outline of a bill which would provide the "protections" which you claim to support? Then if the Republicans win the Governorship and both houses of the Legislature, you and your client can walk into the Capitol, arm in arm, and offer it up.

Again, if what you say is true -- and you aren't a liar -- why not try this route? It would go along way toward rehabilitating your reputation among the doubters.

I'm a happily (once) married Wisconsin native who is the parent of several heterosexual children. We don't have any gay relatives (to the best of my knowledge), but this issue strikes me as the Civil Rights issue of the 21st century.

sean s. said...


Suggesting that someone is lying is very serious. We agree. I did not suggest so lightly. However, in a past exchange on this topic, you criticized the Iowa Court (and other courts by implication) for their rulings in favor of same-sex marriage because they made any kind of “accommodation” unlikely. In this thread you stated that you’d support “certain reforms” but without being specific. Those, combined with your participation in the mentioned legal action seemed at the time to be contradictory; as if your offers of accommodation and flexibility were a mere gambit to put off difficult questions.

Now you are being more specific, and I accept that your comments were sincere, so I retract the suggestion you might be lying.

This still leaves open a number of questions: why support expanded options bringing same-sex relationships tantalizingly close to marriage without taking that process to full equality? Maybe a better way to ask this is to ask what benefits might a domestic partnership have that put it over the line in violation of Article XIII, sec. XIII of the state Constitution.

We are all familiar with the famous “bundle of rights” metaphor about marriage. Which rights do you think are appropriate, and which go too far? This is not a minor issue: your position is that a class of persons should be denied equal access to a range of rights and benefits; and so far it’s not clear what rights and benefits they should have access to. It’s like saying some people have no right to free speech except sometime, and without saying when “sometime” is. It would be hard enough to tolerate the denied free speech rights, but to tolerate the uncertainty about when I DID have this right would be too much. I don’t think you’d accept it lying down either.

You of course realize where I’m going with this: “where is the line?” leads to “why is it there”? Offers of “accommodation” or willingness to support “certain reforms” ring hollow if that middle ground turns out to be an uncertain wasteland of bureaucratic traps and flaming obstacles. That is why these complaints will continue, and why Courts will continue to find equal rights violations.

I have read the complaint posted on Wisconsin Family Action website regarding Appling v. Doyle. I understand if you cannot discuss the case here, but I notice that the complaint alleges no harm to the institution of marriage. Some day when you are free to talk about it, we can discuss how the weakness of the complaints mirrors the weakness of the anti-same-sex marriage argument.

sean s.

Dad29 said...

since the laws of nature do not care about marriage in any form

OK, not a troll. A juvenile, at best.

Procreation is a function which demands both male and female genitalia. The nature of humans provides both.

Not only is procreation limited to the conjunction of male and female, but procreation is part of the nature--one of the properties--and a basic drive, of human beings.

So "natural law" is concerned with marriage. Very concerned, both by design and by reason. It's not a co-incidence that reason and design intersect in this instance.

Since there will never be natural procreation between two females or two males, gay 'marriage' is, ipso facto, un-natural. It is the DEFINITION of un-natural.

And there is no "equal treatment" issue here, either--at least not in the real world. You may wish otherwise, but wishes....

Anonymous said...

Here's the "fringe activist group" Rick spends so much of his professional life attacking.


Anonymous said...

The number of comments that follow any posting by RIck on SSM shows that it is an important, hotly-contested issue of public policy. However, as a legal issue, it is a pretty easy call. The people of California, like the people of Wisconsin, have decided that a legal marriage should be defined as one man one woman. There is nothing at the federal level. or in anywhere a majority of states, that says drawing this line is irrational. In fact, "bigots" like Presidents Clinton, Obama, Congress, etc., support this definition. So, again, debate the hell out of this issue in the public policy arena, but as a legal matter, it shouldn't be a close call, Vaughn Walker notwithstanding.

sean s. said...


Your observations about nature and procreation are correct of course, but your equation of marriage and procreation is not. You have demonstrated that procreation is something that the laws of nature care about, but that is not something anyone disputed. My comment which you were replying to was that the laws of nature don’t care about marriage. Procreation is a whole ‘nuther thing from marriage.

Procreation without marriage happens, a lot. Marriage without procreation happens too. So there is no necessary, mandatory, nor required relationship between marriage and procreation, the laws of nature do not apply equally. In fact, the laws of nature do not apply to marriage at all.

Marriage already includes persons who can never or will never procreate, so the lack of procreation in a same-sex marriage is irrelevant. Same-sex marriage is no more unnatural than other marriages already recognized.

sean s.

sean s. said...

Anonymous at 9:37 pm;

You are partially correct: as a legal matter, legalizing same-sex marriage isn’t a close call. Other than that, you are wrong.

The whole point of individual rights (such as the right to equal protection) is that these are things no majority can take away. If a majority of voters decided to violate the rights of just one person, it’s the Job of The Courts to stop them.

It doesn’t matter that the People of California ratified Prop 8; nor that the People of Wisconsin ratified our ban, the people do not have the right to take away the equal rights of some unpopular minority without a rational purpose, and there is no rational purpose to banning same-sex marriage. If you think there is a rational purpose this would be the appropriate place to tell us what it is but don’t expect it to go unchallenged. If you review this thread you will see many rationale’s proposed and all have been shot down.

As I wrote before, all Judge Walker did was pull back the curtain to reveal the truth: opposition to same-sex marriage is built out of rationalizations on a foundation of prejudices and irrational fears. Legalized same-sex marriage is not an imposition on anyone and is an example of justice. J. Walker didn’t give anyone any rights; J. Walker isn’t the first judge to reach these conclusions, he didn’t invalidate the California referendum on Prop. 8; the Law did that. All J. Walker did was call a spade a spade.

Of course, at some point this thread will do dormant. Opponents of same-sex marriage have run out of reasons, and have little left to say and will tire of being shown wrong. The topic will come up again in a few months, and then these opponents will attempt to flog their dead horse back to life. This is not my first time around this block, and I am sure it won’t be my last.

sean s.

Anonymous said...

Odd that the Professor has apparently walked away from this discussion. I challenged him to draft a bill which contains the protections he believes that gay couples are entitled to. He did not respond. He may not be a liar -- the jury is still out-- but he surely is a hypocrite.

sean s. said...

Anonymous at 9:29 pm;

It is frustrating to be criticized for not "engaging" Rick's arguments, and then when you do (at length) to have the thread go quiet. It will be interesting to see if Rick et al. try to run with these same discredited arguments next time this issue flares up.

sean s.

AnotherTosaVoter said...


Guys like you were arguing about how interracial marriages violated natural law 50 years ago. Either guys like you were wrong, or nature adapted, as it always does.

In the end, your arguments are so weak and pathetic, it'd actually do you credit to just say, "I don't like gays, and I don't like the idea of recognizing their relationships".

Type it. It'll feel cathartic.

sean s. said...


It would be good if Dad29 and others could simply make the admission you suggest, but they would be crazy to do so. If Dad29 made the admission you suggest, we SHOULD respond that he’s entitled to his feelings but that these feelings are not a good enough reason to deny someone their equal rights. Instead, Dad29 can reasonably expect that if he made the admission you seek, it will result in crude insults and general bad manners; why would he enable that?

This is why all the insults and personal attacks are so bad. They may feel good, but they make getting to the heart of this issue impossible; at some point vital, unpopular feelings need to be acknowledged, but the reasonable expectation that they will result in mockery and invective leave Dad, Rick and others with the reasonable intention of not opening themselves up to that. So the conversation stalls, unable to get over the critical boundary.

As Rick might say, this is another good example of the Law of Unintended Consequences. And we are all the worse off for it. And please understand that I am not accusing you, TosaVoter, of any bad behavior. I’m just pointing out how the crudity we all have seen interferes with the debate.

sean s.